author: PRESIDING JUSTICE WHITE

text:
    EDWARD KENNEKE et al., Plaintiffs-Appellants, v. THE FIRST NATIONAL BANK OF CHICAGO et al., Defendants-Appellees.
    First District (3rd Division)
    No. 80-819
    Opinion filed March 31, 1982.

      Warren L. Schmidt, John J. Burns, and Sapoznick, Sheridan & Freiden, all of Chicago (Robert P. Sheridan, of counsel), for appellants.

      Reuben & Proctor, of Chicago (Don H. Reuben, Thomas F. Ging, and Andrew D. Eichner, of counsel), for appellees.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

This is the second appeal in this class action filed by two former employees of the Chicago American Publishing Company (company), publishers of the Chicago Today, a newspaper of general circulation in the Chicago area until 1974. In our prior opinion (65 Ill. App. 3d 10, 382 N.E.2d 309), we held that plaintiffs’ amended complaint, when liberally construed, stated a cause of action. That amended complaint had alleged: that Edward H. Kenneke, Edward Waszak and the other members of the class, were employed by the company as drivers of newspaper delivery trucks; that their employment was terminated when the company ceased publishing the newspaper; that the defendants were the First National Bank of Chicago, trustee of the Chicago Newspaper Publishers’ Association Union Pension Plan (plan), and members of the Pension Administrative Board of the plan; that in 1959, pursuant to a collective bargaining agreement between the union and the company, the company agreed to compensate the plaintiffs and the class by making them eligible for benefits under the plan; that each member of the class received partial compensation from the company in the form .of payments to the plan; that the company agreed to and did pay large sums of money to the plan for the benefit of the plaintiffs and the class; that the trustee of the plan holds the monies which are the subject of this suit; that the plan retains the use and benefit of the payments which were made exclusively for the benefit of plaintiffs and the class; and that the plaintiffs and other members of the class have been informed that they have no interest in the plan nor rights thereunder.

On remand from this court, a second amended complaint was filed in this matter. Edward Waszak was the only named plaintiff. The first count of this complaint, in effect, restated the above allegations of the amended complaint. The second count named the Chicago Tribune Company (Tribune), as an additional party defendant, and in addition to the above alleged: that the Tribune employed all the members of the class at the time the company ceased doing business; that shortly thereafter there was a mass termination of said Class members; that the plan is funded by employer contributions made by contributing employers, including the Tribune; that by reason of the contributions to the plan made on behalf of class members and their subsequent termination, there existed an actuarial surplus in the plan; that the Tribune was credited with such surplus, and as a consequence, its contributions to the plan, made on behalf of its employees, were, for a long time, substantially reduced; and that the Tribune has been unjustly enriched to the extent of the reductions in its obligations to the plan.

Subsequently, the defendants filed a motion for summary judgment on the ground, inter alia, that, as a matter of law the express terms of the plan and the collective bargaining agreement between the plaintiffs union and the Chicago Newspaper Publishers’ Association, an association which included both the Tribune and the company, precluded recovery on a theory of unjust enrichment. A supporting affidavit, not contradicted by counter affidavit, stated that plaintiff Waszak had completed 10 years, 11 months of credited service by the end of 1974, and that except for provisions dealing with payment of disability benefits not in issue here, section six of the plan, as amended, provided that a participant must have at least 20 years of credited service in order to qualify for any pension benefits. The trial court granted defendants’ motion and dismissed the second amended complaint with prejudice. It is from this order that this appeal is taken.

It is not disputed that plaintiff Waszak did not qualify for pension benefits under the terms of the pension plan. In fact, plaintiffs pleadings do not seek a pension under the plan, but rather seek quasi-contractual relief. The sole issue presented on this appeal is whether section 30 of the collective bargaining agreement, or section 11.2 of the pension plan entitled the defendants to summary judgment. Under section 57 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57), summary judgment “shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 586, 272 N.E.2d 497, cert. denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2846.) We conclude that section 30 of the collective bargaining agreement and section 11.2 of the pension plan did not entitle defendants to a judgment as a matter of law and that the trial court erred in granting their motion for summary judgment.

Section 11.2 of the pension plan provides:

“11.2 Vested Interests. Neither the Association, any Employer, Participant, nor the Union, nor any member of the Union, nor any person claiming by, through or under any of them, shall have any right, title or interest in or to the Pension Trust Fund, or any part thereof, excepting the right of a Participant to benefits as provided hereunder.”

Section 30 of the collective bargaining agreement provides:

“Section 30. In the event of merger, consolidation or suspension of any newspaper covered by this Agreement, all regular employees having one year or more of regular employment with such newspaper who thereby are deprived of such regular employment shall receive suspension or merger pay as follows:
Employment of 1 year_1 week
Employment of 2 years_2 weeks
Employment of 3 years_3 weeks
Employment of 4 years or more_4 weeks.”

As a preliminary matter, the parties disagree as to whether our prior holding in this case precludes us from considering section 11.2 on this appeal. Plaintiff argues that that section was urged upon this court as part of the first appeal and that we in our prior opinion held that that section was not a bar to recovery. We reject this argument on the basis of language in that opinion defining the scope of our holding:

“We also note here that we reach this holding on the basis of plaintiffs’ first amended complaint and defendants’ motion to strike and dismiss, neither of which set forth the actual provisions of the plan itself. Our decision is merely that the first amended complaint without an examination of the Plan states a proper cause of action on a theory of unjust enrichment; we are not passing upon how this case will be affected if either party chooses to introduce the terms of the pension fund agreement itself into evidence as this proceeding develops.” (65 Ill. App. 3d 10, 11-12.)

We note that although defendants’ motion to strike and dismiss plaintiffs’ first amended complaint does not quote section 11.2, a copy of that section was attached to defendants’ previous motion to strike and dismiss and motion for summary judgment as an exhibit. However, our prior decision was clearly based on the first amended complaint without an examination of the plan. Under the doctrine of “law of the case,” an appellate court is bound by its former final decision and judgment upon the same record, subject to certain exceptions not applicable here. (Yonan v. Oak Park Federal Savings & Loan Association (1975), 27 Ill. App. 3d 967, 970, 326 N.E.2d 773; Knowles Foundry & Machine Co. v. National Plate Glass Co. (1939), 301 Ill. App. 128, 153, 21 N.E.2d 913.) Our prior opinion did not consider the effect of section 11.2 in determining that a cause of action was stated, and accordingly, we conclude that the issue of whether section 11.2 of the pension plan prevents the granting of quasi-contractual relief to plaintiff is properly before this court for determination at this time.

In holding that the first amended complaint stated a proper cause of action for unjust enrichment, we relied upon Lucas v. Seagrave Corp. (D. Minn. 1967), 277 F. Supp. 338, and Bernstein, Employee Pension Rights When Plants Shut Down: Problems and Some Proposals, 76 Harv. L. Rev. 952 (1963) (hereinafter Bernstein article). In Lucas, the court held:

“[WJhere the substantial portion of a plan’s participants are terminated and the employer benefits by recapturing his contributions, as well as by the years of employees’ service at compensation less than the actual value of such service, it does not appear extreme or unfair to say that there may be a recovery on a quasi-contractual unjust enrichment theory.” (277 F. Supp. 338, 346.)

The Lucas court reasoned:

“If a plaintiff who has breached a contract by failure to fulfill a condition may recover for the benefit he confers, it would seem equitable that employees, who failed to perform the conditions of the pension plan (continued employment until retirement) because of a group termination, should be entitled to an amount equal to the benefit conferred on an employer. The employees’ failure to fulfill the condition is not wilful, indeed, it is quite involuntary. The employer is not in a position to argue that he is harmed by a non-performance of the pension conditions, in fact, he causes it. Yet the employer retains the full benefit of the employee’s past service and secures favorable income tax treatment as well as the recapture of the accumulated pension credits created by forfeitures.” 277 F. Supp. 338, 344-45; see Bernstein article at 963.

Although plaintiff’s second amended complaint states a cause of action for unjust enrichment, recovery by him may be precluded if conditions were inserted in the pension plan or the collective bargaining agreement for the contingency of a mass termination and forfeiture of any rights to funds in the pension plan. (Lucas v. Seagrave Corp. (D. Minn. 1967), 277 F. Supp. 338, 345; Bernstein article at 965.) If the plan or collective bargaining agreement foresaw such a contingency there would be enrichment, but that enrichment would not be unjust because it would have been within the contemplation of the parties and, in that sense, bargained for.

We next consider whether section 11.2 of the pension plan justified the granting of summary judgment for the defendants. That section, as quoted above, provides that participants have no right, title or interest in or to the pension trust fund, except the right of a participant to benefits provided for by the plan. Bernstein states that courts have read plan provisions which explicitly negate employee rights in the plan or fund prior to full satisfaction of eligibility requirements as indications that the employees did assume all the risk of nonconformance with those requirements. (Bernstein article at 970; see United Steel Workers Local No. 2098 v. International Systems & Controls Corp. (10th Cir. 1977), 566 F.2d 1135.) Such provisions he says are intended “to keep the plan from becoming embroiled in garnishment proceedings and lawsuits; to protect the employee from using his retirement income in advance of retirement; and to preclude claims by employees who quit or are involuntarily separated before achieving eligibility.” (Bernstein article at 970-71.) He continues:

“But this is not to say that they were intended to be applied in extraordinary situations of mass separations. At such a time literal enforcement of the very same provisions might be palpably unfair and defeat rather than foster plan purposes.
Courts would do well, therefore, to ascertain the purpose of these provisions and interpret them in accordance with those purposes, which often are more limited than the words intimate. # « *
All that is suggested here is that these provisions, as with the eligibility provisions themselves, be subjected to the test of actual intent, which may require parol evidence. All of these provisions should be assessed in the light of the whole transaction and relationship of the parties to discover whether they do represent a clearly expressed purpose of the parties to place the full risk of impossibility of performance upon the employee who has partially performed and is denied the opportunity to continue to do so.” (Bernstein article at 971.)

We agree with Professor Bernstein, and hold that section 11.2, on its face and by itself, does not operate to place the full risk of lost pension benefits from mass termination on the employee. Rather, section 11.2 should be assessed in the light of the whole transaction and relationship of the parties. Accordingly, the existence of that section within the pension plan, by itself, did not justify the granting of summary judgment for defendants.

Although the parties do not cite any Illinois case which has addressed this precise issue, defendants do refer us to the United Steelworkers case. That case involved the pension plan of a company which ceased doing business, and concerned the rights of employees who, as of the date of the plant shutdown, had not qualified under the provisions of the pension plan for retirement benefits. The pension agreement contained a provision, paragraph 362, identical, for all practical purposes, with section 11.2 The court found that the unjust enrichment claim in that case was fully resolved by paragraph 362 and held that such provision defeated any claim by the plaintiffs that they were entitled to a recovery under the terms of the pension agreement itself, and defeated the plaintiffs’ alternative claim for recovery under quasi-contract, or quantum meruit based on unjust enrichment. We disagree with the holding of United Steelworkers to the extent that it would require us to hold that section 11.2, in and of itself, would defeat the plaintiff’s cause of action, and find the reasoning of the Bernstein article more persuasive.

Next, we consider whether section 30 of the collective bargaining agreement entitled the defendants to summary judgment. Before resolving this question, we note that the parties disagree as to whether provisions of the collective bargaining agreement should be considered at all. Defendants argue that the collective bargaining agreement incorporates the plan and that those documents represent the entire agreement governing the relationship between the plaintiff’s union and the company. They point to section 25 of the collective bargaining agreement and the preamble to the plan. Section 25 provides for employer contributions to the pension plan, and the preamble of the plan states:

“WHEREAS, pursuant to the terms of a collective bargaining agreement dated August 22, 1956, and thereafter amended [dates of various Supplemental Agreements], by and between the Union and certain Employers hereunder * * * amounts have been accrued from and after June 1, 1957, for contribution to a Plan and Trust to provide retirement benefits hereinafter described; and
WHEREAS, it is the intention of the employers that such Plan and Trust [be qualified for deductions under the Internal Revenue Code];
NOW, THEREFORE, effective June 1,1957, the following Plan is adopted:

Without deciding whether the collective bargaining agreement incorporates the plan, we conclude that it is relevant to an assessment of the whole transaction and the relationship of the parties. Indeed, plaintiff, in his second amended complaint, alleged that pursuant to a collective bargaining agreement between the company and the union, the company agreed to compensate the plaintiff and other members of the class by making them eligible for benefits under the pension plan.

Section 30, as quoted above, provides for suspension pay to employees in the event of suspension of any newspaper covered by the collective bargaining agreement. Although the defendants should be allowed to show that provisions of that agreement on other subjects, such as severance pay, were designed to provide all the compensation contemplated for separated employees (Bernstein article at 974), we cannot conclude that section 30, absent such a showing, was designed to operate as the sole relief due a terminated employee in the event of mass termination. It may be conceded that section 30 deals with the possibility of mass termination; however, that section, by itself, did not entitle the defendants to summary judgment. A contrary result would not be in conformity with the public policy of protecting employee rights under pension plans. Anger v. Gottfried (1975), 29 Ill. App. 3d 559, 563, 331 N.E.2d 576.

Defendants also rely on Craig v. Bemis (5th Cir. 1975), 517 F.2d 677, to support their position. In that case former employees brought an action against their employer after they were discharged when the company closed one of its plants, and the court held that the plaintiffs could not recover under a theory of quasi-contract because they provided for the closing of the plant “in the contractual sense.” We note that Craig is distinguishable in that the court stated that it was bound by Minnesota law, which is contrary to Lucas, a case relied on in our earlier opinion.

In the instant case, we are unable to say, at this stage of the case, that the plaintiff’s union and the employer parties to the collective bargaining agreement and pension plan provided for what should happen to the pension plan’s funds in the event of the termination of publication of an entire newspaper.

We note that the “actuarial soundness of pension funds is, absent extraordinary circumstances, too important to permit trustees to obligate the fund to pay pensions to persons not entitled to them under the express terms of the pension plan.” (Phillips v. Kennedy (8th Cir. 1976), 542 F.2d 52, 55 n.8.) Here, the termination of the publication of the Today may be such an extraordinary circumstance as to entitle the plaintiff and the class to recover for unjust enrichment.

We hold that neither section 30 of the collective bargaining agreement nor section 11.2 of the pension plan, on their faces and by themselves, entitled the defendants to a judgment as a matter of law. Accordingly, the order granting summary judgment to the defendants must be reversed and this cause must be remanded to the circuit court to take further evidence concerning the contemplation of the parties at the times they entered into, and reaffirmed, the pension plan. In so doing, that court may want to look to other provisions of the pension plan and the collective bargaining agreement, and may take other evidence to determine the actual intent of section 11.2 of the pension plan and section 30 of the collective bargaining agreement.

Reversed and remanded.

McNAMARA and RIZZI, JJ., concur.

       Paragraph 362 of the Pension Agreement in United Steelworkers provided:
      “ ‘No employee prior to his retirement under conditions of eligibility for pension benefits shall have any right or interest in or to any portion of any funds which may be paid into any pension trust or trusts heretofore or hereafter established for the purpose of paying pensions and no employee or pensioner shall have any right to pension benefits except to the extent provided in this Agreement. ° “ °* ” (566 F.2d 1135, 1136.)


source: Caselaw Access Project

author: JUSTICE TRAPP

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLARENCE W. SMITH, a/k/a C. W. Smith, a/k/a John Davidson, Defendant-Appellant.
    Fourth District
    No. 17345
    Opinion filed April 15, 1982.
    Rehearing denied April 27, 1982.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Following a jury trial in the circuit court of Champaign County, the defendant, Clarence W. Smith, was convicted of armed robbery and sentenced to 18 years’ imprisonment. The defendant appeals his conviction and sentence. We affirm.

At trial, Sherry Walker testified that, in an attempt to sell two diamonds, she placed a classified advertisement in a newspaper. A man calling himself John Davidson responded to her ad and indicated his interest in one of the diamonds. They arranged an evening meeting at Ms. Walker’s home.

After entering Ms. Walker’s house, Davidson flourished a sawed-off shotgun and demanded that Ms. Walker give him the diamond and her purse. She complied. Davidson forbade Ms. Walker to look at him. After pulling the telephone out of the wall, Davidson departed.

Denise Sayre testified that she was an acquaintance of the defendant. The defendant asked her to sell a diamond for him, because it would “look better for a white girl to sell it than a black guy.” Ms. Sayre’s attempts to sell the diamond at several jewelry stores were unsuccessful.

On appeal, the defendant claims the trial court erred in giving, over his objection, the following instruction:

“If you find that the defendant had exclusive possession of recently stolen property and there is no reasonable explanation of his possession, you may infer that the defendant obtained possession of the property by armed robbery.
You are never required to draw this inference. It is for the jury to determine whether the inference should be drawn from all the facts of the case before it.”

Defendant argues that, under People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, his possession of recently stolen property was insufficient by itself to prove his guilt beyond a reasonable doubt of armed robbery. In Housby, the Illinois Supreme Court ruled upon an instruction given at a burglary trial. This instruction permitted the jury to infer that the defendant had obtained possession of recently stolen property by burglary if they found that the defendant had exclusive possession of recently stolen property and there was no reasonable explanation for his possession. The Housby court said that the inference used in the jury instruction did not infringe upon Housby’s due process rights if: (1) there was a rational connection between his recent ^ ssessic: of property stolen in the burglary and his participation in the burglary; (2; b.'s guilt of burglary flowed more likely than not from his recent, unexplained, and exclusive possession of burglary proceeds; and (3) ther was evidence v rrokorating the defendant’s guilt.

Our reading of the record in the instant case leads us to conclude that the instruction met Housby’s requirements. The defendant claims that there was no corroborating evidence of his guilt. We disagree. The defendant fit Walker’s general description of the man who robbed her. Walker testified that the robber was a black male, with a medium brown complexion, who stood approximately 6 feet tall and weighed 175 to 180 pounds. The defendant is 6 feet tall and weighs 180 pounds. He had a complexion and skin color similar to that described by Walker. Walker was unable to positively identify the defendant. However, after viewing a lineup, Walker asked to see the defendant a second time.

According to the defendant, a reasonable possibility existed that he had bought the diamond. Under this hypothesis an inference that the defendant obtained the jewel by armed robbery cannot be sustained by his mere possession of the stone. At trial, the defendant’s story that he bought the diamond from a man in a pool hall was shown to contain several inconsistencies and was impeached in significant areas. The defendant first disclaimed any knowledge of the diamond to the police. He later denied giving this statement. On a different date, the defendant testified that he bought the diamond for $28 from a man in a pool hall, but the defendant could not describe this man. According to the defendant, he had the diamond appraised by a middle-aged man at Frank’s Jewelers. This man allegedly gave the defendant an estimate free of charge. This employee supposedly stated that the diamond was worth $500-$1400, but did not provide the defendant with an appraisal slip. At trial, an employee of Frank’s Jewelers testified that they did not have a middle-aged man working for them at the time that defendant allegedly received the appraisal. Also, Frank’s Jewelers does appraisals only for jewelry they sell themselves. They do not appraise loose stones brought in by people off of the street. Appraisals from Frank’s give a specific dollar amount as to the value of the jewelry and not a range of values. Frank’s generally charges a fee for their appraisal and provides an appraisal certificate. The defendant also testified that he had the diamond appraised by Mr. Reed at Reed’s Jewelers. The defendant said that he was not charged a fee or given an appraisal slip at this establishment. Sherry Walker had previously taken the stone to Reed’s. Reed gave Walker an appraisal slip setting the value of the diamond at $575. Reed testified that Walker’s diamond was somewhat unusual because it had nicks and abrasions around its edges and because it had certain internal flaws. When, at the prosecution’s request, Reed examined the diamond possessed by the defendant, he stated that it was the same stone he had appraised for Walker. It would therefore seem likely that, if Reed had examined the diamond for the defendant, he would have recognized its similarities to Walker’s stone at that time. Also, in accordance with Reed’s business practices, Reed would have probably given the defendant a fixed value and an appraisal slip instead of a range of values and no appraisal slip.

We find that the requirements of Housby have been satisfied. There was a rational connection between the defendant’s recent possession of Walker’s diamond and his participation in the armed robbery. The defendant’s guilt of armed robbery flowed more likely than not from his recent, unexplained, and exclusive possession of the diamond. There was sufficient evidence, as set out above, to corroborate the defendant’s guilt. Therefore, the giving of the instruction in question here was proper and violated none of the defendant’s constitutional rights. See also People v. Killings (1982), 103 Ill. App. 3d 1074.

The defendant next claims that he was improperly sentenced and asks that this cause be remanded for a new sentencing hearing.

Section 5 — 5—3.2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(a)) lists the differing factors in aggravation that may be considered by the trial court in favor of imposing a term of imprisonment or as a reason to impose a more severe sentence. The trial judge indicated that he relied upon the following factor when determining the defendant’s sentence: “[T]he defendant’s conduct caused or threatened serious harm.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(a)(1).) The trial court stated:

“The crime of armed robbery is a crime which threatens the most serious kind of physical harm to another as it did in this case. The threat to the victim, Sherry Walker, in this case was that she complied with the demands of the defendant concerning the diamond and other demands made during the process of his obtaining the diamond for the implicit threat by the presence of the gun was pointed at her was that she would be shot and either killed or seriously injured as a result of such shooting as her assailant might see fit, that is, wherever he would choose to shoot her upon her failure to comply.”

In support of his argument, the defendant relies upon our decision in People v. Allen (1981), 97 Ill. App. 3d 38, 422 N.E.2d 254, where we narrowly construed the use of the aggravating factor of risk of harm. We find Allen to be distinguishable upon its facts from the situation here. Allen’s conduct could have conceivably harmed him. We said that almost all burglaries inherently impose a threat of serious harm to the burglar and also to the police as they attempt to capture the burglar. Thus, the risk of harm in Allen was no greater than that inherent in almost all burglaries. We took pains to point out that the situation in Allen was not like one in which the burglar engages in combat with the police, enters an occupied dwelling or other building, or has a confrontation with persons while in the building.

The use of this aggravating factor in sentencing must be examined in light of the particular circumstances of each case. In the array of available weapons, a sawed-off shotgun is among the most dangerous and threatening. The defendant here concealed this vicious weapon and, through duplicity, brought the weapon into Ms. Walker’s home. He used the weapon to terrorize her. This combination of weapon and setting makes the instant crime one where the defendant’s conduct clearly threatened serious harm greater than the harm inherent in all armed robberies. Thus, the trial court properly took this threat into account when determining the defendant’s sentence.

Accordingly, the judgment and sentence of the trial court are affirmed.

Affirmed.

MILLS and LONDRIGAN, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    LaSALLE NATIONAL BANK, Trustee, et al., Plaintiffs-Appellants, v. THE CITY OF WARRENVILLE et al., Defendants-Appellees.
    Second District
    No. 81-326
    Opinion filed April 7, 1982.

      Edward M. White, of Carey, Filter and White, of Chicago, for appellants.
    Barry Moss, of Moss and Bloomberg, of Bolingbrook, and Marvin J. Glink, of Ancel, Glink, Diamond, Murphy & Cope, of Chicago, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Whether the Cities of Warrenville and Naperville, as successors to a private utility company, Westview Utility Co. (Westview), are precluded by a contract between the developer, LaSalle National Bank, trustee, and Naper Venture (Naper) and Westview from charging connection fees and water meter installation charges, is the question before us.

The trial court entered summary judgment in favor of the municipalities and denied Naper’s motion for summary judgment. Naper appeals.

On May 24, 1972, Naper entered into a contract with Westview to furnish sewer and water services in an area which Naper was developing. The contract provided, in substance, that Westview would provide sewer and water service, with the developer paying all costs for the extension of sewer and water lines from the present lines to the points in the development required by Naper; the facilities to become the property of Westview as installed; and the contract further provided as pertinent:

“Water meters shall be installed by Utility.
As units are completed by Developers or their assignees, and tie-on is made to the sewer system, Utility shall refund to Developers a per unit sum of $375 paid to Utility for plant expansion; ” ” * Utility’s maximum obligation to make such refunds shall be 500 units or $187,500.00, * ° *.
7. Utility shall charge to the customers in the Property such rates, and shall impose such rules and regulations, as may from time to time be authorized by the Illinois Commerce Commission or such other public agency or body, if any, as may have jurisdiction to authorize such rates, rules and regulations.
14. This Agreement sets forth the complete understanding between Developer and Utility 9 9 9.”

Naper filed a complaint for declaratory judgment which, as amended, alleged the execution of the contract between itself and Westview, the installation by Naper at its own expense of the facilities (defined in the contract as “including mains, service lines, pipes, fittings, valves, hydrants, manholes and lift stations”). An affidavit attached to Naper’s motion for summary judgment stated that Naper spent more than $1,000,688.48 for the installation of the sewer and water lines, and paid the additional sum of $187,500 for plant expansion; and that Naper obtained sewer and water service from Westview without payment of tap-on charges; that on or about September 10, 1974, Warrenville purchased the entire utility system from Westview. See DiSanto v. City of Warrenville (1978), 59 Ill. App. 3d 931.

. The complaint further alleged that under the assignment from Westview to Warrenville, Warrenville obtained the water and sewer system, as well as Westview’s rights and obligations under its contract with Naper. Warrenville assumed these rights and obligations, with the exception of the obligation to make refunds for the first 500 units connected. Warrenville further agreed not to “assess, charge or collect any tap in or connection charge with respect to property which [Westview] has already collected” 9 9 9 “or which [Westview] would be prohibited from assessing or collecting 9 9 ,9”; that, however, Warrenville enacted an ordinance requiring payment of water and sewer connection charges and demanded payment of a charge for each water meter installed. The complaint further alleged that in 1977, the City of Naperville acquired the portion of the lines acquired by Warrenville from Westview which served the Naper Venture property. In the assignment agreement Naperville assumed all obligations of Warrenville to the users of the utility services in the area of acquisition. The agreement also provided:

“In the event that any claim of right under said contract as to said tap on fees or water meters results in Naperville receiving less income that [sic] its usual, reasonable and customary fees and charges from the areas covered by said agreements, then and in that event the parties agreed [sic] to share the resultant loss on a 50-50 basis, and Warrenville shall promptly remit its share to Naperville upon receipt of an itemized billing therefor.”

The amended complaint further alleged that the City of Naperville also was attempting to assess a connection fee and a charge for water meters; that the ordinances of both Warrenville and Naperville are void as outside of the cities’ authorities pursuant to section 11 — 139—8 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 11 — 139—8); bear no reasonable relation to costs and, further, deprive Naper of constitutional due process and equal protection of the law in requiring it to pay for the use of sewer and water facilities which it installed at its own expense.

The municipalities’ motion for summary judgment was granted and Naper’s motion for summary judgment denied, resulting in this appeal.

Naper argues that the contract between it and Westview was complete, and contained no provision that the utility could charge either connection or water meter charges, thus precluding the charges; and that the assignees of Westview are bound by Westview’s agreement. The municipalities contend that they have the statutory power to assess connection fees for sewer and water services, that the contract documents do not prohibit these charges, and that Naper is bound by the city sewer and water ordinances.

We agree that the municipalities, in general, possess the statutory power to assess connection fees for sewer and water services. A city may collect a reasonable charge for connection to its water and sewer system from new users of the system. (Ill. Rev. Stat. 1979, ch. 24, par. 11 — 150—1.) The funds thus collected are to be used primarily for expansion of the system to meet the requirement of new users. (Ill. Rev. Stat. 1979, ch. 24, par. 11 — 150—1.) The statutory purpose is to enable a city to recoup its capital expenditures in construction, expansion and extension of the sewer and water works system. (City of Pontiac v. Mason (1977), 50 Ill. App. 3d 102.) A city may collect connection fees even where the costs of the system have already been recouped or where physical connection of the system has been made, but use had not begun, before the charge was levied. (City of Pontiac v. Mason (1977), 50 Ill. App. 3d 102, 106-07; Heinrich v. City of Moline (1978), 59 Ill. App. 3d 278, 281. See also Knollwood Horizons, Inc. v. City of Freeport (1976), 43 Ill. App. 3d 901, 904.) We conclude that Warrenville and Naperville have statutory authority to charge a connection fee against new or additional users of the water and sewer system.

However, the statutory authority may be limited by contract. (Wall v. Chicago Park District (1941), 378 Ill. 81, 93. See also Atlantic Construction Co. v. City of Raleigh (1949), 230 N.C. 365, 53 S.E.2d 165.) The question then becomes whether, under the contract between Naper and Westview, the latter would be “prohibited” from collecting or assessing such charges. The contract itself, the parties agree, makes no direct mention of such charges. The trial court thus found that the contract, purported to be the entire agreement between the parties, did not prohibit the charges and thus that the charges were proper under the city’s statutory powers.

Both parties rely on the same rules of construction in support of their differing positions:

“If a written contract purports on its face to be a complete expression of the whole agreement it is to be presumed that the parties introduced into it every material item and term, and in construing it the court will not add thereto another term about which the agreement is silent. (Sterling-Midland Coal Co. v. Coal Co., 334 Ill. 281; Armstrong Paint Works v. Can Co., 301 id. 102.) No words can be added to or taken from an instrument and thereby change the plain meaning of the parties as expressed therein. (Stevens v. Felman, 338 Ill. 391.) The object of construction is to ascertain the intention which the parties have expressed in the language of the contract, and where there is no ambiguity in the terms used the instrument itself is the only criterion of the intention of the parties. (McCormick v. Sanford, 318 Ill. 544.)” (Green v. Ashland Sixty-Third State Bank (1931), 346 Ill. 174, 182.)

See also Decatur Lumber & Manufacturing Co. v. Crail (1932), 350 Ill. 319, 323; Westinghouse Electric Elevator Co. v. La Salle Monroe Building Corp. (1946), 395 Ill. 429, 432-33; Schuch v. University of Chicago (1980), 87 Ill. App. 3d 856, 858.

The authorities are cited by Naper, however, to support its contention that the agreement with Westview is unambiguous and complete as to its terms and cannot be added to by requiring payment for connection fees and water meter charges which are not provided for in the agreement. Conversely, the municipalities argue that if the agreement, complete as to its terms, was intended to prohibit connection fees and water meter charges it would have so provided and that the court may not add that provision to the integrated contract. The trial court adopted the rationale of the municipalities.

Naper’s assertion that “defendant may not require payment of additional charges for services already covered under the agreement” begs the question. There is nothing in the Naper-Westview agreement which “covers” the fees and charges at issue here. Tap-on fees are not mentioned and the subject of water meters are referred to only by the phrase “shall be installed by the Utility,” with no reference to charges for such installation.

The agreement does contain a formula for reimbursement of advances made by Naper to extend the sewer and water service to its proposed development; this “reservation of capacity” formula, however, is not relevant to the matter of connection fees assessed to those who tap on to the system; it is, rather, designed to compensate the utility for the nonuse of part of its capacity for the time that it must wait for new customers to come on line. It is plain that the matter of connection fees was simply not mentioned in the original agreement either expressly or inferentially; nor did the original agreement address the matter of meter charges, which, in substance, are a type of connection charge. The fact that the utility agrees to “install” the water meters is understandable as the utility would obviously wish to retain control over the amount of services to be used. We cannot draw the inference that, therefore, no charge was intended to be made since the agreement does not so provide,

The contract of assignment states that the city will not collect any connection charge which Westview would be prohibited from assessing or collecting under the original agreement. We read this clause as requiring an actual prohibition rather than simply a lack of explicit authorization. We conclude that the cities, who are legislatively empowered to make the charges, may not be prevented from doing so under the contract of assignment.

The original contract contains no prohibition against the connection charges and this court is not free to read in such a prohibition. (Green v. Ashland Sixty-Third State Bank (1931), 346 Ill. 174, 182-84; Schuch v. University of Chicago (1980), 87 Ill. App. 3d 856, 859; Herlihy Mid-Continent Co. v. Sanitary District (1945), 390 Ill. 160, 166; Decatur Lumber & Manufacturing Co. v. Crail (1932), 350 Ill. 319, 323-24.) The cities are therefore free to levy the “tap-on” or “connection” charges at issue here to new users of the system and, thus, the trial court did not err in granting summary judgment in favor of the cities. The judgment of the trial court is affirmed.

Affirmed.

REINHARD and NASH, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    MASSEY-FERGUSON, INC., Plaintiff-Appellant, v. BENNIE HELLAND, d/b/a Newark Trucking and Implement Company, Defendant-Appellee.
    Second District
    No. 81-545
    Opinion filed April 7, 1982.

      Edward B. Tucker, of Tucker and Hollaban, of Mt. Sterling, for appellant.
    Paul E. Root, of Root and Condon, of Morris, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

After a hearing on the issuance of the entry of an order for replevin (Ill. Rev. Stat. 1979, ch. 119, par. 4c), the trial court entered an order denying issuance of the replevin order. Plaintiff appeals the order of denial.

Plaintiff, Massey-Ferguson, Inc., and Colusa Farm Equipment, Inc. (Colusa), entered into a dealer sales and service agreement on October 23, 1980, whereby Colusa became a dealer for Massey-Ferguson Agricultural Machinery. Mr. David Batson, plaintiff’s district sales manager and former service supervisor, called on Colusa at least twice a month. Mr. Batson was responsible for being informed of a dealer’s financial condition and maintaining a monthly inventory sheet listing all Massey-Ferguson machinery in the dealer’s possession. Where a piece of equipment was not on the lot and its absence was not satisfactorily explained by the dealer, the dealer had to immediately settle with plaintiff for the equipment, as required by the floor plan financing agreement between the parties.

In mid-April 1981, Mr. Batson called on Colusa and found machinery missing from the dealer’s lot. When the dealer failed to settle for this missing machinery, Mr. Batson terminated Colusa as a Massey-Ferguson dealer.

Defendant Bennie H. Helland is a partner in Newark Trucking and Implement Company, a partnership dealing in the purchase for sale to the public of new and used farm equipment. Between March 18, 1981, and April 14, 1981, Mr. Helland purchased approximately 30 pieces of new and used machinery from Colusa and paid Colusa in cash and/or in trade. Some of these pieces were put on defendant’s sales lot, and some were transported to defendant’s farm for use. Certain Massey-Ferguson equipment from Colusa had been put up for sale at auction by the defendant on or about March 28, 1981, but only one piece of equipment listed on the replevin complaint had been sold.

On April 30,1981, plaintiff Massey-Ferguson filed statutory notice of filing of a replevin complaint (Ill. Rev. Stat. 1979, ch. 119, par. 4a) and the replevin complaint itself. The complaint alleged that, pursuant to a security interest from Colusa perfected by filing, plaintiff was lawfully entitled to possession of certain property described in the complaint and allegedly wrongfully detained by defendant. That property, according to the complaint, had not been taken for tax, assessment, or fine levied by virtue of law. (Ill. Rev. Stat. 1979, ch. 119, par. 4.) Further, the complaint alleged that the value of the property taken was $200,000 and that statutory notice had been served.

On June 15, 1981, defendant filed a motion to dismiss for failure to state a cause of action. On June 19,1981, prior to the hearing on the order of replevin, this motion to dismiss was heard and denied. Immediately thereafter, a hearing was held on the issuance of the entry of an order for replevin. For the entry of an order for replevin, the court must find as a matter of record that plaintiff has established a prima facie case to a superior right to possession of the disputed property and that plaintiff has also demonstrated to the court the probability that he will ultimately prevail on the underlying claim to possession. Ill. Rev. Stat. 1979, ch. 119, par. 4c.

On June 30,1981, the trial court entered an order denying the petition for an order for replevin. Among the specific findings in that order, the court found that plaintiffs security interest appeared to have been perfected but that plaintiff had failed to establish a prima facie case that it would ultimately prevail on the underlying claim to possession. One of the controlling issues to be decided on this appeal is whether the trial court erred in making this finding. As plaintiff recognizes, the decision of the trial court must be against the manifest weight of the evidence in order to cause said decision to be overturned. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356; see American National Bank & Trust Co. v. Mar-K-Z Motors & Leasing Co. (1974), 57 Ill. 2d 29, 33.) In this case, the trial court’s determination is justified by the evidence.

Plaintiff’s claim to possession of the goods which are the subject of this replevin action is grounded on a security interest in those goods. Plaintiff insists that the security interest continued in the collateral notwithstanding the disposition of the goods to defendant by plaintiff’s dealer Colusa. It is defendant’s position that he took the goods in question free of plaintiff’s security interest. If so, then plaintiff could not meet the burden of demonstrating the probability of its prevailing on the underlying claim.

According to section 9 — 306(2) of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 1 — 101 et seq.) (UCC), a purchaser takes free of a security interest where “the disposition was authorized by the secured party in the security agreement or otherwise.” (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 306(2).) In this case, the disposition of collateral “in the ordinary course of business upon customary terms for value received” was authorized in the security agreement (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 105(1)(l)) contained in the dealer sales and service agreement signed by plaintiff and Colusa. Additionally, section 9 — 307(1) of the UCC provides that “[a] buyer in the ordinary course of business (subsection (9) of Section 1 — 201) ° # # takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.” (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 307(1).) Section 1 — 201(9) of the UCC defines “buyer in the ordinary course of business” as follows:

“a person who in good faith without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in the ordinary course from a person in the business of selling goods of that kind * *

The gist of plaintiff’s argument is that defendant was not a buyer in the ordinary course of business because he did not meet the test of good faith required of a merchant to be entitled to the protection of section 9 — 307(1) of the UCC. Additionally, plaintiff maintains that Colusa’s disposition of collateral to the defendant was not authorized by the secured party because it was not in the ordinary course of business so that defendant is not entitled to protection under section 9 — 306(2) either.

Therefore, a basic determination which must be made in this case is whether or not the defendant purchased the goods in question in the ordinary course of Colusa’s business. If so, the disposition was authorized by the secured party so that defendant took free of the security interest under the terms of section 9 — 306(2) of the UCC. Also, if defendant purchased the goods in the ordinary course of Colusa’s business, in good faith and without knowledge that the sale to him violated plaintiff’s ownership rights or security interest, then defendant took free of the security interest created by plaintiff even if, as the court found, the security interest was perfected and even if defendant knew of its existence. Ill. Rev. Stat. 1979, ch. 26, par. 9 — 307(1).

In support of his position that defendant was not a buyer in the ordinary course of business, plaintiff first contends that defendant was a merchant within the definition of section 2 — 104(1) of the UCC. Therefore, plaintiff argues, defendant was required to meet the test of “good faith” defined in section 2 — 103(1) (b) of the UCC (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 103(1)(b)). This section adds the additional requirement of “the observance of reasonable commercial standards of fair dealing in the trade” to the general definition of “good faith” contained in section 1 — 201(19) of the UCC, which states “ ‘good faith’ means honesty in fact in the conduct or transaction concerned.” Ill. Rev. Stat. 1979, ch. 26, par. 1 — 201(19).

Plaintiff does not cite any Illinois case, and defendant states on appeal that he has been unable to find any Illinois case, directly on the issue of which “good faith” standard is applicable in determination of whether a merchant buyer is in the ordinary course of business. While courts in some States have held that the definition in section 2 — 103(1) (b) would be applicable, courts in other States have held that the foregoing definition is applicable in cases arising under the sales act and that the general definition found in section 1 — 201(19) is to be applied in transactions like the instant case that arise under secured transactions. Annot., 87 A.L.R.3d 11, 42-47 (1978).

A review of the relevant provisions of the UCC reveals that it is the general definition of “good faith” contained in section 1 — 201(19) of the UCC that is applicable in cases arising under secured transactions. UCC section 1 — 201 provides that the definitions contained therein apply to the Act (as a whole) subject to additional definitions contained in subsequent articles, which are applicable to specific articles or parts thereof. (Ill. Rev. Stat. 1979, ch. 26, par. 1 — 201.) The definition sections in the Uniform Commercial Code-Sales (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 101 et seq.) (sales article) and the Uniform Commercial Code-Secured Transactions (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 101 et seq.) (secured transactions article) each provide that the definitions presented therein apply in the particular article and that, additionally, article 1 contains general definitions also applicable throughout the particular article. (Ill. Rev. Stat. 1979, ch. 26, pars. 2 — 103(1), (4), and 9 — 105(1), (4).) These UCC provisions make clear that the definition of “good faith” applicable to a merchant under section 2 — 103(1) (b) applies to the sales article, and, since the term is not otherwise defined in the secured transactions article, the general definition of “good faith” contained in section 1 — 201(19) applies to the latter article. This statutory construction is underscored by the Official Comment to section 1 — 201(19),

“ ‘Good faith’ whenever it is used in the Code, means at least what is here stated. In certain Articles, by specific provision, additional requirements are made applicable. See, e.g., Secs. 2 — 103(1)(b), 7 — 404. To illustrate, in the Article on Sales, Section 2 — 103, good faith is expressly defined as including in the case of a merchant observance of reasonable commercial standards of fair dealing in the trade, so that throughout that Article wherever a merchant appears in the case an inquiry into his observance of such standards is necessary to determine his good faith.” Ill. Ann. Stat., ch. 26, par. 1 — 201, Uniform Commercial Code Comment, at 49-50 (Smith-Hurd 1963).

We therefore reject plaintiff’s assertion that the “good faith” definition contained in the sales article is applicable to the present case, which arises out of a secured transaction, and hold that the standard of “good faith” in a secured transactions case is “honesty in fact in the conduct or transaction concerned” and does not additionally require “the observance of reasonable commercial standards of fair dealing in the trade.”

While the rationale set forth above also causes us to reject plaintiff’s application of the “merchant” definition contained in the sales article to this secured transactions case, we recognize that the defendant is a merchant as that term is commonly understood. Defendant testified that he was a partner in the defendant company, which had been in business for a period of more than 20 years and had dealt in, purchased and sold farm equipment and industrial equipment, and that his experience had given him an understanding of financing arrangements common to a manufacturer-dealership agreement. Also, in this case, the trial court specifically found that the defendant company is a partnership dealing in the purchase for sale to the public of new and used farm equipment. Defendant’s knowledge and experience acquired in his activities as a farm equipment dealer has substantial evidentiary significance in determining whether his conduct meets the applicable good faith standard, that is “honesty in fact in the conduct or transaction concerned.”

Even though we have determined that the good faith standard to be applied in a secured transactions case is that set forth in section 1 — 201(19) of the UCC and have rejected plaintiff’s contention that the good faith required of a merchant buyer in such a case includes “the observance of reasonable commercial standards of fair dealing in the trade,” the evidence adduced at trial shows that defendant’s conduct would have met either test.

At trial, plaintiff made no specific allegations of bad faith on the part of defendant other than reference to the size of defendant’s purchases. Defendant’s unrefuted testimony was that he was unaware that Colusa was having any financial difficulties. As the trial court found, no evidence was offered showing the fair market value of the items sold or the items taken in trade, even though it was within plaintiff’s ability to so show. So, there was no possibility of a showing that defendant had paid so much less than fair market value for the goods that bad faith could be inferred. (International Harvester Co. v. Glendenning (Tex. Civ. App. 1974), 505 S.W.2d 320, 324.) Also, plaintiff failed to put before the trial court any evidence of what constitutes “reasonable commercial standards of fair dealing in the trade” from which the trial judge could have made a determination as to whether defendant’s conduct violated those standards. First National Bank v. Crone (1973), 157 Ind. App. 665, 301 N.E.2d 378, 381.

Plaintiff argues that defendant’s failure to check or verify the existence of any security agreements or financing statements was evidence of bad faith because failure to do so was inconsistent with commercial reasonableness. There was no evidence adduced that checking or verification was common practice in the trade. Additionally, even if Helland had checked the dealer sales and service agreement, nothing contained therein would have indicated that the sale was unauthorized (compare Swift v. J.I. Case Co. (Fla. App. 1972), 266 So. 2d 379).

In short, the material testimony in this case did not reveal any lies, deceit, overreaching or other examples of dishonesty in fact in the transaction (compare International Harvester Co. v. Glendenning (Tex. Civ. App. 1974), 505 S.W.2d 320, 325), nor was any evidence adduced regarding reasonable commercial standards of fair dealing in the trade. As the court found, the amount of equipment purchased in the short span of time in which the transactions took place raised some suspicion, but the evidence presented did not justify the court to do more than speculate. This is because plaintiff failed to show what percentage of its equipment Colusa sold and to whom and whether the sale of 29 to 30 pieces of equipment to one buyer was unusual.

Because plaintiff failed to show at trial the character of the buying market to which Colusa sold, how much of its equipment or what percentage of its equipment Colusa sold and to whom and whether or not Colusa, in the course of its business, regularly dealt with buyers of large lots of equipment such as the defendant, the court was unable to make a finding that the sale of 29 to 30 pieces of equipment by a large dealer, whom plaintiff had authorized and expected to sell such equipment, was outside of the ordinary course of Colusa’s business. No evidence was adduced of any restrictions as to whom Colusa was authorized to sell. Despite plaintiff’s insistence to the contrary, the language contained in paragraph 12 of the dealer sales and service agreement does not “clearly provide” that Colusa lacked authority to make the kind of sale at issue in the instant case.

Although plaintiff takes issue with the trial court’s reliance on the principles expressed in American National Bank & Trust Co. v. Mar-K-Z Motors & Leasing Co. (1974), 57 Ill. 2d 29, and Arena Auto Auction v. Schmerler Ford, Inc. (1978), 60 Ill. App. 3d 484, it appears that the trial court aptly relied on these cases. Although the purchasers in Arena Auto Auction were consumers rather than merchants, they dealt in good faith with the vendor because they had no knowledge that the sale to them was in violation of the ownership rights of a third party. This indicia of honesty in fact in the transaction is also present in the instant case. Whether the plaintiffs here had established that the defendant was not a “buyer in the ordinary course of business” was a question of fact for the trial court, and its conclusion is supported by the evidence. American National Bank & Trust Co. v. Mar-K-Z Motors & Leasing Co. (1974), 57 Ill. 2d 29, 33.

A finding that defendant was a “buyer in the ordinary course of business” is supported by credible evidence. Therefore, the transactions in question were authorized dispositions of collateral by Colusa and, under the provisions of section 9 — 306(2) of the UCC, plaintiff’s security interest did not continue in the collateral so that defendant took free of that security interest. Also, in accordance with the provisions of section 9 — 307(1) of the UCC, defendant, as a buyer in the ordinary course of business, took free of the security interest created by Colusa.

In the “Official Comment” to section 9 — 307, the UCC drafters state that the limitations imposed by subsection (1) on persons who may take free of a security interest apply only to unauthorized sales by the debtor and that, in cases where the secured party has authorized the sale in the security agreement or otherwise, the buyer takes free without regard to those limitations. (Ill. Ann. Stat., ch. 26, par. 9 — 307, Uniform Commercial, at 199 (Smith-Hurd 1974).) Here, the sales to defendant were not unauthorized. The dealer sales and service agreement gave Colusa express authority to dispose of collateral “in the ordinary course of business.” (Draper v. Minneapolis-Moline, Inc. (1968), 100 Ill. App. 2d 324, 329.) Section 9 — 306(2) of the UCC provides that the security interest does not continue in the collateral where the disposition was authorized by the secured party, and the “Official Comment” to that section states that, in such cases, the secured party’s only right will be to proceeds (Ill. Ann. Stat., ch. 26, par. 9 — 306, Uniform Commercial, at 189 (Smith-Hurd 1974)).

While it seems that the transactions in this case are more properly governed by UCC section 9 — 306(2) rather than section 9 — 307(1) because the transfers appear to have been authorized dispositions of collateral, we need not decide which section applies in this case. Defendant would take free of the plaintiff’s security interest under either theory. The trial court determined that plaintiff failed to demonstrate the probability that it would ultimately prevail on its underlying claim to possession, and that determination is amply supported by the evidence adduced at the hearing. Therefore, the order denying the issuance of an order for replevin was not against the manifest weight of the evidence and will not be disturbed on review. Having so found, we need not address the issues raised by the defendant concerning whether or not plaintiff established the other statutory requirement, a prima facie case to a superior right to possession of the disputed property. Ill. Rev. Stat. 1979, ch. 119, par. 4c.

For the reasons set forth above, the judgment of the trial court is affirmed.

Affirmed.

SEIDENFELD, P. J., and UNVERZAGT, J., concur.


author: JUSTICE HOPE

text:
    IRVING DESCHAUER et al., Plaintiffs-Appellees, v. STEPHEN HILT, Defendant-Appellant.—(STATE BANK OF LAKE ZURICH, Garnishee.)
    Second District
    No. 81-656
    Opinion filed April 7, 1982.
    Barry Schultz, of Prairie State Legal Services, of Woodstock, for appellant.
    No brief filed for appellees.
   JUSTICE HOPE

delivered the opinion of the court:

Defendant appeals an order of the trial court refusing to quash a garnishment summons. The court had held that Illinois exemption statutes (Ill. Rev. Stat. 1979, ch. 52, par. 13 et seq.) do not apply to the post-judgment garnishment of his checking account.

On January 7,1981, a judgment was entered in favor of plaintiffs and against defendant in the amount of $1,500 plus costs. On January 26,1981, a writ of restitution and execution was served on defendant. On March 17, 1981, counsel for plaintiff signed an affidavit for garnishment. A garnishment summons-non-wage was then served upon the garnishee, the State Bank of Lake Zurich, which froze defendant’s checking account containing $904.25. On June 15, 1981, defendant filed a motion to quash the summons, claiming that section 1 of “An Act to exempt certain personal property * * (Ill. Rev. Stat. 1979, ch. 52, par. 13) entitled him to claim personal property, including money, as exempt from judgment, attachments and distress for rents. The court held that the exemption statutes do not apply to the garnishment and denied defendant’s motion to quash the garnishment summons. Plaintiffs filed a motion for a turnover order, and defendant filed a motion to reconsider. On August 4, 1981, both plaintiff and defendant appeared for argument on their respective motions. The court again held that the exemption statutes do not apply to a garnishment summons. The court denied defendant’s motion to reconsider, and defendant appealed.

Defendant argues that section 1 (Ill. Rev. Stat. 1979, ch. 52, par. 13) exempting certain property from judgment, attachment and writ of distress, includes the exemption of these properties in garnishment proceedings as well. The section states in pertinent part:

“The following personal property, owned by the debtor, is exempt from judgment, attachment or distress for rent:
(c) $300 worth of property, including money, and salary or wages due him or her, to be selected by the debtor, and, in addition, when the debtor is the head of a family and resides with the same, $700 worth of other property, to be selected by the debtor.
Money due the debtor from the sale of any personal property which was exempt from judgment, attachment or distress for rent at the time of such sale is exempt from attachment and garnishment to the same extent that such property would be exempt had the same not been sold by such debtor.”

Garnishment was unknown at common law and is solely a statutory proceeding. (Robbins, Coe, Rubinstein & Shafran, Ltd. v. Ro Tek, Inc. (1974), 23 Ill. App. 3d 705, 320 N.E.2d 157; Baron v. Villareal (1968), 100 Ill. App. 2d 366, 241 N.E.2d 227.) It is remedial in nature, an ancillary step to the original action for judgment, designed to reach the property of a judgment debtor after ordinary execution has failed. (Thompson v. Glover (1969), 115 Ill. App. 2d 253, 253 N.E.2d 132; Baron v. Villareal.) It is not an independent action but is completely dependent on the underlying judgment. (Zimek v. Illinois National Casualty Co. (1939), 370 Ill. 572, 19 N.E.2d 620.) Therefore, even though the statute does not specifically list garnishment, we conclude that if property is to be exempt from judgment it clearly must also be exempt from garnishment, which is merely the enforcement of the judgment.

The supreme court in Fanning v. First National Bank (1875), 76 Ill. 53, concluded that the statutory right of a debtor to exemption of certain of his property from execution, writ of attachment and distress for rent is not changed or impaired when his property is in the hands of a third party. “[T]he mere fact [the money] was attempted to be reached by garnishee process, can make no difference.” (76 Ill. 53, 56.) The court reasoned that “[h]ad it been intended to provide that exemptions might be claimed where property was found in the hands of a defendant in execution, and that none should exist when property was found in the hands of a third party, by garnishee process, certainly some provision would have been made to embrace a case of this kind.” (76 Ill. 53, 56.) Referring to the garnishment statute (Ill. Rev. Stat. 1874, ch. 62), the court found no basis there to conclude that exemptions for judgment debtors should not apply when satisfaction of judgment must be obtained through the garnishment process. That case, like the case before us, involved garnishment of a debtor’s bank account.

Following the supreme court’s decision in Fanning the legislature amended the exemption statute, permitting a debtor to exempt personal property but with the provision “that such selection and exemption shall not be made by the debtor or allowed to him or her from any money, salary, or wages due him or her from any person or persons or corporation whatever.” (1877 Ill. Laws 101-02.) In Finlen v. Howard (1888), 126 Ill. 259, 262, 18 N.E. 560, the supreme court stated that in amending the statute the legislature clearly “intended a distinction should be observed, in the matter of exemptions, between articles of personal property and of money due and owing to the debtor.” (126 Ill. 259, 262.) The 1877 amendment “forbids that any exemption be allowed to the debtor from money due him.” (126 Ill. 259, 262.) Noting that the 1877 amendment of the statute differed in this respect from the statute it had interpreted in Fanning, the supreme court added:

“Under the former statute, containing no provision of like effect as the proviso under consideration, it was held, that the selection might be made by the debtor from money due him, or any personal property or assets belonging to him, and it would therefore seem that the legislature intended to change the rule announced in that case, by the adoption of the proviso under consideration.” (126 Ill. 259, 263.)

The 1877 proviso clearly only allowed exemption of personal property and not money due and owing the debtor.

In 1969 the legislature amended the statute, deleting the provision that the exemptions shall not be allowed for any money, salary or wages due the debtor and changed the exemptions for personal property to “Three hundred dollars’ worth of property, including money, and salary or wages due him ° ° (Ill. Rev. Stat. 1969, ch. 52, par. 13(c).) In 1979 the statute was amended again, to declare that this section applied to exemptions from “judgment, attachment or distress for rent” (Ill. Rev. Stat. 1979, ch. 52, par. 13(c)), instead of execution, writ of attachment or distress for rent as had been stated in the previous versions of the statute. We think that in deleting the provision that exemptions do not include money due the debtor and substituting instead the specific inclusion of money into the category of personal property the legislature returned the statute to the meaning it had for the supreme court in Fanning v. First National Bank (1875), 76 Ill. 53. If a statute exempting from execution “ ‘$100 worth of * * * property 0 0 0 selected by the debtor’ ” (Fanning, 76 Ill. 53, 54) applies to garnishment so that a judgment debtor’s bank account may be exempted, then clearly that statute’s descendant exempting from judgment “$300 worth of property, including money” (Ill. Rev. Stat. 1979, ch. 52, par. 13(c)) should also apply to garnishment proceedings.

Like the court in Fanning we see no logical reason to conclude that a debtor cannot claim an exemption for his money on deposit in the bank. The objectives of exemption laws include (1) insuring a means of livelihood and subsistence to the debtor; and (2) the protection and welfare of the debtor’s family. (General Finance Corp. v. Rainer (1958), 20 Ill. App. 2d 192, 155 N.E.2d 833.) This protection should not be less because one’s property is in the hands of a third party and thus must be garnished, instead of in his immediate possession.

We find no suggestion in any other part of the exemption statutes, or in the garnishment statutes (Ill. Rev. Stat. 1979, ch. 62, par. 33 et seq.) that the exemptions of section 1 should not apply in garnishment proceedings. In our opinion the provision in the garnishment statutes specifically exempting pension funds (Ill. Rev. Stat. 1979, ch. 62, par. 33.2) does not qualify the rights of a judgment debtor to exemption under chapter 52 of other property which could be garnished.

We conclude, therefore, that a garnishment proceeding is subject to the exemption laws. The denial of defendant’s motion to quash is reversed, and the cause is remanded for further hearing on said motion consistent with this opinion.

Reversed and remanded.

LINDBERG and NASH, JJ., concur.


author: JUSTICE REINHARD

text:
      In re MARRIAGE OF BARBARA J. DAVIES, Petitioner-Appellant, and JOHN A. DAVIES, Respondent-Appellee.
    Second District
    No. 81-330
    Opinion filed March 25, 1982.
    Rehearing denied May 11, 1982.

      Seymour C. Axelrood and Paul Ben Axelrood, both of Sewell, Axelrood & Moran, of Chicago, for appellant.
    Peter R. Vogel, of Jegen and Carlson, of Glen Ellyn, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

This appeal involves the validity of a judgment for dissolution of marriage entered on October 10,1979, and a supplemental judgment filed on February 19, 1981, but entered nunc pro tunc as of March 28, 1980, which disposed of the questions of maintenance and property rights, as affected by the death of respondent, John A. Davies, on April 8,1980. The trial court concluded that the intervening death of the respondent, which occurred after a hearing on maintenance and property but prior to a written judgment on those issues, did not affect the judgment on the grounds for dissolution of the marriage or the property rights of the parties and entered a supplemental judgment denying all maintenance and dividing the property of the parties. Petitioner, Barbara J. Davies, has appealed, contending that: (1) the judgment for dissolution is void; (2) the trial court erred in entering the supplemental judgment for dissolution nunc pro tunc; and (3) the death of respondent vested the joint tenancy property of the parties in petitioner on the date of his death which was prior to the date when the supplemental judgment was filed.

On September 29,1978, petitioner filed her petition for dissolution of marriage. Thereafter, an amended petition was filed, the respondent answered, an uncontested hearing on grounds was held, and a written judgment for dissolution of marriage was entered on October 10, 1979. The written judgment for dissolution reserved all of the property rights, maintenance rights, property disposition and attorney fees pending a supplemental judgment, and the cause was continued for determination of those issues to March 3, 1980. There were no children of the marriage. After a contested hearing on March 3 and 4, 1980, the trial court reserved its decision indicating it would be given by a “letter of opinion within two weeks.” On April 9, 1980, a two-page letter of opinion dated March 28, 1980, was filed which made findings of fact, a division of the property rights, barred maintenance and ordered that each party pay his or her own attorney’s fees. The letter concluded by stating that “[cjounsel for the petitioner is directed to prepare and present, after and upon appropriate notice, a judgment order conforming to this letter of opinion. Presentation should be on or after April 7, 1980.” On April 14, 1980, respondent’s attorney filed a suggestion of the death of respondent which recited the death as occurring on April 8, 1980. Subsequently, the trial court ordered respondent’s counsel and the petitioner to submit briefs on the effect of the death on the proceeding. In another letter of opinion filed October 22,1980, the trial court rendered an opinion “that the intervening death of the respondent does not affect the ruling of the court embodied in its letter of opinion dated March 28, 1980, and that the preparation, presentation and entry of the supplemental judgment in accordance with said letter of opinion was a ministerial act to be performed without further proceedings herein.” Petitioner’s attorney was directed to prepare and present a written supplemental judgment in conformance with the March 28,1980, letter of opinion.

On February 19, 1981, a supplemental judgment order was filed by the court and was entered nunc pro tunc as of March 28, 1980. Also, on February 19, 1981, respondent’s attorney filed a petition pursuant to section 54 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 54) for the appointment of a special administrator to complete the proceedings. On that same date the trial court appointed respondent’s attorney, William E. Jeger, as special administrator “for the purpose of defending on behalf of John A. Davies, respondent, now deceased.” On March 13, 1981, petitioner filed a petition requesting that the judgment for dissolution of the marriage entered on October 10, 1979, and all subsequent orders be vacated, alleging that the judgment for dissolution of marriage was void pursuant to the recent decision of this court in In re Marriage of Cohn (1981), 94 Ill. App. 3d 732, 419 N.E.2d 729. Petitioner then filed another motion to vacate all orders and judgments entered on February 19, 1981. On April 15, 1982, the trial court denied the motions to vacate, and this appeal ensued.

Petitioner contends that the trial court, under the facts herein, was without authority under section 401(3) of the Illinois Marriage and Dissolution of,Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 401(3)) to enter, in the absence of appropriate circumstances, a judgment of dissolution of marriage before adjudicating the other issues involved. Petitioner maintains that our decision in In re Marriage of Cohn (1981), 94 Ill. App. 3d 732, 419 N.E.2d 729, appeal allowed (1981), 85 Ill. 2d 564, requires that the judgment for dissolution of marriage and supplemental judgment be vacated. Respondent argues that petitioner’s failure to raise this issue until March 13,1981, constitutes a waiver of that argument and further asserts that Cohn, which was decided on April 20, 1981, is not determinative of the validity of the judgment for dissolution of marriage entered herein on October 10,1979.

Our supreme court in In re Marriage of Lentz (1980), 79 Ill. 2d 400, 403 N.E.2d 1036, considered the appealability of a judgment entered pursuant to sections 401 and 402 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, pars. 401 and 402) which dissolved the marriage and reserved the questions of maintenance and property division for future court action. The judgment therein did not contain language to the effect that there was no just reason for delaying enforcement or appeal. (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a).) The court specifically declined to decide whether a judgment of dissolution of marriage pursuant to section 401 of the Act was a final judgment or was in fact an interlocutory judgment. (79 Ill. 2d 400, 406, 403 N.E.2d 1036, 1038.) Instead, the court held that a judgment of dissolution of marriage, which reserved pending claims and lacked an express finding that there existed no just reason to delay enforcement or appeal, was not an order from which an appeal could be taken.

This court, however, in In re Marriage of Cohn (1981), 94 Ill. App. 3d 732, 419 N.E.2d 729, appeal allowed (1981), 85 Ill. 2d 564, was faced with the precise question of whether a judgment dissolving a marriage, but reserving property disposition, maintenance and child custody issues for future consideration, was a final judgment. Under the facts in Cohn the trial court had expressly found that there was no just reason for delaying enforcement or appeal. The relevant statutory provision at the time of the Cohn decision, section 401(3) of the Act, read as follows:

“Such judgment shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property.” (Ill. Rev. Stat. 1979, ch. 40, par. 401(3).)

In finding that the judgment of dissolution of marriage in Cohn was not a final judgment, we stated:

“Section 401(3) was derived from section 302(a)(4) of the Uniform Marriage and Divorce Act (9A Uniform Law Annotated §302(a) (4) (1979)). Both the uniform act and the Illinois act contemplate entry of a judgment of dissolution and a reservation of questions of child custody, support, maintenance or property disposition only under appropriate circumstances. ‘Appropriate circumstances’ would be where the court does not have in personam jurisdiction over the respondent, or inability of a party to pay child support or maintenance if so ordered, or where the court has set aside an adequate fund for child support pursuant to section 503(d) (Ill. Rev. Stat. 1979, ch. 40, par. 503(d)), or where the child or children of the parties do not reside with either parent. (Ill. Ann. Stat., ch. 40, par. 401(3), Historical and Practice Notes, at 105 (Smith-Hurd (1980).) This list of ‘appropriate circumstances’ is not intended to be exclusive; however, there is no indication in those historical notes that ‘appropriate circumstances’ may be totally absent.
The circumstances of this case do not provide the ‘appropriate circumstances’ for dissolving the marriage before adjudicating the other issues involved. In the absence of such appropriate circumstances, the court is without authority to enter a judgment of dissolution unless the court has either ‘approved’ an agreement between the parties as to these matters, or ‘considered’ them to the extent it could refuse to make any award if such a result is justified or has made an allotment as the facts require. Once judgment has been entered on these matters, the court has ‘made provision’ for them and the judgment of dissolution may be entered. Ill. Ann. Stat., ch. 40, par. 401(3), Historical and Practice Notes, at 105 (Smith-Hurd 1980).
While the prerequisites to a judgment of dissolution set forth in section 401(3) are mandatory, not discretionary, these provisions do not operate to limit the subject matter jurisdiction of the trial court. That is conferred by article VI, section 9 of the Illinois Constitution and the Illinois Marriage and Dissolution of Marriage Act, the latter of which in section 413(a) provides: ‘A judgment of dissolution of marriage * * * is final when entered, subject to the right of appeal.’ Although the provisions of section 401(3) are mandatory, they do not present a jurisdictional requirement in the sense they cannot be waived (see In re Custody of Charles Sexton (1981), 84 Ill. 2d 312), and petitioner did not do so in this case. Here petitioner has made timely objections; therefore, she has not waived the mandatory requirements of section 401(3).” (94 Ill. App. 3d 732, 739-40, 419 N.E.2d 729.)

While we held that the provisions of section 401(3) limited the trial court’s authority to enter a judgment on the grounds, we concurred with the holdings in In re Marriage of Nilsson (1980), 81 Ill. App. 3d 580, 402 N.E.2d 284, on the jurisdictional issue that a judgment finding grounds were proved was final for purposes of Supreme Court Rule 304(a).

Subsequent to our decision in Cohn we were presented in In re Marriage of Garlinski (1981), 99 Ill. App. 3d 107, 425 N.E.2d 22, appeal denied (1981), 85 Ill. 2d 577, with the issue of the effect of the death of a spouse following entry of an order of dissolution of marriage but prior to a determination of property rights. In Garlinski, a written judgment of dissolution of the marriage was entered with no mention of reservation of issues, the husband died before any further proceedings occurred, and the trial court ultimately ruled that the marriage was dissolved, but the husband’s death abated the cause as to the remaining issues. No motion was made at trial to vacate the judgment of dissolution of marriage. On appeal, the wife argued that the dissolution judgment was void for failure to comply with the Act as interpreted by us in Cohn. We held that “the wife did not raise the issue in the trial court 999 and objection to its viability made for the first time on appeal # * will constitute a waiver. 99 Ill. App. 3d 107, 109-10, 425 N.E.2d 22.

In the case at bar, objection to the judgment of dissolution of marriage was raised in the trial court by a motion filed specifically citing the Cohn decision. Albeit the motion was filed on March 13,1981, and the judgment of dissolution had been entered on October 10, 1979, the trial court retained jurisdiction since other issues remained to be decided and no Rule 304(a) finding was entered by the trial court on the judgment for dissolution of marriage. We do not find that there is a waiver of this objection and reject respondent’s contention to the contrary. We further note that respondent’s death had been suggested to the court on April 14, 1980. Respondent alternatively contends that the holding of Cohn should not be applied to the present case inasmuch as the modified opinion in Cohn was not filed until April 20, 1981, a date subsequent to the conclusion of the trial court proceedings in this case. However, we reject this argument since the Cohn decision merely interpreted a statute that was in effect at the time of the proceedings below.

From the foregoing analysis, we would seemingly be compelled to conclude that the judgment for dissolution of marriage was not a final judgment, that the respondent’s death had been raised at trial before entry of a final judgment resolving all issues, and that the judgment of dissolution is void; however, section 401(3) of the Marriage and Dissolution of Marriage Act was amended by Public Act 82-197, effective August 14,1981, with the changes and additions emphasized as follows:

“(3) Such judgment may not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property. The court may bifurcate the judgment for dissolution and reserve questions of child custo dy, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property regardless of whether (i) the court has in personam jurisdiction over the respondent, or (ii) one of the parties would be unable to pay child support or maintenance if so ordered, or (Hi) the court has set aside an adequate fund for child support pursuant to subsection (d) of Section 503, or (iv) the child or children of the parties do not reside with either parent.
All judgments for dissolution of marriage reserving any such questions entered prior to the effective date of this amendatory Act of 1981 are declared to be valid as of the date of entry.
If any provision of this Section or application thereof shall be adjudged unconstitutional or invalid for any reason by any court of competent jurisdiction, such judgment shall not impair, affect or invalidate any other provision or application of this Section, which shall remain in full force and effect.”

We must therefore determine whether this legislation effected a change in the law and rectified the statutory impediment to finality of the judgment as so determined in our holding in Cohn.

The clear import of the amendment allows a judgment for dissolution of the marriage to be entered as bifurcated from the judgment on the remaining issues “regardless of whether (i) the court has in personam jurisdiction over the respondent, or (ii) one of the parties would be unable to pay child support or maintenance if so ordered, or (iii) the court has set aside an adequate fund for child support pursuant to subsection (d) of Section 503, or (iv) the child or children of the parties do not reside with either parent.” This language gives the trial court discretion to enter a judgment for dissolution of marriage while reserving the remaining issues and purports to declare valid any judgment for dissolution entered prior to the amendment which would otherwise be invalid, unless waived, under our decision in Cohn. Thus we believe it is evident that this amendment was enacted as a result of our decision in Cohn, and we must now determine whether it must be given retrospective application here in view of the specific language of this amendment which provides that “fa]II judgments for dissolution of marriage reserving any such questions entered prior to the effective date of the amendatory Act of 1981 are declared to be valid as of the date of entry.” If the intent is to make the amendment retrospective in application, we then must decide whether this is constitutional.

It is clear that curative acts are within the power of the legislature, and the legislature may amend an act after a construction by the courts and this constitutes a more recent expression of legislative intent. (In re Estate of Zimmerman (1978), 63 Ill. App. 3d 560, 563, 380 N.E.2d 434.) Also, where, after a statute has been construed and interpreted, the legislature makes a substantial change in the statute, a legislative intent becomes clear to establish a rule different than that announced by the courts. (63 Ill. App. 3d 560, 563, 380 N.E.2d 434.) However, in the present case, the statutory amendment also purports to abrogate our decision in Cohn retroactively as well as effecting a change in the law. It has been held that if a statute is ambiguous, a subsequent statutory amendment may be interpreted to indicate a legislative intent to clarify the law, rather than change it, and thus may be applied retroactively. (See Commonwealth Edison Co. v. Department of Local Government Affairs (1981), 85 Ill. 2d 495, 426 N.E.2d 817.) Nevertheless, in the case at bar, we find that Public Act 82-197, which was enacted subsequent to our decision in Cohn, was an attempt to change the law and not merely a device to clarify existing ambiguity. (See People v. Youngbey (1980), 82 Ill. 2d 556, 563, 413 N.E.2d 416.) In Cohn we did not find the then existing statute to be ambiguous but, rather, found support for our construction of it in the express language of the statute. By attempting to retroactively overrule our decision in Cohn, we find that the General Assembly has invaded the constitutional province of the judiciary in violation of article II, section 1, of the Illinois Constitution of 1970. As our supreme court in Roth v. Yackley (1979), 77 Ill. 2d 423, 396 N.E.2d 520, explained:

“The General Assembly’s declaration that the amendatory act applies to events which occurred before the effective date of the amendatory statute represents a legislative attempt to retroactively apply new statutory language and to thereby annul a prior decision of this court. This is an assumption by the General Assembly of the role of a court of last resort in contravention of the principle of separation of powers embodied in article II, section I, of the Illinois Constitution of 1970, which provides: ‘The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.’ (See Federal Express Corp. v. Skelton (1979), 265 Ark. 187, 199, 578 S.W.2d 1, 7-8; Johnson v. Morris (1976), 87 Wash. 2d 922, 926, 557 P.2d 1299, 1303; 1A Sutherland, Statutes and Statutory Construction sec. 27.04 (4th ed. 1972).) While the General Assembly has the power to draft legislation and to amend statutes prospectively if it believes that a judicial interpretation was at odds with its intent (see Bruni v. Department of Registration and Education (1974), 59 Ill. 2d 6, 12; Mitchell v. Mahin (1972), 51 Ill. 2d 452, 456), it is the function of the judiciary to determine what the law is and to apply statutes to cases. (See People v. Nicholls (1978), 71 Ill. 2d 166, 179; Belfield v. Coop (1956), 8 Ill. 2d 293, 307.) The cases cited by the State do not recognize that the General Assembly may retroactively overrule a decision of a reviewing court. Instead they recognize only the power of the legislature to establish laws prospectively and to alter for future cases interpretations of statutes by reviewing courts. See Modern Dairy Co. v. Department of Revenue (1952), 413 Ill. 55, 66; State v. Bowman (1962), 116 Ohio App. 285, 286-87, 187 N.E.2d 627, 629; cf. People ex rel. Spitzer v. County of La Salle (1960), 20 Ill. 2d 18, 28.
In sum, we find that the General Assembly cannot constitutionally overrule a decision of this court by declaring that an amendatory act applies retroactively to cases decided before its effective date.” 77 Ill. 2d 423, 428-29, 396 N.E.2d 520.

We also note in this regard that if the statutory amendment were to apply retroactively to the present case, the effect may be to deprive petitioner of a vested right. By virtue of respondent’s death on April 8, 1980, petitioner argues she acquired sole title to the property formerly held in joint tenancy with her husband. If the amendment were to apply retroactively, the effect may be to divest petitioner of her interest in this property. It is well settled that the legislature cannot pass a retrospective law impairing the obligation of a contract, or depriving a citizen of a vested right. People v. Lindheimer (1939), 371 Ill. 367, 373, 21 N.E.2d 318.

Since we find that Public Act 82-197 cannot be constitutionally applied to this case, our decision in Cohn is controlling. Accordingly, since there was an absence of a finding of “appropriate circumstances,” the entry of the judgment of dissolution of marriage on October 10,1979, reserving issues of “property rights, maintenance rights, property distribution, attorneys fees or any other rights the parties may have by virtue of the marital relationship # 6 was not final. We hold only the portion of the amendment extending its application to all judgments for dissolution of marriage entered prior to the effective date of the amendatory Act unconstitutional, and express no opinion on the constitutionality of the balance of the amendment.

Since there was not a final judgment for dissolution of the marriage prior to the death of respondent, this action under the Marriage and Dissolution of Marriage Act was abated upon respondent’s death. (Bushnell v. Cooper (1919), 289 Ill. 260, 264, 124 N.E. 521; In re Estate of Chandler (1980), 90 Ill. App. 3d 674, 677, 413 N.E.2d 486; Howard v. Howard (1977), 49 Ill. App. 3d 441, 364 N.E.2d 464.) The rationale for the abatement doctrine is that marriage is a personal relationship and death has settled the question of separation beyond all controversy and deprived the court of jurisdiction in the absence of a statute to the contrary. (Bushnell v. Cooper (1919), 289 Ill. 260, 264, 124 N.E. 521.) Respondent’s citation of Tunnell v. Edwardsville Intelligencer, Inc. (1969), 43 Ill. 2d 239, 252 N.E.2d 538, is inapposite, as there the death occurred pending an appeal.

Respondent also has argued that the letter of opinion dated March 28, 1980, was a final order and the supplemental judgment order of February 19, 1981, was properly made nunc pro tunc as of March 28, 1980, by the trial court. Thus respondent contends that both the judgments were final prior to respondent’s death and were valid.

We believe that the application of Supreme Court Rule 272 (Ill. Rev. Stat. 1979, ch. 110A, par. 272) determines this issue. Rule 272 provides:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.”

It has been held that when a letter memorandum of decision by the trial judge clearly required one of the attorneys to prepare a written judgment, the judgment is not final until signed and entered. (Parrish v. City of Carbondale (1978), 61 Ill. App. 3d 500, 503-04, 378 N.E.2d 243.) Numerous other cases have held that an oral pronouncement of decision with a notation that a written order would follow does not become a final order until the written judgment is entered. (Green v. Green (1974), 21 Ill. App. 3d 396, 315 N.E.2d 324; Grissom v. Buckley-Loda Community Unit School District No. 8 (1973), 11 Ill. App. 3d 55, 296 N.E.2d 624; Davidson Masonry & Restoration, Inc. v. J. L. Wroan & Sons, Inc. (1971), 2 Ill. App. 3d 524, 275 N.E.2d 654.) While the primary purpose of Rule 272 was to resolve difficulties which had arisen regarding the timeliness of an appeal and was therefore held inapplicable under the unusual circumstances present in West v. West (1979), 76 Ill. 2d 226, 390 N.E.2d 880, we believe that the rule is applicable here. The letter of opinion unequivocally directed petitioner to “prepare and present, after and upon appropriate notice, a judgment order conforming to this letter of opinion.” As such, the letter of opinion itself was not a final judgment. To hold otherwise would be contrary to the express language in the letter and would promote inconsistency in the application of Rule 272.

The subsequent supplemental judgment order filed February 19, 1981, which was entered nunc pro tunc as of March 28, 1980, cannot be employed under the guise of correcting the record so as to enter a judgment effective March 28, 1980, when one was never entered at that time. Before a nunc pro tunc entry may be made, it is necessary that there be evidence that a judgment was actually entered. (Kooyenga v. Hertz Equipment Rentals, Inc. (1979), 79 Ill. App. 3d 1051, 1056, 399 N.E.2d 216.) A nunc pro tunc entry may not be used to supply omitted judicial action, correct judicial errors under the pretense of correcting clerical errors, or cure a jurisdictional defect. (In re Marriage of McDavid (1981), 97 Ill. App. 3d 1044, 1051, 425 N.E.2d 442; Spears v. Spears (1977), 52 Ill. App. 3d 695, 698, 367 N.E.2d 1004.) A nunc pro tunc order is an entry now for something previously done, made to make the record speak now for what was actually done then. (Hopedale Medical Foundation v. Zagel (1981), 97 Ill. App. 3d 513, 515, 423 N.E.2d 290.) The action taken by the trial court in the instant case was an attempt to enter a judgment on March 28,1980, when one never had been entered on that date, and is therefore invalid.

For the reasons stated, both the judgment of dissolution of marriage and the supplemental judgment order are reversed.

Reversed.

LINDBERG and NASH, JJ., concur.