author: JUSTICE CAMPBELL

text:
    JOAN PHELAN, a Minor, by her Father and Next Friend, Hugh Phelan, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    First District (1st Division)
    No. 81—2474
    Opinion filed April 11, 1983.

      Jerome Mirza & Associates, of Bloomington, and William J. Harte, Ltd., of Chicago, for appellant.
    John E Skeffington, Glen E. Amundsen, and Victor J. Piekarski, all of Querrey, Harrow, Gulanick & Kennedy, of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Joan Phelan, the assignee of defendant State Farm Mutual Automobile Insurance Company’s insured, brought this action to recover an amount in excess of the limits of the insurance policy of defendant’s insured. Plaintiff appeals from an order of the circuit court of Cook County which entered judgment n.o.v. in favor of defendant and granted alternative relief of a new trial. Plaintiff contends that: (1) the trial court erred in entering judgment n.o.v. in favor of defendant; and (2) the trial court erred in granting the alternate relief of a new trial.

Plaintiff, Joan Phelan, was injured on December 26, 1971, when the automobile in which she was a passenger was struck by an automobile operated by Paul Santelli. The collision occurred in Grundy County. As a result of the collision, plaintiff, an 11-year-old, was rendered a quadriplegic. Santelli was insured by defendant State Farm Mutual Automobile Insurance Co. The insurance policy required State Farm to defend any lawsuits arising out of the operation of an automobile. The policy limits of liability were $100,000 per person and $200,000 per occurrence.

Plaintiff's father retained Roger B. Gomien, an attorney from Morris, Illinois, to handle plaintiff’s claim against Santelli. On January 10, 1972, Jerry Pitstick, a field claim representative for defendant, investigated the collision. Pitstick’s report of January 26, 1972, indicated that Santelli had “little regard for the safety of his passengers and little regard for traffic proceeding in a southerly direction” when Santelli backed up his automobile on a highway at the base of a hill. The report indicated that the negligence of Santelli would stem from his violation of two sections of the Illinois Vehicle Code.

On April 13, 1972, plaintiff instituted an action against Santelli. Defendant retained the law firm of Black and Black of Morris, Illinois, to defend Santelli. During the course of discovery, Gomien determined that the limits of liability for the insurance policy which covered Santelli was $100,000 per person and $200,000 per occurrence. On July 27, 1972, Gomien made a verbal settlement demand of $100,000 to August Black, who conveyed plaintiff’s settlement demand to defendant. According to Gomien, he informed Black that plaintiff was a quadriplegic and that she required constant care. On September 26, 1972, Gomien wrote to Black and again demanded $100,000 to settle the lawsuit against Santelli. The letter indicated that the $100,000 demand would be in force until November 1, 1972, after which date “we will proceed to move the matter to trial as rapidly as possible, and after which date we will no longer be in a position to accept the $100,000 in full settlement” of plaintiff’s claim. Go-mien enclosed -with this demand letter a report from one of plaintiff’s physicians which indicated that plaintiff was a “vegetable” and that her prognosis was “absolutely hopeless.” On September 27, 1972, Go-mien spoke with Black and there was a discussion about plaintiff giving a covenant not to sue which would allow plaintiff to proceed against the driver of the automobile in which she was a passenger.

During discussions with Temple Burger, a claims superintendent for defendant, Black recommended that defendant make the best possible settlement up to the policy limits of $100,000. In the opinion of Burger, a jury would find Santelli negligent. In mid-October 1972, defendant’s claim committee reviewed its file in order to make a final settlement recommendation. The committee gave Burger authority to authorize $100,000 for settlement. On October 24, 1972, Burger informed Black of the final authorization to offer up to $100,000. Burger requested that Black offer $85,000 to Gomien, although Burger knew that the demand was $100,000. On October 26, Black requested a medical report from a neurosurgeon who examined plaintiff. The following day, Gomien told Black that he was stalling and that after November 1, “we will proceed to trial.” The neurosurgeon’s report was forwarded to Black by Gomien. On October 30, plaintiff was examined in her home by Dr. Seng. Seng concluded that plaintiff had a severe brain injury with quadriplegic paralysis and that her prognosis for recovery was practically nonexistent.

On October 31, Black offered to settle the case for $85,000. Go-mien declined the offer, but agreed to talk with plaintiff’s parents. After discussing defendant’s offer with plaintiff’s parents, Gomien told Black that he would accept $97,500 for a covenant not to sue or $100,000 for a release. Gomien informed Black that if the case was settled on November 1 for $100,000, he would reduce his fee from 33x/3% to 20% and that if the case were settled for $97,500, he would reduce his fee by an additional $2,500. On November 1, Black informed Gomien that the $85,000 offer still stood. Gomien then told Black that plaintiff’s demand would remain in force until November 6, after which time it would be necessary to hire a trial specialist. On November 6, Black confirmed the $85,000 offer of settlement in a letter to Gomien. Gomien subsequently informed Black in a letter dated November 6 that the $85,000 offer was rejected. Gomien subsequently referred plaintiff’s case to a Jerome Mirza.

On November 29, 1972, Bruce Buckley, who replaced Burger as the field claim superintendent, met with Gomien. Gomien did not discuss the case because the case had been referred to Mirza. Gomien indicated to Buckley that he thought State Farm had improperly conducted negotiations and that there was the possibility of an excess liability claim against defendant. In a December 1 memorandum, Buckley indicated that there was a concern with “excess judgment.” Buckley contacted Black and informed Black that there could be an excess judgment claim against defendant and that Black should offer Mirza $97,500 for a covenant not to sue or, if rejected, the policy limits of $100,000. On December 4, Black spoke with Mirza and offered $97,500 for a covenant not to sue. Mirza rejected the offer in a letter dated December 5. Following a deposition on December 18, Black offered Mirza and Gomien $100,000 to settle the case. The offer was refused.

In January 1973, plaintiff’s motion for a change of venue was granted and in May 1973, the case was set to be tried in mid-September 1973. Prior to the commencement of the trial on September 12, 1973, Black’s offer of $100,000 to settle the case was refused by Mirza. At trial, the jury returned a verdict against plaintiff and in favor of Santelli. The appellate court reversed and ordered a trial on the sole issue of plaintiff’s damages. (Phelan v. Santelli (1975), 30 Ill. App. 3d 657, 334 N.E.2d 391.) Following the denial of Santelli’s petition for leave to appeal to the Illinois Supreme Court and the issuance of the mandate by the appellate court on January 19, 1976, Black sent defendant’s check in the amount of $100,000 to Mirza. Mirza did not accept the check. On June 7, 1976, prior to the beginning of the trial on damages, Black tendered to Mirza defendant’s check for $100,000, which Mirza declined to accept. On June 10, the jury returned a verdict finding for plaintiff and assessing damages in the amount of $350,000. On June 30, 1976, defendant paid $100,000 to plaintiff in partial satisfaction of the judgment against Santelli.

In August 1976, Mirza requested that Santelli execute an assignment of his bad-faith claim for excess liability against defendant. Santelli did not respond to Mirza’s request. On November 15, Santelli appeared in a citation-to-discover-assets proceeding and, at that time, he was ordered by the court to execute an assignment of his claim against defendant to plaintiff. On December 6, 1976, plaintiff, as assignee of defendant’s claim, brought this action against defendant in the circuit court of Cook County. In April 1981, the jury returned a verdict for plaintiff in the amount of $250,000 plus 6% interest and on April 6, the court entered the judgment order.

On June 10, defendant filed its post-trial motion in which it sought the entry of a judgment n.o.v. In the alternative, defendant sought a new trial because of 29 alleged trial errors. On August 13, 1981, the trial court granted defendant’s motion. The court set aside the jury verdict and entered judgment n.o.v. in favor of defendant. The court also conditionally granted the alternate relief sought by defendant. Plaintiff appeals.

Prior to determining whether the court properly granted defendant’s motion for judgment n.o.v., we shall first consider whether plaintiff had standing to maintain this action. In support of her contention that she has standing, plaintiff cites Brown v. State Farm Mutual Automobile Insurance Association (1971), 1 Ill. App. 3d 47, 272 N.E.2d 261. Plaintiff argues that Brown permits the assignment of a bad-faith claim against an insurer in a citation-to-discover-assets proceeding brought against the insured. Defendant argues that Roundtree v. Barringer (1981), 92 Ill. App. 3d 903, 416 N.E.2d 675, precludes the involuntary assignment of a bad-faith claim.

In Brown, plaintiff recovered a $40,000 judgment against the administrator of the estate of defendant’s insured. Defendant had issued an automobile liability policy to the insured in the amount of $20,000. After discovery, plaintiff offered to settle the case for the $20,000 policy limits. Defendant refused the offer and no counteroffer was made. A citation-to-discover-assets proceeding was commenced against the estate of the insured. The court found that the assets of the estate were $5,500 and a potential chose in action against defendant for its bad faith in settling the claim within the insured’s policy limits. The administrator of the insured’s estate assigned the bad-faith claim to plaintiff, reserving the right to obtain for the insured’s heirs any amount received over $14,500, attorney fees and costs. In Brown, the trial court dismissed the action upon the basis that plaintiff did not acquire any legal right to maintain the insured’s bad-faith claim. The Fourth District of this court considered the various cases from other jurisdictions in which assignability was and was not permitted. The court in Brown concluded that there was “no valid reason in public policy why the cause of action should not be assignable” and reversed the trial court’s dismissal of the action.

In Roundtree, plaintiff obtained a $75,000 judgment against defendant. Defendant was the administrator of the estate of the insured who was covered under an automobile insurance policy with limits of $50,000. Plaintiff then brought a citation-to-discover-assets proceeding against the administrator of the insured’s estate. At the citation proceedings, plaintiff alleged that the bad-faith claim arose out of the insurer’s negligence, bad faith or fraud in the insurer’s refusal to settle plaintiff’s claim. The court refused to order the assignment of the bad-faith cause of action. The Fifth District of this court upheld the trial court’s order which denied plaintiff’s motion to compel the assignment of the cause of action. The court in Roundtree concluded that to compel the assignment of a cause of action in circumstances raised in the case would violate public policy. Roundtree cautioned that to permit involuntary assignments, a plaintiff could go on a “fishing expedition” which may lead to champerty and specious litigation. The court also indicated that there would be no reason that a plaintiff could not compel a judgment debtor to assign other choses in action, such as a medical or legal malpractice claim.

We have carefully examined the decisions in Brown and Roundtree and conclude that Brown should be followed in the instant case. A citation-to-discover-assets proceeding is governed by section 2— 1402 of the new Code of Civil Procedure. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1402, formerly Ill. Rev. Stat. 1979, ch. 110, par. 73.) Pursuant to section 2 — 1402(b)(1) (formerly section 73(2)(a)) the court may “compel the judgment debtor to deliver up, to be applied in satisfaction of the judgment, in whole or in part *** choses in action ***.” Section 2 — 1402(b)(5) (formerly section 73(2)(e)) permits the court to “compel any person cited to execute an assignment of any chose in action ***.” By the language employed by the General Assembly, section 2 — 1402(b) (formerly section 73(2)) does not contain any limitations on the nature of the choses in action for which assignment may be compelled. In support of its decision, the court in Roundtree relies upon two cases from other jurisdictions. Both of these cases involved garnishment actions and, thus, are distinguishable from the instant appeal. We are not persuaded by defendant’s arguments that the intent of section 2 — 1402 (formerly section 73) precludes a court, in a citation-to-discover-assets proceeding, from compelling the assignment of a bad-faith cause of action under facts similar to the instant case.

Roundtree also expresses concern that an injured plaintiff and an insured may engage in collusive conduct or champerty against an insurer. Such collusive conduct could be raised as a defense to an assigned bad-faith claim against an insurance company. We do not consider the mere possibility of collusive conduct to be a valid basis on which to deny a right of action. As a practical matter, an injured plaintiff is in a better position to determine whether an action for bad faith may lie against a defendant’s insurer since it is the plaintiff who conducts settlement negotiations with defendant’s insurer. We do not find a sound basis to preclude a court, in a citation-to-discover-assets proceeding, from ordering the cited judgment-debtor to assign to the judgment-creditor a bad-faith cause of action against the judgment debtor’s insurer under facts similar to the case at bar. Accordingly, we reject the conclusion reached in Roundtree that such assignments are contrary to public policy and hold that plaintiff has standing to maintain this action as the assignee of Santelli’s bad-faith claim against defendant.

Plaintiff next argues that the trial court erred in entering the judgment n.o.v. because the evidence demonstrates that defendant was guilty of negligence or bad faith in its settlement negotiations on behalf of Santelli. Plaintiff urges that Illinois law establishes that if an insurance company engaged in negligent, fraudulent or bad-faith conduct in negotiating a settlement on behalf of the insured, the insurance company may be held liable for the entire judgment where the judgment exceeds the limits of liability of the insurance policy. (Scroggins v. Allstate Insurance Co. (1979), 74 Ill. App. 3d 1027, 393 N.E.2d 718; Olympia Fields Country Club v. Bankers Indemnity Insurance Co. (1945), 325 Ill. App. 649, 60 N.E.2d 896.) Plaintiff maintains that the evidence establishes that defendant breached its duty to Santelli because in plaintiff’s action against Santelli, it appeared that there was a strong probability that there would be an adverse finding against Santelli and that the damages would exceed the policy limits. See Kavanaugh v. Interstate Fire & Casualty Co. (1975), 35 Ill. App. 3d 350, 342 N.E.2d 116.

Defendant maintains that the trial court properly granted the judgment n.o.v. because the evidence failed to establish that defendant breached its duty to Santelli. Defendant argues that the evidence, as a matter of law, establishes that plaintiff’s claim was not settled because of the unreasonable refusal of plaintiff’s attorney to settle the case less than one month after plaintiff’s self-imposed time deadline had passed. Defendant maintains that the facts presented herein are much stronger than the facts presented in Adduci v. Vigilant Insurance Co. (1981), 98 Ill. App. 3d 472, 424 N.E.2d 645, where plaintiff’s counsel set a 28-day deadline for acceptance of plaintiff’s demand for the policy limits. The insurer did not respond to plaintiff’s settlement demands within the time period. At the pretrial conference 72 days after the deadline had passed, the insurance company’s offer of the policy limits was refused. The appellate court affirmed the dismissal of plaintiff’s amended complaint against the insurer because the amended complaint was insufficient, as a matter of law, to demonstrate that the insurer breached its duty to its insured by the insurer’s failure to respond to plaintiff’s settlement demand within the time deadline. Defendant herein argues that Adduci is controlling in the instant action. Defendant also maintains that the reasons Gomien stated as to why he refused defendant’s offer in December 1972 are specious and that the evidence did not establish any valid reason why the offer could not have been accepted after the deadline.

Defendant also points out that it offered to plaintiff 85% of the policy limits and that this is similar to the facts in Kavanaugh v. Interstate Fire & Casualty Co. (1975), 35 Ill. App. 3d 350, 342 N.E.2d 116, where the insurer offered $7,500 of a $10,000 policy after plaintiff demanded the policy limits prior to trial. After an adverse finding on liability, the insurance company tendered the policy limits. Defendant maintains that in Kavanaugh, the court held that the insurer had not been guilty of bad faith as a matter of law.

A judgment n.o.v. may be entered “only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) Defendant argues that based upon the evidence in this case and the decision in Adduci v. Vigilant Insurance Co. (1981), 98 Ill. App. 3d 472, 424 N.E.2d 645, the decision of the trial court was proper. We view Adduci to be distinguishable from the instant case. In Adduci, the trial court dismissed plaintiff’s amended complaint for failure to state a cause of action. The amended complaint in Adduci alleged that defendant-insurer was guilty of bad faith because the insurer failed to respond to plaintiff’s settlement overtures. Seventy-two days after plaintiff’s demand and 40 days after the offer expired, defendant-insurer tendered to plaintiff the policy limits. Plaintiff refused because additional preparation for trial had been made, thereby foreclosing the opportunity for settlement. The court in Adduci stated that there were no facts to support plaintiff’s assertion in the amended complaint. In Adduci, the court noted that no facts sufficiently indicated why the offer of settlement could not be accepted, so as to fairly place the blame for the failure to settle on the insurer.

Contrary to defendant’s assertion, we do not view Adduci to stand for the proposition that as a matter of law, a settlement offer 40 days after the expiration of plaintiff’s demand is insufficient to establish the bad faith of the insurer; rather, Adduci involved pleadings which allege insufficient facts to sustain a cause of action and, therefore, even if the allegations in the complaint were proved, plaintiff would not be able to recover. This is clearly different than the instant case in which the issue of defendant’s bad faith was submitted to the jury. In this case, the jury concluded defendant was guilty of a breach of duty in its failure to settle with plaintiff. The evidence which plaintiff adduced at trial concerned the necessity of plaintiff’s attorney procuring the services of a trial attorney, added expenses incurred in preparation for trial and the welfare of plaintiff’s family. In addition, there was evidence that on October 24, 1972, defendant’s claim committee authorized a settlement of the case for the policy limits of $100,000, but that defendant did not offer plaintiff that amount until December 1972. This evidence did not so overwhelmingly favor defendant that no contrary verdict could be reached.

Finally, in order for plaintiff to recover against defendant on a bad-faith claim, it must be shown that defendant breached its duty of good faith to the insured. (Scroggins v. Allstate Insurance Co. (1979), 74 Ill. App. 3d 1027, 393 N.E.2d 718.) Where it appears that the probability of an adverse finding on liability is great and the amount of damages would exceed the policy limits, the insurer has a duty to settle within the policy limits or face an excess liability claim for a breach of the duty owed to the insured. (Kavanaugh v. Interstate Fire & Casualty Co. (1975), 35 Ill. App. 3d 350, 342 N.E.2d 116.) From the evidence presented at trial, it appears that both of these prerequisites to a finding of liability were met. First, Temple Burger, a claims superintendent for defendant, was of the opinion that a jury would find Santelli negligent and, second, it appears that defendant was aware that damages would be in excess of the policy limits since defendant was aware that plaintiff was a quadriplegic and that there was little or no chance for recovery. Based upon this and other evidence, it does not appear that the evidence so overwhelmingly favored defendant that no contrary verdict could be reached. We conclude, therefore, that it was error for the trial court to enter judgment n.o.v. for the reasons which we have discussed.

Plaintiff also argues that the trial court erred in granting the alternate relief of a new trial sought by defendant. In its motion for a judgment n.o.v. and, in the alternative, motion for a new trial, defendant claimed 29 trial errors. Notwithstanding our decision that the trial court erred in granting defendant’s motion for a judgment n.o.v., we conclude that the trial court properly granted defendant’s motion for a new trial on the grounds that the court erred in excluding relevant testimony of defendant’s insured Paul Santelli.

Plaintiff made a motion in limine to exclude evidence which indicated that the verdict in the first trial was in favor of Santelli and evidence that Santelli was pleased with or had no complaint against the manner in which defendant handled plaintiff’s claim. The trial court granted the motion in limine and Santelli was precluded from testifying as to the subjects raised in plaintiff’s motion in limine. As to Santelli being precluded from testifying as to the jury verdict in the first trial, the appellate court in Phelan v. Santelli (1975), 30 Ill. App. 3d 657, 334 N.E.2d 391, concluded that the jury verdict in the first trial was contrary to the manifest weight of the evidence and the law. This testimony was not probative of the issue of defendant’s bad faith and, therefore, this testimony was properly excluded by the trial court.

The second testimony which was excluded concerned evidence which indicated that Santelli was pleased with or had no complaint against defendant’s handling of plaintiff’s claim against him. Since the duty of an insurer is owed to the insured (Yelm v. Country Mutual Insurance Co. (1970), 123 Ill. App. 2d 401, 259 N.E.2d 83), the testimony of the insured is relevant as to whether the insurer breached that duty. Thus, the trial court initially erred in excluding this testimony, but remedied any error by granting the alternate relief of a new trial sought by defendant. Thus, we hold that the trial court did not abuse its discretion in granting a new trial. See Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 416 N.E.2d 268.

Finally, one other issue of note is raised by the parties. At trial, defendant requested that the court give the jury a non-IPI instruction which defined bad faith. The court refused defendant’s request. Defendant maintains that the court’s decision to grant defendant a new trial may also be justified on the grounds that it was error to refuse defendant’s request for an instruction on bad faith. The court instructed the jury that it was the duty of defendant “to exercise good faith and to use ordinary care toward the interests of the insured.” Another instruction stated plaintiff had to prove that “the bad faith or negligence of defendant was the proximate cause of the judgment against Paul Santelli.” We are not persuaded by defendant’s contention that such a bad-faith instruction was required to properly instruct the jury. The instructions given properly instructed the jury and defendant has not demonstrated that the court’s refusal to give the jury an instruction on bad faith resulted in an unfair trial. (See Kent v. Knox Motor Service, Inc. (1981), 95 Ill. App. 3d 223, 419 N.E.2d 1253.) Accordingly, we reject defendant’s contention that a bad-faith instruction was necessary and hold that the trial court did not abuse its discretion in refusing to give to the jury a non-IPI instruction on bad faith. See Fornoff v. Parke Davis & Co. (1982), 105 Ill. App. 3d 681, 434 N.E.2d 793.

Accordingly, the entry of judgment n.o.v. by the circuit court of Cook County is reversed and the order granting defendant the alternate relief of a new trial is affirmed. This cause is remanded to the circuit court of Cook County for a new trial.

Affirmed in part; reversed and remanded in part.

McGLOON and GOLDBERG, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McNAMARA

license: Public Domain

text:
      In re ESTATE OF THOMAS H. PHILP, Deceased.—(Heather Investments, Inc., Plaintiff-Appellee, v. First National Bank of Blue Island, Defendant-Appellant.)
    First District (3rd Division)
    No. 82—648
    Opinion filed February 9, 1983.
    Rehearing denied May 9, 1983.

      Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (Thomas G. Vent and Hyman K. Bielsky, of counsel), for appellant.
    Jerome H. Torshen, Ltd., of Chicago (Jerome H. Torshen and Mark K. Schoenfield, of counsel), for appellee.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Heather Investments, Inc., seeks $37,000 in real estate commissions from defendant First National Bank of Blue Island for Heather’s role in the sale of property over which the bank holds a perfected security interest. Pursuant to a court order, $37,000 was deducted from gross sale proceeds at the closing and placed in an interest bearing account pending resolution of Heather’s claim. The question of which party had a priority interest in the proceeds of the sale was submitted to the trial court on stipulated facts. The trial court ruled in favor of Heather and the bank appeals.

Prior to his death, Thomas H. Philp owned the beneficial interest in a land trust for which the bank was trustee. The bank also had a perfected collateral assignment of the beneficial interest in that land trust to secure loans to Philp. Philp contracted to sell the land, which was the corpus of the trust, to Leonard Cooper. The contract (PhilpCooper contract) provided for payment of brokerage commissions by seller to Heather “per Separate agreement.” The bank signed the contract as seller but asserted in an exculpatory clause that it was not signing in its individual capacity but merely as trustee. The exculpatory clause was repeated in a contract rider. The loan department of the bank, as secured creditor, also approved the contract.

The brokerage agreement executed subsequent to the PhilpsCooper contract was not attached thereto, nor did the bank, either in its capacity as trustee or secured creditor, have any knowledge of its terms. Signed by Heather and Philp, it provided for a $400 per lot brokerage commission to Heather upon consummation of the sale.

A real estate closing on approximately 10% of the lots occurred under the Philp-Cooper contract. The commissions were deducted from gross proceeds, and the net proceeds were transferred to the bank.

After the death of Philp, the administrator of his estate asked Heather to reduce its commission to aid the administrator in negotiating a new contract with Cooper which would accelerate the closing on the property but at a reduced sales price. Heather agreed to reduce its commission to $250 per lot. The bank took no part in these negotiations and had no knowledge thereof.

Subsequently, the administrator and Cooper negotiated a contract (Administrator-Cooper) for the remaining land trust property which provided for a reduced sales price and an accelerated closing. The bank agreed to the reduction in sales price although the new price reduced proceeds to less than one half the amount of Philp’s debt to the bank. The bank insisted, however, that the contract provide for the administrator, rather than the seller, to pay Heather’s commission pursuant to a separate agreement. The bank signed as trustee, again adding a clause which exculpated it individually from any liability under the contract. The parties agree that the Administrator-Cooper contract supersedes the Philp-Cooper contract to the extent they are inconsistent.

The administrator subsequently filed a petition for leave to sell the property in question and attached to that petition a copy of the Administrator-Cooper contract. The petition recited that Heather’s commission was to be paid from the proceeds of the sale. No similar provision appeared in the contract. Although the bank was both trustee and secured creditor with regard to the properties, it was given no notice of the petition. The trial court approved the petition and ordered that the bank was to receive net proceeds of the sale after payment of Heather’s commission.

When notified of the order, the bank objected to the provision which purported to subordinate its secured interest in the proceeds to the payment of Heather’s commission. The bank urged that the court modify its order to require that the proceeds of sale be first applied toward the outstanding balance of the loan held by the bank and that Heather’s brokerage commission be paid by the administrator in compliance with the real estate sales contract. The court subsequently ruled that Heather had a priority interest in the proceeds.

The bank contends that payment of Heather’s brokerage commission is the contractual obligation of the administrator, not the bank, and that the proceeds from the sale of the secured collateral cannot be used to meet that obligation prior to the satisfaction of the bank’s secured claim. Heather agrees that it is the administrator’s contractual obligation to pay its commission but urges that the administrator be permitted to pay the commission as a cost of sale prior to distributing net proceeds to the bank; that the bank agreed to such priority by signing the Administrator-Cooper contract; and that the bank waived any priority it may have had.

Pursuant to the Uniform Commercial Code, absent an agreement to the contrary, the bank as secured creditor is entitled to the proceeds from the sale of its collateral. (Ill. Rev. Stat. 1981, ch. 26, par. 9 — 203(3).) Heather urges that “proceeds,” as used in the Code, means “net proceeds” and that a secured creditor’s right thereto is subordinate to the claim of a real estate broker for a sales commission even absent an agreement by the secured creditor to pay such commission. We find no support for this interpretation. “Proceeds” are defined in section 9 — 306 as “whatever is received upon the sale *** or other disposition of collateral.” (Ill. Rev. Stat. 1981, ch. 26, par. 9 — 306.) As used in a later section of the Code (Ill. Rev. Stat. 1981, ch. 26, par. 9 — 504), the word clearly refers to gross proceeds. It is unlikely that the legislature would use the same word in two sections of the Code and intend that a different meaning be attached to each.

The cases on which Heather relies for its position that an administrator is required to pay a real , estate commission as a cost of sale prior to transferring net proceeds to a secured creditor are distinguishable from the present case. In Hibernian Banking Association v. Roseboom (1919), 214 Ill. App. 324, a realtor was allowed to deduct his commission from gross proceeds prior to transferring the balance to the seller. Unlike here, the property was not collateral for a secured loan. In re Estate of McGaughey (1978), 60 Ill. App. 3d 150, 376 N.E.2d 259, involved the issue of whether a creditor had a secured interest and consequent priority right to any proceeds in light of its failure to perfect that interest. The question of whether a secured creditor was entitled to gross or merely net proceeds was not addressed. Vermilion County Production Credit Association v. Izzard (1969), 111 Ill. App. 2d 190, 249 N.E.2d 352, is also inapplicable. That case involved the sale by a debtor, without the creditor’s permission, of corn over which the creditor held a security interest. Although the proceeds awarded to the secured creditor excluded the amount spent for shelling and hauling the corn, that expense was paid by the buyer. The secured creditor was awarded the amount actually received by the debtor for the sale of collateral. Here, if Cooper had agreed to pay Heather’s commission, the amount of the commission would have been excluded from proceeds. This, however, was not the case.

Secured collateral which is in the possession of the administrator of the debtor’s estate does not become part of the assets of the estate until the creditor’s lien upon it is discharged. Likewise, proceeds from the sale of that collateral do not become estate assets until the secured creditor’s lien is discharged. (In re Estate of Yealick (1979), 69 Ill. App. 3d 353, 387 N.E.2d 399.) Unless the bank agreed to subordinate its lien to that of Heather, therefore, the administrator had no authority to pay Heather’s commission with proceeds from the sale of collateral.

Heather next suggests that the bank, by signing the Administrator-Cooper contract, did agree to payment of Heather’s commission from proceeds. The contract, however, clearly exculpated the bank from individual liability, and provided that the administrator be liable for the commission. We do not see how the bank’s signing of that contract could be construed as an agreement to assume liability.

We next address Heather’s assertion that the bank waived its priority right to proceeds by paying Heather’s commission out of gross proceeds pursuant to the Philp-Cooper contract and thereby misleading the other participants into thinking it would continue to do so under the later Administrator-Cooper contract. One obvious fallacy in this claim lies in the essential difference between the two contracts with respect to liability for payment of Heather’s commission. In the Philp-Cooper contract, the bank as trustee-seller, was liable. In the Administrator-Cooper contract, the administrator, at the bank’s insistence, assumed liability. In light of this difference and the agreement between the parties that the later contract superseded the former, we find no support for the argument that the bank waived its priority right.

We likewise reject Heather’s argument that the bank waived'its priority right by three letters to the administrator and Heather in which it made reference to payment of Heather’s commission out of proceeds. All three letters were written prior to the execution of the Administrator-Cooper contract. Furthermore, the final letter conditioned payment of commissions out of proceeds on the reasonable reduction of Philp’s debt to the bank, thereby implying that in the event funds were insufficient, as they are here, the bank would insist on its priority right to the proceeds.

Heather next urges that the bank waived its priority rights to proceeds by signing the Administrator-Cooper contract without setting any limitations with regard to the separate commission agreement to be drawn up by the administrator and Heather. The Administrator-Cooper contract, however, expressly provided that the administrator, not the bank, pay Heather’s commission “in accordance with a separate agreement.” Since the bank was not even a party to that agreement we fail to see how its failure to set any limitations thereon could have constituted a waiver of its priority rights.

We finally address Heather’s argument that since the bank would have been liable for real estate commissions if it had foreclosed on the collateral, it should not be permitted to avoid this expense by allowing the administrator to conduct the sale rather than foreclosing and conducting the sale itself. A similar argument was addressed and rejected by this court. Wilson v. Sand (1935), 278 Ill. App. 403; Bayless v. People (1894), 56 Ill. App. 55.

For the reasons stated, the judgment of the circuit court of Cook County is reversed and the cause is remanded with directions that the proceeds of the escrow account should be turned over to defendant First National Bank of Blue Island as payment of its secured loan.

Judgment reversed and remanded with directions.

WHITE and RIZZI, JJ., concur.


author: PRESIDING JUSTICE DOWNING

text:
    MID-TOWN PETROLEUM, INC., Plaintiff-Appellant, v. DENNIS G. DINE et al., Defendants.—(Beverly Bank, Trustee, et al., Intervening Appellees.)
    First District (2nd Division)
    No. 82—997
    Opinion filed April 12, 1983.

      Samuel E. Alexander and Glen A. Neuman, both of Chicago, for appellant.
    Thomas R. Nash, of Burke and Smith Chartered, of Chicago, for appellees.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court;

Plaintiff, Mid-Town Petroleum, Inc., initiated a specific performance suit to enforce its rights under a real estate contract to purchase a parcel of land situated in Chicago Ridge, Illinois, from defendants, Dennis G. Dine and Beverly Bank, as trustee under Trust Agreement No. 8 — 3902. Intervenors, Beverly Bank, as trustee under Trust No. 8 — 5580, and Joy S. Richter (Richter), sole beneficiary thereof, suecessfully intervened in the suit and the trial court allowed their motion to deny the specific performance relief. On appeal, plaintiff contends that the trial court erred by allowing the petition to intervene, by denying plaintiff the remedy of specific performance, and by not following the mandate of a prior appellate court decision.

This specific performance suit is based upon events beginning on September 27, 1976, when plaintiff forwarded to defendant Dine a real estate contract signed by plaintiff and an earnest money check pursuant to an alleged oral agreement for the purchase of the subject property for $14,500. Dine later forwarded closing documents to plaintiff and a tentative closing date was set. On October 27, 1976, Dine returned the earnest money check and claimed that the contract was terminated. On that same day, Dine sold the property to Richter and her now deceased husband, Edwin, and delivered to them a trustee’s deed in exchange for a check for the full purchase price of $14,500. The trustee’s deed was not recorded, however, until November 13, 1976. On October 29, 1976, two days after the sale of the property to the Richters, plaintiff filed this suit and recorded a lis pendens notice with the recorder of deeds.

Plaintiff’s complaint was dismissed by the trial court and, on appeal, this court reversed and remanded the case, finding that the allegations contained in the complaint, if proved, would establish that an agreement had been reached between the parties and that the action was not barred by the Statute of Frauds. (Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App. 3d 296, 390 N.E.2d 428.) After the conclusion of the evidence in the case on remand, the trial court instructed plaintiff to prepare an order to be entered on July 13, 1981, granting plaintiff the relief sought. On that date, intervenors were granted leave to file a petition for intervention, which was allowed August 11, 1981. Richter claimed that between the date she and her husband received their deed, October 27, 1976, and December 13, 1977, the day she alleged they first learned of plaintiff’s possible interest, they expended $42,832.08 on the property. Included in that sum was the cost of the land, payment of back taxes, a construction loan, installation of a fence and a foundation for a 3,200-square-foot industrial building.

On February 4, 1982, the trial court, upon intervenors’ motion to dismiss (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(9)), denied specific performance and plaintiff was given leave to file an amended complaint for damages. Plaintiff’s second amended complaint sought money damages from defendants for breach of contract and a request that intervenors pay the expenses and costs resulting from their late entry into the suit. Intervenors filed a motion to dismiss (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615), which was granted and intervenors were dismissed with prejudice on April 15, 1982. Plaintiff filed a notice of appeal from the order allowing intervention, from the order denying specific performance, and from the order dismissing intervenors in regards to plaintiff’s second amended complaint.

I

Plaintiff claims that the trial court improperly allowed the petition for intervention because: (A) it was untimely, and (B) the lis pendens notice recorded by plaintiff cut off intervenors’ rights in the property.

A

The Illinois intervention statute allows intervention as of right “upon timely application” when “the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court or an officer thereof.” (Ill. Rev. Stat. 1981, ch. 110, par. 26.1(l)(c).) Plaintiff argues that the intervention of right in this case was not timely filed.

Richter’s knowledge of the existence of this specific performance suit dates back at least until March 6, 1978, when she filed a lawsuit attempting to quiet title in the property, and even referred to the instant case. Yet, it was only after all the evidence had been heard in this case, three years later, and after the trial court indicated that it was going to grant specific performance that intervenors sought to join the suit. Richter’s delay in protecting her rights could, by itself, be reason to deny her petition. See In re Estate of Walker (1976), 35 Ill. App. 3d 454, 342 N.E.2d 253, where the court held that intervention was not timely where the applicant delayed joining a will contest until she determined whether her husband would be successful; Childress v. State Farm Mutual Automobile Insurance Co. (1968), 97 Ill. App. 2d 112, 239 N.E.2d 492, appeal denied (1968), 39 Ill. 2d 627, where the court termed an application untimely because the applicants were aware of the litigation from its inception.

The purpose of the intervention statute, which is liberally construed, is to expedite litigation by disposing of an entire controversy and to avoid multiplicity of actions. (Bishop v. Village of Brookfield (1981), 99 Ill. App. 3d 483, 487, 425 N.E.2d 1113.) In the instant case, when the trial court was advised by the original parties that defendant Dine had subsequently sold the property to another party, it suggested that plaintiff add that party to the suit so that all the issues and parties would be before it. Plaintiff refused and the trial continued without any reference by either party to the fact that improvements had been made to the land. It was only at the point of intervenors’ motion to enter the suit that the trial court became aware that the real property was not vacant. In allowing the motion for intervention, the trial court repeatedly commented that at the time it decided to allow the remedy of specific performance, it had no knowledge of the improvements and had this been made known, it would have insisted that intervenors be joined.

The question of timeliness of an application to intervene is a matter within the discretion of the court. (Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 159, 362 N.E.2d 382, appeal denied (1977), 66 Ill. 2d 631.) A review of the facts of this case leads us to conclude that the court acted properly. The fact that all of the evidence had already been heard regarding the contest between plaintiff and defendants does not bar the intervention, since the sole reason intervenors desired to join the suit was to prevent the remedy of specific performance. We hold that the trial court did not err by allowing intervention, in light of the behavior of the parties in this case.

B

Plaintiff claims that the lis pendens notice that it filed “cutoff [sic] all subsequent interests, including that of the subsequent purchaser-intervenor.” Plaintiff argues that under the Illinois Us pendens statute, cited below, Richter’s intérest in the property is void because the deed was recorded after the filing of the Us pendens notice. As Richter has no survivable interest in the real estate, plaintiff contends, she had no standing to strike the remedy sought. The applicable statute provides:

“Sec. 1. Every condemnation proceeding *** or other suit seeking equitable relief, affecting or involving real property shall, from the time of the filing in the office of the recorder of deeds in the county where the real estate is located of a notice *** setting forth the title of the cause, the parties to it, the court where it was brought and a description of the real estate, be constructive notice to every person subsequently acquiring an interest in or a lien on the property affected thereby, and every such person and every person acquiring an interest or lien as aforesaid, not in possession of the property and whose interest or lien is not shown of record at the time of filing such notice, shall, for the purposes of this Act, be deemed a subsequent purchaser and shall be bound by the proceedings to the same extent and in the same manner as if he were a party thereto. ***” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 110, par. 405.

An examination of the underscored wording indicates that the filing of the lis pendens notice is constructive notice to every person who, subsequent to the filing of the notice, acquires an interest in the property. In this case, Richter acquired her interest two days prior to the filing of the notice. Our statute is not worded in terms of when the subsequent purchaser’s interest is put of record, but rather when it is “acquired.” The parties have not cited any Illinois cases dealing with the situation presented here, where a purchaser received a deed prior to filing of a Us pendens notice, but does not record it until after the filing of the notice. Our research noted a mechanics’ lien case, Niles Construction Co. v. La Salle National Bank (1969), 119 Ill. App. 2d 1, 254 N.E.2d 535 (abstract), where the appellate court held that a party was not a purchaser pendente lite, within the meaning of the Us pendens statute, where the interest in the property was acquired prior to but not recorded until after the filing of the Us pen-dens notice. This conclusion was reached based upon the fact that the party was in possession at the time of the filing, and because of the date that the purchaser acquired the interest in the property. Likewise, the date Richter acquired her interest is controlling here and thus she is not barred from asserting her claim upon intervention.

Plaintiff heavily relies upon a Wisconsin case, J. & S. Corp. v. Mortgage Associates, Inc. (1969), 41 Wis. 2d 418, 164 N.W.2d 221, for an interpretation of what plaintiff characterizes as a statute that is similar to ours. The Wisconsin statute, however, is predicated upon a priority of recordation, and provides:

“*** From the time of such filing [of the Us pendens] every purchaser or encumbrancer whose conveyance or encumbrance is not recorded or filed shall be deemed a subsequent purchaser or encumbrancer and shall be bound by the proceedings in the action to the same extent and in the same manner as if he were a party thereto.” (Emphasis added.) (Wis. Stat. Ann. sec. 840.10, formerly sec. 281.03 (West 1977).)

As the Wisconsin court stated, “[t]he statute makes immaterial the time when the holder of the unrecorded conveyance or encumbrance in fact received his interest.” (J. & S. Corp. v. Mortgage Associates, Inc. (1969), 41 Wis. 2d 418, 423, 164 N.W.2d 221, 223.) See generally 51 Am. Jur. 2d Lis Pendens sec. 14 (1970); 54 C.J.S. Lis Pendens sec. 44 (1948), for a discussion of the decisions from various jurisdictions regarding the effect on conveyances received but unrecorded prior to a lis pendens notice.

Plaintiff claims that the Illinois conveyance statute (Ill. Rev. Stat. 1981, ch. 30, par. 39) must be read in conjunction with the lis pendens statute, and that taken together, the statutes evidence a legislative intent to provide that the first party to claim an interest in the property by way of recording a document should take precedent over all parties who subsequently record. However, if the intent of the legislature was to prevent all persons holding unrecorded interests in the land from asserting them after a lis pendens notice was filed, the statute could have specifically so provided. See Munger v. T. J. Beard & Brothers (1907), 79 Neb. 764, 113 N.W. 214, where the Nebraska supreme court traced the history of their lis pendens statute and noted that their legislature had responded by amending the statute to deal with the class of persons who acquire an interest before, but who do not record the interest until after, the filing of a notice of pending litigation.

According to our interpretation of the lis pendens statute, Richter, a purchaser who acquired her interest prior to the recording of the notice, is not barred from asserting her claim in this lawsuit; thus, the trial court properly allowed her petition to intervene.

II

Plaintiff claims that the trial court erred in denying it the remedy of specific performance. Plaintiff cites the rule of law that “the intervenor must take the suit as he finds it, and may not change the issues between the parties or raise new issues, and may not insist upon a change in the form of procedure or delay the trial.” (Hurley v. Finley (1955), 6 Ill. App. 2d 23, 26-27, 126 N.E.2d 513.) In the instant case, intervenors did not change the issue of the case, which was the breach of a real estate contract, but only argued that the relief the trial court was about to grant would be inappropriate in light of Richter’s improvements.

The determination of whether to grant the equitable remedy of specific performance rests in the sound discretion of the court, and the surrounding facts and circumstances of each case must be examined. (Fitzpatrick v. Allied, Contracting Co. (1962), 24 Ill. 2d 448, 455, 182 N.E.2d 183.) A court may deny specific performance “where there is some substantial element in the case which moves the conscience of the chancellor and makes it appear unjust to decree the relief sought.” (Nueberg v. Clute (1955), 6 Ill. 2d 58, 63-64, 126 N.E.2d 633.) In the present case, the trial court stated that it did not intend to give anyone a windfall, and given the fact that the true nature of the property as improved was withheld from the court, the only just and equitable course was to deny plaintiff the relief of specific performance and to allow the complaint to be amended to request money damages. We agree with the trial court.

Ill

Plaintiff alleges that the trial court erred in not following the mandate of this court in the prior case of Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App. 3d 296, 390 N.E.2d 428, which involved plaintiff’s appeal of the dismissal of his amended complaint against defendants. Plaintiff contends that this court’s ruling, which becomes the law of the case, was that if plaintiff could prove the facts as set forth in the complaint, then it would be entitled to the relief of specific performance. Plaintiff, however, misconstrues the holding of the first case which was limited only to the question of sufficiency of the complaint and whether the cause of action was barred by the Statute of Frauds. This court made no ruling on whether a grant of specific performance would be proper or not. Therefore, the trial court did not err as plaintiff contends.

For the reasons stated above, we affirm the decision of the circuit court of Cook County.

Affirmed.

STAMOS and PERLIN, JJ., concur.

      We note that plaintiff listed the issue “Whether the trial court erred in dismissing the Second Amended Complaint as it pertains to Intervenors" in its “Issues Presented for Review” section, but failed to brief or argue this point. Under Supreme Court Rule 341(e)(7) (87 Ill. 2d R. 341(e)(7)), points not argued are waived. Therefore, we do not address this issue.

      The record indicates that plaintiff’s place of business was only two blocks from the subject property; that visible improvements including a chain link fence first appeared on the property as early as June 1977; yet, the trial court was not advised about status of the property until July 13, 1981, with the filing of the petition to intervene.

      Plaintiff suggests problems may result from our interpretation of the statute, such as the need for plaintiffs to constantly search the record during the pendency of their suits and the possibility of parties antedating documents to defeat the purpose of lis pendens notices. Such concerns are better addressed to the legislature or faced on a case-by-case basis.


author: JUSTICE O’CONNOR

text:
    FRANKLIN YOUNG, Plaintiff-Appellant, v. DR. CHARLES PEASE, Defendant-Appellee.
    First District (1st Division)
    No. 81—3011
    Opinion filed April 11, 1983.
    Hoffman, Mueller & Creedon, of Ottawa, for appellant.
    Victor J. Piekarski and Glen E. Amundsen, both of Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court;

This is an appeal by plaintiff, Franklin Young, from an order of the circuit court of Cook County granting summary judgment for defendant, Dr. Charles Pease.

Plaintiff was injured during a work-related accident on July 12, 1972. He was directed by his employer’s workers compensation insurance carrier to defendant for treatment for his injuries. Plaintiff was under defendant’s care from November 17, 1972, to January 30, 1973.

On December 8, 1978, plaintiff filed this action against defendant and various other parties no longer involved in this litigation. In his complaint, plaintiff alleged discovery of defendant’s malpractice on January 24, 1977. This discovery was alleged to have been made by the attorney for plaintiff in another matter. Defendant filed his answer on April 24, 1979, and included an affirmative defense based on the failure to commence the action within the applicable statute of limitations.

On May 11, 1981, defendant filed a motion for summary judgment under section 57 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57), now codified as section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005). The motion was based on the statute of limitations for medical malpractice actions (Ill. Rev. Stat. 1977, ch. 83, par. 22.1) and plaintiff’s discovery deposition taken on June 25, 1980. Defendant argued that the latest date plaintiff could have filed a lawsuit was four years from the last date of treatment, or January 30, 1977. Defendant also argued that plaintiff admitted in his deposition that the date of discovery was in 1973, and that, therefore, the action should have been filed by the end of 1975. The relevant portion of plaintiff’s deposition was attached to the motion and reveals the following colloquy between plaintiff and defendant’s attorney:

“Q. When was the first time that anyone informed you that the treatment by Dr. Pease was improper?
A. My attorney.
Q. Do you remember when that was?
A. No I don’t.
Q. You know approximately when that was?
A. About seven years ago, a little over seven years.
Q. Who told you his treatment was improper?
A. Mr. Craig Armstrong.
Q. And where did that conversation take place?
A. In his office.
Q. Do you remember what month it was?
A. No, I don’t.
Q. Did you do anything after you heard that?
A. No.”

At the hearing on the motion for summary judgment, plaintiff filed the affidavit of Craig Armstrong. Armstrong represented plaintiff before the Industrial Commission and in another lawsuit resulting from the accident. In his affidavit, Armstrong contradicted plaintiffs statement as to the date of discovery of the alleged malpractice. Armstrong stated in his affidavit that he first had occasion to believe plaintiff may have been maltreated by defendant on January 24, 1977, when he took the evidence deposition of another doctor for an unrelated case. Before that date, Armstrong stated, he had never told plaintiff that the treatments by defendant may have been improper. Armstrong also stated that plaintiff is a “somewhat nervous individual” and that he is “likely to become confused in an unfamiliar and anxious environment such as being a deponent or a witness in a lawsuit.”

The trial court granted summary judgment to defendant. In so doing, the court found plaintiff could not contradict his clear admission made in the deposition. The court also held that plaintiffs action would be barred by the statute of limitations since it was filed more than four years after plaintiff was treated by defendant.

Plaintiff on appeal contends (1) the statements made in his discovery deposition were equivocal in nature and a genuine issue of fact exists concerning the date on which the alleged malpractice was discovered, and (2) retroactive application of the statute of limitations as amended in 1976 does not provide plaintiff a reasonable time within which to file his action.

For the reasons stated below, we reverse and remand.

Plaintiff argues that statements made in his discovery deposition are evidentiary admissions capable of contradiction by other evidence. (Citing 87 Ill. 2d Rules 201(j), 212 (a)(2).) Plaintiff contends the Armstrong affidavit accurately explains the actual date of discovery. Thus, he concludes, there is a genuine issue of fact as to when discovery of the alleged malpractice was first made.

Defendant asserts the admissions in the deposition have the equivalent effect of judicial admissions (citing Meier v. Pocius (1958), 17 Ill. App. 2d 332, 150 N.E.2d 215, and Burnley v. Moore (1963), 41 Ill. App. 2d 156, 190 N.E.2d 141) and that a party may not use counteraffidavits and the conflicting testimony of third parties to place in issue facts which have already been removed from contention by a party’s deposition testimony. See Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1979), 71 Ill. App. 3d 562, 390 N.E.2d 60, appeal denied (1980), 79 Ill. 2d 618; Smith v. Ashley (1975), 29 Ill. App. 3d 932, 332 N.E.2d 32, appeal denied (1975), 60 Ill. 2d 601; Fountaine v. Hadlock (1971), 132 Ill. App. 2d 343, 270 N.E.2d 222.

It has also been held that “[tjhere may be cases in which admissions at pre-trial depositions are so deliberate, detailed, and unequivocal, as to matters within the party’s personal knowledge, that they will conclusively bind the party-deponent, and he will not be heard to contradict the admissions at the trial” (Haskell v. Siegmund (1960), 28 Ill. App. 2d 1, 11, 170 N.E.2d 393) and that a counteraffidavit does not place in issue material facts which had previously been removed from contention by a party’s deliberate and unequivocal admissions under oath. {Fountaine v. Hadlock; Burnley v. Moore; Meier v. Pocius.) This rule is an expression of a judicial policy aimed at eliminating the temptation to commit perjury. DuPree v. Terry (1971), 1 Ill. App. 3d 169, 273 N.E.2d 630.

We hold that plaintiff’s admissions quoted above from his deposition in this case do not fall within the holdings of the above authorities. As the excerpt shows, plaintiff was asked three times by defendant’s counsel as to when was the first time anyone informed him of improper treatment by defendant. The first answer was unresponsive. In the second answer, plaintiff stated he did not remember. In response to the third question, plaintiff answered generally “[ajbout seven years ago, a little over seven years.”

In Olesker, defendant was granted summary judgment after certain admissions were made by the president of the plaintiff-corporation during his deposition testimony. At issue was the discovery date of an alleged libelous credit report by plaintiff’s officers. In his deposition, plaintiff’s president admitted facts which indicated he knew of the report more than one year prior to the filing of the complaint. Plaintiff submitted affidavits of the deponent and another corporate officer asserting that the deposition testimony was incorrect and the deponent had been confused and not in good health at the time of the deposition.

After reviewing the deposition testimony concerning the date of discovery, this court found the testimony to be unequivocal and deliberate. (Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1979), 71 Ill. App. 3d 562, 569.) Moreover, the testimony concerning the circumstances of this discovery, which was extensively recited in the opinion, was found to be quite specific and lengthy.

Likewise, in Meier v. Pocius, a dramshop action, the court found the plaintiff had made deliberate and repeated statements in a deposition as to his complicity in a drinking spree and therefore could not “be invited to commit perjury and change his testimony upon the trial of the case.” (17 Ill. App. 2d 332, 335.) In Fountaine v. Hadlock, a plaintiff could not challenge her “concise and unqualified” deposition answers with a counteraffidavit four years after the fact. 132 Ill. App. 2d 343. 347-48.

We find that in the case at bar plaintiff’s answer in his deposition was not so deliberate and unequivocal as to elevate it to a judicial admission. (See Frisch v. International Harvester Co. (1975), 33 Ill. App. 3d 507, 338 N.E.2d 90.) Plaintiff’s responses to the questions are not concise and the admission is qualified by his earlier denial.

We hold that, where a plaintiff has not made deliberate, repeated and unequivocal statements, it is possible, for purposes of a motion for summary judgment, to controvert the claimed admissions made in those statements. (Cf. Schoen v. Caterpillar Tractor Co. (1968), 103 Ill. App. 2d 197, 243 N.E.2d 31 (legal effect of admissions in the deposition of a party, where not controverted or even attempted to be controverted, are properly tested by summary judgment procedure); DuPree v. Terry (admissions from a deposition are not conclusive as a matter of law and must be considered together with all the other evidence).) The trial court erred in not considering the effect of the affidavit by Armstrong. As plaintiff’s attorney in a different matter, Armstrong had knowledge of the facts and circumstances surrounding the discovery that plaintiff may have been improperly treated by defendant. His affidavit stating those facts should have been considered. However, any conclusory matter is inadmissible to be considered in opposition to the motion for summary judgment. See 87 Ill. 2d R. 191(a).

Our holding is consonant with the supreme court’s pronouncement in McCormack v. Haan (1960), 20 Ill. 2d 75, 78-79, 169 N.E.2d 239:

“Of course a party may, by his own testimony, conclusively bar his claim or his defense. But a determination that he has done so depends upon an evaluation of all of his testimony, and not just a part of it. It depends, too, upon an appraisal of his testimony in the light of the testimony of the other witnesses and a consideration of their respective opportunities to observe the facts about which they testify. McCormick on Evidence, pp. 513-516 [1972 ed., pp. 636-39]; 9 Wigmore on Evidence, 3rd ed., sec. 2594(a).”

The same principle is found in Supreme Court Rule 201(j), which states “[disclosure of any matter obtained by discovery is not conclusive, but may be contradicted by other evidence.” 87 Ill. 2d R. 201(j); cf. Deel v. United States Steel Corp. (1969), 105 Ill. App. 2d 170, 245 N.E.2d 109, appeal denied (1969), 40 Ill. 2d 580 (answers to interrogatories are not judicial admissions).

Plaintiff’s second contention involves the application of section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), which provides a four-year maximum limitation period for medical malpractice actions. The trial court held that plaintiff’s cause of action was filed more than four years after the last date of treatment. Plaintiff argues that the application of the four-year limitation period, which became effective September 19, 1976, as an amendment to section 21.1, did not provide him with a reasonable time within which to file his action. Defendant argues that the court acted properly in applying the four-year limitation period.

The general rule in Illinois is that an amendment shortening a statute of limitations will not be retroactively applied so as to terminate a cause of action unless the party has a reasonable amount of time after the amendment’s effective date in which to file his action. (Isaacs v. Michael Reese Hospital & Medical Center (1981), 101 Ill. App. 3d 876, 428 N.E.2d 941, aff’d sub nom. Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223; Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560, appeal dismissed (1980), 449 U.S. 807, 66 L. Ed. 2d 11, 101 S. Ct. 54.) The time period examined for its reasonableness is that time between the statute’s effective date and the date on which the pre-existing cause of action would be barred under the new statute as applied. Balzer v. Inland Steel Co. (1981), 100 Ill. App. 3d 1071, 427 N.E.2d 999; Moore v. Jackson Park Hospital.

In Moore, plaintiffs had “no time whatsoever” to file their actions after the effective date of the 1976 amendment. The supreme court concluded:

“Not only did the legislature in 1976 shorten the time in which these plaintiffs’ claims could be brought, but also the trial court, in applying the statute retroactively, instantaneously barred these plaintiffs’ causes of action on the effective date of the amendment to the statute of limitations. Given the unusual circumstances in these cases we hold that these plaintiffs’ claims should not have been automatically barred and their causes of action should not have been automatically dismissed for failure to comply with the four-year cutoff provision of the statute. Instead the court should have determined whether these actions were filed within a reasonable time after the effective date of the 1976 amendment.” 95 Ill. 2d 223, 237.

Thus, where retroactive application of the new statute instantaneously bars a plaintiff’s claim, there exists no reasonable time within which to file after the effective date of the amendment. In the case at bar, although retroactive application of the amendment does not instantaneously bar plaintiff’s cause of action, the time period within which his cause could be brought was effectively shortened. As in Moore, the cause of action should not have been automatically dismissed for failure to comply with the four-year limitation period. A determination should have been made as to whether a reasonable period existed after the effective date of the 1976 amendment for plaintiff to file his action.

Defendant relies on Anderson v. Wagner and Muller v. Health & Hospital Governing Com. (1982), 106 Ill. App. 3d 383, 436 N.E.2d 26, to support his argument that the 1976 amendment to section 21.1 was correctly applied. In Anderson, the supreme court stated that it was possible under the 1976 amended statute for an action to be barred without violating due process. (79 Ill. 2d 295, 312; see Isaacs v. Michael Reese Hospital & Medical Center (1981), 101 Ill. App. 3d 876, 878; Jones v. Brill (1981), 97 Ill. App. 3d 943, 945.) The court also stated and applied the general rule in determining whether the newly amended statute was applicable. In that case, the new statute was applied because plaintiffs had a reasonable time, eight months after the effective date of the amendment and sixteen months after discovery, in which to file the action. (Anderson v. Wagner (1979), 79 Ill. 2d 295, 323; cf. Baker v. Allen (1982), 104 Ill. App. 3d 1055, 433 N.E.2d 1032 (a reasonable time period existed where, after application of the amendment, plaintiff had 1 Wk months after the amendment’s effective date and 17 months from the date of discovery to file her action).) Muller has been effectively overruled by the supreme court’s opinion in Moore and otherwise provides no support for defendant’s position.

Defendant also argues that plaintiff’s action would have been barred under section 21.1 as it existed before it was amended in 1976. At that time, section 21.1 provided a five-year limitation period on the filing of a malpractice action. (Ill. Rev. Stat. 1975, ch. 83, par. 22.1.) The applicability of that statute (which became effective November 11, 1975) to this case cannot be determined until the applicability of the current statute is determined. A hearing is required to determine whether plaintiff had a reasonable period after the 1976 amendment became effective in which to file his action.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

GOLDBERG and McGLOON, JJ., concur.


text:
    ANTHONY G. CURTIS et al., Joint Special Adm’rs of the Estates of Venira Marie Curtis, Deceased, et al., Plaintiffs-Appellants, v. WAYNE BIRCH et al., Defendants.—(Montgomery Ward Insurance Company, Defendant-Appellee.)
    First District (2nd Division)
    No. 82—650
    Opinion filed April 12, 1983.
    Law Offices of Alan Kawitt, of Chicago, for appellants.
    Robert Marc Chemers, of Pretzel & Stouffer, Chartered, of Chicago, for appellee.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

Involved in this appeal is the intriguing question of whether an uninsured motorist provision in an automobile insurance policy covers the shooting death of a passenger in one car caused by shots allegedly fired by a driver of a second car which is uninsured.

Plaintiffs, Anthony C. and Veronica M. Curtis, brought this action to recover damages which stem from the shooting death of their sister, Venira M. Curtis, Jr. (victim), by defendant, Wayne Birch. An eight count amended complaint was filed by plaintiffs in which count VI, directed at Montgomery Ward Insurance Company (Ward), asserted liability for the damages incurred as a result of the victim’s death pursuant to an uninsured motorist’s provision of an auto insurance policy allegedly issued by Ward. According to the amended complaint, Ward was the insurer of the auto in which the victim was sitting when she was killed. Ward filed a motion to strike and dismiss count VI as being insufficient to state a cause of action. Ward’s motion was granted on February 24, 1982, and plaintiffs filed a timely notice of appeal of the order.

On appeal, plaintiffs assert that the trial court improperly granted Ward’s motion to strike and dismiss count VI of their amended complaint. Our review of the pleadings shows that Venira Marie Curtis was shot with a hand gun as she sat in a car owned by Anthony C. Curtis and insured by Ward. The victim was allegedly shot by Wayne Birch as he drove an allegedly uninsured vehicle. Plaintiffs filed suit claiming that Ward’s liability arose from the uninsured motorist’s provision of an auto insurance policy issued to Anthony C. Curtis. Plaintiffs failed to include a copy of the insurance policy, or its relevant language, with their amended complaint.

Ward filed a motion to strike and dismiss count VI pursuant to section 45 of the Civil Practice Act (C.P.A.) (Ill. Rev. Stat. 1981, ch. 110, par. 45, now codified as section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615)). Ward, by its said motion, asserted that count VI was erroneously based on a theory of relief pursuant to section 143a(l) of the Illinois Insurance Code (Code) (III. Rev. Stat. 1981, ch. 73, par. 755a(l)), which provides that:

“no policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State *** unless coverage is provided therein *** for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles *** because of bodily injury, sickness or disease, including death, resulting therefrom ***.’’

Ward also contended that count VI failed to state a cause of action in tort or contract and was substantially insufficient as a matter of law. Ward asserted that no “accident,” as anticipated by an automobile insurance policy, was alleged in count VI.

I

In appellants’ brief, plaintiffs apparently abandoned the theory of recovery advanced in count VI, pursuant to section 143a of the Code. Rather, plaintiffs claim that Ward’s motion to strike and dismiss was insufficient and that the trial court erred in granting that motion. A review of the cases plaintiffs rely upon leads us to the conclusion that plaintiffs are confusing the requirements of a movant filing a motion under section 45 with a movant filing a motion pursuant to section 48 of the C.RA. Ill. Rev. Stat. 1981, ch. 110, par. 48; Ill. Ann. Stat., ch. 110, par. 45, Supplement to Historical and Practice Notes, at 79-80 (Smith-Hurd Supp. 1982-83).

Ward made its motion pursuant to section 45 asserting that count VI was insufficient to state a cause of action as a matter of law. A motion to dismiss for failure to state a cause of action relates only to the sufficiency of the complaint and the trial court should base its decision only on the allegations set forth in the complaint. (Johnson v. Nationwide Business Forms, Inc. (1976), 41 Ill. App. 3d 128, 131, 359 N.E.2d 171.) Ward’s only obligation in filing its motion pursuant to section 45 was to specify the deficiencies in count VI. (Browning v. Heritage Insurance Co. (1975), 33 Ill. App. 3d 943, 946-47, 338 N.E.2d 912.) Ward argued, and the trial court agreed, that no legally sufficient basis existed for the relief plaintiffs were seeking in count VI. We agree.

In Illinois, it is well established that “ ‘[a] cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiffs to recover.’ ” (Resag v. Washington National Insurance Co. (1980), 90 Ill. App. 3d 971, 973, 414 N.E.2d 107.) “The Civil Practice Act provides that pleadings shall be liberally construed with a view to doing substantial justice [citation] although it will not sustain a complaint which wholly fails to state a cause of action.” (Burks v. Madyun (1982), 105 Ill. App. 3d 917, 919, 435 N.E.2d 185, appeal denied (1982), 91 Ill. 2d 567.) When the legal sufficiency of a complaint is challenged by a motion to dismiss pursuant to section 45, all well-pleaded facts in the complaint are to be taken as true “and a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to plaintiff, are sufficient to set forth a cause of action upon which relief may be granted.” (Burks v. Madyun (1982), 105 Ill. App. 3d 917, 919.) A motion to strike and dismiss a complaint or, as here, part of a complaint “does not admit conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest.” (Denkewalter v. Wolberg (1980), 82 Ill. App. 3d 569, 571-72, 402 N.E.2d 885.) Plaintiffs’ claim that an insurance policy existed, containing an uninsured motorist’s clause, is a legal conclusion unsupported by specific facts in the record and as such is not admitted by the motion to dismiss. Denkewalter v. Wolberg (1980), 82 Ill. App. 3d 569, 573.

Plaintiffs did not provide this court with a copy of the insurance policy upon which they base their claim. As appellants in this matter, it is plaintiffs’ responsibility to have provided the disputed policy for review. (Brokerage Resources, Inc. v. Jordan (1980), 80 Ill. App. 3d 605, 609, 400 N.E.2d 77.) During oral argument in this court, plaintiffs explained that they did not have a copy of the insurance policy and suggested that it was Ward’s duty to provide a copy for the court. In the amended complaint, appellants allege that “said Decedent was sitting in plaintiff’s car insured by defendant, MONTGOMERY WARD INSURANCE CO., and his policy contained the usual provision for uninsured motorist coverage.” Plaintiffs should have provided copies of the instant policy and, given the liberal discovery rules in this State (87 Ill. 2d R. 214), there is no excuse for plaintiffs’ failure to have done so.

II

Assuming, arguendo, the existence of the insurance policy between plaintiffs and Ward, count YI is insufficient as a matter of law. It will not provide the relief plaintiffs seek based upon the uninsured motorist’s provision of an insurance contract or under section 143a of the Insurance Code. Since July 1, 1963, the Code has required that an auto insurance policy provide uninsured motorist’s coverage. “This uninsured coverage extends to insured persons who may be entitled to recover damages for bodily injury or death from owners and operators of uninsured motor vehicles.” (Severs v. County Mutual Insurance Co. (1982), 89 Ill. 2d 515, 518, 434 N.E.2d 290.) In Ullman v. Wolverine Insurance Co. (1970), 48 Ill. 2d 1, 4, 269 N.E.2d 295, the supreme court explained that “the purpose of the provision in our Insurance Code requiring that every automobile liability policy shall contain uninsured motorist vehicle coverage in an amount not less than the limits described in the Financial Responsibility Law [citation] was intended to place the policyholder in substantially the same position he would occupy, so far as his being injured or killed is concerned, if the wrongful driver had had the minimum liability insurance required by the Financial Responsibility Act.” (See also Kerouac v. Kerouac (1981), 99 Ill. App. 3d 254, 258-59, 425 N.E.2d 543, appeal denied (1981), 85 Ill. 2d 577.) We have not found, nor have plaintiffs referred us to, any indication that the legislature anticipated or intended that the liability of an insurer could be established by the intentional, criminal conduct, such as that involved here.

Plaintiffs’ brief cited no Illinois authority in support of their theory of recovery under an uninsured motorist’s provision of an automobile insurance policy. During oral argument in this court, plaintiffs cited an Arkansas case, Craig v. State Farm Auto Insurance Co. (1975), 257 Ark. 751, 519 S.W.2d 741, as support for their theory. However, the question whether an uninsured motorist’s clause covered intentionally inflicted injuries was never directly addressed in Craig. The court found that there was enough evidence to allow the case to go to the jury where the driver of a truck involved in a hit- and-run accident, apparently caused by the intentional acts of a passenger in the truck, participated in the acts leading to the accident. The evidence revealed that the driver of the truck was continually speeding up and slowing down, causing traffic to bottle up. As the driver of the car in which Jeff Craig was riding approached, a passenger in the truck threw a sack of cans out the window, causing the driver to lose control of the car resulting in the death of Jeff Craig. The court concluded that the actions of the driver of the truck in slowing traffic as well as leaving the scene of the accident were sufficient use of the vehicle to allow the question of coverage under the uninsured motorist’s provision to go to the jury. Craig v. State Farm Auto Insurance Co. (1975), 257 Ark. 751, 753, 519 S.W.2d 741, 743.

Those few cases which have allowed an insured to recover, under an uninsured motorist’s provision of an auto insurance policy for intentional acts of the uninsured or unknown driver, involved injuries caused by the use of the auto as the instrumentality of the resultant injuries. (See Annot., 72 A.L.R.3d 1161, 1164-68 (1976).) Plaintiffs cite no Illinois authority which would allow such coverage. On the other hand, Illinois courts have consistently held that some direct contact between the insured’s vehicle and that of the uninsured or unknown driver is a condition precedent to establishing liability pursuant to section 143a of the Code. Finch v. Central National Insurance Group (1974), 59 Ill. 2d 123, 124, 319 N.E.2d 468.

Here, no such contact occurred. The instrumentality of the victim’s injuries was a hand gun. The assailant could have carried out his intentions from a bicycle or on foot. The fact that the assailant was in a car at the time was merely incidental.

Ill

We have earlier noted the fact that the record before the court did not include the insurance policy or any portion of it. From what can be determined, the policy was not before the trial court. It is plaintiffs’ responsibility as appellants in this matter to provide the disputed insurance policy for this court to review. (Brokerage Resources, Inc. v. Jordan (1980), 80 Ill. App. 3d 605, 609, 400 N.E.2d 77.) It is impossible for this court to determine the scope and applicability of the particular insurance policy when the plaintiffs fail to provide it as part of the record. Spencer v. Community Hospital (1980), 87 Ill. App. 3d 214, 217, 408 N.E.2d 981.

It is also to be noted that appellants’ brief fails to minimally comply with Supreme Court Rules 341 and 342 (87 Ill. 2d Rules 341, 342). For example, in the trial court, appellants cited authority which allegedly supported the theory advocated to the trial court. Yet, before this court, although the theory is argued, supportive citations were omitted. It is not the responsibility of this court to research and argue a case for any party. Likewise, the brief contains no appendix, or a single-page reference to the record, as also required in Rule 342. (See Consultants & Administrators, Inc. v. Department of Insurance (1982), 103 Ill. App. 3d 920, 924 n.6, 431 N.E.2d 1306, cert. denied (1982), 459 U.S. 910, 74 L. Ed. 2d 172, 103 S. Ct. 216.) Counsel for appellants is not inexperienced, as our records indicate that at the present time he is attorney of record in seven cases before this court. Rules are important in order to guide an appellant as to what should be in the brief and appendix. Each rule also assists the court in understanding the nature of the appeal and that portion of the record relied upon by the appellant. This indifferent disregard for these procedural rules dilutes the effectiveness of an appeal and should not be condoned. See 47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 232-33, 371 N.E.2d 294, appeal denied (1978), 71 Ill. 2d 598.

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

Affirmed.

STAMOS and HARTMAN, JJ., concur.

      Plaintiffs appeal the order as it relates to Ward only. On February 24, 1982, the trial court, by separate order, dismissed count VIII against two other defendants, Arthur C. Curtis, Sr., and Venira M. Curtis, Sr.

      Plaintiffs’, motion to dismiss portions of Ward’s brief were taken with this appeal and have been reviewed. Plaintiffs’ motion is hereby denied.


author: JUSTICE MILLER

text:
    DEANE D. WINKLER, Plaintiff-Appellee, v. THE DEPARTMENT OF PUBLIC AID et al., Defendants-Appellants.
    Fourth District
    No. 4—82—0245
    Opinion filed April 18, 1983.
    Tyrone C. Fahner, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of counsel), for appellants.
    Allen L. Dougherty and Thomas M. Goodwin, both of Dougherty & Hofmann, of Danville, for appellee.
   JUSTICE MILLER

delivered the opinion of the court:

This appeal presents the question whether on administrative review the circuit court may order the reinstatement of a civil service employee over whose case the Civil Service Commission (Commission) lost jurisdiction. The plaintiff, Deane D. Winkler, was demoted from his job in the Department of Public Aid (Department). Winkler requested a hearing on the charges against him, and one was scheduled; before the hearing could be held, however, he resigned. At the Department’s urging, the hearing officer vacated the hearing date and later recommended to the Commission that the case was moot and should be closed because of the resignation. The Commission instead ordered that a hearing be held, which was done; the Commission then adopted the officer’s findings that the charges against Winkler were true and warranted the demotion. On administrative review, the circuit court held that the Commission lost jurisdiction over the case by failing to convene a hearing within 30 days of Winkler’s request for one, as required by section 11 of the Personnel Code (Ill. Rev. Stat. 1981, ch. 127, par. 63blll). The court also ordered that Winkler be reinstated to the job he held in the Department before the demotion. The Department and Commission appeal. We affirm the circuit court’s decision that the Commission lost jurisdiction over the case but reverse the court’s decision reinstating Winkler.

Winkler began working for the Department of Public Aid in 1965 and continued working there in various capacities until 1980. On May 19, 1980, the Department sent Winkler written notice of the charges against him and of his demotion from Public Aid Administrator III— he was chief administrator of the Department’s office in Vermilion County — to Administrative Assistant I. The charges asserted in general that the Vermilion County office was poorly organized and managed and that Winkler had failed to correct these problems after they were pointed out to him.

On June 2, 1980, the Commission received Winkler’s request for a hearing on the charges and scheduled one for June 27, 1980. Winkler then sent a letter of resignation to the Department; the letter, dated June 5, said:

“In consideration of the amount of travel required in the Administrative Assistant I classification to which I have been assigned, I do not feel that I can perform the tasks assigned.
Since no other options are available within the Agency, I hereby terminate employment effective June 5, 1980.”

Twelve days later, the Assistant Attorney General assigned to the case sent this information to the hearing officer and wrote:

“His resignation has mooted the question of the propriety of his demotion. I am therefore notifying you of this development, and it is my expectation that we may now close the file regarding Mr. Winkler. Because of this, we will not be appearing on the appearance date, June 27, 1980, at 10:00 a.m.”

The hearing was then cancelled. On September 22, 1980, the hearing officer recommended to the Commission that Winkler’s challenge of the demotion be dismissed because of the resignation. The Commission, without explanation, remanded the case for hearing on the merits, which was conducted over Winkler’s objection that delay in convening the hearing had deprived the Commission of jurisdiction. The hearing officer heard testimony and found that the charges were true and warranted Winkler’s demotion; the Commission adopted this decision.

Winkler filed a complaint for administrative review arguing that the Commission had lost jurisdiction and, alternatively, that its decision was against the manifest weight of the evidence. Agreeing with Winkler on the question of jurisdiction, the circuit court set aside the Commission’s decision. The judge ordered that Winkler be reinstated immediately to his job as Administrator III but ruled that his reimbursement for lost wages had to be decided by the Court of Claims. Although the judge ordered Winkler reinstated, he did not rule on the meaning or effect of the letter of resignation.

Section 11 of the Personnel Code (Ill. Rev. Stat. 1981, ch. 127, par. 63blll) provides requirements for hearings for civil service employees who wish to challenge charges seeking their removal, discharge, or demotion or their suspension for more than 30 days; that section says, “Upon the filing of such a request for a hearing, the Commission shall grant a hearing within 30 days.” The parties now agree that the Commission lost jurisdiction over this case by not beginning a hearing on the charges within that time limit (e.g., Ragano v. Illinois Civil Service Com. (1980), 80 Ill. App. 3d 523, 400 N.E.2d 97; Parsons v. Civil Service Com. (1977), 50 Ill. App. 3d 519, 365 N.E.2d 544; McReynolds v. Civil Service Com. (1974), 18 Ill. App. 3d 1062, 311 N.E.2d 308). The parties disagree on the meaning and effect of the letter of resignation. Winkler argues that he could resign from his new lower job and still fight the demotion from his original job. The defendants argue that Winkler, by resigning, forfeited his right to be reinstated and that only the Commission may reinstate an employee who has resigned but lacks the power to do so here because it lost jurisdiction. We agree with the defendants — but not for their reasons — that the circuit court in the present proceeding could not order Winkler’s reinstatement.

The unusual circumstances here posed to the circuit court only two questions on administrative review at most: whether the Commission lost jurisdiction over the case and, if it did not, whether its decision was against the manifest weight of the evidence. The circuit court’s powers on administrative review are provided and delimited by statute. (Ill. Const. 1970, art. VI, sec. 9; see Glasco Electric Co. v. Department of Revenue (1980), 87 Ill. App. 3d 1070, 409 N.E.2d 511, aff'd (1981), 86 Ill. 2d 346, 427 N.E.2d 90.) Section 3-lll(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 111(a)), formerly section 12(1) of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 275(1)), lists those powers; the case law holds that the circuit court does not have the power to order reinstatement of an employee.

In Drezner v. Civil Service Com. (1947), 398 Ill. 219, 75 N.E.2d 303, the Liquor Control Commission fired one of its employees; the Civil Service Commission found the discharge warranted, and the circuit court affirmed. Concluding that that decision was against the manifest weight of the evidence, the supreme court reversed, but it denied the employee’s request for reinstatement and back pay. The court said:

“Section 11 of the Administrative Review Act (Ill. Rev. Stat. 1945, ch. 110, par. 274,) provides that the hearing and determination on review shall extend to all questions of law and fact presented by the entire record before the court. Under section 12 of the same act, the court has the power to affirm or reverse the decision of the administrative agency in whole or in part or it may remand the cause for the taking of additional evidence. There is no provision for the joinder of a mandamus action for the restoration to the position and an action for back wages.” (398 Ill. 219, 231-32, 75 N.E.2d 303, 309.)

More recently, similar results have been reached in Kloss v. Board of Fire & Police Commissioners (1982), 108 Ill. App. 3d 8, 438 N.E.2d 685, Dorner v. Illinois Civil Service Com. (1980), 85 Ill. App. 3d 957, 407 N.E.2d 750, Basketfield v. Daniel (1979), 71 Ill. App. 3d 877, 390 N.E.2d 492, and Sgro v. City of Springfield (1972), 6 Ill. App. 3d 478, 285 N.E.2d 589. The Commission, having lost jurisdiction in this matter by failing to grant Winkler a hearing within the time limits prescribed, had no authority to determine his status as an employee with the Department. The circuit court then, having no powers on administrative review broader than those provided by section 3 — 111(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 111(a)), had no authority to order Winkler’s reinstatement.

The defendants argue, alternatively, that the Commission’s findings and decision are not against the manifest weight of the evidence. Winkler has moved to strike that part of the defendants’ brief on this question because the circuit court did not address it. The Commission’s loss of jurisdiction makes both the question and Winkler’s motion moot.

We therefore affirm the circuit court’s decision that the Commission lost jurisdiction and reverse that court’s decision reinstating Winkler.

Affirmed in part and reversed in part.

WEBBER, P.J., and GREEN, J., concur.