author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHEILA DOLL, Defendant-Appellant.
    Second District
    No. 2—83—0594
    Opinion filed July 27, 1984.
    Rehearing denied August 30, 1984.

      Mary Robinson, of Elgin, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

After a jury trial the defendant, Sheila Doll, was convicted of unlawful delivery of cocaine (Ill. Rev. Stat. 1981, ch. 56x/2, par. 1401(a)(2)). The Kane County circuit court sentenced her to six years’ imprisonment in the Department of Corrections.

On appeal the defendant asserts that the trial court erred on the following points: (1) by excluding evidence that a defense witness had been offered leniency in exchange for not testifying on behalf of the defendant; (2) by allowing the State to make a misleading argument that this same defense witness, who had pled guilty on a related charge in a related case, gave inconsistent testimony in the present case; (3) by allowing certain arguments which may have led the jury to believe the defendant was involved in unrelated criminal activity; and (4) by restricting defense counsel’s cross-examination of a State witness, Captain J. W. Smith.

On July 13, 1982, the defendant was indicted for unlawful delivery of more than 30 grams of a substance containing cocaine, a controlled substance, in contravention of section 401(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56x/2, par. 1401(a)(2)). Rodney Nally, a defense witness, was indicted on three counts of the same charge arising from the same transaction. The State’s motion to consolidate the Nally case with the present case was denied.

At trial Randall Kucaba, special agent with the Illinois Department of Law Enforcement, Division of Criminal Investigation, was the principal witness for the State. Kucaba testified that on the morning of July 13, 1982, he contacted Rodney Nally for the purpose of buying some cocaine from him. The parties agreed on a price of $2,775 and made arrangements to meet at a certain parking lot in Aurora at about 4 p.m. on the day in question. Agent Kucaba brought his partner, Theodore Rizo, with him and Nally indicated he would probably bring his brother, Ken.

Kucaba and Nally met at the parking lot at the agreed location, though Nally was late. Nally was driving a red 1974 Chevrolet and the defendant, not Nally’s brother, was with him in the car. Kucaba approached the vehicle and asked Nally where Ken was. Nally responded that Ken could not make it, so Sheila Doll came along instead.

Kucaba testified that he introduced himself to defendant and inquired if she was Nally’s wife. Defendant responded that her name was Sheila and that she was Nally’s “old lady.” Kucaba then asked if Nally had brought the ounce and a quarter with him. Nally had the cocaine in a woman’s cigarette case which he opened, and Kucaba could see a plastic bag inside. Kucaba explained that the quarter-ounce package was for him and the one-ounce package was for his partner, Agent Rizo, and that he wanted it in two separate packages. Nally glanced at Sheila Doll and Doll responded by saying something to the effect of “don’t worry, there’s two separate packages in there.” Kucaba indicated he wanted a sample of the cocaine prior to purchasing. He testified that Nally told him not to worry, it was good quality, and Sheila Doll agreed, stating they had done a “line” before they came down to Aurora. Kucaba explained that doing a “line” means inhaling an amount of cocaine in the nose. Kucaba took the sample back to his vehicle, and Agent Rizo did a field test (chemical) of a portion of the sample. Kucaba returned to the vehicle and exchanged $2,775 in marked money for the cocaine.

As Nally was counting the money Kucaba inquired as to whether or not they would be able to purchase 10 to 12 ounces of cocaine from him in the future. Kucaba testified that Sheila Doll responded by saying, yes, they could; it would take them about one day to come up with that much cocaine. Nally agreed with defendant. Kucaba testified that after Nally finished counting the money he handed it to Doll, Nally shook hands with Kucaba and Kucaba walked away with the cocaine. No arrest was made at the time. Kucaba testified as to the chain of evidence and that the tests performed on the substance indicated that it did contain cocaine.

On cross-examination Agent Kucaba testified that he identified Sheila Doll through the license plates on her vehicle. The colloquy which followed this statement is the subject of an issue discussed in more detail below. Kucaba testified that he made no arrests at the time of the July 13 purchase because he wanted to try to set up a larger buy. However, he was unable to set up another purchase with Nally in the ensuing months.

Agent Rizo corroborated the Kucaba testimony. A forensic scientist testified for the State that the total weight of the powder was 34.2 grams and that test results indicated that the substance contained cocaine.

The postmaster for St. Charles testified that he knew Sheila Doll because she was a regular rural carrier with that office. Her work records for July 13, 1982, reflected that she came to work on that day but went home sick. A substitute filled in for her position. A copy of the work sheet for that date was admitted as an exhibit for the State.

Rodney Nally was the principal witness for the defendant. He testified that he had been convicted of delivering cocaine as a result of the transactions described by Agent Kucaba. He had known the defendant for nine years and had had an on-and-off relationship with her over that period of time. During the course of their relationship he had abused her on many occasions and caused her various injuries. When the defendant had attempted to break off the relationship, Nally admitted he would go into a violent rage. He indicated he was using cocaine quite often and drinking a lot. Nally testified he was also seeing a girl named Cheryl Vivarino during the time prior to the July 13 delivery. He testified that on the day in question Cheryl was going to come by his mother’s house and pick him up and give him a ride. When Cheryl did not arrive he asked for a ride from Sheila, who had come to see Nally’s sister. Defendant told him she would not let him use her car because she did not want Nally’s sleazy girlfriends in her car. Nally said he was not going to do that and said she could come with him. Defendant indicated she would ride with him.

Nally testified that he drove the car on the trip to Aurora. He pulled into the parking lot at Gaylord’s and got out of the car to get the cocaine out of the trunk where he had put it. After Kucaba came up to the car Nally gave him a sample of the cocaine. At this point, according to Nally, the defendant figured out what was going on and said she wanted to get out of the car and he could pick her up later at the shopping center. Nally testified that he grabbed her by the arm and told her to stay in the car. Nally then introduced the defendant to Agent Kucaba. However, he testified, prior to their arrival at the parking lot, she had no knowledge of the drug deal and did not participate in any of the conversations that took place during the time of the deal. Nally testified that when Kucaba inquired about the quality of the stuff he did not say that he and defendant had done a “line.” Rather, he had used a needle and had “shot” some. Nally testified that if at any time he had told the defendant that he intended to use her car to make a drug sale she would not have let him use the car and he would end up “hitting” her and just taking the car. All he told her about going to Aurora was that he was going to meet someone at the shopping center. Nally testified that the defendant was afraid of him and she knew better than to talk back to him when he was doing something. He would have “beat her ass” if she got out of the car. Nally also stated that he had been offered a certain number of years by the State’s Attorney’s office on his case if he would agree not to testify on behalf of the defendant in this case. After the State objected, this line of inquiry was disallowed by-the court.

On cross-examination Nally was asked, when Kucaba asked him how good the stuff was, if he responded at the previous trial by saying “we just ‘took a line’ *** before we came down.” Nally stated that he guessed that defendant had said that, but Nally did not think defendant said anything of significance to Kucaba and that he had told her to agree with whatever Kucaba said.

The defendant testified that she had lived in Kane County for all but three years of her life and had been a regular rural carrier with the St. Charles post office for five years. She testified that Nally had lived with her for about a year, until June of 1982, but when she realized he was taking drugs frequently she tried to kick him out. She finally had to call the police to get him out. During that summer she had been injured by him on a few occasions and had filed charges against Nally for aggravated battery. She reiterated Nally’s testimony concerning how he had come to borrow her car on the day of the drug deal. She testified that during the ride she asked several times what they were going to do when they got to Aurora but that Nally kept shrugging off the question. She did not realize what was going on until she actually saw Nally pull the powder out from the pouch. At this point she said she wanted to leave and Nally told her to sit still and be quiet. She did not touch the money and had no conversation except to agree with whatever Nally said.

The St. Charles postmaster, Robert Mailer, testified that the defendant had worked for the post office for five years, that she had a good work record, and that she was honest and he knew of her reputation for honesty only through work. Three other postal employees testified to the defendant’s good reputation for truth and veracity. They indicated that their information was based on her conduct at work and at union activities.

As a rebuttal witness, the State called Captain Smith of the Elgin police department. He testified that he knew of the defendant’s reputation for truth and veracity and that she was not always known to be truthful. On cross-examination Smith testified he had obtained knowledge of her reputation by talking to individuals, but the court sustained an objection when defense counsel asked who those individuals were. Smith testified that he came to know of the defendant because he knew Rodney Nally.

During closing argument the State argued that the Nally testimony was incredible because he had pled not guilty at his own trial but then claimed he had done all the criminal acts in the present case. The State also pointed out that Nally had nothing to lose by testifying on behalf of defendant herein. It urged that the defendant’s reputation witnesses were limited to those who only knew her through her work; no one from outside the work environment testified.

After deliberation the jury found the defendant guilty as charged. The court sentenced her to a term of six years and denied the defendant’s post-trial motion.

The defendant’s first contention on appeal concerns the State’s alleged improper attack on the credibility of Rodney Nally, defendant’s key witness. Defendant argues that the State improperly challenged the Nally testimony in two ways. First, in excluding evidence that Nally had been offered leniency by the State’s Attorney if Nally would agree to abstain from testifying for defendant in this case, and secondly, by arguing that Nally’s not-guilty plea in his case was inconsistent with his testimony in this case.

The allegation that the State had offered a “deal” was elicited by defense counsel in his direct examination of witness Nally. The State objected and a discussion ensued in chambers. The State objected to allowing this in evidence because it was not relevant to the proceedings and argued there was no truth to the allegation. Defense counsel stated he could bring the public defender in to testify. The trial court sustained the objection, and the issue was not mentioned again.

Defendant contends that evidence of this offer for leniency was erroneously excluded because the bias of a witness, whether favorable or adverse, is always relevant on the issue of a defendant’s credibility. We disagree.

Although the character of a witness is generally relevant, inquiry into one’s reputation for truthfulness or untruthfulness is permissible only if the credibility of the witness has been attacked on that issue. (Tedens v. Schumers (1884), 112 Ill. 263.) Evidence of good reputation for truth and veracity is not admissible merely because one testified in a trial. Only after the credibility of the witness is placed in issue is the introduction of supporting reputation evidence warranted. (People v. George (1978), 67 Ill. App. 3d 102, 108, 384 N.E.2d 377, 381; People v. Griffith (1978), 56 Ill. App. 3d 747, 756, 372 N.E.2d 404, 411; E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 608.1, at 278 (3d ed. 1979).) Absent an attack on the credibility of a witness, no supporting evidence is allowed. (McCormick, Evidence sec. 49, at 102 (2d ed. 1972).) Although the State attacked Nally’s credibility at a later point in the trial, at the time Nally attempted to introduce evidence of his negotiations with the State his credibility was not in issue. Thus, the trial court ruled correctly in disallowing the testimony at the time it was offered.

In its reply brief, defendant argues -that the Illinois Supreme Court has approved the practice of anticipatorily allowing impeaching matter on direct examination. However, in this case defendant was offering evidence to bolster, not impeach, his testimony. Thus, defendant’s argument is inapposite.

Defendant also argues that the State objected to the evidence of Nally’s prior plea negotiations on the basis of its relevance, not on the basis of its timing. Thus, she urges, the objection to the timing of the evidence is waived on review. However, the relevancy of testimonial evidence generally must prove or disprove, or have some logical weight tending to prove or disprove, some fact in the case. (R. Hunter, Trial Handbook for Illinois Lawyers see. 29.5, at 407 (5th ed. 1983).) In the instant case the proffered testimony was not probative of a fact in issue, and thus was not relevant. Therefore, the objection on the basis of relevancy was proper.

The defendant next urges that an improper attack on the Nally testimony occurred in closing argument: The prosecutor argued to the jury that the Nally testimony should be rejected because Nally admitted to having pled not guilty at his own trial and then claimed that he, not Sheila Doll, had committed the criminal acts in this case.

This argument, it is urged, was misleading because, contrary to the State’s argument at trial, a plea of not guilty is not equivalent to an assertion that a person did not commit the acts constituting the crime. Defendant argues that although Nally pled not guilty, his defense was entrapment. Therefore, while he admitted commission of the acts, his entrapment defense was based on the fact that he was induced by a public officer into committing those acts. Thus, his not-guilty plea may have been consistent with his testimony in the case at bar. Therefore the State’s argument may have been misleading.

The State argues that while Nally’s guilty plea was referred to on two occasions in closing argument, the inconsistency was not merely in his plea, but in the fact that he testified under oath at his own trial. The State argues he had no right to testify falsely in either trial. Prior to responding to this argument, we note that the State also argues that defense counsel’s failure to object to this argument effectively waives the issue for purposes of review. (People v. Jackson (1981), 84 Ill. 2d 350, 359, 418 N.E.2d 739, 743.) Further, defendant did not specifically raise this issue in her post-trial motions.

In light of defendant’s failure to object at trial, or preserve this point in her post-trial motion, this issue may only be reviewed from a standpoint of whether or not it constituted “plain error.” (87 Ill. 2d R. 615(a); see also People v. Johnson (1979), 76 Ill. App. 3d 147, 151, 394 N.E.2d 919.) However, before the plain error doctrine will be considered as a means of circumventing the general waiver rule, it must be apparent from the record that an error affecting substantial rights occurred. People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227.

In the instant case the Nally testimony was critical to Sheila Doll’s defense. Nonetheless, the State’s attack on the credibility of that witness, even if it was improper, could only have damaged the already low level of truthworthiness of Nally. The jury was made aware that Nally had a number of previous criminal convictions, had previously sold drugs in quantity, and more importantly, it heard of the conflict between his testimony at his own trial and in the instant trial. Specifically, in the previous trial when Agent Kucaba asked how good the stuff was, Nally and defendant said, “Hey, we just had a — we just took a line while we — before we came down.” In the present trial Nally conceded that he said that they “both had a line;” he urges that he “wasn’t really thinking” when he said it. In any event this testimony does implicate defendant.

In light of Nally’s having been impeached by his own testimony from his trial and the other factors just discussed, the prejudice resulting from the State’s comments regarding his prior guilty plea, if any, was not so severe as to warrant a new trial. Although there is nothing in the record which conclusively shows that Nally did assert an entrapment defense at his trial, if he did it would mean his not-guilty plea was consistent with this testimony in the case at bar. For reasons discussed below, this cause is reversed and remanded for a new trial. If Nally’s defense at his trial was entrapment then the State should not argue, at this defendant’s new trial, that Nally’s not-guilty plea was inconsistent with his testimony that he committed the criminal acts of the case at bar.

The defendant’s next contention raised on appeal concerns certain alleged improper comments made by Agent Kucaba while being cross-examined by defense counsel. The colloquy in issue arose as follows:

“Q. As a matter of fact, isn’t it true the identification you made of Sheila Doll was through the license plates on the vehicle?
A. That’s correct. That’s how we identify a lot of people.
Q. Well, sometimes you know people, you identify them that way too, don’t you?
A. That’s correct.
Q. All right.
A. Also I checked with Elgin Police Department, they were aware of a girl named Sheila Doll who was Rodney Nally’s girlfriend.
MR. COLEMAN: I move that that answer be stricken if the Court please.
THE COURT: The answer will stand. You asked the question, Counsel.
BY MR. COLEMAN:
Q. What do you mean you checked with the Elgin Police Department?
A. When we’re dealing with people from their locality we check with them, let them know who we’re working on for any information, and the whole Nally family and their associates was quite well known.
MR. COLEMAN: Now I’m asking that be stricken and the jury instructed to disregard that, if the Court please.
THE COURT: The answer will stand. You asked the question, Counsel.
MR. COLEMAN: I didn’t ask for that volunteered information, if the Court please.
THE COURT: The answer will stand.”

Defendant’s post-trial motion objected specifically to the comment regarding “the entire Nally family.” On appeal, defendant contends the admission of this evidence was erroneous and it contributed to defendant’s conviction so as to warrant reversal of her conviction.

The first allegedly improper statement was that the Elgin police were aware of a girl named Sheila Doll who was Rodney Nally’s girlfriend. Though not responsive to a question pending, the statement was relevant to defense counsel’s line of questioning regarding how he identified the defendant. Nonetheless, on a retrial volunteered testimony should be avoided.

Defendant argues that similar testimony was determined to be reversible error in People v. Stover (1982), 89 Ill. 2d 189, 432 N.E.2d 262. However, close inspection of that case reveals that the cause was reversed on other grounds before the court even considered the issue of the arresting officer’s knowledge of defendant. In Stover, the prosecutor asked the arresting officer if he had been acquainted with defendant prior to the incident in issue. An objection was overruled, and the officer answered “yes.” The State argued that the question was probative of the issue of defendant’s knowledge that the officer was in fact a police officer. However, because it had already been established that defendant knew the officer’s status, defendant’s knowledge was no longer at issue. The Stover court noted that evidence that an arresting officer was previously acquainted with defendant “does not necessarily imply a criminal record.” (See also People v. Rogers (1940), 375 Ill. 54, 59.) However, in Stover the court directed that on retrial such inquiry not recur. The instant case is similar to the situation in Stover, except that, as mentioned above, Kucaba’s statement was brought out after defense counsel’s question on the identification of defendant. For this reason, and also because it has been held that such comments do not always imply criminal activity, the first Kucaba statement was properly allowed.

With regard to Kucaba’s statement that “the whole family and their associates was [sic] quite well known,” we believe that this statement was a response to defense counsel’s question. A defendant cannot complain of a response that is invited or provoked by defense counsel on cross-examination. (People v. Peter (1973), 55 Ill. 2d 443, 303 N.E.2d 398, cert. denied (1974), 417 U.S. 920, 41 L. Ed. 2d 225, 94 S. Ct. 2627.) On retrial, however, the focus of the State’s evidence should be centered on the defendant rather than on her relationship with the Nally family.

Defendant also contends that the improper inferences raised by the Kucaba testimony were heightened by the testimony of J. W. Smith, a captain with the Elgin police department. He testified he knew others who knew the defendant and she was “not always known to tell the truth all the time.” Defendant urges that this created the inference that defendant had done something to become a character known to the police. The State urges that, because defendant’s witnesses only knew her reputation at work, this testimony presents a more complete picture of defendant’s reputation in the community where she lived. It urges that this single, isolated, brief remark does not justify a reversal, and was proper under the circumstances. This comment was also referred to in closing argument. Defense counsel urged that, contrary to the State’s inference, the defendant had not ever been convicted of a crime, and if she had been, the prosecutor would have brought in proof of that conviction. Then, in rebuttal, the prosecutor told the jury that under the law a witness can only be impeached on prior convictions. Defendant argues that this creates the inference that defendant had police problems that could not legally be presented. Although this last inference of criminal activity is weak, a main theme of the State’s case was defendant’s vague connections with the police.

With regard to Captain Smith’s testimony, we note that defendant made no objection to Smith’s direct examination — as to foundation or otherwise. Thus, any issue concerning the foundation of the Smith testimony is waived on appeal.

Defendant also urges that error occurred during the cross-examination of Captain Smith. As indicated, Smith asserted that he knew defendant and her reputation for truth and veracity, and she was not always known to tell the truth. Then, on cross-examination defense counsel asked from whom Smith acquired his information about defendant. The State’s objection was sustained. Defense counsel also asked if the witness himself had had occasion to test defendant’s veracity. The State’s objection was sustained on this point as well.

Defendant contends that this was an improper limitation on the scope of her cross-examination of Captain Smith. She argues that her credibility was a crucial aspect of her case and it was essential that she be allowed to test Smith’s assertions that defendant had a bad reputation for truth.

The State argues that the attempted questioning was properly disallowed because it is improper to ask for opinions or evidence of particular acts of misconduct. (People v. Mertens (1979), 77 Ill. App. 3d 791, 396 N.E.2d 595, 606.) Defendant’s question of whether Smith himself had tested defendant’s veracity fit within this category. People v. Greeley (1958), 14 Ill. 2d 428, 152 N.E.2d 825.

Nonetheless, we believe Captain Smith’s testimony was improperly restricted when defense counsel was not allowed to ask from whom Smith had acquired his information. This was not a request for information about a particular act of misconduct. When a witness testifies to reputation, he or she may be asked whether he has actually heard the reputation discussed, by whom, when and where. (R. Hunter, Trial Handbook for Illinois Lawyers sec. 72.13, at 1075 (5th ed. 1983).) Thus, disallowing Captain Smith’s response was error.

The State contends that if error is found on this issue it should be considered harmless because the names of the sources would add little to the jury’s evaluation of defendant’s reputation. This is not necessarily true.

A defendant has the right to cross-examine State witnesses on any matter which will ,explain, modify or discredit what was said on direct examination. (People v. Strother (1972), 53 Ill. 2d 95, 99, 290 N.E.2d 201, 204; People v. Campbell (1975), 28 Ill. App. 3d 480, 328 N.E.2d 608, 616.) A defendant’s right to confront the witnesses which testify against him or her includes the right to cross-examine those witnesses. The right to an effective cross-examination is protected by both the United States and Illinois constitutions. (U.S. Const., amend. VI; Ill. Const. 1970, art. I, sec. 8; People v. Garrett (1976), 44 Ill. App. 3d 429, 358 N.E.2d 364, 370.) Although the right to cross-examination is a matter within the trial court’s discretion (People v. Foley (1982), 109 Ill. App. 3d 1010, 1014, 441 N.E.2d 655, 659), we believe the trial court erred in this regard.

Although the State urges that exploration of the basis for Captain Smith’s testimony would have been of little assistance to the jury, this contention is somewhat speculative. Smith may have been unable to remember from whom or where he heard about her reputation, in which case his testimony may have been far less convincing in the eyes of the jury. Thus, it cannot be found beyond a reasonable doubt that the error was harmless.

Standing alone, the strictures placed on Captain Smith’s testimony may not have been so severe as to warrant reversal. However, in light of the multitude of problems in this case — specifically the inferences of defendant’s criminal connections — we cannot say this error is harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) The jury in this case was presented with the question of whether to believe Agent Kucaba’s or the defendant’s version of the drug sale. Hence her credibility was a crucial issue. We think Captain Smith’s testimony was prejudicial and may have improperly influenced the jury in reaching their verdict of guilty. Although it is clear that specific acts of misconduct should not be brought out on cross-examination, the basis of Smith’s testimony should have been allowed.

Although the defendant was present at the scene of the crime, the evidence which shows she was aware of what was going on was limited. This emphasizes that her credibility was a key factor in the case. Defendant was entitled to explore the basis for Captain Smith’s assertions on cross-examination.

Because of this error, and because of the cumulative effect of the State’s vague allegations of prior misconduct, this cause must be reversed and remanded for a new trial.

Reversed and remanded.

LINDBERG, and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE TRAPP

license: Public Domain

text:
    C.S. JOHNSON COMPANY et al., Plaintiffs-Appellants, v. CHAMPAIGN NATIONAL BANK, Trustee, et al., Defendants-Appellees.
    Fourth District
    No. 4—83—0718
    Opinion filed August 2, 1984.
    Jerome P. Lyke and Arnold F. Blockman, both of Hatch, Blockman & McPheters, of Champaign, for appellants.
    D. Cameron Dobbins, of Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellee I.H. French Co.
    Robert P. Moore and Mary K. McCullagh, both of Moore & Associates, of Champaign, for appellee Champaign National Bank.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiffs, C.S. Johnson Co. and Champaign National Bank, as trustee under Trust No. 031-201-007, appeal an order of the circuit court of Champaign County dismissing their complaint on the grounds that it was not timely filed.

The original complaint was filed March 2, 1980. A second amended complaint stated that Champaign National Bank, as trustee under Trust No. 031-201-007, owned certain land containing a factory and buildings in Champaign, and that C.S. Johnson Co. was lessee of the land, factory, and buildings. This land was of lower elevation than that of property owned by I.H. French Co. and of property owned by Champaign National Bank as trustee under Trust No. 030-126-007 (defendant trustee).

Count I of the complaint alleged that both defendants have, since 1973, “subdivided and/or developed the upstream land by grading and paving streets, grading and asphalting parking lots, and constructing buildings and appurtenances.” Count I further alleged that the subdividing and developing altered the natural drainage pattern and unreasonably increased the flow of surface water from defendants’ land to plaintiffs’ land. The damages alleged in count I included the undermining of the floor and foundation of the factory and loss of production time while the premises were flooded.

Count II of the complaint alleged that the defendant-trustee and the beneficiaries of the defendant trust wilfully and wantonly violated “An Act to revise the law in relation to plats” (Ill. Rev. Stat. 1975, ch. 109, par. 1 et seq.) and violated a subdivision ordinance of the city of Champaign. Count III alleged that the defendant-trustee and the beneficiaries constructed a commercial building and arranged its downspouts in a manner which diverted approximately 1.6 acres of surface water into the watershed above plaintiffs’ land. Counts II and III alleged damages identical to those alleged in count I.

In their answers to interrogatories, plaintiffs stated that the increased flow of water onto their land was first noticed in the spring of 1978 and that from May 1978 to June 1982 there were 40 instances of increased flow which undermined the foundation of the factory.

Pursuant to motions filed by defendants, the trial court dismissed plaintiffs’ complaint with prejudice on the grounds that the action was ■ barred by section 13 — 214(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214(a)).

Section 13 — 214(a) provides:

“Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 2 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known such act or omission.”

Plaintiffs argue on appeal that section 13 — 214(a) is not applicable to the present case because defendants are being sued as owners of the upstream properties and that landowners are not persons described by this section.

The interpretation and construction of a statutory provision is governed by the rule that the intention of the legislature should be ascertained and given effect. (Harvey Firemen’s Association v. City of Harvey (1979), 75 Ill. 2d 358, 389 N.E.2d 151.) The language used in a statute is the primary source for determining the intent of the legislature. (General Motors Corp. v. Industrial Com. (1975), 62 Ill. 2d 106, 338 N.E.2d 561.) We initially observe that section 13 — 214(a) contains no reference to actions against owners of real property. Furthermore, it cannot be presumed that landowners always participate in the design, planning, supervision, observation or management of construction on their property. Consequently, it is unclear from the language of section 13 — 214(a) that the legislature intended the section to apply to actions against landowners. Where the statutory language does not adequately convey the legislative intent, the courts may look to the legislative history. See McQueen v. Erickson (1978), 61 Ill. App. 3d 859, 378 N.E.2d 614; Illinois Power Co. v. Mahin (1977), 49 Ill. App. 3d 713, 364 N.E.2d 597, aff’d (1978), 72 Ill. 2d 189, 381 N.E.2d 222.

House and Senate debates indicate that section 13 — 214(a) was enacted for the benefit of persons associated with construction activities on real property such as architects, contractors and engineers and that the section was not intended to apply to suits against landowners. A House sponsor of the bill, Representative Dunn, stated, “The purpose of this Bill is to provide some relief for professionals, who are trying to exercise their sound judgment in the design and construction of improvements to real property.” (Transcript of House Debates, May 25, 1979, at 32.) He also stated, “The purpose of this legislation is to put an end to frivolous law suits against these professionals, who are trying their best to exercise *** their sound judgment.” (Transcript of House Debates, May 25, 1979, at 35.) Other representatives were of the opinion that the bill did not apply to owners. Representative Leinenweber stated: “An owner *** of a building hires an architect to construct a building for him. The architect, at the end of 8 years *** is relieved of any responsibility if that building collapses. But, I tell you, the owner is not.” Transcript of House Debates, May 25, 1979, at 33.

Transcripts from the Senate debates show that the statute was intended to apply to architects, contractors and engineers. Senator Moore stated, “What this bill does is *** creates a Statute of Limitations for those, the hundreds of architectural engineering, contracting and subcontracting firms in Illinois that because of Judicial decisions *** the courts have held that, in effect, there is liability in perpetuity.” (Transcript of Senate Debates, June 22, 1979, at 116.) Senator Moore also stated, “This is the Statute of Limitations Bill for the engineers, architects and contractors.” Transcript of Senate Debates, October 30,1979, at 31.

We hold that section 13 — 214 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch 110, sec. 13 — 214) does not apply to actions against landowners where the action is based on the defendant’s status as a landowner, and not on an act or omission in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property.

Defendants argue that this case was brought within the purview of section 13 — 214(a) by the allegation in plaintiffs’ complaint that defendants had “subdivided and/or developed the upstream land by grading and paving the streets, grading and asphalting parking lots, and constructing buildings and appurtenances.” It is obvious from plaintiffs’ complaint and the pleadings that the plaintiffs did not intend to allege that defendants, I.H. French Co. and Champaign National Bank, were the parties who actually constructed the buildings and improvements on defendants’ land. Defendants have presented no evidence or arguments that they, in fact, designed, planned, supervised, observed, or managed the construction on their property. A statute of limitations is an affirmative defense and the burden rests upon the party asserting it to show its applicability. (Hood v. Commonwealth Trust & Savings Bank (1941), 376 Ill. 413, 34 N.E.2d 414; see Insurance Co. of North America v. Knight (1972), 8 Ill. App. 3d 871, 291 N.E.2d 40, appeal dismissed (1973), 414 U.S. 804, 38 L. Ed. 2d 40, 94 S. Ct. 165.) Defendants have failed to sustain this burden.

Defendants maintain that if actions against landowners are excluded from the scope of section 13 — 214, that section will constitute special legislation in violation of section 13, article IV, of the Illinois Constitution of 1970. (See Skinner v. Anderson (1967), 38 Ill. 2d 455, 231 N.E.2d 588.) We need not address this constitutional question since we have held that section 13 — 214 does not apply to the present case. We note, however, that this section has been upheld in the face of a constitutional challenge based on the prohibition against special legislation. Matayka v. Melia (1983), 119 Ill. App. 3d 221, 456 N.E.2d 353.

The judgment of the trial court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

MILLS, P.J., and MILLER, J., concur.


author: JUSTICE McNAMARA

text:
      In re MATTHEW SCHWASS et al., (Matthew Schwass et al., by their Guardian and Next Friend, Vicki Postillion, Plaintiff-Appellee, v. Nancy J. Sch-wass, Defendant-Appellant).
    First District (3rd Division)
    No. 83—2700
    Opinion filed July 25, 1984.
    Rehearing denied August 29, 1984.

      David J. Griffin, of Chicago, for appellant.
    Rolewick & McKillip, of Wheaton (David F. Rolewick and Thomas G. Kenny, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, Matthew Schwass and Pamela Schwass, by and through their guardian and next friend, Vicki Postillion, brought this action seeking the imposition of a constructive trust upon life insurance proceeds paid on the life of Charles Schwass to defendant Nancy Sch-wass. On cross motions for summary judgments, the trial court entered judgment in favor of plaintiffs. Defendant appeals.

Charles Schwass and Vicki Schwass, now Vicki Postillion, were married in 1962 and divorced in 1971. Two children, the plaintiffs, were born of this marriage: Matthew, born May 18, 1964, and Pamela, born March 30, 1966.

At the time of their divorce, Charles and Vicki entered a marital settlement agreement which was incorporated into their judgment for divorce. Paragraph 6 of that agreement provides in pertinent part:

“That the said minor children be named as co-equal irrevocable beneficiaries on all existing policies in existence as of September 1, 1971 on the life of Defendant and shall remain in force as such during the minority of said children. ***”

At the time of the divorce and until his death, Charles was employed by Commonwealth Edison Company and was covered under two group life insurance policies. At the time of the divorce, the amount of an insurance policy carried with Aetna Life Insurance Company was $24,000 and the amount of a policy carried with Travelers Insurance Company was $2,000. At the time of Charles’ death, the Travelers coverage had increased to $5,000, while the Aetna policy had been replaced by a different Aetna group policy, the benefit of which had increased to $63,000.

Charles and defendant were married in 1978. In 1979, they purchased a home in joint tenancy. Charles died on June 9, 1982. At that time Pamela was under the age of 18. After Charles died, Vicki learned that defendant was the named beneficiary on the life insurance policies and had received the insurance proceeds.

The trial court found that pursuant to the marital settlement agreement, both Matthew and Pamela were entitled to a constructive trust on the total amount of proceeds from both policies received by defendant. On appeal, defendant contends that her equitable right to the insurance proceeds is superior to any equitable right plaintiffs have; that Matthew does not have an equitable interest in the proceeds upon which a constructive trust may be imposed; and that Pamela’s equitable interest in the proceeds is limited to the policies and amounts in force at the time of the judgment of divorce.

Defendant initially contends that she has a superior equitable right to the insurance proceeds. She points to the facts that she had no knowledge of the terms of the divorce, that when she and Charles purchased a home securing a substantial mortgage she did not obtain additional insurance coverage because Charles told her she was the beneficiary on his life insurance policies, that her income is insufficient to make the mortgage payments, and that she had to pay various bills as a result of his death.

When marital settlement agreements require an insured to maintain life insurance for the benefit of a particular beneficiary, that beneficiary has an enforceable equitable right to the proceeds of the insurance policies against any other named beneficiary except one with a superior equitable right. (Appelman v. Appelman (1980), 87 Ill. App. 3d 749, 410 N.E.2d 199; Lincoln National Life Insurance Co. v. Watson (1979), 71 Ill. App. 3d 900, 390 N.E.2d 506.) In Brunnenmeyer v. Massachusetts Mutual Life Insurance Co. (1978), 66 Ill. App. 3d 315, 384 N.E.2d 446, the insured’s second wife, the named beneficiary on the life insurance policies, claimed a superior equitable right to the proceeds because the insured had been ill for a long time, had required costly care, and was destitute at the time of his death. The second wife also showed that she had limited financial resources, that there were outstanding bills, and that the children had other resources available to them. The Brunnenmeyer court found that these equitable considerations were insufficient to state a right to the proceeds which was superior to the rights of the children as set forth in the marital agreement. Similarly in the present case, the reasons stated by defendant, which are not as compelling as those rejected in Brunnenmeyer, fail to state a superior equitable right to the insurance proceeds.

Defendant also contends that the trial court erred in finding that Matthew, who had attained his majority before Charles’ death, has an equitable interest in the insurance proceeds.

Both parties agree that this issue turns on the interpretation of paragraph 6 of the marital settlement agreement which required decedent to designate his minor children as co-equal irrevocable beneficiaries of the policies. Defendant argues that the decedent was required to name Matthew as a beneficiary during his minority, while plaintiffs contend that decedent was obligated to designate both children as beneficiaries until Pamela reached her majority.

To determine the intent of the parties as expressed by the language of the contract, the contract should be considered as a whole, and none of the language should be rejected as surplusage. (White v. White (1978), 62 Ill. App. 3d 375, 378 N.E.2d 1255.) Here, the words “minor children” are used in paragraph 6 and throughout the divorce judgment and incorporated agreement. Since both children were minors at the time of the agreement, the word “minor” was not necessary to modify “children” if it was being used simply to identify the children of the parties. Thus, we agree with defendant that the use of the words “minor children” throughout the documents means that the related obligations need be performed only for the benefit of children who are in their minority.

A case cited by plaintiffs for a contrary result, Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12, does not support their position. In that case, a child support provision required the noncustodial father to pay a lump sum amount for the support of his minor children. Upon emancipation of each child the father unilaterally effected a pro rata reduction in the support payments. The court held that a lump sum amount for the support of more than one child is not subject to a parent’s automatic unilateral pro rata reduction upon a child’s emancipation. In so holding, the court did not find, as plaintiffs suggest, that the language “minor children” meant that the parent agreed to provide support for his subsequently emancipated children until the youngest reached majority. Rather, the court held that as the number of children to benefit under the award decreases, a parent cannot unilaterally reduce the amount of the award for the remaining children. The court still recognized that the father’s obligation related only to children who were in their minority.

Nor is our holding inconsistent with other language in paragraph 6. The required designation of the minor children as irrevocable beneficiaries simply means that the beneficiary designation could not be changed during the obligation period which, as stated above, continues for each beneficiary until he or she reaches majority. Although decedent was required to maintain the life insurance policies during the minority of the children, that requirement did not further obligate him to name Matthew as a beneficiary beyond his majority.

Since the obligation to name Matthew as a beneficiary terminated before Charles’ death and since Matthew was not named as a beneficiary on the insurance policies, he did not have an equitable interest in the proceeds upon which a constructive trust could be imposed. Pamela, on the other hand, was under the age of majority at the time of Charles’ death and has an equitable interest in the insurance proceeds. Pursuant to the insurance provision requirement that the minor children be named co-equal beneficiaries, which thereby granted each child during minority a one-half interest in the insurance proceeds, Pamela was entitled to a constructive trust on one-half of the insurance proceeds. See Riser v. Riser (1972), 7 Wash. App. 647, 501 P. 2d 1069.

Defendant contends, however, that if we find that Pamela has an equitable interest in the proceeds, her share in the proceeds should be limited to the amounts of the policies in effect at the time of the divorce judgment. The Aetna policy providing $63,000 in insurance benefits at the time of Charles’ death was not in effect at the time of the divorce. Since the policies in effect at that time totalled $26,000, defendant argues that Pamela could not be entitled to more than $13,000.

The fact that the Aetna policy in effect at the time of the divorce was not in effect at the time of Charles’ death is insignificant. In Ap-pelman v. Appelman (1980), 87 Ill. App. 3d 749, 410 N.E.2d 199, the first wife of the decedent sought a constructive trust on proceeds of a policy different than the policies referred to in the parties’ marital settlement agreement and which was acquired by the decedent 16 months after the divorce. Relying upon the holding in Simonds v. Si-monds (1978), 45 N.Y.2d 233, 380 N.E.2d 189, this court observed that the mere substitution or replacement of policies does not defeat one’s vested equitable interest and held that the first wife’s complaint stated a cause of action. Similarly here, the decision by decedent’s employer to replace one Aetna policy with a different Aetna policy did not affect decedent’s life insurance obligation and does not defeat Pamela’s equitable right to the proceeds of the insurance policy.

Although no Illinois court has specifically addressed the issue as to who is entitled to any increase in insurance benefits subsequent to a marital settlement agreement and divorce, the Appelman decision lends some guidance. There, the court cited McKissick v. McKissick (1977), 93 Nev. 139, 560 P.2d 1366, as authority for the imposition of a constructive trust on proceeds of insurance policies acquired after the divorce and subsequently increased. In McKissick, the decedent agreed to maintain a specific life insurance policy that had 'an alleged value of $50,000 for the benefit of his first wife and children. The described policy did not exist, and the three existing policies totalling $40,000 named the decedent’s second wife as beneficiary. Due to his accidental death, the insurance benefits of those policies tripled. To effectuate the intention of the husband in the agreement to provide life insurance for decedent’s first wife and children, the court awarded the entire sum to the first wife and children. The court stated that the increase in benefits belonged to those persons for whose benefit the insurance was required to be carried. Although the situation in McKissick is not identical to the present case, the opinion is instructive. In McKissick the court focused on the intention of the parties at the time of the agreement to determine who was entitled to the increased insurance benefits. See also Crozier v. Equitable Life Assurance Society (1983), 33 Wash. App. 828, 658 P.2d 39; White v. Michigan Life Insurance Co. (1972), 43 Mich. App. 653, 204 N.W.2d 772 (record of divorce proceedings clearly established parties’ intention to limit insurance benefits to the amount in effect at the time of the divorce).

In the present case, the language of the agreement provided that decedent’s minor children were to be beneficiaries of the insurance policies, not of any specified dollar amount. The amounts of insurance coverage provided under the group policies increased as the employee’s salary and length of employment increased. Since beneficiaries of a policy generally are entitled to the entire proceeds and nothing in the record suggests that the parties intended anything other than what was said in the agreement, that the minor children were to be the beneficiaries of the policies, we find that Pamela was entitled to her proportionate share of the entire proceeds distributed to defendant. (See Crozier v. Equitable Life Assurance Society (1983), 33 Wash. App. 828, 658 P.2d 39; Newton v. Newton (Colo. App. 1970), 472 P.2d 718; Carter v. Carter (1961), 202 Va. 892, 121 S.E.2d 482; but see Washington v. Hicks (1982), 109 Wis.2d 10, 325 N.W.2d 68.) Accordingly, Pamela is entitled to a constructive trust on the insurance proceeds received by defendant in the amount of $34,000.

For the reasons stated, the order of the circuit court of Cook County finding that Matthew was entitled to a constructive trust on the proceeds of the policies is reversed. The order finding that Pamela was entitled to a constructive trust on the insurance proceeds received by defendant is affirmed, and the amount of the constructive trust to which Pamela is entitled is set at $34,000. The cause is remanded to the trial court to enter judgment accordingly.

Affirmed in part; reversed in part and remanded.

McGILLICUDDY and WHITE, jj., concur.


author: JUSTICE HEIPLE

text:
      In re ESTATE OF EDWARD E. DAVIS, Deceased (Adelyn K. Davis, Plaintiff-Appellant, v. Lola Dolbeare, Indiv. and as Ex’x of the Estate of Edward E. Davis, Defendant-Appellee).
    Third District
    No. 3—84—0079
    Opinion filed August 8, 1984.
    Louis G. Lenard, of Joliet, for appellant.
    Samuel Saxon, of Saxon, Niznik, Peterson & Selfridge, of Plainfield, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

This action was brought by the assignee of an heir at law to contest the validity of the decedent’s will. The executrix filed a motion for judgment on the pleadings, and the court dismissed the complaint, finding that the assignee of an heir at law does not have standing to contest the validity of the decedent’s will. We affirm.

The decedent, Edward E. Davis, died on April 11, 1983. His will, which had been executed on April 9, 1983, was offered for probate on May 10, 1983.

On April 26, 1983, a copy of the decedent’s will was mailed to the attorney representing the decedent’s half-brother, Earl John Taylor. The will disinherited Taylor. On May 3, 1983, Taylor assigned his interest in the estate to Adelyn K. Davis, the divorced wife of the decedent. On May 11, 1983, Adelyn Davis filed her petition for letters of administration and was appointed administrator of the decedent’s estate on June 10.

On June 21, 1983, Lola Dolbeare was appointed executrix and the will was admitted to probate. The order appointing Adelyn Davis as administrator was vacated. On November 18, 1983, Adelyn Davis, as assignee of Earl Taylor, filed a complaint to contest the will. The complaint was dismissed on January 12, 1984. Davis appeals.

At common law, the right to contest the validity of a will was not assignable nor did the right survive the death of the possessor or descend to his heirs. (36 Ill. L. & Prac. Wills sec. 172 (1958).) This rule has been modified somewhat by section 8 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110 ½, par. 8 — 1), which now provides that the right to institute or continue a will contest survives the death of the possessor and, in the event of his death, descends to the heir, legatee, representative, grantee or assignee of the person entitled to institute the proceeding. Although the right survives the death of the possessor, this section does not provide for an inter vivos assignment.

When the decedent’s will was admitted to probate, Earl Taylor had no property interest in the estate because the will left him nothing. All Taylor possessed was the bare right to contest the validity of the will. (McDonald v. White (1889), 130 Ill. 493, 498.) This right was not assignable.

In order to avoid the effect of section 8 — 1, the appellant argues that Earl Taylor did not assign his right to contest the decedent’s will but instead assigned his one-seventh interest as an heir at law of the decedent. Thus, the appellant contends that she is an interested person in her own right under section 8 — 1. We disagree. What Adelyn Davis was attempting in this case was, literally, buying a law suit.

Earl Thylor assigned only his expectancy as one of the decedent’s heirs at law. Such an assignment is enforceable at equity and is regarded as a contract between assignor and assignee to convey the interest if and when it should vest in the assignor. (Dyblie v. Dyblie (1945), 389 Ill. 326; 3 Ill. L. & Prac. Assignments sec. 16 (1953).) Thus, the appellant has no vested interest in the decedent’s estate. Since the appellant is not an heir, her only claim is against Taylor as assignor if and when he should receive an intestate share of the decedent’s property. Therefore, the assignment of Taylor’s expectancy did not convey a sufficient property right to make the appellant an interested person under section 8 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110 xk, par. 8 — 1). The complaint was properly dismissed.

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

Affirmed.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE ALLOY JUSTICE STOUDER,

text:
    FREDERICK RICHARDSON et al., Plaintiffs-Appellees, v. ECONOMY FIRE & CASUALTY COMPANY, Defendant-Appellant.
    Third District
    No. 3-83-0473
    Opinion filed July 20, 1984.
    Rehearing denied September 5, 1984.

      STOUDER, P.J., dissenting.
    Peter C. Fieweger and Donovan S. Robertson, both of Katz, McAndrews, Durkee, Balch & Lefstein, P.C., of Rock Island, for appellant.
    Dorothea O’Dean, of Winstein, Kavensky, Wallace & Doughty, of Rock Island, for appellees.
   JUSTICE ALLOY

delivered the opinion of the court:

This appeal addresses issues certified by the trial court under Rule 308(a) of the Illinois Supreme Court Rules (87 Ill. 2d R. 308(a)), for which we granted leave to appeal. Two issues are whether the cause of action is barred by the statute of limitations and whether the cause of action in the amended complaint is barred by plaintiffs failure to file the amended complaint within the time specified by the court in its order of dismissal regarding the original complaint. Two other issues certified address the sufficiency of the complaint as amended. The first is whether the amended complaint should have been dismissed as a direct action against an insurer, contrary to public policy, and the second is whether the amended complaint states a claim against the insurer based upon fraud.

The record reveals that the plaintiffs filed their initial complaint against Economy Fire & Casualty Company, alleging personal injuries as a result of an accident with Economy’s insured, David Collier. While the complaint set forth Collier’s negligence and plaintiff’s subsequent injuries, the gravamen of the action against Economy was fraud in obtaining a release and settlement concerning the accident with Collier. The Richardsons alleged that through intentional misrepresentations during settlement discussions, Economy had defrauded them in obtaining a release and settlement. Their initial complaint sought both compensatory and punitive damages against Economy. Economy filed a motion to dismiss, arguing that it failed to state a claim for fraud and misrepresentation sufficient to set aside the release and settlement agreement. In addition, Economy contended the complaint should be dismissed as a direct action against an insurer for liability of its insured. The trial court dismissed the complaint, finding that it failed to allege the necessary elements for a fraud cause of action. Plaintiffs were given 14 days to refile an amended complaint. That order of dismissal without prejudice to refile was entered on July 9, 1981. On July 8, 1982, plaintiffs filed their amended complaint without first obtaining leave of court.

The amended complaint contained allegations of personal injuries suffered by plaintiffs as a result of the negligent actions of David Collier on September 2, 1979. It was alleged that damages in excess of $15,000 resulted from Collier’s negligence. No recovery against Collier was requested, however, nor was Collier a named defendant. The cause of action set forth against Economy was based upon fraud committed during the negotiations for settlement of the Richardsons’ claims against Collier. The amended complaint set forth Economy’s status as Collier’s insurer. It alleged that an agent of Economy contacted the Richardsons shortly after Frederick Richardson returned home from accident-related hospitalization. During settlement discussions, according to the allegations, Economy indicated that there were only two methods of settlement available. Either Economy would pay the medical expenses, which were substantial, or it would pay the Ri-chardsons directly, to use as they wished, $1,500 cash. The agent informed the Richardsons that Economy would have to make direct payments to the medical provider if the first alternative were chosen, though no liens existed at the time. It was further represented to the Richardsons that their medical bills were covered by public aid, and that they could obtain payment of the bills through public aid application. The amended complaint alleges that these statements by an agent of Economy were false and known by Economy to be false. Further allegations are that Economy made them with the intent to defraud and deceive the plaintiffs and with the intent that plaintiffs rely upon them. Allegations set forth that Economy knew the plaintiffs were in serious financial difficulty, unable to pay rent, utilities and other expenses at the time of the settlement discussions. The Ri-chardsons also state, by way of allegation, that they were induced by the factual representations of Economy to sign a release and settlement for the offered $1,500. Compensatory damages and punitive damages are sought for Economy’s fraud in obtaining the release and settlement.

Economy filed its motion to dismiss and strike the amended complaint, asserting: (1) that it was untimely filed, being not within the 14 days granted in the original dismissal order; (2) that it was barred by the statute of limitations since the accident occurred on July 9, 1979; (3) that it failed to state a cause of action for fraud, lacking allegations of false representations of existing fact; and (4) that it constituted an impermissible direct action against an insurer. The court, after hearing on the motion, denied the motion to dismiss and, in pertinent part for this appeal, the motion to strike. A motion for reconsideration of the decision on the motion to dismiss was also denied and the trial court thereafter certified the issues to this court. We allowed Economy’s application for leave to appeal.

The initial issue is whether the amended complaint filed by the Richardsons should be dismissed as untimely, in that it was not filed within the 14 days granted in the dismissal order concerning the initial complaint. It is within the sound discretion of the trial court whether to permit an amendment to the complaint at any time before final judgment. (Shroat v. Robins (1972), 7 Ill. App. 3d 293, 294, 287 N.E.2d 157; Prince v. Atchison, Topeka & Santa Fe Ry. (1981), 95 Ill. App. 3d 856, 860, 420 N.E.2d 737; Ill. Rev. Stat. 1983, ch. 110, par. 2 — 616(a).) In this case, as is apparent from the court’s denial of the defense motion to dismiss the amended complaint, the court exercised its discretion in plaintiffs’ favor and permitted the amended complaint to stand, even though it was filed long after the time limit set by the court previously. Economy argues that the previous dismissal, coupled with a failure to amend within the specified time, acted as an election to stand on the dismissed complaint, making it a final and appealable order from which no appeal was taken. We disagree. A number of cases have noted that a dismissal, with leave to amend, is not a final order such that the trial court loses jurisdiction after the requisite 30 days has expired. (Gray v. Starkey (1976), 41 Ill. App. 3d 555, 559, 353 N.E.2d 705; Martin v. Marks (1980), 80 Ill. App. 3d 915, 918, 400 N.E.2d 711; Branch v. European Autohaus, Ltd. (1981), 97 Ill. App. 3d 949, 951-52, 424 N.E.2d 6.) Rather, where a set time within which to amend has expired without such amendment, the trial court nevertheless retains jurisdiction over the cause and may, within its discretion, permit an amended complaint to be filed after the time previously specified. That is what occurred in the instant case, and there is no argument that the court, in permitting the amendment, abused its discretion. In People ex rel. Scott v. Carriage Way West, Inc. (1980), 88 Ill. App. 3d 297, 410 N.E.2d 384, relied upon by the defense, the trial court had exercised its discretion and denied the attempted late amendment. Also, as the appellate court emphasized, the plaintiff, in the interim, had filed a mandamus action. Under those circumstances, the court found that the failure to file within the time set by the court constituted an election to stand on the original pleadings. In the case at bar there was no additional circumstance indicating plaintiffs’ intention to stand on their original complaint, nor did the trial court exercise its discretion and disallow the late amendments. There was no error in permitting the filing of the amended complaint. Accordingly, we turn to that complaint and its sufficiency.

Economy asserts that the amended complaint must be dismissed because it is an attempt to assert a direct action against it, as insurer, for the negligence of its insured, David Collier. Such direct action suits against insurers are not permitted in Illinois. (Marchlik v. Coronet Insurance Co. (1968), 40 Ill. 2d 327, 239 N.E.2d 799. See also Ill. Rev. Stat. 1983, ch. 73, par. 1000.) The flaw in Economy’s argument here is not the law which is set forth, but its application of that law to the Richardsons’ complaint. The amended complaint is not seeking to hold Economy liable for the negligence of its insured in the accident. The basis of liability against Economy is its alleged fraud and misrepresentation in the settlement of the claims arising from the accident. The allegations in the amended complaint concerning Collier’s negligence merely set forth the pertinent factual circumstances prefatory to the fraud and misrepresentation claims against Economy. The amended complaint is not based upon Collier’s negligence, but upon Economy’s fraud and misrepresentation in settling the plaintiffs’ claims arising from that alleged negligence. As such, it is not an attempt to file a direct action suit against an insurer based upon an insured’s negligence.

The third issue is whether the amended complaint is insufficient to state a claim for fraud because it lacks allegations of the necessary elements for such a claim. We find the complaint sufficient, as did the trial court. Economy argues that the complaint does not contain sufficient allegations respecting misrepresentation of existing fact, reliance, and damages. It characterizes the allegations of fraud and misrepresentation as pertaining to opinions and as relating to future events, rather than existing facts. Economy casts the alleged fraudulent statements as the normal give-and-take of the parties to settlement negotiations. We disagree. Their agent’s statement indicating only two methods of settlement were available to the Richard-sons is a statement about an existing factual situation, despite the fact that any settlement was in the future at the time it was made. Similarly, the statement that Economy would have to pay medical expenses directly to the medical supplier is a statement concerning the existing factual situation imposed upon Economy at the time the statement was made. That payment would be in the future does not transform the statement into one about future contingencies. Further, there were statements allegedly made indicating to the Richardsons that public aid provided coverage for their medical bills and would pay them upon application. Implicit in a statement that payments would be made is an affirmative assertion about existing coverage and eligibility. These statements, alleged to have been made by Economy’s representative, are directed to the existing situation and the current status of the Richardsons and their claims at the time they were made. They concerned facts, not opinions, about that status and situation. We find them sufficient to state a cause of action for fraud. Furthermore, the complaint also contains sufficient allegations of the plaintiffs’ reliance upon the misrepresentations and the damages flowing from them so as to survive the motion to dismiss.

Economy suggests that the proper procedure to challenge the release was after it had been affirmatively pleaded in a suit against Collier. While that is one context within which to assert the invalidity of the release, it is not exclusive. The availability of that avenue does not foreclose proceeding as the plaintiffs have done in this case, on the basis of fraud and misrepresentation, directly against the insurer committing the alleged fraud. (See Meneghin v. Thunander (1962), 36 Ill. App. 2d 452, 184 N.E.2d 753; 37 Am. Jur. 2d Fraud & Deceit sec. 327 (1968).) Our decision in Blaylock v. Toledo, Peoria & Western R.R. Co. (1976), 43 Ill. App. 3d 35, 356 N.E.2d 639, does not hold, or even suggest, that an insurance company’s fraud in obtaining a release can only be raised by way of defense in a suit against the insured tortfeasor.

Finally, we totally reject the curious suggestion of the defense that the action against Economy for fraud is time barred because it was not brought within the statutory two-year period for the personal injuries action against Collier. The amended complaint before us and before the trial court, as already indicated, is for fraud and misrepresentation against Economy, not for negligence against Collier. The time limitations for actions against Collier are not relevant to the complaint against Economy.

The trial court correctly denied the defendant’s motion to dismiss plaintiffs’ action against Economy for fraud and misrepresentation.

The decision of the Circuit Court of Rock Island County denying the motion to dismiss and related motion to strike is affirmed.

Affirmed.

BARRY, J., concurs.

JUSTICE STOUDER,

dissenting:

I respectfully disagree with the result reached by my colleagues. I believe the complaint fails to state a cause of action and I would hold that pursuant to the certified issue of law presented to and accepted by this court for review under Supreme Court Rule 308(a) (87 Ill. 2d R. 308(a)) the complaint should have been dismissed.

There are two basic propositions which are at the heart of this controversy. The first is the well-established policy in Illinois which prohibits a direct action against an insurance company to recover damages for injuries caused by the company’s insured. This policy is so well established that the mere mention that a tortfeasor may have insurance may result in reversible error.

The second proposition is, I believe, equally clear and that is an insurance company may be liable for the fraudulent misrepresentations of its agent which induced the execution of a release of liability of the company’s insured.

Since the first proposition contemplates no direct action against an insurance company and the second proposition does contemplate such direct action, how can the propositions be reconciled? The insurance company would reconcile these issues by arguing that if the release was induced by fraudulent misrepresentation, the direct action against it would be for rescission only which, if successful, would be followed by the usual tort action against the insured for damages caused by the insured. On the other hand, the plaintiff insists that because there was fraudulent misrepresentation inducing the execution of the release he is entitled to recover directly from the insurance company the damages caused by the insured.

Neither party nor the majority have found any authority supporting either contention which they make. This issue does not appear to have been presented in Illinois, although it has occurred in other States, including States which like Illinois have policies against direct actions against insurance companies. In none of the other jurisdictions have I been able to find authorities which hold that rescission is the only remedy available where a release has been secured by fraudulent misrepresentation, and likewise I find no authorities which permit the recovery of damages for fraudulent misrepresentation based on the damages caused by the tortfeasor. Although several of the decisions from other jurisdictions have discussed limiting the remedy to rescission where it is claimed a release was secured by fraudulent misrepresentations, this limiting restriction has generally been rejected. See also Farm Bureau Mutual Insurance Co. v. Seal (1962), 134 Ind. App. 269, 179 N.E.2d 760; Montoya v. Moore (1967), 77 N.M. 326, 442 P.2d 363; Brown v. Ocean Accident & Guarantee Corp. (1913), 153 Wis. 196, 140 N.W. 1112; Annot., 58 A.L.R.2d 500 (1958).

Although rescission could be the exclusive remedy to secure relief from the release induced by fraudulent misrepresentation and such a rule might be consistent with our Illinois policy against direct action against an insurance company, it is usually held in other jurisdictions the party deceived has an election of remedies. Such party may either elect to commence an action to rescind the release or bring an action at common law for damages for fraud and deceit. (Kordis v. Auto Owners Ins. Co. (1945), 311 Mich. 247, 18 N.W.2d 811.) However, where the election has been made to seek damages for fraud and deceit, the damages so recoverable are necessarily related to and restricted to those caused by the misrepresentation. The damages recoverable are not those which might have been recovered in an action against the tortfeasor, but only those which are proximately caused by the false misrepresentation. As a New York court said in Ahern v. General Accident, Fire & Life Assurance Corp. (1963), 19 App. Div. 2d 883, 244 N.Y.S.2d 347, a case strikingly similar to this case where plaintiff sought to recover a sum he would have received in a trial against the original tortfeasor, “in attempting to prove his damage he asserts that had the release not been given he would have been able to obtain an attorney who would have been able to trace competent witnesses who would have testified in such a manner as would have resulted in a verdict for the plaintiff. That is entirely speculative.” (19 App. Div. 2d 883, 883, 244 N.Y.S. 2d 347, 349.) Both in Ahern and in Kordis the court allowed that an allegation that the difference between the value of the settlement at the time the release was procured was substantially in excess of the settlement fraudulently obtained was a sufficient allegation of damage to sustain a claim for fraudulent misrepresentation. No such allegation of damages is contained in the complaint filed in this case. Therefore, I would have held that Richardson’s complaint failed to allege any recognizable pecuniary loss because recovery in a trial of his personal injury claim was too speculative.

Finally, in passing, there are several issues not addressed by the trial court because of the manner in which it determined to resolve the major issue. However, I have grave doubts that the allegations in the complaint do sufficiently allege false misrepresentation by the company’s agent or that the remedy based on loss of consortium is appropriate or that the amended complaint was properly filed long after the period allowed therefor had expired, without a showing of due diligence.


author: JUSTICE JONES

text:
    DALE McANELLY, Plaintiff-Appellant, v. LEONARD GRAVES et al., Defendants-Appellees.
    Fifth District
    No. 83—244
    Opinion filed August 7, 1984.

      Keith W. Kibler and Paul Thomas Austin & Associates, both of Marion, for appellant.
    Winters, Garrison, Brewster, Permar, Speroni & Murphy, of Marion, for appellees.
   JUSTICE JONES

delivered the opinion of the court:

Plaintiff, Dale McAnelly, brought the instant action as lessee under a coal lease to recover an advance royalty payment made to lessors Leonard and Sandra Graves. Following execution of the lease, the lessors had transferred their interests in the leased property to defendants William Carlton and Bi-State Coal Company, Inc. (Bi-State). Carlton, one of the lessors’ successors in interest, terminated the lease without refunding the advance royalty payment as provided by the lease, and the plaintiff subsequently sought recovery of this payment against both the original lessors and their successors in interest, Carlton and Bi-State. The trial court, upon motion by defendants Carlton and Bi-State, dismissed with prejudice those counts of the plaintiff’s complaint directed towards them, and the plaintiff has appealed from that ruling. We reverse.

From the record on appeal it appears that the plaintiff, on June 13, 1979, entered into a coal lease with Leonard and Sandra Graves under which the plaintiff was given the right to conduct mining operations upon property owned by the Graveses for a period of five years or such longer time as he needed to mine all removable coal from the property. Under the terms of the lease, the plaintiff made an advance royalty payment to the Graveses of $35,000 to be credited against later payments of earned royalties. The lease provided that the Graveses as lessors had the right to terminate the lease if the plaintiff had failed to begin mining operations within 24 months after execution of the lease. In the event of such a termination, $30,000 of the advance royalty payment was to be refunded to the plaintiff, with $5,000 to be retained by the lessors as rental for the use of the property during the period of inactivity. The lease further provided that it was “subject to” the lessee’s obtaining all necessary mining permits and stated that, if such permits were not issued, the lease was to be of no force and effect and the entire advance royalty payment was to be refunded to the lessee within 15 days. The lease was silent as to what length of time the plaintiff had to obtain the necessary permits. By a further provision the lease was made binding upon the heirs, legal representatives, successors and assigns of both the lessee and lessors.

Sometime after execution of the lease, the marriage of Leonard and Sandra Graves was dissolved, and Leonard Graves transferred his interest in the leased property to William Carlton. The plaintiff alleges that Carlton thus acquired a one-half interest in the subject real estate, although it is unclear from the record what interest was conveyed to Carlton. At the time of the transfer, the coal lease in question had been duly recorded in the county clerk’s office.

On an unspecified date in July 1981, William Carlton sent a “Notice of Termination” to the plaintiff in which he purported to terminate the coal lease of June 17, 1979 [sic], for failure to begin mining operations on the leased property within 24 months after execution of the lease. Carlton expressly referred to the clause in the lease providing for such termination by the lessor and signed the notice as “Owner of land and assignee of lessor.” Subsequently, on August 6, 1981, Carlton executed a quitclaim deed of his interest in the property to Bi-State. On that same date Sandra Graves, now Sandra Beasley, also conveyed her interest in the property to Bi-State by a quitclaim deed.

On October 20, 1981, the plaintiff brought suit to recover that portion of the advance royalty payment due him under the lease. Count I of the plaintiff’s complaint was directed towards the Graveses, while counts II and III sought recovery from Carlton and Bi-State, respectively. Sandra Graves confessed judgment to count I of the plaintiff’s third amended complaint and later declared bankruptcy. Defendants Carlton and Bi-State moved for dismissal of counts II and III directed towards them, and the trial court, after hearing arguments of the parties, entered judgment in their favor, finding that there was no just reason for delaying enforcement or appeal of that judgment. See 87 Ill. 2d R. 304(a).

In this appeal from the judgment of dismissal, the plaintiff contends that, by taking the property in question subject to the existing lease, defendants Carlton and Bi-State became successors in interest to the original lessors and thus were bound by the obligations imposed under the lease. Although there was no express assignment of the lease between the Graveses and defendants Carlton and Bi-State, the plaintiff maintains that the lessors’ promise to refund part of the advance royalty payment upon termination of the lease constituted a covenant running with the land, which passed to defendants Carlton and Bi-State upon their acquisition of ownership in the land. The defendants counter, however, that the promise to repay contained in the lease was a personal covenant, binding only upon the original lessors who actually received the advance royalty payment in question. As a further justification for the trial court's ruling, defendants Carlton and Bi-State assert that, under the lease provision making it “subject to” the lessee’s obtaining all necessary mining permits, the lease never actually became effective because of the lessee’s undisputed failure to obtain such permits. The defendants characterize the provision regarding mining permits as a condition precedent to formation of the lease contract and contend that, by reason of the plaintiff’s failure to fulfill this condition precedent, both the original lessors and they as successors in interest were relieved of any obligation to perform under the lease.

Addressing the defendants’ latter argument, we note that a condition precedent is one that must be met before a contract becomes effective or that is to be performed by one party to an existing contract before the other party is obligated to perform. (Lyntel Products, Inc. v. Alcan Aluminum Corp. (1981), 107 Ill. App. 3d 176, 437 N.E.2d 653; Godare v. Sterling Steel Casting Co. (1981), 103 Ill. App. 3d 46, 430 N.E.2d 620.) Whether an act is necessary to formation of the contract or the performance of an obligation under the contract depends upon the facts of the case (National Dairymen Association v. Dean Milk Co. (7th Cir. 1950), 183 E2d 349, cert. denied (1950), 340 U.S. 876, 95 L. Ed. 637, 71 S. Ct. 122; Lyntel Products v. Alcan Aluminum Corp. (1981), 107 Ill. App. 3d 176, 437 N.E.2d 653), and where a condition goes solely to the obligation of the parties to perform, existence of such a condition does not prevent the formation of a valid contract. National Dairymen Association v. Dean Milk Co. (7th Cir. 1959), 183 F.2d 349; Richardson v. Snipes (1959), 46 Tenn. App. 494, 330 S.W.2d 381.

Here, the language and circumstances of the lease in question belie the defendants’ contention that formation of the contract was dependent upon the plaintiff’s obtaining the necessary mining permits. The lease itself did not require the permits to be issued before it became effective (cf. In re Estate of Albrecht (1975), 27 Ill. App. 3d 839, 840, 327 N.E.2d 317, 318 (provision that employee “shall be insured” under group insurance policy upon completing application for insurance created condition precedent to formation of insurance contract)) but, rather, reflected the parties’ intention to be bound pending the issuance of such permits. (Cf. National Dairymen Association v. Dean Milk Co. (7th Cir. 1950), 183 F.2d 349 (requirement of export permit not condition precedent to making of contract but only condition precedent to defendant’s obligation to perform).) The lease thus resembled those contracts in which the parties’ obligation to perform is conditioned upon the happening of a collateral event, such as approval by a court or commission (see Watson Brothers Transportation Co. v. Jaffa (8th Cir. 1944), 143 F.2d 340) or rezoning of property to be conveyed (see Richardson v. Snipes (1959), 46 Tenn. App. 494, 330 S.W.2d 381). (See 3A Corbin, Contracts sec. 649 (I960).) In such cases, Corbin states, “it is quite incorrect to say that until the event occurs there is no contract; neither party has the privilege of revocation and no further expression of assent by the two parties is necessary.” (3A Corbin, Contracts sec. 649), at 111 (1960).) Under this interpretation of the lease provision, then, we find no merit in the defendants’ contention that no contract existed between the parties for lack of the required permits.

In this same vein, the defendants assert that issuance of the mining permits was a condition precedent to their obligation to perform under the lease and that, since the lessee had failed to obtain the permits at the time the lease was terminated, they were relieved of any obligation to refund the advance payment as provided by the lease. This argument, too, misapprehends the nature of the condition involved. It is evident that the provision making the lease subject to the issuance of mining permits was included in the lease for the benefit of the lessee to protect him in the event he was unable to obtain the permits necessary to conduct mining operations on the property in question. This requirement was thus a condition precedent to the lessee’s duty to perform and, as such, could be waived by the lessee, leaving the other parties bound under the contract as if no condition had existed. See 3A Corbin, Contracts sec. 761 (1960); cf. Richardson v. Snipes (1959), 46 Tenn. App. 494, 330 S.W.2d 381 (condition in land sale contract requiring rezoning of property to be conveyed could be waived by buyer for whose benefit it was made); see also Funke v. Paist (1947), 356 Pa. 594, 52 A.2d 655; Major v. Price (1954), 196 Va. 526, 84 S.E.2d 445; Johnson v. Lehtonen (1957), 151 Cal. App. 2d 579, 312 P.2d 35.

As discussed by Corbin, a provision such as that here involved that a contract shall be “null and void” upon failure of a required condition is seldom meant to be taken literally. Rather, the provision is put in to limit the duty of the one to whose benefit the condition inures; “it is not to give a loophole of escape from the contract to the other party. *** Like other conditions, such a condition *** can be waived by the promisor whose duty is conditional. [If the condition is not met], he can overlook defects and still require such performance as is possible. The other party is not discharged from duty, and has no power to free himself from duty.” 3A Corbin, Contracts sec. 761, at 518 (1960).

Notwithstanding the plaintiff’s failure here to obtain the necessary permits prior to termination of the lease by the defendants, he made no attempt to cancel the lease on this basis and so may be said to have waived the condition that existed in his favor. The defendants, therefore, cannot seek to avoid their obligation under the law for failure of the lessee to satisfy this condition. In addition, the defendants have themselves affirmed the validity of the lease by invoking the provision for termination of the lease upon failure of the lessee to begin mining operations within two years of its execution. Although the termination was actually made by defendant Carlton, defendant Bi-State has claimed the benefit of this termination as successor in interest to Carlton. Where the defendants have thus taken advantage of the right to terminate under the lease, they cannot escape the corresponding duty to refund the advance royalty payment as provided by the lease. (Cf. Corbett v. Devon Bank (1973), 12 Ill. App. 3d 559, 574, 299 N.E.2d 521, 530 (“a party cannot affirm a contract in part and repudiate it in part; he cannot accept the benefits on the one hand while he shirks its disadvantages on the other”).) For these reasons, we reject the defendants’ contention that they were relieved of all liability under the lease for failure of the lessee to obtain the required mining permits.

Having determined that the lease was a valid contract binding upon those coming under its terms, we next consider whether the lessors’ promise in the lease to refund a portion of the advance royalty payment upon termination of the lease for failure to begin mining operations within two years constituted a covenant running with the land so as to bind defendants Carlton and Bi-State as successors in interest to the lessors. It is well settled that a grantee of leased property takes the property subject to the lease, and the rights and liabilities existing between the grantee and the lessee are the same as those existing between the grantor and the lessee. (51C C.J.S. Landlord & Tenant sec. 258(2) (1968); cf. Adkins v. Adams (E.D. Ill. 1944), 54 E Supp. 944, aff’d (7th Cir. 1945), 152 F.2d 489 (conveyance of property subject to mining lease conveyed fee simple title subject to burdens of the lease. Grantee acquired right to all rents and royalties as well as reversionary interests); see also 26 Ill. L. & Prac. Mining, Oil & Gas sec. 78 (1956).) While a grantee will not be bound by a covenant in the lease that is merely personal and collateral to the leased property, both the grantee and the lessee will be bound as against each other by covenants affecting the use, value and enjoyment of the property in question. 51C C.J.S. Landlord & Tenant secs. 240, 258(2) (1968).

The instant mining lease gave to the lessee the right to find and reduce minerals to possession, with the stated royalty to be paid for the minerals so recovered. (See Central Pipe Line Co. v. Hutson (1948), 401 Ill. 447, 82 N.E.2d 624; People ex rel. Hargrave v. Phillips (1946), 394 Ill. 119, 67 N.E.2d 281.) The provision, then, calling for a refund of royalties paid in advance for coal that had not been mined went to the very essence of the lease and could not be said to be collateral to the interest there conveyed. While the defendants contend that the promise to repay was a personal obligation of the lessors who actually received the payment in question, it may be presumed that the defendants themselves received credit for the advance royalty in the form of a reduced purchase price for the leased property. Since, under the lease, any royalties paid to the defendants would be offset by the advance royalty already paid, the defendants’ lessened interest in the mineral estate should have been reflected in the price paid for the land. (See Armstrong, Coal: Leasing and Purchase of Mineral Interests, in Mineral Law, Ill. Inst. Cont. Leg. Educ. sec. 8.13, at 8-35 (1982, Supp. 1984).) The record, however, is unclear regarding this matter, and our holding that the obligation to refund upon termination of the lease constituted a covenant running with the land does not depend upon this assumption.

There can be no question that the right to terminate under the lease was itself a benefit that passed with ownership of the land (cf. Hirschberg v. Russell (1943), 317 Ill. App. 329, 45 N.E.2d 886 (right to terminate lease upon stated conditions constitutes covenant running with the land and passes to successive grantees of original lessor); see 51C C.J.S. Landlord and Tenant sec. 258(2), at 675 (1968)), and it appears that the duty to refund unearned royalties upon termination was a corresponding burden that likewise ran with the land. (See generally Commissioners of Highways v. United States (N.D. Ill. 1979), 466 F. Supp. 745, aff’d in part, rev’d in part (7th Cir. 1981), 653 F.2d 292 (covenant imposing duty or burden runs with the land as readily as one conferring benefit).) The defendants, upon taking the property subject to the lease, had the option of either waiting until the lease ended by its terms for lack of production after five years or invoking the termination clause so as to gain possession and control of the coal. By exercising the right to terminate under the lease, the defendants acquired an unencumbered interest in the coal that could be sold or leased to a third party. The defendants thus derived a valuable benefit from the right to terminate and must be presumed to have known and accepted the consequences of this action.

Because of our holding that the obligation to refund passed to the defendants as successors in interests to the lessors, we reverse the trial court’s judgment dismissing those counts of the plaintiff’s complaint directed towards them and remand for further proceedings on the complaint. We note, however, that the plaintiff has sought a refund in the amount of $30,000 in the apparent belief that the entire lease was cancelled by defendant Carlton’s notice of termination. From what appears in a rather vague record, though, defendant Carlton had acquired at most a one-half interest in the leased property when he purportedly terminated the lease, and he could not, therefore, have terminated the lease insofar as it extended to property he did not own. Since the original lessors’ interest in the leased property was divisible and assignable, we see no reason why the lease could not have been terminated as to part of the property while continuing as to the rest. If so, defendant Carlton’s obligation to refund upon termination of the lease would have been reduced proportionately.

Defendant Bi-State, on the other hand, claims to have acquired the property in question free from the lease and its accompanying obligations because it took from defendant Carlton and from Sandra (Graves) Beasley, one of the original lessors, after the lease had been terminated by defendant Carlton. Since this termination could only have been effective as to the interest Bi-State acquired from Carlton, the lease would have continued as to the interest acquired from Sandra Beasley and may now have expired by its terms for lack of production after five years. If so, defendant Bi-State would have no obligation as to this portion of the lease and could so assert as an affirmative defense to the plaintiff’s complaint. Since, however, defendant Bi-State also succeeded to defendant Carlton’s interest in the leased property, it would be liable in the same way defendant Carlton was for the obligation to refund that passed with ownership of the land. We therefore reverse the judgment of the circuit court of Williamson County and remand this cause for further proceedings.

Reversed and remanded.

WELCH, P.J., and HARRISON, J., concur.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS ex rel. KENT BOSWORTH, County Treasurer and Ex-Officio County Collector, Plaintiff-Appellee, v. ROBERT L. JUNGLES FAMILY TRUST, Defendant-Appellant.
    Third District
    Nos. 3—83—0737 through 3—83—0741 cons.
    Opinion filed June 29, 1984.
    Rehearing denied September 5, 1984.

      Robert L. Jungles, of Joliet, for appellant, pro se.

    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin, of State’s Attorneys Appellate Service Commission, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

This appeal stems from an action brought by the plaintiff Will County treasurer for judgment and sale of property owned by the defendant Jungles because of the owner’s nonpayment of real estate taxes. The defendant contested the application for judgment and sale on grounds hereinafter set forth. The trial court ruled adversely to the defendant and this appeal ensued.

The defendant first presents a procedural claim, to-wit, that he was appearing specially before the trial court for the purpose of objecting to the court’s jurisdiction and hence the trial court’s entry of judgment and order of sale was erroneously entered. We disagree, since the defendant did not question the service of process relating to the court’s personal jurisdiction over him but actually submitted to the court’s jurisdiction and presented a substantive argument.

The defendant also claimed that the tax bill he received was void for vagueness because there was no dollar sign affixed to the face of the bill. This is specious argument, since an examination of the bill in its entirety discloses that rates are based on each $100 valuation and that payment of the taxes may be paid by checks and money orders drawn in United States currency. It should be noted that the tax bill does not mandate payment by check or money order but permits such methods of payment. The bill could have been paid in cash by the use of United States currency.

The brief of the defendant requires a close examination in order to pinpoint his underlying contention. Ancillary and derivative issues raised by the defendant all are related to and will rise or fall with the defendant’s argument that since the dollar has been disconnected from the specie standard, neither he nor anyone else in Illinois has to pay taxes of any kind and real estate taxes in particular, because the collector (in this instance the county treasurer as ex officio county collector) cannot accept standard United States currency, such as Federal reserve notes, in payment thereof.

The basic contention of the defendant, while interesting and naturally somewhat appealing, is devoid of any merit. Our United States Congress has by statute provided as follows:

“Sec. 5103. Legal Tender.
United States coins and currency (including Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal tender for all debts, public charges, taxes, and dues. Foreign gold or silver coins are not legal tender for debts.” (31 U.S.C. sec. 5103 (1982).)

Our paper currency is entitled “federal reserve note” and imprinted thereon are the words, “This note is legal tender for all debts, public and private.”

The founding father Benjamin Franklin authored correspondence in which he made the oft-repeated assertion that in this world nothing is certain but death and taxes. (Letter from Benjamin Franklin to M. Leroy (1789).) While the defendant’s contention and argument is interesting, ingenious and of course appealing, it does not dislodge the certainty that exists regarding the payment of taxes.

As noted, the instant case concerning the defendant Jungles was consolidated for hearing and determination with cases Nos. 3—83—0738, 3—83—0739, 3—83—0740 and 3—83—0741. The decision reached in the instant case is also determinative of the aforesaid consolidated cases.

Taken for disposition with this case is a motion by the defendant to reverse the decision of the trial court and to dismiss the appeal. Plaintiff filed objections to this motion and defendant filed a motion praying for leave to reply to the objections. We grant this latter motion and having examined the motion, objections thereto, and reply to the objections, we further deny the motion of the defendant on the twofold grounds that first, the defendant attempts to introduce by a motion new issues, and secondly, the reasoning set forth in this opinion dictates a denial of defendant’s motion.

For the reasons set forth the judgment of the circuit court of Will County is affirmed.

Affirmed..

HEIPLE and STOUDER, JJ., concur.