author: JUSTICE SULLIVAN

text:
    GEORGE DeVRIES et al., Guardians of Renee DeVries, Plaintiffs-Appellees, v. BANKERS LIFE COMPANY, Defendant-Appellant.
    First District (5th Division)
    No. 84—0544
    Opinion filed November 9, 1984.

      Louis C. Roberts and Larry A. Hoellwarth, both of Peterson, Ross, Schloerb & Seidel, of Chicago, for appellant.
    Sweeney & Riman, Ltd., of Chicago (Georgene M. Wilson, of counsel), for appellees.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal was brought by defendant under Supreme Court Rule 306 (87 Ill. 2d R. 306) from an order denying its motion to dismiss plaintiffs’ action on grounds of forum non conveniens.

It appears that on May 11, 1981, Renee DeVries (Renee), then a resident of Iowa and a speech therapist for the Iowa public school system, swallowed 78 tablets of Asendin, an antidepressant prescribed for her by an Iowa psychiatrist. Her boyfriend took her to the University of Iowa Hospital in Iowa City, Iowa, where she remained until she was transferred to Madison General Hospital in Madison, Wisconsin, on May 29, 1981. She is currently a resident of DePere, Wisconsin, and because of her disabled condition, plaintiffs (her parents), residing in Waupun, Wisconsin, were appointed her guardians by the circuit court of Fond Du Lac County, Wisconsin.

As an Iowa public school employee, Renee was covered by a group long-term disability policy underwritten by defendant and issued to the Iowa Association of School Boards Public School Trust as policyholder. After she was denied disability benefits by defendant on the basis of a provision in its policy excluding coverage for intentionally self-inflicted injuries, plaintiffs brought this action on behalf of Renee seeking a declaration of her rights under the policy and for the benefits it provided. Defendant moved to dismiss, asserting that Illinois is a forum non conveniens. The trial court denied the motion after a hearing, and we granted defendant’s petition for leave to appeal under Rule 306.

OPINION

We first address plaintiffs’ argument that defendant, by failing to include a report of proceedings in its record on appeal, waived any error in the denial of its motion to dismiss. Supreme Court Rule 306 provides that the record on appeal “shall consist of whatever is necessary to present the questions for review” (87 Ill. 2d R. 306(b)), and while ordinarily it is necessary only to determine whether the record here contains sufficient information to present the forum non conveniens issue for review, plaintiffs argue that a transcript is absolutely necessary to review a trial court order for abuse of discretion. The cases they cited in their brief here, however, do not support this argument. Rather, they establish that the absence of a transcript, or a suitable substitute pursuant to Supreme Court Rule 323 (87 Ill. 2d R. 323), precludes review of only those issues whose merits depend on the omitted matters, such as questions concerning the sufficiency of the evidence (Chicago City Bank & Trust Co. v. Wilson (1980), 86 Ill. App. 3d 452, 407 N.E.2d 964) or issues relating to the actual conduct of a hearing (Nenadic v. Grant Hospital (1979), 75 Ill. App. 3d 614, 394 N.E.2d 527). Another case cited by plaintiffs, Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App. 3d 343, 395 N.E.2d 1131, is more supportive of defendant’s position. There, this court held that the record was sufficient for review of the jurisdictional issue involved since all of the determinative facts were contained in the complaint and in an affidavit, both of which were included in the record.

During oral argument here, plaintiffs cited the additional case of Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958, which we also find to be nonsupportive. In Foutch, the finding that the trial court did not abuse its discretion in the denial of a motion to vacate was based not'only on the fact that there was no transcript of the hearing, but also because it was otherwise impossible to determine the reason for the trial court’s ruling where its order did not state grounds for the denial and no memoranda were filed by the parties. Here, memoranda and affidavits of the parties are in the record on appeal, and the trial court’s order stated that the denial was based “upon the representation by plaintiffs’ attorney that it is his intention to call Illinois expert witnesses to present its case.”

In the case before us, all of the relevant facts are included in the record presented. Both parties have asserted in their briefs here only those facts contained in the complaint, memoranda, and affidavits filed in the trial court, and it is thus not necessary to resort to specific arguments advanced by counsel at the hearing on the motion. (See Venturini v. Affatato (1980), 84 Ill. App. 3d 547, 405 N.E.2d 1093.) We therefore believe the record is sufficient for review of the forum non conveniens issue.

We turn, then, to defendant’s contention that the trial court abused its discretion in denying the motion to dismiss. Although broad discretion is vested in the trial court to determine whether dismissal on grounds of forum non conveniens is warranted, its decision will be reversed on appeal if its discretion was abused. Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 457 N.E.2d 417.

We initially note that defendant’s status as an insurance company doing business in Illinois is not controlling for purposes of a forum non conveniens analysis, since the doctrine assumes that more than one forum can obtain jurisdiction over a defendant. (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 301 N.E.2d 729, cert. denied (1976), 424 U.S. 943, 47 L. Ed. 2d 349, 96 S. Ct. 1411.) Here, defendant’s activities in Illinois simply provide a basis for jurisdiction, and have no other connection with this litigation.

Because “ffjorum non conveniens is a doctrine that is founded in considerations of fundamental fairness and sensible and effective judicial administration” (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514, 301 N.E.2d 729, 730), the proper inquiry analyzes the relative convenience of the fora, and in this regard, certain factors — involving the public interest as well as the private interests of the litigants — must be balanced by the trial court in ruling on a forum non conveniens motion (Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839). Although plaintiffs correctly argue that a plaintiff’s choice of forum is generally accorded great weight and will not be disturbed unless the balance of factors strongly favors the defendant, a plaintiff’s choice is entitled to less deference when, as here, plaintiff chooses a foreign forum. Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252; Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 463 N.E.2d 792.

It is in the light of those standards that we must determine whether the trial court here abused its discretion in balancing the relevant factors which, with respect to the private interests of the litigants, have been stated as follows:

“ ‘Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained.’ ” Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 372, 444 N.E.2d 157, 160, quoting Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508, 91 L. Ed. 1055, 1062, 67 S. Ct. 839, 843.

The first factor in the private-interest analysis, as stated in Jones, is the relative ease of access to sources of proof. Since it is the contention of plaintiffs here that Renee’s disability was not self-inflicted but was caused by negligence in her hospital emergency room care, it appears that documentary evidence necessary to sustain or negate her position is located in Iowa. Her medical records are at the University of Iowa Hospital, in Iowa City, the records of her psychiatrist are in Cedar Rapids, Iowa, and the documents of defendant concerning her disability claim are located in its Des Moines, Iowa, home office. Contrary to plaintiffs’ assertion, the location of this documentary evidence is a factor which favors the Iowa rather than the Illinois forum.

The second factor in the analysis concerns the location and availability of witnesses. Plaintiffs argue that the only relevant witnesses will be medical experts who will testify as to the standard of care required in the emergency room and whether it was exercised in this case. Plaintiffs represented to the trial court that they intended to employ Illinois expert witnesses for this purpose, and only this representation is mentioned by the trial court in its order as a basis in denying the motion to dismiss. It appears to us, however, that a plan to employ expert witnesses located in a desired forum should be given little, if any, consideration in determining convenience, since plaintiffs would thus be able to circumvent the doctrine. (Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 463 N.E.2d 792.) Additionally, although plaintiffs argue that the medical malpractice of emergency room personnel, which they claim was the cause of Renee’s disability, may be established by use of medical records and expert witnesses located here, we believe that defendant should certainly have the opportunity to counter plaintiffs’ evidence with the testimony of the treating physicians. Defendant stated in its trial court affidavit that it would probably call the treating physician in the emergency room and another staff member of the Iowa hospital’s department of medicine, both of whom currently live in Iowa City and would not be subject to the subpoena power of the Illinois courts. It is generally accepted that physicians resist giving testimony in court (Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 463 N.E.2d 792), and it seems unlikely that Renee’s treating physicians would be willing to travel to Chicago to testify in this case. Although plaintiffs argue that defendant could take evidence depositions if it wishes to use the physicians’ testimony, it is recognized that depositions are an inadequate substitute for live testimony (Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 457 N.E.2d 417; Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 444 N.E.2d 157); thus, consideration of the witnesses likely to testify indicates that the trial would more conveniently be held in Iowa.

Furthermore, determination of Renee’s right to benefits will depend on the interpretation of the policy language “due to intentionally self-inflicted injury,” which could require such “occurrence” witnesses as Renee’s boyfriend, her psychiatrist, and perhaps her former coworkers, all of whom apparently reside in Iowa. Clearly, an Iowa trial would be more convenient for all witnesses whose interests are entitled to consideration in a forum non conveniens analysis.

The other factors to be considered, a possible jury view of the site and the enforceability of a judgment, are neutral factors in this case. Neither party asserts that it would be helpful to visit the emergency room or any other location. Plaintiffs do suggest that their ability to enforce a judgment against defendant in the circuit court of Cook County constitutes a factor which supports its choice of an Illinois forum. However, personal jurisdiction over defendant is also available in Iowa, so this factor does not favor either litigant. We also note that, although plaintiffs’ attorney is located in Illinois, residence of counsel is not relevant in making a forum non conveniens determination. (Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 456 N.E.2d 98.) The private interest factors, then, weigh strongly in defendant’s favor, since none support plaintiffs’ choice of the Illinois forum.

We must also consider the public interest factors involved in this case.

“ ‘Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation ***. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.’ ” Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 373, 444 N.E.2d 157, 160, quoting Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843.

The Illinois Supreme Court took notice of the congested dockets of the Cook County circuit courts in Jones, and we find little merit in plaintiffs’ argument that this single additional suit will not add significantly to that congestion. Moreover, we note that not only is the county financially burdened by payment of jurors’ fees and by providing court personnel and facilities, but the State judicial system is also burdened by being required to provide judicial personnel and the machinery for appellate review. (Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 456 N.E.2d 98.) The Wieser court found no justification for imposing such burdens on the citizens and the judicial system, since the forum’s only connection with the case — other than the bare jurisdictional requirement — was the residence of plaintiffs’ counsel within the forum. The court noted that Illinois had no connection with the litigation, such as being plaintiffs’ residence, defendant’s principal place of business, or the place of the underlying incident. In the present case, we find a similar lack of connection between the forum and the litigation, and we believe the fact that plaintiffs intended to use Illinois expert witnesses does not provide sufficient factual connection with the litigation to justify imposition of the above-mentioned burdens on the citizens and court system of Illinois. (See Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 463 N.E.2d 792.) Additionally, the need to apply the law of a foreign jurisdiction is a significant factor favoring forum non conveniens dismissal (Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 457 N.E.2d 417), and the parties here agree that this controversy will be governed by Iowa law and, more specifically, the Iowa Insurance Code. All public interest factors therefore favor forum non conveniens dismissal.

Finally, plaintiff argues that Reagor v. Travelers Insurance Co. (1980), 92 Ill. App. 3d 99, 415 N.E.2d 512, is dispositive of the forum non conveniens issue. In Reagor, a personal injury action was filed by plaintiff in Porter County, Indiana, and an action concerning the underlying insurance coverage was filed in Cook County, Illinois. The court noted that practical considerations favored having both causes of action tried in Porter County, but, stating that it was confining its analysis strictly to the insurance action, the court still held— albeit with little actual discussion — that the factors relevant to a forum non conveniens determination did not weigh so strongly in defendant’s favor as to justify denial of plaintiff’s choice of forum. In the present case, we have carefully analyzed those factors based upon the recent Illinois Supreme Court decisions, and believe that none of the relevant factors favor plaintiffs’ choice of forum. Plaintiffs’ choice of an Illinois forum, foreign to them, rests solely on a jurisdictional basis and on factors not recognized as relevant by the Illinois courts. (See generally Foster v. Chicago & North Western Transportation Co. (1984), 102 Ill. 2d 378, 466 N.E.2d 198; Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 457 N.E.2d 417; Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 456 N.E.2d 98; Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 444 N.E.2d 157.) Since all factors relevant to the forum non conveniens determination are either neutral or weigh in defendant’s favor, we find that the denial of defendant’s motion to dismiss constituted an abuse of discretion.

For the foregoing reasons, the order of the trial court is reversed, and this cause is remanded with directions to grant defendant’s motion to dismiss.

As provided in Foster v. Chicago & North Western Transportation Co., this disposition is also conditioned on defendant’s waiver of any policy or statutory time-limitation defense if the cause is refiled in an appropriate forum within a reasonable time. If defendant refuses to waive any such defense, then plaintiffs should be given leave here to reinstate this case.

Reversed and remanded with directions.

MEJDA, P.J., and PINCHAM, J., concur.

      Plaintiff does not deny that jurisdiction may also be obtained over defendant in Iowa.

      Plaintiffs indicated in their trial court memorandum that the documentary evidence is in defendant’s possession. Although some of Renee’s later medical records may be located in Wisconsin, where she currently resides, none of the documentary evidence was originally located in Illinois.


source: Caselaw Access Project

author: JUSTICE ROMITI

license: Public Domain

text:
    La SALLE NATIONAL BANK & TRUST COMPANY, Trustee, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (4th Division)
    No. 83—2013
    Opinion filed November 1, 1984.

      Bertram A. Stone and David B. Pogrund, both of Stone, Pogrund & Korey, of Chicago, for appellant.
    James D. Montgomery, Corporation Counsel, of Chicago (Jerome A. Siegan and Lynn K. Mitchell, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

LaSalle National Bank and Trust Company (the bank), as trustee under a land trust agreement involving certain property in downtown Chicago for which the bank possessed a permit to connect its sewers to those of the city of Chicago, appeals from the entry by the circuit court of Cook County of a directed verdict and judgment in favor of the city. The judgment was entered by the court after hearing evidence on the bank’s complaint which alleged that the city’s revocation of the bank’s sewer connection permit should be enjoined on the grounds of equitable estoppel and unconstitutionality as a violation of procedural due process, a taking of private property for public use without just compensation, and an invalid exercise of municipal authority to protect public health and safety. In its appeal, the bank alleges reversible error in the trial court’s determinations with regard to its equitable estoppel, procedural due process, and taking of private property claims.

We affirm.

The downtown Chicago property of which the bank is trustee is commonly known as 2 North Riverside Plaza. It is a multistory office building, bounded on the east by the Chicago River, on the west by Canal Street, on the north by Washington Street, and on the south by Madison Street. The bank became trustee of the property in 1969.

The building was originally constructed in 1927. At that time, a sewer connection permit was obtained from the city of Chicago to allow for connection of the building’s four sewers to the city’s sewer main in the vicinity — a double-barreled combination storm-sanitary main running east-west under Washington Street between Canal Street and the Chicago River which had been built by the city in 1916. On November 14, 1977, the city council of the city of Chicago enacted the following ordinance pursuant to section 31 — 3 of the Chicago Municipal Code to revoke the bank’s sewer connection permit:

“WHEREAS, Prior to this date, to-wit: 1929, sewer connection permits were issued to the Riverside Plaza Building, No. 2 N. Riverside Plaza, Chicago, Illinois; and
WHEREAS, The City Council of the City of Chicago, after due investigation and consideration, has determined that the nature and extent of the public use and the public interest to be subserved is such as to warrant the demand that the said City Council revoke and annul such permits; and
WHEREAS, The Municipal Code of Chicago, Permit requirements, Section 31 — 3 provides as follows:
‘Permission to lay sewers or drains or make connections with sewers or drains in the public ways shall not be granted except upon the agreement, in writing, of the persons applying therefor that said work will be performed by a duly licensed drain layer, that the permittee will comply with the ordinances in relation to excavating the streets, that the permittee will indemnify the city for any damages or costs to which it may be put by reason of injuries resulting from neglect or carelessness in performing the work, and that no claim will be made by them or their successors in interest against the city or for exemption from an assessment lawfully imposed for constructing sewers or drains in the vicinity of their property, and upon the further condition that the city council may at any time revoke and annul such permission and direct such sewers, drains or pipes to be taken up or removed’; now, therefore, „

BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CHICAGO:

Section 1. That the sewer connection permits heretofore issued to the Riverside Plaza Building, No. 2 N. Riverside Plaza, are hereby revoked and annulled.

Section 2. That such sewers, drains or pipes servicing said building be taken up and removed immediately.

Section 3. That the Commissioner of Water and Sewers immediately notify the said Riverside Plaza Building, No. 2 N. Riverside Plaza, Chicago, Illinois, of this revocation and annulment.

Section 4. This ordinance shall be in force and effect from the date of its passage.” Journal of the Proceedings of the City Council of the City of Chicago, Ill. 6273 (November 14, 1977).

The bank filed its action to contest the validity and enforceability of this ordinance in February 1978. At trial the bank presented the testimony of one individual, Lester Barret, manager of the building since 1966. It also introduced into evidence several pieces of documentary evidence, including the 1927 sewer permit, correspondence between the Metropolitan Sanitary District, the city of Chicago and Barret, and sets of plans showing the location of the city’s sewer main to which the building’s sewers were connected. None of this documentary evidence is included in the appellate record before us.

Barret testified that from 1972 to 1977 a series of meetings were held between representatives of the bank, the city of Chicago, and the Metropolitan Sanitary District. He stated that the purpose of these meetings was to attempt to reach an agreement regarding the reconstruction of the building’s sewer lines which were connected to the city’s main. Barret further testified that this reconstruction was necessitated because of “outfall from the double-barreled main [in]to the Chicago River.” The precise nature of this “outfall” is unclear from the record before us. Certain documents admitted into evidence by the trial court may have elucidated Barret’s phrase, but are not part of the record on appeal. Counsel for both the bank and the city have amplified upon the nature of this overflow problem in their briefs, but with disagreement on its cause and remedy. In any event, both parties agree and the trial court concluded that during times of heavy rainfall the double-barreled sewer main overflows and causes raw sewage in the main to flow directly into the Chicago River.

Barret stated that the meetings between the bank, the city and the Metropolitan Sanitary District were terminated in 1977 because the parties could not agree on allocating the cost to reconnect the bank’s sewers to another main. He also stated that he never received any notices from the Metropolitan Sanitary District that the building’s use of the main violated sewage or environmental laws of the city of Chicago, the State of Illinois, or the United States government. Barret testified that he requested an estimate of the cost to reroute the building’s sewage, although a copy of this estimate is not part of the record on appeal. However, in its oral pronouncement of a directed verdict the trial court observed that “the estimate appears to be in the neighborhood of $84,000 ***.” We will therefore disregard those unsupported comments by bank’s counsel in this appeal that the cost of such reconnection would be “in excess of $300,000.”

After the bank rested its case, the city moved for a directed verdict. The trial court granted this motion in a written order dated July 27, 1983, in which it found that the bank had failed to sustain its burden of proof to overcome the presumption of validity of the disconnect ordinance enacted by the city council and had failed to show that the ordinance did not have a substantial relation to the public health, safety, and general welfare. The court’s order also incorporated its findings of fact and conclusions of law. At that time, the court determined, inter alia, that the bank’s sewer permit was a revocable license which the city reasonably revoked in order to foster the greater public benefit of clean waterways and that the doctrine of equitable estoppel was inapplicable to bar enforcement of the disconnect ordinance. Based on these findings and conclusions, the trial court granted the city’s motion for a directed verdict and held that the November 14, 1977, ordinance was legal, valid, constitutional and enforceable as applied to the subject property. On August 22, 1983, the bank filed its notice of appeal. We note that because the appeal challenges the trial court’s granting of a motion for a directed verdict in favor of the city, we must view all the evidence presented and make all reasonable inferences therefrom in the manner most favorable to the bank, and affirm the trial court’s judgment only if the evidence so overwhelmingly favors the city that no contrary judgment on the evidence could stand. See Mort v. Walter (1983), 98 Ill. 2d 391, 396, 457 N.E.2d 18; Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.

Equitable Estoppel

The bank argues that the evidence it presented established that the city should be equitably estopped from revoking its sewer connection permit. Specifically, the bank alleges that the doctrine is applicable because the city permitted the back’s use of the sewer main since 1927, because the bank did not violate the terms of the permit or any pollution standards, and because it substantially relied upon the permit. The city responds that it had a strong governmental interest in combating water pollution and consequently should not be estopped from protecting this interest even where a permittee has expended sums of money in reliance on the permit or will have to bear expense to comply with the terms of the ordinance.

The doctrine of equitable estoppel may be applied to municipal actions taken pursuant to the municipality’s police power to protect public health and safety, but only under compelling circumstances. (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 448, 220 N.E.2d 415, cert. denied (1967), 386 U.S. 934, 17 L. Ed. 2d 806, 87 S. Ct. 957; Tyska v. Board of Education (1983), 117 Ill. App. 3d 917, 930-31, 453 N.E.2d 1344; Wachta v. Pollution Control Board (1972), 8 Ill. App. 3d 436, 439-40, 289 N.E.2d 484.) “In applying the doctrine of estoppel, the courts will not decide the question by mere lapse of time but by all the circumstances of the case, and will hold the public estopped or not as right or justice may require. [Citations.] The doctrine is invoked only to prevent fraud and injustice. [Citation.]” (City of Quincy v. Sturhahn (1960), 18 Ill. 2d 604, 614, 165 N.E.2d 271.) To equitably estop a municipality acting in its governmental capacity, the party raising the claim must prove that there were affirmative acts by the municipal officers which induced the claiming party to take some action in reliance thereon under circumstances where it would be inequitable to permit the municipality to stultify itself by retracting what its officers had previously done. Cities Service Oil Co. v. Des Plaines (1961), 21 Ill. 2d 157, 161, 171 N.E.2d 605.

The trial court in the case at bar determined that the bank had failed to present prima facie evidence of compelling circumstances to justify an equitable estoppel of the city’s revocation of the permit, and we cannot say that this determination was erroneous. The record discloses no affirmative representation on the part of the municipality or one of its officers that the permit would never be revoked. Indeed, section 31 — 3 of the Chicago Municipal Code specifically states that the city council may revoke a permit at any time. (Chicago Municipal Code sec. 31 — 3 (1983).) Furthermore, nothing in the record indicates that the bank was ever informed by any municipal officer that this provision did not apply to the bank’s permit. In addition, since the bank’s permit is not included in the record and it was the bank’s responsibility as appellant to provide a complete record, we must presume that the permit admitted into evidence by the trial court supported its rulings and judgment. (See Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92, 459 N.E.2d 958.) Consequently, we must assume that the permit did not contain language which varied from or contradicted the terms of section 31 — 3 of the Municipal Code to the effect that the permit could be revoked at any time by the city council.

The bank’s claim that the city should be equitably estopped from revoking the permit because it allowed use of the main since 1927, because the bank relied upon the permit, and because the city did not inform the bank that it had violated any of the terms of the permit or environmental or health regulations is unpersuasive. Lapse of time does not of itself prove compelling circumstances which justify application of the doctrine. (City of Quincy v. Sturhahn (1960), 18 Ill. 2d 604, 614, 165 N.E.2d 271.) Any claim that the bank relied upon continued use of the permit when it purchased the property is unsupported anywhere in the record; even assuming arguendo that such reliance was made, it would not prove circumstances sufficient to estop revocation of the permit. The evidence the bank presented established that the sewer main was constructed in 1916, had been in use for over 50 years, and caused raw sewage pollution of the Chicago River during periods of heavy rainfall. We cannot say that under such circumstances it was fraudulent or unjust for the city to revoke the bank’s permit in order to alleviate such pollution of the river.

Wachta v. Pollution Control Board (1972), 8 Ill. App. 3d 436, 289 N.E.2d 484, upon which the bank strongly relies, is distinguishable from the instant case. In Wachta, the court emphasized that:

“*** the State of Illinois, through its Sanitary Water Board, did the positive act of issuing sewer permits to Petitioners which induced them to continue their construction project. They, in reliance upon the action of the Water Board, expended substantial sums of money and incurred heavy continuing liabilities which would be lost should the State now be permitted to retract what its officials had done. Under these circumstances right and justice require that the public be estopped.” (8 Ill. App. 3d 436, 440, 289 N.E.2d 484.)

Here, the only affirmative act on the part of the city was the issuance of a sewer connection permit in 1927. The bank has not established any reliance on its part by which it “expended substantial sums of money and incurred heavy continuing liabilities which would be lost” should the city revoke its permit. The evidence presented by the bank shows that it constructed its private sewers connecting to the city’s main in 1927 and that they have been in use for over 50 years. The record simply establishes that the bank, after using the city’s sewer main for 50 years, does not now desire to spend monies to construct new sewers connecting to another part of the municipal sanitation system, even though continued use of the 1916 sewer main causes raw sewage to flow directly into the Chicago River during periods of heavy rainfall. While the bank’s position may be understandable, in our view it does not rise to the level of compelling circumstances which would justify an equitable estoppel of the city from exercising its police power to protect against pollution of the Chicago River which endangers public health and welfare.

Procedural Due Process

Next, the bank argues that its sewer connection permit should have been held to be constitutionally protected property, on the theory that its substantial reliance on the permit rendered the permit a vested interest. The city, for its part, has focused upon its authority to exercise its police power to protect public health by prohibiting pollution of the Chicago River. In short, neither party has forthrightly addressed the issue.

It seems to us that the starting point in an analysis of the bank’s claim is whether the sewer connection permit is a constitutionally protected interest in “property.” (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, sec. 2; see Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 293-94, 395 N.E.2d 1376, appeal dismissed (1980), 444 U.S. 1062, 62 L. Ed. 2d 744, 100 S. Ct. 1001.) “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” (Board of Regents v. Roth (1972), 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709.) In other words, “[t]he Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits.” (Emphasis added.) (408 U.S. 564, 576, 33 L. Ed. 2d 548, 560, 92 S. Ct. 2701, 2708.) Property interests are not created by the Constitution, but by an independent source such as State laws, local ordinances, or mutually explicit understandings. (408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709.) Moreover, such an interest does not depend on whether the benefit accorded by the State is called a “right” or a “privilege.” See Graham v. Richardson (1971), 403 U.S. 365, 374, 29 L. Ed. 2d 534, 543, 91 S. Ct. 1848, 1853.

As a general rule, a permit to connect to municipal sewers is in the nature of a license only; it does not create a vested right to such connection. (Village of Menomenee Falls v. Michelson (Wis. App. 1981), 104 Wis. 2d 137, 143, 311 N.W.2d 658, 661-62; Ericksen v. City of Sioux Falls (1944), 70 S.D. 40, 54-55, 14 N.W.2d 89, 95-96; see also Camp v. Village of Barre (1894), 66 Vt. 563, 568-69, 29 A. 1022, 1023-24.) The permit does not become a vested interest once the permittee thereafter expends sums to construct private drains to connect his premises to the public sewers. (Russell v. City of Pacific Grove (1975), 54 Cal. App. 3d 53, 60, 126 Cal. Rptr. 371, 375-76.) Consequently, “[i]f, for any reason, the system will not handle sewage from a particular source by reason of its nature or quantity, it is within the power of the municipality to require that the sewer connection be discontinued, and it may be the duty of the municipality to do so in order to protect itself from possible liability for the creation of a nuisance.” Village of Menomenee Falls v. Michelson (Wis. App. 1981), 104 Wis. 2d 137, 143, 311 N.W.2d 658, 661; see also Ericksen v. City of Sioux Falls (1944), 70 S.D. 40, 54, 14 N.W.2d 89, 95-96; see generally 11 E. McQuillin, The Law of Municipal Corporations sec. 31.31, at 233 (3d ed. 1983).

We hold that the bank had no clear entitlement to continued enjoyment of the use of the public sewer main granted by the permit. The relevant provision of the Code specifically stated that a sewer connection permit ws revocable at any time by the city council. (Chicago Municipal Code sec. 31 — 3 (1983).) Such a permit is consequently a license, i.e., permission to do an act or series of acts upon the land of another without possessing any estate or interest in such land, which can be revoked at any time. (Mueller v. Keller (1960), 18 Ill. 2d 334, 340, 164 N.E.2d 28; Keck v. Scharf (1980), 80 Ill. App. 3d 832, 835, 400 N.E.2d 503.) In our view, the permit therefore created no more than a unilateral aspiration of continued permissive use of municipal sewer systems. We note once more that since the 1927 permit under which the bank claims entitlement is not included in the record, we must presume that it did not contain terms which varied from or contradicted the provision of section 31 — 3 of the Code. Because we determine that the permit was not constitutionally protected property, we conclude that revocation did not violate due process.

The bank’s contention that it had a vested right to connection because of substantial reliance on the permit is without merit. Our thorough review of the record discloses no evidence to support the bank’s allegation of reliance upon the permit when the building was purchased. Moreover, even assuming arguendo that such reliance could have been proved in this case, it is not, as we see it, sufficient to establish substantial reliance, since any purchaser likely knew or should have known that the permit had been granted on the express “condition that the city council may at any time revoke and annul such permission ***.” (Chicago Municipal Code sec. 31 — 3 (1983).) As a result, any reliance by the bank would have been misplaced and no more than an abstract desire for continued use and enjoyment of the city’s sewer main. Furthermore, the bank and its predecessors in title were permitted use and enjoyment of connection to municipal sewers for half a century; the bank’s position is thus distinguishable from the landowners in the case on which the bank relies, whose building permits were revoked before they had been able to complete construction and obtain any use and enjoyment of their premises. See People ex rel. Skokie Town House Builders, Inc. v. Village of Morton Grove (1959), 16 Ill. 2d 183, 190-91, 157 N.E.2d 33.

Taking Of Private Property For Public Use

In its complaint requesting injunctive relief, the bank alleged that revocation of its permit constituted a taking of private property for public use without just compensation. The bank raises this issue again on appeal, although it has done no more than make the bare allegation that revocation was invalid for this reason with no citational support and only some argument based upon the facts of the case. The city has made no substantive response to this claim by the bank.

The Illinois Constitution prohibits a taking or a damage to private property for public use without just compensation. (Ill. Const. 1970, art. I, sec. 15.) An injunction is the proper remedy only when an unlawful appropriation of land is attempted for use by a public corporation which has not acquired this right by condemnation or otherwise. (Chicago Title & Trust Co. v. Village of Burr Ridge (1976), 41 Ill. App. 3d 112, 113, 354 N.E.2d 61.) Thus, only an actual physical invasion of property constitutes a “taking” for which injunctive relief is appropriate. (Department of Transportation v. Rasmussen (1982), 108 Ill. App. 3d 615, 621, 439 N.E.2d 48; Department of Transportation v. Lake Ka-Ho, Inc. (1981), 98 Ill. App. 3d 1052, 1055, 425 N.E.2d 50.) Anything less than a “taking” may be considered a “damage” to a landowner’s property interests, for which the proper remedy is an action at law for damages. Granite City Moose Lodge No. 272 v. Kramer (1983), 96 Ill. 2d 265, 271, 449 N.E.2d 852; Citizens Utility Co. v. Metropolitan Sanitary District (1974), 25 Ill. App. 3d 252, 255-58, 322 N.E.2d 857.

In the case at bar, the bank’s complaint requests injunctive relief for a “taking” of its property for public use. The bank has failed to establish, however, any physical invasion of its property for which such relief would be proper. Revocation of the permit certainly entailed no appropriation of the bank’s sewers or land. No issue has been raised by the bank concerning any consequential damage to its property; such a question would furthermore be improperly raised in this case, as the bank requested only injunctive relief. We therefore do not address any possible consequential damage that revocation may have caused. We find no basis for the bank’s allegation of error in the trial court’s judgment.

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

Affirmed.

LINN, P.J., and JOHNSON, J., concur.

      We note that such language limiting the permittee’s continued connection to municipal sewers has been included in every version of the Chicago Municipal Code’s section regarding sewer connection permits since the first code was adopted in 1890.

      In fact, the bank advances the rather disingenuous argument that this court should determine that the city is equitably estopped from revoking the permit and thus avoid ruling on the constitutional issue it has raised.

      Our independent research has discovered two Illinois cases which hold that a landowner has a vested interest in connecting to specific municipal sewers when the landowner has paid a special assessment levied to construct those sewers. (La Salle National Bank v. Village of Riverdale (1959), 16 Ill. 2d 151, 157-58, 157 N.E.2d 7; Frank v. State Sanitary Water Board (1961), 33 Ill. App. 2d 1, 6, 178 N.E.2d 415.) There is no evidence in the record before us to indicate that the bank or any of its predecessors in title paid any special assessment levied by the city for construction of the sewer main to which the bank’s permit allowed connection in the case at bar. As a result, we do not address the question of whether payment of such assessment would establish a landowner’s entitlement to connection for purposes of imposing due process protection.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARLOS JOSEPH, a/k/a Joseph Carlos, Defendant-Appellant.
    First District (5th Division)
    No. 83—2939
    Opinion filed November 9, 1984.

      James J. Doherty, Public Defender, of Chicago (Debra Zisook and Alison Edwards, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, and David A. Izzo, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court;

Following a stipulated bench trial in the circuit court of Cook County, defendant was found guilty of possession of a controlled substance (Ill. Rev. Stat. 1981, ch. SGhk, par. 1402(b)) and sentenced to two years in the Illinois Department of Corrections. In this appeal, defendant contends that he was denied due process of law when he was arrested on the basis of a recalled warrant and there was no independent cause for his arrest.

Prior to trial, defendant filed a motion to quash his arrest and suppress the evidence which was obtained thereby. At the hearing on the motion, Officer Gerald Dahlberg testified that at about 2:30 p.m. on August 14, 1982, he and his partner were on routine patrol when they observed the defendant in the vicinity of 7059 South Halsted Street in Chicago. The officers, who were familiar with the defendant, put his name into the mobile computer unit in their car and received information that he was wanted on a bond forfeiture warrant for possession of a controlled substance.

On the basis of this information, Dahlberg arrested the defendant and informed him of the outstanding warrant. Defendant did not show him any recall slip or inform him that the warrant had been vacated, and after conducting a patdown search of defendant’s person, Dahlberg led him to the squad car. As he did so, he saw defendant drop four pills to the ground.

The parties then stipulated that if attorney Umberto S. Davi were called, he would testify that he represented defendant on the bond forfeiture matter on August 3, 1982, when the bond forfeiture was vacated and the warrant was quashed and recalled. Defense counsel then requested the court to take notice of its own records, which showed that bond was posted in the case on August 10, 1982.

After hearing the arguments of counsel, the court took the matter under advisement, then denied defendant’s motion to quash the arrest and suppress evidence. In reaching this conclusion, the court determined that the officers acted reasonably in arresting defendant based on information which led them to reasonably believe that the warrant issued against the defendant was valid and outstanding at the time they effectuated the arrest.

Trial was held on a subsequent date and proceeded by way of stipulation after defendant was admonished by the trial court. The parties stipulated to the testimony which would be given by Officer Dahlberg concerning defendant’s arrest and the recovery of the pills. This was substantially the same testimony that he had given at the hearing on defendant’s motion to quash the arrest and suppress evidence. In addition the parties stipulated that the pills released by the defendant and recovered by the officer were inventoried and analyzed by a police department chemist. Two of the pills weighed .39 grams and tested positive for pentazocine, commonly known as Talwin. On this evidence the defendant was found guilty as charged and sentenced to a term of imprisonment.

In this appeal defendant contends solely that he was denied due process of law when he was arrested on the basis of a recalled warrant, that there existed no independent cause for his arrest, and that the trial court improperly denied his motion to quash arrest and suppress evidence. In support of his contention defendant relies principally on Whiteley v. Warden of Wyoming State Penitentiary (1971), 401 U.S. 560, 28 L. Ed. 2d 306, 91 S. Ct. 1031, and its progeny.

Whiteley held that a police officer was entitled to act upon information relayed to him in a police radio bulletin that a warrant existed for defendant’s arrest, and could properly assume that the warrant was valid. However, when it was later determined that no probable cause existed for the issuance of the warrant in the first place and the warrant was, in fact, invalid, the evidence seized pursuant to the illegal arrest was subject to suppression. 401 U.S. 560, 568-69, 28 L. Ed. 2d 306, 313-14, 91 S. Ct. 1031, 1037-38.

Following this decision the court in People v. Decuir (1980), 84 Ill. App. 3d 531, 405 N.E.2d 891, applied the reasoning in Whiteley to a situation where defendant was arrested on the basis of a warrant which had been quashed and recalled about two weeks before the arrest took place. The court held that although a police officer who is assisting in the execution of an arrest warrant from another jurisdiction may assume that the warrant was issued on the basis of sufficlent information to support an independent judicial assessment of probable cause, where the contrary turns out to be true, the illegal arrest cannot be insulated from a challenge to the warrant, and the evidence illegally seized in an arrest made without probable cause must be suppressed. 84 Ill. App. 3d 531, 533.

On the basis of these cases and those in other jurisdictions which have reached similar conclusions, defendant contends that his arrest, based on the communication of erroneous information to the arresting officer, was invalid and the evidence seized incident thereto should have been suppressed. The State argues that the trial court properly denied defendant’s motion to quash the arrest and suppress evidence because the arresting officer received information through police channels that defendant was wanted on a bond forfeiture warrant on the day of his arrest, and defendant did not tell the officer that the warrant had been vacated or show him a warrant recall slip.

As authority for its position, the State cites People v. White (1977), 51 Ill. App. 3d 155, 366 N.E.2d 491, where this court held that a police officer, who reasonably believes that a warrant has been issued against an accused, may arrest him without having actual possession of the warrant. In White the police officer had been in court and heard a bond forfeiture issue against the defendant two days before the arrest. When confronted, defendant stated that the order had been vacated, but failed to produce proof of it. On these facts this court found that it was reasonable for the police officer to believe that the warrant was still outstanding and upheld the validity of the arrest and the search incident thereto. 51 Ill. App. 3d 155, 160-61.

The State also asks us to consider the recently rendered decision in United States v. Leon (1984), 468 U.S. _, 82 L. Ed. 2d 677, 104 S. Ct. 3405, and its application to the case at bar. In Leon the Supreme Court addressed the question of whether the fourth amendment exclusionary rule should be modified so as not to bar the use in the prosecution’s case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by detached and neutral magistrates but ultimately found to be unsupported by probable cause. After considering the purposes of the exclusionary rule and the propriety of its application in a situation where police officers relied on a subsequently invalidated search warrant, the court concluded that under the circumstances presented, the officers’ reliance on the warrant was objectively reasonable, and that the fruits of the search need not be excluded. (468 U.S. _, _, 82 L. Ed. 2d 677, 700-01, 104 S. Ct. 3405, 3423.) Applying this reasoning to the facts in the case at bar, the State maintains that the arresting officers’ conduct in acting upon information received from a police mobile computer unit that defendant was wanted on a bond forfeiture warrant, although vacated earlier, was objectively reasonable, and that the trial court’s finding should be affirmed.

We are not convinced that the good-faith exception recognized by the Supreme Court in Leon is applicable to the case at bar. In that case, the court dealt with evidence seized by police officers acting on a facially valid search warrant which was issued by a State court judge after an independent determination of probable cause. In the case at bar, no such safeguard or intervening factor is present.

Rather, the situation here reflects the growing problem evolving from police reliance on electronically recorded and disseminated criminal files. When these computerized records are not kept up to date, a citizen may be subject to a deprivation of his liberty without any legal basis. See discussion in United States v. Mackey (D. Nev. 1975), 387 F. Supp. 1121; 1 LaFave, Search & Seizure sec. 3.5(d) (1978 & Supp. 1984).

In the case at bar the arresting officer received computerized information that there was a warrant outstanding against the defendant, and he arrested defendant solely on that basis. The warrant, in fact, had been recalled 11 days earlier. During this period of time defendant was subject to arrest through no fault of his own, and only because information had been retained in the system when it was no longer valid. See People v. Jennings (1981), 54 N.Y.2d 518, 446 N.Y. Supp. 2d 229, 430 N.E.2d 1282.

In Leon the Supreme Court observed that the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. (468 U.S. _, _, 82 L. Ed. 2d 677, 695-96, 104 S. Ct. 3405, 3419.) The situation in the instant case reflects a matter within the responsibility and control of police authorities who failed to update their records to accurately reflect defendant’s current status. In this age of computerization, we do not believe it would be appropriate to sanction the arrest here, thereby allowing law enforcement authorities to rely on an error of their own making. (People v. Lawson (1983), 119 Ill. App. 3d 42, 456 N.E.2d 170.) Moreover, it is our opinion that the good-faith reliance of the arresting officer, in acting upon information provided to him through police channels, cannot overcome the intrusion made upon defendant’s fourth amendment rights. See People v. Jennings (1981), 54 N.Y.2d 518, 446 N.Y. Supp. 2d 229, 430 N.E.2d 1282.

Although the duration of the computer inaccuracy in the instant case is not as lengthy as the duration found in other decisions (e.g., Mackey (five months); Jennings (four months)), we do not believe the 11-day span here may be attributed to “justifiable administrative delay.” (Childress v. United States (D.C. App. 1977), 381 A.2d 614 (four-day delay which included one weekend).) Nor do we find it akin to the situation in White, where the officer relied on his own personal information that a warrant had issued against defendant two days prior to the arrest. See also Ill. Rev. Stat. 1981, ch. 38, par. 107 — 2(b).

On this record, which shows that defendant was arrested solely on the basis of a warrant which had been recalled 11 days prior to the arrest, we conclude that the arrest was invalid, and that defendant’s motion to quash his arrest and suppress evidence should have been granted.

The judgment of the circuit court of Cook County is therefore reversed, and the cause remanded for further proceedings consistent with the above.

Reversed and remanded.

MEJDA, P.J., and SULLIVAN, J., concur.


author: JUSTICE WEBBER

text:
    LINCOLNLAND PROPERTIES, INC., Plaintiff and Counterdefendant-Appellant, v. BUTTERWORTH APARTMENTS, INC., Defendant and Counter-plaintiff (Ginkids Investments, Inc., Defendant and Counterplaintiff-Appellee).
    Fourth District
    No. 4—84—0248
    Opinion filed October 31, 1984.
    Rehearing denied December 3, 1984.

      Edward R. Green, of Gibbs & Green, P.C., of Springfield, for appellant.
    Larry J. Ratzel, of New Berlin, Wisconsin, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

This appeal (the third one between these parties) concerns the nature of an order entered in the circuit court of Sangamon County on November 13, 1975. The appeal lies from another order entered in the same court on December 27, 1983. The latter is intimately intertwined with the 1975 order. The current controversy is over the calculation of interest.

Some brief background information is necessary to a complete understanding of the case. A more complete recitation of the facts is found in the opinion emanating from the first appeal. (See Lincolnland Properties, Inc. v. Butterworth Apartments, Inc. (1978), 65 Ill. App. 3d 907, 382 N.E.2d 1250.) Ginkids Investments, Inc. (Ginkids), appellee here, is the successor in interest to the original owners of the rental properties and the holder of judgment notes of Lincolnland Properties, Inc. (Lincolnland), appellant here.

The basis of the original action, out of which the first appeal grew, was an agreement dated October 5, 1967. Under this agreement refinancing was to be obtained for certain rental properties owned by Lincolnland. In the event such refinancing could not be obtained by March 1, 1968, then the terms of the judgment notes, which were secured by the rental properties, were to be altered to provide that the notes would be paid solely from one-half of the net cash flow from the encumbered properties. The net cash flow was to be determined by Lincolnland’s accountant. The agreement contained other provisions not pertinent here.

The refinancing efforts failed, and Lincolnland brought suit to enforce the 1967 agreement. Ginkids counterclaimed, seeking a money judgment on the notes, or, in the alternative, rescission of the sale of the properties to Lincolnland. After a trial in the circuit court of Sangamon County, the trial court held that the notes were payable in accordance with the terms of the 1967 agreement, and this court affirmed that portion of the trial court’s judgment.

The portion of the trial court’s order, dated November 13, 1975, pertinent to the instant appeal provides:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED as to the Amended Counter-Complaint as follows:
1. The Counterplaintiff [Ginkids] have of and from the Counterdefendant [Lincolnland] the sum of Sixty Thousand Dollars ($60,000.00) with interest at the rate of six percent (6%) per annum from October 24, 1968, on the note of Lincolnland Properties, Inc. to Butterworth Apartments, Inc. [Ginkids’ assignor] and it is the further Order of the Court that the said note was not due and payable until May 22, 1975, and said payment shall be made under the terms and conditions of the Agreement dated October 5,1967.
The Counterplainiff have of and from the Counterdefendant the sum of One Hundred One and 26/100ths Dollars ($101.26). [This amount represents a debt of an interior decorating firm which Lincolnland assumed pursuant to its purchase agreement.]
It is the further Order of this Court that the Counterplaintiff take nothing from the Counterdefendant on the remaining issues in Count I [the count relating to the monies at issue in this appeal.]”

A second appeal between these parties concerned the meaning of the term “net cash flow.” It is not an issue in the instant appeal. Lincolnland Properties, Inc. v. Ginkids Investment, Inc. (1982), 108 Ill. App. 3d 1221, 446 N.E.2d 324 (Rule 23 order).

On December 27, 1983, Lincolnland filed a petition in the circuit court of Sangamon County seeking release of judgment and judgment lien with respect to a $60,000 note secured by a rental property known as “Moline 42.” Lincolnland made a tender of $87,690.16, which it calculated was the amount due on that note. Ginkids objected and asserted that the proper amount due was $99,838.36. The trial court held that the tender was inadequate and denied Lincolnland’s petition. This appeal followed.

The positions of the parties are relatively straightforward. Their disagreement is over the nature of the 1975 order.

Lincolnland claims that the 1975 order was a declaratory, not a money, judgment. It therefore calculated its tender by applying the interest rate called for in the note (6%) to the $60,000 principal, for the period of time that Ginkids was entitled to interest under terms of the order.

Ginkids, on the other hand, claims that the 1975 order was a money judgment. It arrives at its calculation by applying the contract rate of interest (6%) to the principal of $60,000 from 1968 to 1975, and the statutory rate (9%) thereafter to the amount of principal and interest due as of the date of the 1975 order.

The parties assert various arguments in support of their respective positions, Lincolnland points out that the order of 1975 does not -contáin the. usual verbiage of a money judgment; i.e., it does not require immediate payment .plus accrued interest. It also calls attention to the separate item of $101.26, which it admits is a money judgment, but .asserts that if the court intended the entire order to be so, it would have combined the items. It also maintains that it obtained declaratory relief and that it would have been inconsistent for the trial court to grant it the benefits of the 1967 agreement (payment from net cash flow) and at the same time require immediate payment of the entire sum.

Ginkids argues that it filed a counterclaim in the 1975 suit which was essentially an action for a money judgment, and since Lincolnland made no response other than general denials, the suit was then converted to one for a money judgment, notwithstanding thé declaratory nature of the original complaint. Ginkids also reasons' that the 1975 order is in essence an installment payment method of a money judgment. In a supplemental brief, Ginkids argued that in another order of May 6, 1981, dealing with a dispute of the same parties over other properties, the order of November 13, 1975, is referred to as a “judgment”; accompanying the May 1981 order was a partial satisfaction of judgment which was prepared by Lincolnland’s counsel; all this, Ginkids maintains, shows that the parties regarded the 1975 order as a money judgment. In reply, Lincolnland points out that the properties involved in the 1981 order were not subject to the 1967 agreement; it admits that the 1981 order was a money judgment, but claims it was a different proceeding on different properties and thus cannot affect the portion of the 1975 order at issue.

Interest on judgments is a creature of statute. The rationale for post-judgment interest is to allow the judgment creditor compensation for the improper withholding of the amount of the judgment by the judgment debtor. First National Bank & Trust Co. v. Aluminum Coil Anodizing Corp. (1980), 86 Ill. App. 3d 842, 408 N.E.2d 477.

No case involving the precise situation here has been called to our attention, nor has our own research disclosed any authority on all fours. As we have indicated, we view the question to be: Is an order which directs the payment of a sum upon the happening of an event, or events, which might, or might not, occur, a “judgment” within the meaning of the interest provisions of the Code of Civil Procedure? Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1303.

An examination of the various cases dealing with interest awarded on various types of judgments indicate that two principles are at work: (1) the amount of money to be paid must be certain, and (2) the judgment debtor must have enjoyed the improper use of the money during the period for which interest is awarded.

In equitable actions it has been held that post-judgment interest should be awarded when supported by equitable considerations, but should not be awarded when it would “not comport with justice.” Atwater v. Atwater (1974), 18 Ill. App. 3d 202, 212, 309 N.E.2d 632, 640.

In applying these principles to the instant case, we find that the trial court was in error. Under the terms of the 1967 agreement, which this court held was binding on the parties, no payment was due on the Lincolnland-Butterworth Apartments note until the encumbered properties developed a net cash flow. If no cash flow had ever developed, the note would never have become due. There is no evidence in the record that the Moline 42 property had a net cash flow prior to the order of November 1975, nor is there any evidence that Lincolnland failed to pay Ginkids any amounts due under the 1967 agreement when the property subsequently did develop a cash flow.

It follows that the principles set forth above were not met. There was no amount certain, and Lincolnland did not improperly withhold any funds. Although a declaratory judgment, which is the mold in which the litigation started, is not precisely pigeonholed as either a legal or equitable proceeding, we believe that equitable principles apply, and it would not comport with justice to allow Ginkids’ theory of recovery. (Atwater v. Atwater (1974), 18 Ill. App. 3d 202, 309 N.E.2d 632.) Ginkids’ contention that its counterclaim converted the action to a purely legal one is frivolous. We note in passing that the counterclaim ended up asking for “such other relief as in the premises the court deems just.” This is the traditional language of chancery.

In summary, the order of November 13, 1975, has none of the salient characteristics of judgments on which interest is normally allowed, and there is no evidence that Lincolnland did not make payments as they became due under the terms of the order.

The order of the circuit court of Sangamon County is therefore reversed and the cause is remanded to that court with directions to enter a new order providing in substance: (1) directing payment under the November 13, 1975, order as to count I of Ginkids’ counterclaim by payment from Lincolnland to Ginkids of its tender of $87,690.16; (2) releasing all liens attributable to said count I; (3) directing Ginkids to execute and deliver to Lincolnland appropriate releases as to count I of its counterclaim.

Reversed and remanded with directions.

MILLS, P.J., and GREEN, J., concur.


text:
    VIVIAN E. KOZAK, Plaintiff-Appellee, v. RETIREMENT BOARD OF THE FIREMEN’S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellant.
    First District (4th Division)
    No. 83—2138
    Opinion filed November 8, 1984.

      James D. Montgomery, Corporation Counsel, of Chicago (Jerome A. Siegan and Mary K. Rochford, Assistant Corporation Counsel, of counsel), for appellant.
    Kevin M. Forde, Ltd., of Chicago (Kevin M. Forde, Marshall E. LeSueur, and Katrina Veerhusen, of counsel), for appellees.
   JUSTICE ROMITI

delivered the opinion of the court:

Defendant-appellant, the Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago, appeals from an order of the circuit court of Cook County requiring that it pay prejudgment interest on certain judgments entered against it for retroactive widows’ annuity payments previously held by this court and the Illinois Supreme Court to be owed to plaintiff-appellee Kozak. Kozak v. Retirement Board (1981), 99 Ill. App. 3d 1015, 425 N.E.2d 1371, aff’d (1983), 95 Ill. 2d 211, 447 N.E.2d 394.

In the trial court, plaintiff advanced three separate bases for the award of prejudgment interest: a statutory provision allowing such interest to creditors when money has been withheld by an unreasonable and vexatious delay of payment (Ill. Rev. Stat. 1983, ch. 17, par. 6402); case law permitting such interest when funds have been wrongfully obtained and illegally withheld; and case law allowing such interests in an equitable proceeding when equitable considerations support such an award. We find that the award was justified on equitable grounds and affirm on that basis.

As a result of the 1970 death of plaintiff Kozak’s husband, a battalion chief with the Chicago fire department, she became entitled to a widow’s annuity under section 6 — 140 of the Illinois Pension Code. (Ill. Rev. Stat. 1983, ch. lOSVz, par. 6 — 140.) That statute was amended effective January 1, 1972, to provide for the following method of calculation of benefits:

“The annuity for the widow of a fireman whose death results from the performance of an act or acts of duty shall be an amount equal to 50% of the- current annual salary attached to the classified position to which the fireman was certified at the time of his death and 75% thereof after December 31, 1972, and it shall be payable to the widow until the fireman, had he lived, would have attained the age prescribed for compulsory retirement.
* * *>>

During the years 1972 and 1973, the board interpreted this provision to mean that the widows should receive benefits based on the current salaries paid to those in the same positions held by their husbands at the time of their death. Thus when salaries for those positions were increased, the widows’ annuities were increased. But beginning January 1, 1974, the board changed its construction of the statute and did not adjust the annuities when increases were made in the salaries for the pertinent positions. The board never notified the widows of this change in its interpretation of the statute. In March 1980, plaintiff filed a complaint with the circuit court of Cook County seeking computation of her annuity based on the annual salaries of active firemen and seeking retroactive payment to herself and to all members of the class of all widows of Chicago firemen who receive annuities pursuant to section 6 — 140 to reflect all salary increases made since January 1, 1974. The circuit court dismissed the complaint, finding defendant’s construction of the statute to be correct, but on appeal this court reversed, finding that plaintiff was to be paid a pension based on the annual salary of firemen currently in the same position as that held by her husband. (Kozak v. Retirement Board (1981), 99 Ill. App. 3d 1015, 425 N.E.2d 1371.) The Illinois Supreme Court affirmed this court and remanded the cause for further proceedings. Kozak v. Retirement Board (1983), 95 Ill. 2d 211, 447 N.E.2d 394.

After remand, the circuit court certified the class, found to consist of “all persons who are or were at any time since January 1, 1974, entitled to receive widow’s compensation annuity benefits from the Defendant Board pursuant to *** sec. 6 — 140 ***.” Plaintiff subsequently moved for the award of prejudgment interest and filed a memorandum citing all three bases that we have noted. After the matter had been fully briefed the circuit court entered an order granting the motion. Defendant then brought this appeal.

We first consider whether plaintiff was entitled to interest on statutory grounds. The pertinent statute provides:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance; on money received to the use of another and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.” (Ill. Rev. Stat. 1983, ch. 17, par. 6402.)

We find plaintiff’s reliance on this statute to be misplaced, because the statute does not specifically authorize the assessment of interest against municipalities. As is stated in 17 E. McQuillin, The Law of Municipal Corporations sec. 48.09 (3d ed. 1982), “Where municipal corporations are not mentioned in the law regulating interest, they are not within its provision and are not required to pay interest.” That was early on held to be the law in Illinois (City of Pekin v. Reynolds (1863), 31 Ill. 529), and the recent case of City of Springfield v. Allphin (1980), 82 Ill. 2d 571, 577-78, 413 N.E.2d 394, 396-97, in which this same principle of strict construction of interest statutes was held to negate the liability of the State of Illinois for prejudgment interest under the same statute cited by plaintiff here, would appear to support the continuing vitality of that principle. Plaintiff has cited the case of Woodruff v. City of Chicago (1946), 394 Ill. 542, 551-52, 69 N.E.2d 287, 292-93, in which the Illinois Supreme Court appeared to assume that this interest statute would apply to municipal corporations, but in fact in that case the court decided that the grounds for the exception had not been established, so that the question of the statute’s applicability to municipal corporations was not squarely addressed.

We also find no merit in the second basis advanced by plaintiff to support the grant of prejudgment interest. The principle relied on is that “where money is wrongfully obtained, or where it is lawfully obtained and unlawfully and wrongfully withheld, the municipality is liable for interest to the same extent as a private party.” (Conway v. City of Chicago (1908), 237 Ill. 128, 137, 86 N.E. 619, 623.) Without regard to the dispute between the parties as to whether the money must first be wrongfully obtained or whether it suffices that it be wrongfully withheld, it would appear that for this exception to be applicable the wrongful party must actually have money in its possession which is determined to belong to another. (County of La Salle v. Simmons (1849), 10 Ill. 513, 520-21; City of Chicago v. Northwestern Mutual Life Insurance Co. (1905), 218 Ill. 40, 75 N.E. 803; Board of Trustees v. Village of Glen Ellyn (1949), 337 Ill. App. 183, 198-99, 85 N.E.2d 473, 480-81.) Here, there is no evidence that in the period in question the defendant held any of the money sought by plaintiff in her original action. The applicable statutes specifically contemplate that these funds will be obtained from the city of Chicago on an annual basis as they are determined to be needed. (Ill. Rev. Stat. 1983, ch. lOS1^, pars. 6 — 165, 6 — 169.) There is no evidence in the record that the defendant board, in the years before this dispute was judicially determined, collected funds which at the time it did not believe it had to pay. Because it has not been established that defendant had been holding the money due the plaintiff, a grant of prejudgment interest cannot be based on the wrongful withholding principle cited by plaintiff.

As we have noted, plaintiff has contended in the circuit court and before us that she is entitled to prejudgment interest on equitable grounds. As was stated in Finley v. Finley (1980), 81 Ill. 2d 317, 332, 410 N.E.2d 12, 19, in an equitable proceeding:

“*** the allowance of interest lies within the sound discretion of the trial judge and is allowed where warranted by equitable considerations and is disallowed if such an award would not comport with justice and equity.”

The trial court’s determination to award such interest will not be set aside absent a finding of an abuse of that discretion. (Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12.) In this cause the defendant board, after following for two years a construction of the statute resulting in payments which increased with current salary increases, suddenly changed its construction to one which effectively froze the amount of the payments. The board never notified plaintiff of this change, and plaintiff did not bring suit to contest the matter for years. In the initial appeal of the original cause to this court defendant attempted to invoke against plaintiff the equitable doctrine of laches based on that 5V2-year delay. In rejecting this claim we stated:

«*** jn 0f the fact that the Board had full knowledge of its change in interpretation of the statute, and deliberately chose not to convey this notice to plaintiff but chose to conceal it from her, it would be unconscionable to permit the Board to benefit by its concealment by claiming plaintiff should have known the facts anyway. If the Board wished to avoid any delay in contesting the issue and any prejudice it now claims resulted, it could simply and easily have sent notice to plaintiff along with the pension check.” (Kozak v. Retirement Board (1981), 99 Ill. App. 3d 1015, 1019-20, 425 N.E.2d 1371, 1374.)

Defendant is correct in asserting that merely contesting a claimant’s right to payment in court cannot provide the basis for awarding that ultimately successful claimant prejudgment interest. (Pietka v. Chelco Corp. (1982), 107 Ill. App. 3d 544, 437 N.E.2d 872.) But here defendant’s deliberate concealment of a change in statutory construction cannot be compared to a good faith dispute over the propriety of such a construction. Certainly this behavior can reasonably be said to constitute the element of bad conduct necessary to find either an equitable or a statutory basis for awarding prejudgment interest. (Steward v. Yoder (1980), 86 Ill. App. 3d 223, 408 N.E.2d 55.) Accordingly, we find that the trial court did not abuse its discretion in awarding prejudgment interest to the plaintiff.

The judgment of the trial court is affirmed and the cause remanded for further proceedings consistent with this opinion.

Affirmed.

LINN, P.J., and JOHNSON, J., concur.


author: JUSTICE JONES

text:
    SALEM ENERGY SUPPLIES AND SERVICES, Plaintiff-Appellee, v. SHAWNEE ENERGY CORPORATION et al., Defendants (W. Russell Withers, Jr., Defendant-Appellant).
    Fifth District
    No. 5—83—0651
    Opinion filed October 11, 1984.

      James M. Wexstten, of Giamanco & Wexstten, of Mt. Vernon, for appellant.
    Bowen, Miller & Tungate, of Olney, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

This appeal is from an order of the trial court denying the motion of defendant Russell Withers, Jr., for an assessment of expenses and attorney fees pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 611). That section provides, in pertinent part:

“Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.”

Plaintiff filed a one-page, one-count complaint, sounding in contract, against four defendants, Shawnee Energy Corporation, Russell Withers, Jr., David Guemmer and Shawnee Oil & Gas Corporation. The complaint contained eight numbered paragraphs. The first five were devoted to statements directed at establishing venue and jurisdiction. Paragraph six alleged:

“6. At various times between April, 1981 and December, 1981 at Defendants’ request, Plaintiff provided materials, services, supplies and labor to Defendants as is more fully shown by Group Exhibit ‘A’ which is made a part hereof and is attached hereto for reference.”

Paragraph seven set forth the amount due and asked for interest, and paragraph eight alleged that demand for payment had been made of the defendants. The prayer was for a joint and several judgment against the defendants. Attached to the complaint as group exhibit “A" were a large number of invoices for an assortment of oil-field-related equipment, supplies and services. All the invoices were shown to have been issued to Shawnee Energy Corporation or Shawnee Oil & Gas Corporation; none were shown to have been issued to defendant Russell Withers.

Withers filed a motion to dismiss the complaint as to him upon the ground that it was an attempt to allege a cause of action against him in contract to impose an obligation to pay for goods and services rendered to the two named corporations and that the complaint was otherwise insufficient in law to state a cause of action against him.

In a record-sheet entry of June 9, 1983, the court granted the motion to dismiss and awarded costs. On June 13, 1983, the plaintiff filed a motion to reconsider the order of June 9 in which it alleged that the complaint could be amended to state a cause of action against Russell Withers, Jr., and asked leave so to amend. Withers filed an objection to plaintiff’s motion that alleged, among other matters, an intention to file on motion pursuant to section 2 — 611 of the Civil Procedure Law. On June 29, 1983, the court awarded plaintiff a judgment by default against the other individual defendant on the basis of the same complaint we have already described, a matter that is not involved in this appeal.

Defendant Withers’ section 2 — 611 motion for expenses and fees was filed July 11, 1983. It recited the allegations of plaintiff’s complaint and the order of June 9, 1983, that dismissed the complaint. As reasons for an assessment under section 2 — 611, the motion asserted that the allegations of plaintiff’s complaint were obviously untrue since none of the invoices in group exhibit “A” were signed by him, the allegations of the complaint were obviously made without reasonable cause since all the invoices in group exhibit “A” were invoices rendered to the two corporate defendants and not the responsibility of Withers, and that plaintiff could have discovered who was responsible for the invoices by reviewing them to determine who ordered the goods or services and to whom the goods or services were rendered. The motion then asserted that the fact that the allegations of the complaint were made without reasonable cause and were found to be untrue was established when the court granted the motion to dismiss the complaint on June 9, 1983, and, finally, that plaintiff’s complaint was “clearly vexatious and an attempt at harassment of defendant Withers in an effort to obligate [sic] for corporate debts he did not incur ***.” The motion concluded with a prayer for expenses, attorney fees and punitive damages.

On September 12, 1983, the court entered a record-sheet order granting plaintiff leave to amend its complaint as to defendant Withers and denying Withers’ section 2 — 611 motion for expenses and attorney fees. The order recited

“*** that [sic] ‘Untrue Statements’ statute (Ill. Rev. St., ch. 110, sec. 2 — 611) does not apply to the situation in this case where plaintiff is seeking to amend its [sic] complaint and complaint itself may express a cause of action against Def. Withers ***. Court grants Motion to amend complaint of Plf. filed 6/13/ 1983 and therefore vacates its order of 6/9/1983 dismissing Withers as a party Defendant ***.”

The court made the findings required by 87 Ill. 2d R. 304(a), and defendant Withers appeals that portion of the order that denied his motion for expenses and attorney fees. We affirm.

It is apparent from the transcript of the hearing on the section 2 — 611 motion that the trial court was somewhat leery of allowing the motion where the plaintiff had been granted leave to amend his complaint and well might amend to state a good cause of action against Withers. Admittedly, it seems incongruous that although a party may be successful in a lawsuit, he may nevertheless be found liable for payment of some expenses and attorney fees of the unsuccessful party. Withers insists, however, that he is entitled to section 2 — 611 expenses and fees despite the fact that plaintiff has been granted leave to amend his complaint, since such fees and expenses are recoverable whenever untrue allegations or denials are made without reasonable cause. We must agree with defendant Withers on this point, for it is solidly supported by case law. (See, e.g., Pole Realty Co. v. Sorrells (1981), 84 Ill. 2d 178, 417 N.E.2d 1297; Brokaw Hospital v. Circuit Court (1974), 52 Ill. 2d 182, 287 N.E.2d 472.) The rationale for the seeming anomaly of having the successful party become liable for fees and expenses of the unsuccessful party pursuant to section 2 — 611 is expressed in Pole Realty Co. v. Sorrells (1981), 84 Ill. 2d 178, 184, 417 N.E.2d 1297, 1301:

“The purpose of this section was described in Ready v. Ready (1961), 33 Ill. App. 2d 145, 161: ‘Section 41 is an attempt of the legislature to penalize the litigant who pleads frivolous or false matters or brings a suit without any basis in law and thereby puts the burden upon his opponent to expend money for an attorney to make a defense against an untenable suit.’ ”

Although we agree with defendant Withers’ assertion that a party may be entitled to recover expenses and attorney fees pursuant to section 2 — 611 following a decision upon an interim motion to dismiss, we nevertheless agree with the trial court that such expenses and attorney fees are not recoverable at this time in the instant case. In its order of September 9, 1983, in which it denied the section 2— 611 motion, the trial court stated that the original complaint may express a cause of action against defendant Withers. We agree with that assessment of the complaint. The complaint is designed to state a cause of action in simple contract in that it alleges, in effect, that at the instance of all the defendants, goods and services were sold and delivered to all defendants. While the invoices attached to the complaint as group exhibit “A” were all issued in the names of the two corporate defendants, in the absence of affirmative matters contained in defensive pleadings, the complaint against defendant Withers would be sufficient to permit the reception of evidence to show the involvement of Withers, if any, with the sale and shipment of the goods to the two corporate defendants and in what manner he might be liable therefor. Conceivably, defendant Withers could be liable by virtue of a partnership agreement, a limited partnership, a joint enterprise, an agency arrangement or by virtue of some quasi-contractual theory. Granted, the original complaint was a minimal effort and lacked a great deal of finesse. The plaintiff should have alleged more to show the relationship, if any, of defendant Withers with the other defendants and why and in what manner defendant Withers would be liable for goods and services shipped to or rendered to the two corporate defendants.

In paragraph five of defendant Withers’ motion under section 2 — 611, he asserts that the allegations of the complaint were obviously untrue and made without reasonable cause and that such facts were established when the court dismissed plaintiff’s complaint as to him. To the contrary, the order of the court dismissing Withers did not establish that the allegations of the complaint as to Withers were either untrue or made without reasonable cause, and reference to the invoices contained in group exhibit “A” adds nothing to Withers’ position. The most that can be said of the complaint with regard to the section 2 — 611 motion is that it is an instance of insufficient facts, not one in which the allegations are untrue or are made without reasonable cause. Thus, while the complaint may be inadequate as to defendant Withers because it consists of bare allegations that would be considered conclusions, a violation of the admonition of section 2 — 603 of the Civil Practice Law that complaints shall contain a plain and concise statement of the pleader’s cause of action, defendant Withers is not thereby entitled to recover under section 2 — 611.

Defendant Withers has filed in this court a motion for allowance of further expenses and attorney fees incurred in this appeal. In view of the result we have reached in this case, the motion is denied.

Affirmed.

KASSERMAN and HARRISON, JJ., concur.