author: JUSTICE STOUDER

text:
    SHIRLEY ANN JOHNSON, Plaintiff-Appellant, v. THE DEPARTMENT OF PUBLIC AID et al., Defendants-Appellees.
    Third District
    No. 82—61
    Opinion filed October 19, 1982.
    Duane D. Thompson and Dean L. Sutton, both of Prairie State Legal Services, Inc., of Rock Island, for appellant.

      Tyrone C. Fahner, Attorney General, of Springfield (Edward M. Kay, Assistant Attorney General, of counsel), for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff Shirley Ann Johnson filed a complaint against defendants Illinois and Rock Island County Departments of Public Aid, and the directors of those agencies, for administrative review of an adverse Illinois Department of Public Aid (hereinafter the Department) decision. After a hearing on the merits, the circuit court of Rock Island County found the Department’s decision to be neither contrary to law nor against the manifest weight of the evidence.

Plaintiff is, and has been at all times relevant to this appeal, a recipient of Aid to Families with Dependent Children (hereinafter AFDC), which is administrated by the Department. She receives a monthly subsistance grant for herself and her three children, and on June 30, 1980, was placed on a “Protective Payment Plan” (hereinafter a Plan). A Plan is established when, inter alia, a caretaker relative has demonstrated such an inability to manage funds that payments to that relative are not in the best interest of a child. A protective payee is then appointed to assume responsibility for the expenditure of the assistance payments for the benefit of the recipients. Pursuant to her Plan, rent was taken from plaintiff’s grant and paid to her landlord.

On October 15, 1980, plaintiff moved and was apparently immediately in arrears on her rent. On October 29, 1980, she was again placed on a Plan and the following day was sent this letter:

“As we discussed on Monday, October 27, 1980, this office will pay your rent directly to your landlord out of your AFDC check along with your gas and electric bill. Beginning with your November check Mrs. Gallagher will pay Mr. Dick McNamara your current rent of $145.00 plus $25.00 on the arrears.
Please contact your caseworker if you have any questions concerning this matter.”

Having been sent to the wrong address, the letter never arrived.

As plaintiff’s new residence had expensive utility bills, her grant did not provide sufficient funds to pay utilities, rent, and the arrears. On December 22, 1980, her landlord took judgment for $169.50 and possession of the premises, and on or about January 3, 1981, plaintiff was evicted. She moved to a new residence and informed the Department, who provided rent to her new landlord. Plaintiff claims she also informed the Department of the judgment and eviction. The Department disputes this.

The payments to the former landlord continued through the end of February 1981. Plaintiff claims she several times questioned the Department about the reason for this, but the Department apparently disputes this as well. On or about March 12, 1981, she requested a hearing on the matter “to keep Mr McNarmara [sic] from receiving any more money out of my check. Since I an [sic] no longer in his preimies [sic].” The Department had paid the landlord $196.22 since he had taken his judgment and dismissed plaintiff’s appeal because it was not exercised “within the time frame described in the Department Policy.”

Section 11 — 8 of the Illinois Public Aid Code (hereinafter the Code) (Ill. Rev. Stat. 1979, ch. 23, par. 11 — 8) provides in part:

“Applicants or recipients of aid may, at any time within 60 days after the decision of the County Department or local governmental unit, as the case may be, appeal a decision denying or terminating aid, or granting aid in an amount which is deemed inadequate, or changing, cancelling, revoking or suspending grants as provided in Section 11 — 16, or determining to make a protective payment under the provisions of Sections 3 — 5a or 4-9.”

Section 230.4 of the Department AFDC Categorical Assistance Manual (hereinafter the Manual) provides further, inter alia:

“Every recipient of assistance has the right to a written and timely notice whenever assistance is reduced, suspended or terminated or a protective payment plan is being established.”

Section 230.5 of the Manual explains, inter alia:

“The above notices must contain the following information:
a. A clear statement of the action to be taken
b. A clear statement of the reason for the action
c. A specific policy reference which supports such action
d. A complete statement of the client’s right to appeal.
The ‘timely’ notice to the recipient shall contain, in addition to the above, a statement indicating that assistance will be continued at the previous level if an appeal is filed within 10 days of the date on the notice.”

Section 235.4 of the Manual ties in the above notice with the 60-day appeal period:

“The client or authorized representative must exercise the right to appeal within 60 calendar days after the decision of the local office. Day one of the 60 day time period is the day following:
a. The date on the written notification of a decision on an application.
b. The date on the written notification of reduction, suspension or termination of assistance.
c. The date on the written notification of a decision on a request for prior approval for payment of a medical service or item.
d. The date of the Department’s notification of denial of a request or other action which aggrieves the client when that denial or action is other than an application decision or a decision to reduce, suspend or terminate assistance.
***
The 60-day time limitation does not apply when the Department fails to send a required written notification, fails to take action on a specific request, or denies a request without informing the client.”

The issue thus becomes whether plaintiff received the requisite notice.

It is uncontroverted that the letter of October 30, 1980, was sent to a wrong address due to a typographical error. The Department argues, however, that plaintiff had constructive and/or actual notice of the decision to place her on a Plan. This, it contends, was sufficient to trigger the 60-day period.

The sufficiency of constructive notice has previously been addressed and rejected in Mann v. Department of Public Aid, (1975), 31 Ill. App. 3d 430, 333 N.E.2d 233, and Isabell v. Department of Public Aid (1974), 18 Ill. App. 3d 868, 310 N.E.2d 742; The language of these decisions, however, leaves open the possible sufficiency of actual notice.

The Department argues that the actual notice in this cause consisted of the discussion of October 27, 1980, memorialized in the misaddressed letter. The Department does not contend nor does the letter suggest that plaintiff was given a “clear statement of the reason for the action,” “a specific policy reference which supports such action,” nor “a complete statement of the client’s right to appeal” as required by section 230.5 of the Manual. Moreover, section 230.4 of the Manual dictates written notice when a Plan is being established. While it deals with applications for financial aid and social services, we also note by analogy that section 11 — 6 of the Code (Ill. Rev. Stat. 1979, ch. 23, par. 11 — 6) requires written notice as well as a statement defining an applicant’s right to appeal if an application is denied. Under these circumstances, we do not find the actual notice in this cause to be sufficient to trigger the 60-day appeal period. Plaintiff’s appeal to the Department was therefore exercised “within the time frame described in the Department Policy.”

Accordingly, the judgment of the circuit court of Rock Island County is reversed and this cause remanded for further proceedings consistent with the views herein.

Reversed and remanded.

ALLOY and SCOTT, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREEN

license: Public Domain

text:
    MARY SMITH, Plaintiff-Appellant, v. TERRY L. POWELL, Defendant-Appellee.
    Fourth District
    No. 4—82—0624
    Opinion filed October 18, 1982.

      Warren E. Danz, P. C. of Peoria, for appellant.
    Westervelt, Johnson, Nicoll & Keller, of Peoria (Jeffrey W. Jackson, of counsel), for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On May 26, 1981, plaintiff brought suit in the circuit court of Macon County against defendant seeking recovery for personal injuries allegedly incurred in an April 26, 1979, collision between a vehicle being driven by her but stopped at the time and a semi-tractor trailer negligently operated by defendant. Upon defendant’s motion setting up a defense of the statute of limitations, defendant was granted a summary judgment dismissing the case in bar of action. The trial court rejected plaintiff’s assertion that the record showed a disputed question of fact as to whether defendant had waived the defense. Plaintiff appeals.

The only matter, other than the pleadings, before the court at the time of its entry of the summary judgment was the deposition testimony of plaintiff’s attorney Warren Danz, and his prior affidavit. It revealed the following information. Mr. Danz had been an attorney at law for 11 years. He entered into an attorney-client relationship with plaintiff in June 1979, one month after the collision. A letter of representation was sent to defendant’s insurer, Kemper Insurance Company, on June 22, 1979. On July 3, 1979, a response was received which did not discuss settlement, but said, “Please address all future correspondence to this office.” Letters requesting discussion of the case were sent with medical bills and reports to the insurer on February 28 and April 9, 1980. In November of 1980, further medical reports were sent with a settlement demand. On March 26, 1981, a second letter was received from the insurer again making no settlement offer, but it said, “Please forward updated specials at this time.”

The deposition further showed the following sequence of events. In late March or early April of 1981, attorney Danz spoke with JoAnn Greiner, an employee of the insurer, and indicated he wanted to discuss settlement if Greiner had an interest in doing so. Greiner said she was interested, but would need a statement from the plaintiff before she could evaluate the case. Danz said he would arrange for a statement quickly since time was running on the case. An appointment was arranged for the insurer to take the plaintiff’s statement at Danz’s office, but plaintiff failed to appear. Shortly before April 26, 1981, Danz again conversed with either Greiner or Chris Butler, and another appointment was then scheduled for plaintiff’s statement to be taken on May 14, 1981. In answer to a question concerning this conversation, Danz testified:

“Of course, the problem is after the client missed the first appointment, I specifically talked to the insurance company, to Chris Butler or Joan Greiner, and they said that they would still work with me in negotiations *** try to negotiate a settlement, but the only problem was a matter of time in taking the statement. And they did agree to take it at a later date, that there would be no problem on this, which I interpreted to mean there would be no problem with the statute. And they were going to make an offer to me, and I’m sure the statement would not have been taken if that intention had not been there.”

The deposition indicated plaintiff again failed to appear on May 14, 1981, but did give a statement to a representative of the insurer on May 15, 1981. According to Danz, shortly after the statement was taken Butler advised Danz she would send him a transcript and contact him concerning a settlement. Danz maintained that after the statement but prior to the filing of the suit, Danz made some calls to the insurer, but he did not recall to whom he spoke nor did he relate the substance of the conversation. Danz also stated that after the suit was filed, he had one more conversation with a representative of the insurer regarding the case but it only concerned the dates of the accident and the filing of the suit.

Unless waiver is applicable, the two-year statute of limitations for filing suits for personal injuries expired on Monday, April 27, 1981, two years and one day after the collision. (Ill. Rev. Stat. 1981, ch. 83, par. 15.) The standard for determining whether a defendant or his insurer has waived the statute of limitations has been clearly set forth by the supreme court as follows:

“The rule in this State and elsewhere, pertaining to waiver in a case of this kind, requires that the conduct of the party against whom such a waiver is claimed be such as to cause the other party to change his position by lulling him into a false security, thereby causing him to delay or waive the assertion of his rights to his damage. Negotiations for an adjustment of a claim which do not so justify the claimant in delaying action cannot estop the insurer from insisting upon a strict compliance with the conditions of the limitation. It is necessary and proper that claims of this character be investigated, and the fact that the insurer negotiates with the claimant is in nowise conduct amounting to a waiver by estoppel unless there is contained in the negotiation that which is calculated to lull the claimant into a false security. [Citations.]” (Dickirson v. Pacific Mutual Life Insurance Co. (1925), 319 Ill. 311, 318, 150 N.E. 256, 259.)

The appellate court has also stated:

“If there is evidence of such conduct which exceeds mere investigation and negotiation, an issue is made for determination by the trier of the facts; if not, the defense may be disposed of by the court as a matter of law. [Citations.]” Flagler v. Wessman (1970), 130 Ill. App. 2d 491, 494, 263 N.E.2d 630, 632.

In recent years an increasing number of cases have been decided concerning waiver of the defense of the statute of limitations. The reported opinions present a wide array of factual situations with no single factor or combinations thereof clearly determinative.

The facts here provide none of the relatively objective factors which other decisions have considered in evaluating whether there was “lulling” conduct on the part of an insurer. Defendant did not concede liability here, either explicitly (Wells v. Lueber (1976), 43 Ill. App. 3d 973, 358 N.E.2d 293; Cassidy v. Luburich (1977), 49 Ill. App. 3d 596, 364 N.E.2d 315), or implicitly (Kinsey v. Thompson (1963), 44 Ill. App. 2d 304, 194 N.E.2d 565; Flagler). No actual negotiations of a settlement amount took place before, let alone after, the expiration of the statute of limitations. (Kinsey; Wells; Flagler; Suing v. Cotton (1970), 118 Ill. App. 2d 468, 254 N.E.2d 806.) No advance payments of any kind were made to the plaintiff. (Marks v. City of Johnston City (1974), 21 Ill. App. 3d 1089, 315 N.E.2d 342; Wells; Jackson v. Hoover (1974), 24 Ill. App. 3d 358, 321 N.E.2d 348; Suing; Hurtt v. Davidson (1980), 84 Ill. App. 3d 681, 406 N.E.2d 90.) The insurer did not encourage the plaintiff to delay the filing of the complaint. (Jackson; Cassidy.) Finally, plaintiff was not handicapped by lack of representation by counsel. Flagler; Jackson; D’Urso v. Wildheim (1976), 37 Ill. App. 3d 835, 347 N.E.2d 463.

The present situation is similar to that in D’Urso, which involved a statute of limitation expiration date of January 26, 1973. The insurer’s contact with that plaintiff was limited to one phone conversation and two letters between the plaintiff’s attorney and the insurer. In the latter part of November 1972, plaintiff’s attorney spoke with an adjuster. The adjuster said that it would be necessary for plaintiff to be examined by a doctor in order to determine the extent of her injuries. The attorney informed the adjuster that the appointment should be made immediately since the two-year limitation period would soon expire. The adjuster agreed to make the arrangements for the medical appointment and to contact the attorney upon receiving the medical report and discuss the settlement of the claim. The attorney said that he would take no further action in prosecuting the claim prior to being contacted by the adjuster. The adjuster expressly agreed with that procedure.

The D’TJrso plaintiff’s attorney received a letter on December 6, 1972, informing him of the doctor whom the plaintiff should see. The letter provided that the adjuster would notify the plaintiff regarding possible disposition of the claim after the doctor’s report was received. Plaintiff’s attorney sent a return letter indicating that from their conversation he expected a satisfactory settlement would be made and that therefore he would not take any other action until the adjuster received the doctor’s report and contacted the attorney. The medical examination was conducted on December 14 or 15, 1972. After that date and prior to the expiration date, the adjuster neither contacted the attorney nor furnished a copy of the medical report. The court found that these facts showed only an investigation of a preliminary nature had been initiated by the insurance company. It noted that negotiations with a view towards compromise had not even begun.

Here, the only two letters which plaintiff’s attorney received from defendant’s insurer constituted merely a routine investigation of plaintiff’s claim. The only substantive difference between this case and D’TJrso is that prior to the expiration date, the insurer here agreed to an appointment with plaintiff after the expiration date. The statement was taken after the expiration date only because plaintiff failed to keep the first appointment. According to his deposition, plaintiff’s counsel interpreted the statement of the insurer’s agents that there would be no problem in taking the statement later as an indication the statute of limitations would not be used as a defense. However, this statement, even in the context it was allegedly made, would not create a factual question as to whether such an agreement was made, nor can it be said to be conduct calculated to lull counsel into a false sense of security. Although defendant’s insurer had offered to begin negotiations, no showing was. made that negotiations had actually taken place. The offer was not an implicit concession of liability. See Devlin v. Wantroba (1966), 72 Ill. App. 2d 383, 218 N.E.2d 496.

The trial court correctly ruled that no factual question existed as to waiver.

Plaintiff also claims a reversible error occurred in the ruling on the motion for summary judgment. Prior to filing the motion for summary judgment, defendant had raised the limitations defense in a motion under the then section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48). Plaintiff countered with an affidavit by Mr. Danz. The trial court, with a different judge sitting, ruled the affidavit to .have raised a factual question as to waiver which should be submitted to a trier of fact. Plaintiff maintains the court erred in changing its ruling on the issue of whether a factual question of waiver existed when it allowed the motion for summary judgment. However, the court also had Mr. Danz’ deposition before it at the time the summary judgment motion was heard. In the affidavit Mr. Danz seemed to have indicated defendant’s insurer’s agent had specifically told him just prior to the expiration date that the case could be settled and no complaint need be filed. In his deposition, Mr. Danz clarified his statement to be that he merely inferred this from the conversation previously reported. The court’s refusal to grant the section 48 motion did not require the court to later deny the motion for summary judgment.

We affirm the summary judgment.

Affirmed.

LONDRIGAN and TRAPP, JJ., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD LYELL, Defendant-Appellant.
    Fifth District
    No. 81—435
    Opinion filed August 18, 1982.

      Randy E. Blue and Dan W. Evers, both of State Appellate Defender's Office, of Mt. Vernon, for appellant.
    Randy Patchett, State’s Attorney, of Marion (Stephen E. Norris and David J. Mullett, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

On June 23, 1981, the defendant Richard L. Lyell pled guilty to three counts of indecent liberties with a child and five counts of child pornography. A factual basis for these charges was presented to the court and on July 17, 1981, defendant was sentenced to a 15-year-term of imprisonment on each charge, to run concurrently. His counsel filed a written motion to withdraw the guilty plea on July 24, 1981. One month later, a hearing was held and this motion was denied.

On appeal, defendant first charges that the cause should be remanded for further proceedings on the motion to withdraw his plea of guilty because he was not provided with a transcript of the guilty plea proceedings. He charges further that defense counsel did not file a certificate of compliance under Supreme Court Rule 604(d) (73 Ill. 2d R. 604(d)) in the trial court, nor did he file an adequate certificate in this court.

Supreme Court Rule 604(d) provides that an indigent defendant should be furnished a copy of the transcript, as provided in Rule 402(e) (73 Ill. 2d R. 402(e)), without cost. It further provides that the defendant’s attorney should file a certificate with the trial court stating that he has consulted with the defendant either by mail or in person and has ascertained the contentions of error in the entry of the plea of guilty and made any amendments to the motion necessary for adequate presentation of defects in those proceedings.

This court has insisted upon strict compliance with the requirements of Rule 604(d) in the past, ruling that it is reversible error for the trial court to conduct a hearing on the defendant’s motion to withdraw a plea of guilty when no transcript of the guilty plea proceedings has been provided to the defendant. (People v. Sorensen (1977), 49 Ill. App. 3d 984, 365 N.E.2d 171.) The filing of a certificate of compliance under 604(d) is also mandatory, and generally the trial court does not hold a hearing on the motion to withdraw a plea of guilty until this certificate has been filed. (People v. Dean (1978), 61 Ill. App. 3d 612, 615, 378 N.E.2d 248.) However, the rule has been relaxed somewhat in situations in which the “court could determine from the record before it that failure to comply was harmless error.” People v. Lange (1978), 59 Ill. App. 3d 603, 604-05, 375 N.E.2d 919.

Here, an examination of the record shows that counsel’s failure to comply strictly with Rule 604(d) did not significantly affect the outcome of the case. The attorney who filed and presented the motion to withdraw the plea of guilty on August 24, 1981, was the same attorney who had been appointed to represent defendant in March of that year. The attorney was present at the arraignment and plea proceedings in June and at the sentencing hearing in July. He consulted with defendant during this period. Thus, he was well acquainted with defendant’s case and was aware of the possible defenses which Lyell would be able to raise in a motion to withdraw his plea. Since only one week lapsed between the sentencing hearing and the filing of the motion to withdraw the plea, it is unlikely that defense counsel forgot important details which a perusal of the transcript would have uncovered. In fact, after reading the record, we found no other facts which would have aided defendant in his motion. (People v. Lange (1978), 59 Ill. App. 3d 603, 605.) Thus, it is unnecessary to enter an order remanding the cause so that the defendant and his attorney can consult the transcript. As for the certificate, defense counsel filed a late certificate in this court in an attempt to comply with the statute.

It is also noteworthy that defendant had three opportunities to withdraw his guilty plea: on June 23, on July 1, and again on July 17. Each time that the trial court attempted to discuss the defendant’s guilty plea, the defendant said he did not wish to change his mind. He admitted the State’s allegations during these proceedings, and has not offered any evidence on appeal which would serve as a valid defense. He received adequate warnings regarding the consequences of his plea and was fully apprised of its significance. Thus, although we do not condone careless trial practice by counsel or court, we hold that the failure to adhere strictly to the formalities of Rule 604(d) in this case was harmless error. People v. Hopson (1981), 101 Ill. App. 3d 564, 574-75, 428 N.E.2d 680.

Defendant’s second point of error is also without merit. He argues that he was denied effective assistance of counsel at the hearing on the motion to withdraw his guilty plea. It is apparent from the record that the outcome of this case would not have differed absent the alleged instances of incompetence. (People v. Hopson (1981), 101 Ill. App. 3d 564, 575.) Defendant was permitted a number of opportunities to address the court prior to August 24. The failure of his attorney to call him to testify at this motion hearing does not constitute ineffective assistance. He apparently had no meritorious argument to make or he would have made it on appeal. Counsel is not required to make motions or engage in other trial tactics that are futile (see People v. Calderon (1981), 101 Ill. App. 3d 469, 476, 428 N.E.2d 571), and, in this particular case, defendant has presented no evidence which would indicate that his trial counsel should have argued anything other than that which he did argue.

Defendant also objects to inconsistencies between allegations in the factual basis submitted at the plea hearing and the substance of certain photographs which the court ordered included as a supplement to the record. The factual basis presented by counsel at the plea proceedings was adequate grounds on which to base defendant’s arraignment and plea. It is immaterial that the record contains no nude photographs of Carla Bozarth. We are not confined to the photographs submitted. Police officers testified there were many more available. We must look only to the factual basis wherein the prosecuting attorney stated he would prove that “the defendant photographed their human genital areas or pubic areas.” That statement is sufficient to bring the factual basis within the ambit of the child pornography statute. (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 20a(a)(2)(F).) We may assume that, had the case proceeded to trial, the State would have proved the facts as alleged.

The defendant next argues that the above-mentioned statute does not apply to photographs of young girls in prepubertal and pubertal stages because the statute says “post-pubertal human genitals” (Ill. Rev. Stat. 1979, ch. 38, pars. 11 — 20a(a)(l)(B) and (a)(2)(F)). This argument is untenable. It would be absurd to preclude coverage of photographs taken of prepubescent and pubescent children since they were clearly meant to be included in the class of victims protected by the statute. We are not required to construe a statute in a way that renders it illogical or unjust. (People v. Sansone (1981), 94 Ill. App. 3d 271, 273, 418 N.E.2d 862.) The questioned phrase, in its entirety, reads “exhibition of post-pubertal human genitals or- pubic areas.” The obvious interpretation of the phrase is that “post-pubertal” modifies “genitals,” but not “pubic areas.”

Finally, we note that the trial court properly admonished defendant during the sentencing hearing. His thoughts about the future conduct of defendant were harmless speculation. The record shows that the court properly weighed the factors in aggravation and mitigation and reached a sound conclusion by taking into account the degree of harm caused by defendant’s conduct. (People v. Hunter (1981), 101 Ill. App. 3d 692, 694-95, 428 N.E.2d 666.) We see no abuse of discretion in the trial court’s approach.

Accordingly, we affirm the judgment of the circuit court of Williamson County.

Affirmed.

KASSERMAN and JONES, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    TED PECORA, Plaintiff-Appellant, v. FRANK SZABO, JR., et al., Defendants-Appellees.
    Second District
    No. 82—69
    Opinion filed October 6, 1982.
    Gerald M. Sheridan, Jr., of Wheaton, for appellant.
    Joseph M. Laraia, of Laraia & Kilander, of Wheaton, for appellees.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Plaintiff, Ted Pécora, brings this appeal from an order of the circuit court of Du Page County entered January 22, 1982, ordering that execution issue against plaintiff and his bonding company, Hanover Insurance Company, in the amount of $15,594.56.

In 1973, the plaintiff filed a multi-count, amended complaint seeking various money judgments against the defendants, Frank Szabo, Jr., John Schultz, and Modern Car Wash Systems, Inc. In response, the defendants filed several counterclaims. Jury verdicts were entered on the numerous claims and counterclaims of the parties. The net effect of those verdicts was that the total amount of damages awarded the defendants exceeded the money judgments entered in behalf of the plaintiff. Thereafter, the plaintiff filed a notice of appeal and posted a $25,000 appeal bond by which he and the surety obligated themselves to pay the defendants “any part of the judgment which is not reversed” on appeal. The first appeal followed.

In the first appeal, this court affirmed all of the various judgments entered on the verdicts of the jury. However, the court also reversed and remanded for further proceedings the trial court’s granting of a directed verdict in favor of the defendants on count I of the plaintiff’s amended complaint. See Pecora v. Szabo (1981), 94 Ill. App. 3d 57.

After the filing of the mandate of this court in the trial court, the defendants moved the trial court to set count I of the plaintiff’s complaint for trial and requested that the court enter an order of execution against the plaintiff’s appeal bond. The trial court heard oral argument on the motion on two separate occasions. At one of the hearings, the plaintiff argued that because plaintiff’s count I was still pending, the trial court could not enforce the affirmed judgments and enter execution without first making a specific finding, as required by Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)), that there was no just reason for delaying enforcement of the judgments. In response to this argument, the court remarked that it did not believe the 304(a) finding was necessary to enforce a judgment affirmed on appeal. On January 22, 1982, the court ordered that execution issue against plaintiff and his bonding company Hanover Insurance Company in the amount of $15,594.56.

Initially, the plaintiff contends that the enforcement of the affirmed judgments is “inherently unfair.” The plaintiff has failed to cite any authority in support of this contention, and plaintiff’s argument of only three pages gives us little assistance in our consideration of this issue. A reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research. (Williamson v. Opsahl (1981), 92 Ill. App. 3d 1087, 1089; In re Estate of Kunz (1972), 7 Ill. App. 3d 760, 763.) Under such circumstances, the reviewing court may deem waived those issues which have not been sufficiently or properly presented. Williamson v. Opsahl (1981), 92 Ill. App. 3d 1087, 1089.

The plaintiffs other contention is that absent a 304(a) finding that there is no just reason to delay enforcement or appeal, the trial court lacked jurisdiction to enforce the affirmed judgments. The plaintiff asserts that the limited remand for further proceedings on count I places this case in the posture of an action in which there has not been a final judgment with respect to all of the claims involved in the lawsuit, and, therefore, the provisions of Rule 304(a) are applicable. We disagree.

Supreme Court Rule 304(a) provides as follows:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” 73 Ill. 2d R. 304(a).

Rule 304(a) governs cases involving multiple claims in which a final judgment or decree determines one or more but fewer than all the rights and liabilities at-issue. In such circumstances, the rule requires an express written finding that there is no just reason for delay in enforcement or appeal of the resolved claims in order for these claims to be appealable. The intent of Rule 304(a) is to discourage piecemeal appeals in the absence of just reason and to remove the uncertainty which exists when a final judgment is entered on less than all the matters in controversy. (Ariola v. Nigro (1958), 13 Ill. 2d 200, 207; Petersen Brothers Plastics, Inc. v. Ullo (1978), 57 Ill. App. 3d 625, 630.) Under this rule, where the trial court’s order does not incorporate the requisite finding, no appeal is permissible; moreover, the judgment may not be enforced, and it is subject to revision by the trial court at any time prior to the entry of a judgment adjudicating the entire matter. See Petersen Brothers Plastics, Inc. v. Ullo (1978), 57 Ill. App. 3d 625, 630, and cases cited therein.

While the plaintiff correctly notes that in this case there has not been a final judgment as to all of the claims, he fails to note that those claims which have been reduced to final judgments have been duly affirmed on appeal with no remandment. If Rule 304(a) were applicable, those affirmed judgments would be “subject to revision at any time before the entry of a judgment adjudicating all of the claims, rights and liabilities of all the parties.” (73 Ill. 2d R. 304(a).) Rule 304(a) cannot be applicable, for, as to those judgments, the trial court is bound by the decision and mandate of the reviewing court. (See 73 Ill. 2d R. 369; Fiore v. City of Highland Park (1968), 93 Ill. App. 2d 24, 34, cert. denied (1969), 393 U.S. 1084, 21 L. Ed. 2d 776, 89 S. Ct. 867.) A reading of Rule 304(a) in its entirety makes evident that it was not intended to apply to final judgments which have been appealed and affirmed by the appellate court without remandment and we so hold. Under Supreme Court Rule 369(b), after the mandate was filed, jurisdiction was once again vested in the circuit court, and when the judgment is affirmed, execution on the judgment may issue and other proceedings in aid thereof may be conducted as if no appeal had been taken. Rhodes v. Sigler (1976), 44 Ill. App. 3d 375, 377.

Because the plaintiff has failed to demonstrate how the trial court erred in enforcing the affirmed judgments, the trial court’s order of January 22,1982, is affirmed.

Affirmed.

SEIDENFELD, P. J., and LINDBERG, J., concur.


author: JUSTICE SCOTT

text:
      In re ESTATE OF KENNETH J. WILLIAMS, Deceased.-(Betty P. Williams, Ex’x of the Estate of Kenneth J. Williams, Petitioner-Appellant, v. Illinois Trust and Savings Bank, Respondent-Appellee.)
    Third District
    No. 82—194
    Opinion filed October 19, 1982.

      William J. Howard, of Brassfield, Cowan & Howard, of Rockford, for appellant.
    George C. Hupp, Jr., and Gale F. Murrin III, both of Hupp, Irion and Hupp, P. C., of Ottawa, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

On December 14, 1979, Kenneth J. Williams and Thomas E. Bowers signed a note payable to the Illinois Trust and Savings Bank (ITS) in the amount of $5,000 due on or before March 22, 1980. The note was signed by Bowers individually and in his capacity as owner of the Bowers Excavating Company. No designation was given of the capacity in which Williams signed. Williams’ signature appeared in the column for addresses on the note. A second note, in the amount of $22,000, was similarly executed by Bowers and Williams on January 2,1980. The second note was due on or before April 1,1980.

Kenneth J. Williams died on March 23, 1980. One day before his death, a renewal note for the remainder of the $4,500 indebtedness, to-wit, $3,626.37, was signed by Thomas Bowers individually and in his capacity as owner of the Bowers Excavating Company. A second renewal note for the remainder of the $22,000 indebtedness, to-wit, $17,902.74, was executed by Bowers on April 1,1980.

Each of the subsequent notes, as well as the original notes, was secured by certain accounts receivable and by several pieces of personal property owned by Bowers Excavating Company. Assignments of the accounts receivable were executed, and ITS placed liens on and took possession of documents of title to certain vehicles owned by Bowers Excavating. Other loans made by ITS to Bowers Excavating were also secured by the same collateral.

Following Williams’ death, ITS filed a claim against his estate for $21,529.11, the total amount due on the notes signed by Williams. The claim was routinely allowed, without notice, by the probate court on July 9, 1980, since no adverse pleadings had been filed by the Williams estate within 30 days of the date of the filing of the claim. Ill. Rev. Stat. 1981, ch. 110½, par. 18 — 5.

According to an affidavit signed by Stephen C. Myers, attorney for the Williams estate, Myers contacted Frederick W. Irion, counsel for ITS, within 30 days of receipt of a copy of the bank’s claim to request data relevant to the evaluation and defense of the claim. On July 17, 1980, attorney Myers mailed a letter to attorney Irion confirming his request for information upon which to evaluate and defend the claim. A second affidavit in the record, this one signed by attorney Irion, refutes attorney Myers’ contention that he requested six specific types of information regarding the claim. Attorney Irion’s affidavit also indicates that he was not requested by Myers to delay action on the claim; nor was any representation whatsoever made to him by attorney Myers regarding the presentation or manner of handling the claim. On July 25, 1980, attorney Irion referred attorney Myers to a vice-president of ITS for information regarding the claim. No mention of the allowance of the claim was made in attorney Irion’s July 25 letter.

A letter from attorney Irion received by attorney Myers on January 7, 1981, was the first notice received by Myers that the ITS claim had been allowed. Slightly more than three weeks later, on January 23, 1981, the executrix of the Williams estate filed an Illinois inheritance tax return claiming a deduction for the $21,529.11 claim allowed by the probate court on July 9,1980.

The Williams estate filed a motion to open up and vacate the claim allowance on September 15, 1981, some eight months after first learning of the claim’s allowance. The trial court authorized discovery, following which an amended motion to open up and vacate the claim allowance was filed by the estate on December 23, 1981. Arguments of counsel were heard by the trial court on January 13, 1982. In a written order dated March 8, 1982, the trial court denied the estate’s motion. The rationale for the trial court’s decision was the estate’s failure to demonstrate reasonable diligence in presenting any defense to the claim and, alternatively, the failure to raise any substantial defense which would justify the vacation of the claim allowance in the interest of justice and fairness.

The present appeal is taken by the Williams estate from the March 8, 1982, order. Our review of the lower court’s decision is limited to the question of whether that decision demonstrates an abuse of the discretion accorded to trial courts in ruling on such motions. (Beverly Bank v. Pentagon Investment Co. (1981), 100 Ill. App. 3d 1074, 427 N.E.2d 835.) We find no abuse of discretion in the case at bar.

As a point of reference, we note that section 72 of the Illinois Civil Practice Act, under which the Williams estate filed its motion to open up and vacate the claim allowance, has been recodified as section 2 — 1401 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1979, ch. 110, par. 72; Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401.) The language of former section 72 and new section 2 — 1401 is identical. Because the court decisions in the case at bar were rendered prior to July 1, 1982, the effective date of the new code, we will refer to the motion at issue as a section 72 petition.

To succeed in vacating the allowance of the claim via a section 72 petition, the Williams estate must affirmatively set forth facts showing both the exercise of due diligence on the part of the estate in presenting a defense to the ITS claim and in presenting the section 72 petition to the trial court. (American Reserve Corp. v. Holland (1980), 80 Ill. App. 3d 638, 400 N.E.2d 102.) This the estate has failed to do.

Why the estate did not file objections to the claim within 30 days of the May 3, 1980, filing date of the claim pursuant to section 18 — 5 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110½, par. 18 — 5) is not apparent. Attorney Myers’ affidavit reveals that he was aware of the claim and spoke to counsel for ITS concerning it within the 30-day period. We also question the propriety of the probate court’s allowance of the claim, without notice, when only the face of each note was attached to the claim. These questions are not now before us, however.

Despite the estate’s attempt to mask its lack of diligence in filing the section 72 petition by focusing attention on the efforts made by the estate during the summer of 1980 to secure information from ITS relevant to the claim, we find no reasonable explanation given for the eight-month delay (from January 7, 1981, to September 15, 1981) in filing the petition once the estate learned that the claim had been allowed. Furthermore, we believe that attorney Irion’s letter of July 25, 1980, to attorney Myers supplied sufficient information to enable the estate to evaluate any possible defenses to the claim and thus to act at a much earlier date to vacate the claim allowance. We must also wonder why attorney Myers did not discover the claim allowance through periodic review of the status of the Williams estate filed, particularly where, as attorney Myers indicated, the estate was somewhat complex and subject to numerous potential claims.

Clearly, the estate failed to exercise due diligence in the presentation of its section 72 petition. We turn now to an examination of the alleged defenses available to the estate. This examination is necessary since the estate’s lack of due diligence in presenting its motion to vacate could be overlooked should justice and good conscience so require.

The alleged defenses are three in number: (1) a failure of consideration for the signature of Kenneth Williams on the two ITS notes in question; (2) impairment of collateral; and (3) discharge of Williams’ liability on the notes by the reduction of the balance due on the notes to zero and the issuance of subsequent notes for the amount remaining due on the original notes and signed only by Thomas Bowers individually and in his capacity as owner of Bowers Excavating.

Kenneth Williams signed the $22,000 and $5,000 notes as an accommodation party; that is, as one who signs his or her name to a note without receiving any direction consideration but who does so with the intention of lending his credit to the accommodated party. (Ill. Rev. Stat. 1981, ch. 26, par. 3 — 415(1); Marcus v. Wilson (1973), 16 Ill. App. 3d 724, 306 N.E.2d 554.) Because there is no evidence to the contrary, it is assumed that Williams signed as an accommodation maker. Despite the lack of direct consideration running to an accommodation party, a creditor can proceed against the accommodation maker without first seeking a remedy against the principal. (Ill. Rev. Stat. 1981, ch. 26, par. 3 — 415; Ill. Ann. Stat., ch. 26, par. 3 — 415, Uniform Commercial Code Comment subsec. 1, at 301 (Smith-Hurd 1963).) In a direct action by a creditor, the accommodation maker cannot allege lack of consideration since the signature of the accommoda.tion maker is supported by any monetary consideration given to the principal maker of the note. Burke v. Burke (1980), 89 Ill. App. 3d 826, 412 N.E.2d 204; St. Charles National Bank v. Ford (1976), 39 Ill. App. 3d 291, 349 N.E.2d 430.

Contrary to the estate’s assertion, the accommodated parties in the instant case were Thomas Bowers and Bowers Excavating Company, who received credit, and not ITS. As the Comments to the Uniform Commercial Code state:

“The essential characteristic is that the accommodation party is a surety, and not that he has signed gratuitously. *** As a surety the accommodation party is not liable to the party accommodated; but he is otherwise liable on the instrument in the capacity in which he has signed. *** The obligation of the accommodation party is supported by any consideration for which the instrument is taken before it is due.” (Ill. Ann. Stat., ch. 26, par. 3 — 415, Uniform Commercial Code Comment sub-secs. 2, 4, 3, at 302 (Smith-Hurd 1963).)

Thus, the fact that Williams signed as an accommodation maker and received no consideration provides no defense for the Williams estate to the ITS claim on the notes.

The notes signed by Williams were secured in part by an assignment of accounts receivable in the amount of $70,391.50 from the Illinois Department of Transportation and accounts receivable in the amount of $44,408.80 from La Salle County. According to the deposition of ITS vice-president Michael J. McIntyre, the La Salle County Treasurer issued a check in the amount of $8,194.51 to Bowers Excavating on or about February 4, 1980. Of this amount, $4,097.26 was applied to Bowers’ $22,000 indebtedness, reducing it to its remaining balance of $17,952.74. The remainder of the $8,194.51 payment was returned to Bowers Excavating to cover operating expenses. In like manner a check received from the Comptroller of the State of Illinois on or about February 16, 1980, in the amount of $8,028 was applied, in part, to the $5,000 indebtedness, reducing it to its present balance of $3,626.27. The remainder of the $8,028 payment was returned to Bowers Excavating.

The Williams estate contends that these actions by the bank impaired the collateral securing the notes. We disagree. The accounts receivable securing the two notes in question also served as collateral for several other notes issued by ITS to Bowers Excavating. A creditor is not bound, under these circumstances, to apply collateral to payment of only specific notes but may apply the collateral to the partial payment of other notes where, as here, there are no directions as to the application of the security. (11 Am. Jur. 2d Bills and Notes sec. 959 (1963).) We hold that the creditor bank acted reasonably here in returning the remaining portions of the collateral received to Bowers Excavating for operating expenses, since the remaining accounts receivable would become meaningless without the continued operation of the company.

Section 3 — 606 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 3 — 606(1)) restricts only unjustifiable impairment of collateral. No such impairment occurred. Furthermore, an accommodation party may not consent to the impairment of collateral and thereafter pursue a defense to enforcement of a note based on that impairment. (Ill. Rev. Stat. 1981, ch. 26, par. 3 — 606(1).) The verso of each note signed by Kenneth Williams contained the following language in the paragraph designated “Bank’s General Rights”: “The Bank may in its discretion before or after default: *** release collateral in its possession to Debtor, temporarily or otherwise; ***.” By applying a portion of the collateral received to the two notes in question and returning the remaining portion to Bowers Excavating, the bank was merely exercising a right agreed to by Williams. Such action by the bank cannot be asserted as a defense by Williams’ estate to enforcement of the notes.

Godfrey State Bank v. Mundy (1980), 90 Ill. App. 3d 142, 412 N.E.2d 1131, a case relied on by the Williams estate in support of its impairment-of-collateral defense, is distinguishable from the case at bar. In Mundy, the creditor bank sought foreclosure of a mortgage and a deficiency judgment against a former wife who had signed as an accommodation party. The mortgaged premises were damaged by fire, and the bank released $31,000 in insurance proceeds to the defendant’s ex-husband and released a $10,000 mortgage on the property. Since the debt sought to be enforced against the ex-wife totalled only $38,686.25, the Mundy court held that the collateral, by being essentially extinguished, had been unjustifiably impaired, thus discharging the ex-wife. In the present case, the bank’s disbursement of the collateral received did not in any sense extinguish it. The estate has failed in its burden to affirmatively demonstrate impairment.

The third defense asserted by the Williams estate, that of discharge, must also fail. Bank records indicate that the two notes in question were reduced to a zero balance, one day before in the case of the $5,000 note, and nine days after Williams’ death in the case of the $22,000 note. A new note was issued on March 22, 1980, in the amount of $3,636.37, the balance remaining due on the original $5,000 loan. A note for $17,902.74, the amount remaining due on the $22,000 note, was issued on April 1, 1980. Both of the newly issued notes were signed by Thomas Bowers individually and in his capacity as owner of Bowers Excavating Company.

The Williams estate contends that the issuance of the new notes, without Williams’ signature, discharges the estate from any liability on the notes. We disagree. The deposition of Michael J. McIntyre, vice-president of ITS, indicates that the reduction of the $22,000 and $5,000 notes to a zero balance and the issuance of new notes for the balance due on the notes on their respective due dates is standard bank practice and is done to facilitate internal accounting procedures. The intention is clearly to renew the notes. No cancellation is made of the previous obligation, nor are the outstanding notes surrendered prior to the issuance of the renewal notes.

To this set of facts, we apply the general rule as stated in Continental Illinois National Bank & Trust Co. v. Cardwell (1936), 287 Ill. App. 227, 4 N.E.2d 770, and quoted in Community Bank v. Meister Brothers (1973), 12 Ill. App. 3d 1004, 1008, 299 N.E.2d 589, 592: “The general rule is that where a note is given merely in renewal of another note and not in payment, the renewal does not extinguish the original debt nor change the debt except that it postpones the time of payment.” It is possible that the issuance of a renewal note may operate as a payment of and a discharge of the original note. To make this determination, the intention of the parties must be considered. The Williams estate has produced no evidence which rebuts the intention of the bank to issue renewal notes, as evidenced by Michael McIntyre’s deposition.

In Trego v. Estate of Cunningham (1915), 267 Ill. 367, 108 N.E. 350, a creditor surrendered an old note containing the signatures of six indorsers, identified as such, and took a new note with the same indorsers with the exception of indorser Cunningham, who was dead. The question before the Illinois Supreme Court was that of contribution among the indorsers. However, the court volunteered the opinion that the creditor could not have brought an action against the Cunningham estate since the old note was surrendered. This case differs from the present case in two respects: first, the original notes in the case at bar were not surrendered prior to the issuance of the renewal notes; and second, Williams’ signature as an accommodation maker or acceptor signifies liability that may differ from that of an accommodation indorser. Comments to the Uniform Commercial Code state that: “An accommodation maker or acceptor is bound on the instrument without any resort to his principal, while an accommodation indorser may be liable only after presentment, notice of dishonor and protest.” Ill. Ann. Stat., ch. 26, par. 3 — 415, Uniform Commercial Code Comment subsec. 1, at 301 (Smith-Hurd 1963).

For the foregoing reasons, we hold that the Williams estate has failed to demonstrate either due diligence in presenting its motion to vacate or any meritorious defenses to the claim of ITS. Accordingly, the order of the circuit court of La Salle County is affirmed.

A motion by the appellee, ITS, to strike a portion of the estate’s reply brief has been taken with the case. On page seven of its reply brief, the estate refers to the deductions taken for the ITS claim on the estate’s State and Federal tax returns. Mention is made of the fact that the deduction claimed on the Federal tax return for the ITS claim was disallowed. An exhibit consisting of a letter and attachments from an Internal Revenue Service agent received by the estate in May 1982 is attached to the estate’s reply brief in support of its statement that the claim was disallowed on the estate’s Federal tax return.

The appellee’s motion to strike contends that no argument has ever been made regarding the allowance or denial of any claimed deduction on the estate’s tax returns and that the allowance or disallowance of the deduction is completely dehors the record. Objections to the motion to strike received from the estate contend that the ITS brief does make an argument of the claim deduction. Thus, the estate argues that it has a right to respond.

We agree with ITS that the reference to the deduction taken by the estate was made only to demonstrate the estate’s knowledge of the claim and for no other purpose. Therefore, we allow the appellee’s motion to strike the specified portions of the estate’s reply brief, noting the objections filed by the estate.

Affirmed.

BARRY, P. J., and HEIPLE, J., concur.


text:
    TOWN OF NORMAL, Plaintiff-Appellee, v. JASON A. STELZEL, Defendant-Appellant.
    Fourth District
    No. 4—82—0121
    Opinion filed October 18, 1982.

      Richard E. Stites, of Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington, for appellant.
    Alan Novick, Corporation Counsel, of Normal, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Defendant, Jason A. Stelzel, appeals a judgment of the circuit court of McLean County entered February 3, 1982, after a bench trial, finding him guilty of a violation of an ordinance of plaintiff, Town of Normal, fining him $50 and ordering him to pay costs. The crucial portion of the ordinance stated:

“SEC. 25.10-2 NOISE PROHIBITED. It shall be unlawful to use or operate a sound amplifying device, so that the device produces loud and raucous sounds at a distance greater than 50 feet from said device unless one has obtained a permit to do so from the Chief of Police or his designee(s).”

The complaint alleged plaintiff was operating a sound amplifying device in the manner prohibited on June 12, 1981. The evidence showed that, on that date, defendant and several others were playing musical instruments on defendant’s parents premises in Normal and that most of the music was being sent out through a sound amplifying device.

On appeal, defendant attacks the sufficiency of the evidence to prove the offense and the constitutionality of the ordinance. The parties agree that because the permissible penalty for the violation of the ordinance could not include incarceration, plaintiff was not required to prove its case by proof beyond a reasonable doubt. (City of Crystal Lake v. Nelson (1972), 5 Ill. App. 3d 358, 283 N.E.2d 239.) Defendant asserts plaintiff failed to offer sufficient proof that: (1) he operated an amplifying device; (2) such a device produced the sounds complained of by plaintiff’s witnesses; and (3) those sounds were “loud and raucous.” He maintains the ordinance deprives him of due process of law because with the construction given the word “raucous” there is insufficient notice to give a person of reasonable intelligence a reasonable opportunity to know what conduct is being prohibited. Finally, defendant contends the ordinance denies him equal protection because loud and raucous noises are prohibited while merely loud noises are not.

Defendant admitted he was practicing in concert with the others. The trial court indicated it deemed defendant guilty if any of the music from the group was produced through the amplifying device and was of the prohibited quality. We agree. Section 5 — 2(c) of the Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 5 — 2(c)) makes a person accountable for the conduct of another if “[e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense” all subject to exceptions not applicable here. If the foregoing is applicable to these quasi criminal proceedings, each of those practicing together would have been aiding and abetting the operation of the amplifying equipment.

Even if the Criminal Code provision is not applicable, “[a]s a general rule, all persons participating in the breach of a municipal ordinance are guilty as principals.” (62 C.J.S. Municipal Corporations sec. 326(a), at 675 (1949).) Although the portion of the ordinance, for which violation was charged, refers to those who “operate” a prohibited device, the ordinance is different than ordinances dealing with housing code violations and similar ordinances which impose affirmative duties on a particular class, such as owners and their agents, and provide for a penalty for omitting to perform the duty. In such cases, clearly persons not within the stated class are not intended to have accountability. (See City of Chicago v. Wernecke (1954), 4 Ill. App. 2d 70, 123 N.E.2d 159.) Here, the ordinance does not evidence an interest to limit its application to a class of individuals but, rather, to hold responsible all those who participate in the affirmative acts prohibited. The trial court properly found defendant accountable for the operation of the amplifying device.

Defendant testified that at the time pertinent, he was playing a polyphonic synthesizer which produced sounds similar to orchestral strings. He described the sounds as being mellow and sweet, similar to the sounds of an orchestra. He testified the instrument produced no bass sounds. He admitted that other than the sounds of the drums, the music produced that day was powered by the amplifiers used. He also admitted that although the drummer was not hooked up to a microphone, the sounds he produced were to a slight extent picked up by an open microphone which was in the area where defendant and his fellow musicians were playing.

A police officer and his wife, neighbors of defendant, testified that on June 12, 1981, at about 2 p.m. they were annoyed by music coming from where defendant and his group were playing. The officer was home trying to rest preparatory to serving on a night shift. He testified the music woke up his young son and caused him to scream. The wife described the music as “loud enough to rumble [her] living room floor and very disturbing.” Another officer answering a complaint about the music testified he arrived on the scene and parked some 70 feet from the premises where the music was being played. He described the noise as loud and disturbing and such that it would have been difficult to sleep through. He also described it as “rock and roll” music. Another officer also arrived in answer to the complaint described the music as annoying but such as would be enjoyable under other circumstances.

The music which the witnesses heard was a combination of that which was being produced by the various instruments. Most of it was being amplified. The defendant admitted that even the sound of the drums was received through an open microphone and amplified to some extent. Thus, if the sounds heard by the various witnesses were “loud and raucous” the amplifying equipment participated in producing those sounds.

The defendant does not dispute that the trial court could properly find the music to have been loud but contends that a determination the music was also raucous was not supported by the evidence. He correctly points out that the ordinance would not be violated by the production of music which was merely loud.

Plaintiff cites as a definition of the word “raucous,” the words “hoarse; rough sounding” and “loud and rowdy” (Webster’s New World Dictionary 1179 (2d College ed. 1974)) and the word “rowdy” as meaning “a person whose behavior is rough, quarrelsome, and disorderly; *** having the nature and characteristic of a rowdy, rough, quarrelsome, etc.” (Webster’s New World Dictionary 1241 (2d College ed. 1974).) We accept those definitions as accurate. However, because of the testimony of the witnesses that in addition to being loud, the music also produced a disagreeable rumble and kept people awake, the trial court could properly have found the music to have been “rough sounding” and, therefore, “raucous.”

The evidence sufficiently supported the conviction.

Defendant contends the application we have given to the word “raucous” is so at odds with the manner in which he might reasonably have interpreted it as to deny him due process of law. He maintains neither he nor other reasonable persons could determine the kind of conduct shown here was prohibited by the ordinance. However, in Kovacs v. Cooper (1949), 336 U.S. 77, 93 L. Ed. 513, 69 S. Ct. 448, a noise ordinance prohibiting “loud and raucous noises” was challenged as being violative of due process on the grounds that it was so obscure, vague, and indefinite as to be impossible of reasonably accurate interpretation. The United State Supreme Court rejected this challenge, stating that while the words “loud and raucous” were abstract, they had, through daily use, acquired a content that conveyed to any interested person a sufficiently accurate concept of what was forbidden. We deem the daily use given the words “loud and raucous” when used together to include the sound of loud music which had a disagreeable rumbling quality sufficient to keep people awake. Defendant’s due process rights were not violated.

The Town of Normal also did not deny defendant equal protection by prohibiting the operation of amplifying equipment which produced “loud and raucous” noise while permitting the operation of such equipment which merely produced noise which was loud. Noise which is both “loud and raucous” is more annoying and obnoxious than that which is merely loud. Moreover, prohibitions concerning noise which is merely loud create additional problems with protecting free speech. The required rational basis (Johnson v. Robison (1974), 415 U.S. 361, 39 L. Ed. 2d 389, 94 S. Ct. 1160) existed to justify the distinction made by the ordinance.

Our affirmance is for the reasons stated.

Affirmed.

MILLS and LEWIS, JJ., concur.


author: JUSTICE McGILLICUDDY

text:
    ARTHUR SHERIDAN, Plaintiff-Appellant, v. JAMES W. ROUSE AND COMPANY, INC., Defendant.—(State Farm Life Insurance Company, Defendant-Appellee.)
    First District (3rd Division)
    No. 80—1895
    Opinion filed October 13, 1982.
    Main & Thomas, of Chicago (Robert C. Thomas, of counsel), for appellant.
    Mark P. Cohen, of Chicago (Chapman and Cutler, of counsel), for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County dated January 14, 1980, which granted summary judgment in favor of the defendant, State Farm Life Insurance Company (State Farm).

In 1976 the plaintiff, Arthur Sheridan, was engaged in the development and construction of a commercial shopping center in Bollingbrook, Illinois, known as Briar Square. Defendant, James W. Rouse and Company, Inc. (Rouse), was engaged in the business of obtaining loan commitments for potential borrowers. By letter dated March 4, 1976, Rouse offered to give the plaintiff a permanent first mortgage on the Briar Square property, subject to various terms and conditions. This offer was specifically conditioned on the commitment of defendant State Farm to purchase the mortgage loan from Rouse. The plaintiff accepted this offer on March 12,1976.

The pertinent terms and conditions of State Farm’s commitment to Rouse are as follows:

Paragraph 1 required Rouse to pay a $40,000 commitment fee which would be “returned upon the purchase of this loan and fulfillment of all commitment conditions.”

Paragraph 6 provided that State Farm be furnished with a certificate of completion from the architect.

Paragraph 12 required that State Farm be furnished with:

“Our form of Assignment of Lessor’s Interest in lease which shall include:
a. Assignment of the following leases with provisions acceptable to us, with minimum net annual rentals and lease terms remaining at the start of loan amortization as indicated:
Paragraph 18 required that State Farm be furnished with leases:
“*** -n addition to those specified in condition #12 and executed by tenants approved by us, for at least 15,060 square feet of net rentable area within the security building at net annual rentals averaging no less than $6.00 per square foot.”

Paragraph 19 provided that if all the commitment conditions except the leasing requirements of paragraph 18 were satisfied, State Farm would purchase a mortgage loan from Rouse in the amount of $1,700,000. If the leasing requirements of paragraph 18 were satisfied by September 1, 1977, State Farm would purchase an additional mortgage loan of $300,000. The commitment expired on March 5, 1977.

The above provisions, together with the other terms and conditions of State Farm’s commitment to Rouse, were incorporated in Rouse’s commitment to the plaintiff.

By letter dated March 26, 1976, State Farm agreed to certain amendments of the commitment. State Farm and Rouse agreed to amend paragraph 12 “by inserting the phrase ‘or other leases acceptable to State Farm, which acceptance shall not be unreasonably withheld’ after the word ‘leases’ in the first line of said paragraph ***.” By letter dated April 1, 1976, Rouse and the plaintiff agreed to the same amendments to their agreement dated March 12,1976.

The parties agreed to various extensions of the expiration date of the commitment. On August 29, 1977, State Farm agreed to extend the purchase date on the loan to January 31, 1978. Rouse forwarded to State Farm a nonrefundable fee in the amount of $10,000 from the plaintiff for the granting of this extension.

On or about January 31, 1978, State Farm decided not to purchase the plaintiff’s loan. Thereafter, the plaintiff filed his complaint in which he alleged that State Farm and Rouse wrongfully refused to fund the loan commitment. The plaintiff sought a return of the fees he paid in connection with the mortgage commitment and other damages. In its answer State Farm asserted as an affirmative defense that the plaintiff failed to satisfy the terms of the commitment, the performance of which was a condition precedent to any duty of State Farm to purchase the mortgage loan.

On May 14, 1979, State Farm filed a motion for summary judgment in which it asserted that the plaintiff failed to meet the rental requirements set forth in paragraphs 12 and 18. These requirements were necessary for State Farm to be assured of sufficient rental income to meet debt service requirements on the loan. State Farm further asserted that the plaintiff failed to complete the project by the time of the closing, as required by paragraph 6.

Accompanying the motion was the affidavit of Thomas Gardner, the State Farm investment analyst in charge of the commitment with Rouse. In his affidavit Gardner pointed out that pursuant to paragraphs 12 and 18, the plaintiff was required to assign to State Farm prior to closing certain major tenant leases, or other acceptable leases, with terms and net annual rentals as follows:

Gardner asserted that in January 1978, the plaintiff had only obtained the following leases:

Gardner also asserted that the plaintiff had not provided State Farm with additional leases for at least 15,060 square feet of net rental space at annual rentals averaging no less than $6 per square foot.

The plaintiff filed a memorandum in opposition to the motion for summary judgment and an accompanying affidavit. In the affidavit the plaintiff stated that Holiday Management Company (Holiday) and Daley-Schroth Realty (described in paragraph 12) were unable to remain as lessees of the shopping center. In their place the plaintiff obtained certain substitute tenants in accordance with amended paragraph 12. These éight leases totalled 11,485 square feet and annual rentals of $77,869.50, amounts in excess of the square feet and annual rentals of Holiday and Daley-Schroth Realty.

Although the plaintiff admitted that paragraph 18 was not fully satisfied, the plaintiff contended that he had until July 1, 1978, to satisfy this requirement. The plaintiff further denied that construction of the shopping center was incomplete on January 31,1978.

In its reply memorandum State Farm agreed that the plaintiff was entitled to tender substitute leases for the leases of Holiday and Daley-Schroth Realty. However, State Farm asserted that pursuant to the express language of paragraph 12, the substitute leases must meet the “minimum net annual rentals and lease terms remaining at the start of loan amortization” as set forth in the schedule of the prescribed leases. State Farm admitted that it accepted a three-year lease from Century 21-Holm & Associates as a substitute for the three-year Daley-Schroth lease since the minimum net annual rental and square footage of the Century 21 lease exceeded those of the Daley-Schroth lease. However, State Farm did not accept any substitute for the Holiday lease since none of the tendered leases equalled the annual rental and lease term of the Holiday lease.

After hearing argument of counsel, the trial court granted State Farm’s motion for summary judgment on January 14, 1980. The court found that none of the proposed substitutes for Holiday’s leases satisfied the requirements for net annual rental and lease term as provided in amended paragraph 12; that the lease requirements of paragraph 18 were not satisfied on January 31, 1978, as required; and that State Farm was entitled to retain the $10,000 extension fee. Subsequently, the trial court denied plaintiff’s motion for rehearing, and the plaintiff appeals.

The plaintiff argues that the trial court erroneously construed amended paragraph 12 of the commitment agreement. The parties agreed to amend paragraph 12 “by inserting the phrase ‘or other leases acceptable to State Farm, which acceptance shall not be unreasonably withheld’ after the word ‘leases’ in the first line of said paragraph.”

The plaintiff contends that amended paragraph 12 should read: “Assignment of the following lease or other leases acceptable to State Farm which acceptance shall not be unreasonably withheld” (amendatory language underscored) and that the remainder of paragraph 12 should be deleted. The plaintiff argues that because the amending language was ambiguous, he was entitled to present extrinsic evidence to

establish the intent of the parties.

State Farm argues that the amendment to paragraph 12 should be inserted after the word leases in the first line of the paragraph and that no deletions are to be made from the paragraph.

In its order of January 14, 1980, the trial court found that paragraph 12, as amended, should read as follows:

“Assignment of the following leases or other leases acceptable to State Farm which acceptance shall not be unreasonably withheld, with provisions acceptable to us, with minimum net annual rental and lease terms remaining at the start of loan amortization as indicated ***”

In construing a contract, the primary objective is to determine and give effect to the intentions of the parties at the time they entered into the contract. (Ancraft Products Co. v. Universal Oil Products Co. (1981), 100 Ill. App. 3d 694, 427 N.E.2d 585.) If the contract’s terms are plain and unambiguous, the intent of the parties must be ascertained solely from the language of the contract. (Western Illinois Oil Co. v. Thompson (1962), 26 Ill. 2d 287, 186 N.E.2d 285; Country Service & Supply Co. v. Harris Trust & Savings Bank (1981), 103 Ill. App. 3d 161, 430 N.E.2d 631.) The issue of whether a contract is ambiguous is a question of law. Public Relations Board, Inc. v. United Van Lines, Inc. (1978), 57 Ill. App. 3d 832, 373 N.E.2d 727.

In the instant case the correspondence amending paragraph 12 clearly and unambiguously provided that certain words would be inserted after the word “leases.” The letters of March 26, 1976, and April 1, 1976, did not state that the remainder of paragraph 12 would be deleted after the insertion. In fact, another amendment to the contract contained in the correspondence clearly provided for the deletion of a certain word. Thus, because the terms of the amendment were plain and unambiguous, the trial court correctly determined that extrinsic evidence was unnecessary to determine the intent of the parties.

The plaintiff cites URS Corp. v. Ash (1981), 101 Ill. App. 3d 229, 427 N.E.2d 1295, in which the appellate court held that in most circumstances a trial court should admit extrinsic evidence of intent before it determines whether an ambiguity exists in a contract. However, our supreme court has held that when a contract’s terms are plain and unambiguous, the intent of the parties must be ascertained solely from the language of the contract. (See Western Illinois Oil Co. and cases cited therein.) To the extent that the holding in URS Corp. conflicts with the law set forth by our supreme court, we respectfully decline to follow it.

Summary judgment is properly granted when the pleadings, depositions and admissions on file, together with any affidavits, establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1979, ch. 110, par. 57(3); Barnes v. Washington (1973), 56 Ill. 2d 22, 305 N.E.2d 535.) In the instant case the pleadings and affidavits establish as a matter of law that the plaintiff did not comply with paragraph 12 of the loan commitment. Thus, State Farm was justified in refusing to fund the loan commitment and in retaining the commitment and extension fees.

Since paragraph 12 was a condition precedent to the enforcement of the loan commitment, it is unnecessary for us to address plaintiff’s argument that the other findings of the trial court were incorrect.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

WHITE, P. J., and RIZZI, J., concur.


author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GAIL A. VEILE, Defendant-Appellant.
    Fourth District
    No. 4—82—0090
    Opinion filed October 13, 1982.

      Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Anthony B. Cameron, State’s Attorney, of Quincy (Robert J. Biderman and Michael W. Hogan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant was found guilty by a jury in the circuit court of Adams County of the offense of aggravated battery in violation of section 12 — 4(b)(6) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(6)). She was sentenced to one year’s probation and the payment of a fine of $250. On appeal her chief contention is that the State failed to prove bodily harm in the simple battery which was the predicate for aggravated battery. We agree and reverse. For this reason we need not discuss contentions concerning the fine which are also issues on appeal.

Without belaboring them in exhaustive detail, we find the operative facts to be that defendant and her male companion, Heuer, were present in a tavern on May 8, 1981. Because of their misconduct there, they were asked to leave and ultimately the police were called to eject them. After some further acrimonious exchanges with the police and personnel of the tavern, defendant, Heuer, and Police Officer Summers left the premises together. In doing so, defendant fell down some steps. By the time defendant got to her feet the officer was outside the tavern and testified that defendant was still being loud and profane in her language. He then ordered her to leave the area. She began shaking her left hand with a finger extended in the officer’s face, and he thereupon seized hold of her left wrist and put it down, again telling her to depart.

When the officer released defendant’s left wrist, she then struck him in the chest with her right fist. While the record is unclear at this point, since the trials of defendant and Heuer were severed and we do not know exactly what Heuer was doing, the officer did testify that Heuer grasped him from behind and in the ensuing affray the officer suffered a dislocated shoulder.

The significant portion of the officer’s testimony as it relates to the principal issue is found in his cross-examination:

“Q. [Defense counsel]: So, she brought her hand up from her hip approximately and struck you straight back?
A. [Officer]: Yes.
Q. And you were about two feet away?
A. Approximately.
Q. Were you injured by the blow?
A. No, I was not.
Q. Did it raise a bruise?
A. No.
Q. Did it cause you to lose your balance?
A. It jolted me back a little. I did not lose my balance, but it did jolt me back.”

The officer further acknowledged that he was wearing soft body armor under his uniform. He described it as a vest weighing 2V2 pounds, approximately 12 by 14 inches.

Defendant and Heuer were jointly charged, but as previously indicated, were tried separately. Count II of the information upon which defendant was tried states:

“COUNT II: That on or about May 8, 1981 GAIL A. VEILE and GUNTER A. HEUER committed the offense of Aggravated Battery in that they, in committing a battery, in violation of Illinois Revised Statutes, Chapter 38, Section 12 — 3, without legal justification knowingly caused bodily harm to John Summers in that they struck John Summers, knowing John Summers to be a peace officer engaged in the execution of his official duties, in violation of Illinois Revised Statutes, Chapter 38, Section 12 — 4(b)(6).”

It is fundamental that in order to establish an aggravated battery of this type, the State must first prove a battery. Equally clear is that under section 12 — 3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 3(a)) a battery may be committed either (1) by causing bodily harm, or (2) by making a physical contact of an insulting or provoking nature.

In People v. Hale (1979), 77 Ill. 2d 114, 395 N.E.2d 929, the supreme court held that the type of aggravated battery contained in section 12 — 4(b)(6) of the Code, i.e., the individual harmed is a peace officer (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(6)), could be predicated upon an insulting or provoking touching. Theretofore, there had been no agreement on the matter. The appellate courts had agreed that a battery resulting in bodily harm would sustain an aggravated battery upon a peace officer, but they diverged as to whether an insulting or provoking touching would do likewise.

The corollary to Hale is that the State must either elect which type of battery to charge, or to charge in the alternative if it is unsure of its evidence. In the instant case there was no suggestion of an insulting or provoking touching. The information, as set forth above, clearly charges battery by bodily harm, and the definition of battery contained in the instructions to the jury is limited to bodily harm, as is the issues instruction.

Doubtless this situation came about through oversight. Defendant and Heuer were charged jointly. Since there is an indication that Heuer caused the officer a dislocated shoulder, bodily harm allegations would be appropriate for him. However, when the cases were severed for trial and no attempt was made to hold defendant responsible for Heuer’s conduct, it was incumbent on the State to review their pleadings in view of the changed circumstances and to determine whether bodily harm or insulting or provoking touching was applicable to defendant. This was not done, and the State is bound by the information upon which it proceeded to trial.

The question then resolves itself into whether bodily harm to the officer was proved beyond a reasonable doubt. We think not. The officer testified that the body armor was designed to stop the penetration of bullets. It is inconceivable to us that a blow by a female’s fist against such armor could cause bodily harm. The officer’s testimony that he was not injured stands uncontradicted.

We are aware of a series of decisions in which it has been held that bodily harm is a matter of fact for the trier of fact. However, in each of them the defendant kicked the officer. People v. Claudio (1973), 13 Ill. App. 3d 537, 300 N.E.2d 791; People v. Taylor (1977), 53 Ill. App. 3d 810, 368 N.E.2d 950; People v. Brown (1974), 18 Ill. App. 3d 1049, 310 N.E.2d 498; People v. Green (1977), 54 Ill. App. 3d 596, 370 N.E.2d 42.

In Claudio the court stated that “[i]t seems self-evident that the kicking of the police officers is in and of itself the causing of bodily harm ***.” (13 Ill. App. 3d 537, 540, 300 N.E.2d 791, 793.) We think it equally self-evident that a punch from a female against a piece of body armor is not the causing of bodily harm. The instant case more closely resembles the fact situation in People v. Wright (1966), 75 Ill. App. 2d 290, 221 N.E.2d 159 (abstract of opinion). There the evidence showed that the defendant barely shoved the police officer and it was the defendant’s wife who did the hitting and kicking of the officer. The court held that there was insufficient evidence to sustain the conviction.

The State has argued alternatively that even if defendant’s conduct did not rise to the level of inflicting bodily harm, the variance is not fatal. It maintains that defendant’s defense was that she did not strike the officer at all, and therefore any variance between bodily harm and insulting touching could not mislead her. We do not agree. The defendant has a right to know specifically what she is being charged with. Compare People v. Abrams (1971), 48 Ill. 2d 446, 271 N.E.2d 37.

The proof of bodily harm to sustain the battery was insufficient. We are not called upon to render, and therefore do not render, any opinion as to whether the actions of defendant were a touching of an insulting or provoking nature. Since the conviction is reversed, the questions of the propriety of the fine and any credits upon it become moot.

The judgment of the circuit court of Adams County on the jury verdict of guilty is reversed and the sentence imposed thereon is vacated.

Reversed.

GREEN, P. J., and LEWIS, J., concur.


text:
      In re T. D. W., a Minor.—(The People of the State of Illinois, Petitioner-Appellee, v. T. D. W., Respondent-Appellant.)
    Fourth District
    No. 4—82—0116
    Opinion filed October 14, 1982.
    Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

This appeal presents a narrow question, but one which has not yet been answered in this State: whether a trial court, after having ordered a fitness hearing for a juvenile, may afterwards proceed to an adjudicatory hearing without ruling on the juvenile’s fitness to stand trial. We hold that it cannot and reverse.

The sequence of events in the circuit court of Macon County, briefly stated in chronological order, is as follows:

October 20, 1981: delinquency (burglary) petition filed.
November 18, 1981: initial appearance and request for counsel.
November 30, 1981: supplemental petition (additional act of burglary on November 27) filed. Minor in custody since November 27.
December 1, 1981: detention hearing. Minor ordered detained. Motion by the State allowed for a psychological evaluation.
December 15, 1981: report of psychologist (Courtois) admitted into evidence. Motion by minor for further psychiatric examination. Objection by the State. Motion taken under advisement.
December 18, 1981: hearing reconvened. Further argument by minor’s counsel for psychiatric examination. Objection by the State to psychiatric examination on ground that psychological examination established fitness for trial. Court denied motion for fitness hearing to proceed instanter on psychological report alone. Further motion by minor’s counsel for psychiatric examination. Objection by the State. Objection overruled and psychiatrist (Sunderland) appointed to examine and report by December 29. Cause allotted for contested fitness hearing on December 29.
December 29, 1981: fitness hearing continued to January 13, 1982.
January 13, 1982: psychiatric evaluation report (Sunderland) received into evidence and cause continued.
January 20, 1982: report of violation of home detention ordered on December 18, 1981. Minor placed in custody of probation office.
January 22, 1982: minor ordered detained in juvenile detention center.
January 27, 1982: minor ordered on recommendation of chief juvenile probation officer to receive services of Macon County Mental Health Center. Motion by minor for further psychological evaluation. Motion allowed and psychologist (Campion) appointed.
February 2, 1982: psychological examination (Campion) performed.
February 24, 1982: adjudicatory hearing. Minor found delinquent and ordered to be ward of the court. Dispositional hearing instanter. Minor committed to Department of Corrections.

The record thus clearly demonstrates that although the court itself, on December 18, 1981, had ordered a hearing on fitness to stand trial and had in the course of events appointed three professionals, one psychiatrist and two psychologists, to examine the minor, no fitness hearing was ever held.

At the dispositional hearing the court considered a report prepared by the Macon County Probation Office which indicated that in 1979 the minor had been the subject of a delinquency proceeding but had then been found unfit to stand trial and the cause was ultimately dismissed. The court also considered the Campion report, but it contained no reference to the minor’s competency to stand trial. Both the Courtois report and the Sunderland report found the minor fit, but there is no indication in the record, other than their respective admissions into evidence, that they were ever considered in detail and obviously no finding of fitness based upon them was ever made. At the adjudicatory-dispositional hearing on February 24, 1982, neither the State, the minor, nor the trial judge made any comment on the issue of the minor’s competency to stand trial.

On appeal the positions of the parties is simple. The minor maintains that he was entitled to a fitness hearing before adjudication and disposition. The State maintains (1) that the minor has waived the issue by failing to demand a fitness hearing, and (2) in any event, the reports demonstrated that he was fit.

The Juvenile Court Act itself (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 1 et seq.) makes no provision for a hearing on competency to stand trial. Such provisions are found in the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1979, ch. 38, par. 104 — 10 et seq.) There has been no wholesale incorporation of the Code of Criminal Procedure into the Juvenile Court Act. However, the latter provides in section 1 — 2(3)(a) (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 2(3)(a)) that the procedural rights of a minor shall be those of an adult unless specifically precluded by laws which enhance the protection of minors.

In Pate v. Robinson (1966), 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836, the Supreme Court in analyzing Illinois law regarding fitness to stand trial held that the failure to observe procedures designed to protect a defendant’s right not to be tried or convicted while incompetent to stand trial was a serious deprivation of due process. It follows that the right is of constitutional dimension and thus is weightier than a “procedural” right referred to in the Juvenile Court Act. We believe that the fitness provisions of the Code of Criminal Procedure apply in juvenile proceedings.

The familiar rule is that when a bona fide doubt as to a defendant’s fitness exists, arising from whatever source, that issue must be settled before proceeding further. We are not faced with the question of the trial judge’s discretion in determining the existence of a bona fide doubt. In the instant case the trial court ordered a fitness hearing and ipso facto determined the existence of such a doubt. It is therefore apparent that the minor was constitutionally entitled to a hearing on the matter.

The State first argues waiver, particularly the failure of the minor’s counsel to demand a fitness hearing. In this connection it cites a line of cases which hold that an evidentiary ruling which was taken under advisement was waived unless an objection was renewed. (People v. Greenlee (1976), 44 Ill. App. 3d 536, 358 N.E.2d 649; People v. El (1980), 83 Ill. App. 3d 31, 403 N.E.2d 547; People v. Waller (1977), 67 Ill. 2d 381, 367 N.E.2d 1283.) We do not find such cases analogous. While a ruling on an evidentiary matter may be significant, or even controlling, in the outcome of a case, it is not of the same legal dignity as a constitutional right. Moreover, we fail to understand how, when a bona fide doubt as to the minor’s competency has been raised, such a minor could competently and intelligently waive a constitutional right. In any event, the trial court has the obligation and duty to hold a fitness hearing. People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.

The State’s second argument is that since the reports of Courtois and Sunderland stated that the minor was able to cooperate with his counsel and knew the nature of the proceedings, he was not prejudiced by the failure of the trial court to hold a hearing. The argument has some superficial appeal, but it cannot be used to dispense with a hearing. (Pate.) The opinions of the experts are just that: opinions. The ultimate decision is that of the trial judge, not of the experts. (People v. Bilyew (1978), 73 Ill. 2d 294, 383 N.E.2d 212.) Furthermore, as noted by the court in Bilyew, the experts’ opinions are only as valid as the bases or reasons for them. The minor in the instant case has had no opportunity to cross-examine or to have the experts explain their reasons or bases for their conclusions. The trial judge is then to analyze and evaluate the factual basis for the experts’ opinions rather than to rely on the ultimate opinions themselves. (Bilyew.) It is also clear that a trial judge is not obliged as a matter of law to accept opinions of the psychiatrist. People v. Williams (1980), 87 Ill. App. 3d 860, 409 N.E.2d 439.

The orders of adjudication and disposition entered by the circuit court of Macon County are reversed and the cause is remanded with directions to hold a fitness hearing and make an appropriate determination thereon; following such determination the court is then further directed to hold new adjudicatory and dispositional hearings based upon the fitness determination.

Reversed and remanded with directions.

MILLS and TRAPR JJ., concur.


author: JUSTICE MILLS

text:
    ROSS AND CHATTERTON LAW OFFICES, Plaintiff-Appellee, v. WILLIAM T. LEWIS, Defendant-Appellant.
    Fourth District
    No. 17647
    Opinion filed October 7, 1982.
    William Ted Lewis, of Springfield, for appellant.
    Sturm and Levens, of Springfield, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

“Once the *** chance to appeal has been waived or exhausted *** a final judgment commands respect.”

So wrote Justice O’Connor recently in U.S. v. Frady (1982), 456 U.S. 152, 164-65, 71 L. Ed. 2d 816, 828, 102 S. Ct. 1584, 1593. That was a criminal case, but her admonition dictates with equal force in civil actions.

Ross and Chatterton Law Offices brought suit against William T. Lewis in Dane County, Wisconsin. Lewis filed a special limited appearance to challenge jurisdiction, but did not personally appear in Wisconsin. The Wisconsin court then entered an “order for jurisdiction” and directed Lewis to answer within 20 days or a default judgment would be entered against him. Lewis did not comply with the order, and Ross and Chatterton obtained a $5,496.63 default judgment against him.

Thereafter, Ross and Chatterton sought to register the Wisconsin judgment as an Illinois judgment in accordance with the Uniform Enforcement of Foreign Judgments Act. (Ill. Rev. Stat. 1981, ch. 77, par. 88 et seq.) Lewis objected, challenging the jurisdiction of the Wisconsin court to enter judgment against him. Ross and Chatterton moved for summary judgment, and Lewis appeals from the granting of that motion.

Lewis’ contention is that summary judgment was improper because a court asked to register a foreign judgment may properly inquire into the rendering court’s jurisdiction over the person of the defendant and because there was a material question of fact as to whether the Wisconsin court had jurisdiction over him.

It is true that a court may inquire into the jurisdiction of the rendering court before it registers a foreign judgment. (Evans v. Advance Schools, Inc. (1979), 70 Ill. App. 3d 947, 388 N.E.2d 1003.) Indeed, a court may not register a foreign judgment where the rendering court did not have personal jurisdiction over the defendant. Norman v. Kal (1980), 88 Ill. App. 3d 81, 410 N.E.2d 316.

However, the ability of a registering court to inquire into the jurisdiction of a rendering court is not infinite, but rather limited by the principles of res judicata. Transamerica Trade Co. v. McCollum Aviation, Inc. (1981), 98 Ill. App. 3d 430, 424 N.E.2d 740; Brownlee v. Western Chain Co. (1977), 49 Ill. App. 3d 247, 364 N.E.2d 926, cert. denied (1978), 435 U.S. 968, 56 L. Ed. 2d 59, 98 S. Ct. 1605.

Lewis objected in Wisconsin to the Wisconsin court’s jurisdiction and had the question decided against him. He apparently did not move the trial court to reconsider or for other corrective relief. Nor did he pursue the matter in the Wisconsin Appellate Court to properly challenge the order of jurisdiction.

A party cannot be permitted to merely file a special appearance, challenge that court’s jurisdiction, and expect the lawsuit to hang in limbo! A reasonable expedition of the administration of justice cannot be so thwarted. Here, Mr. Lewis did not pursue his remedies in Wisconsin. He cannot now come to Hlinois and relitigate the issue.

Affirmed.

WEBBER and TRAPP, JJ., concur.