author: JUSTICE GREEN JUSTICE TRAPP,

text:
    DELBERT LUBBERS, Plaintiff-Appellant, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellee.
    Fourth District
    No. 4—83—0011
    Opinion filed October 5, 1983.
    Rehearing denied November 2, 1983.

      TRAPP, J., dissenting.
    Robert D. Owen, Marshall A. Susler, and Linda M. Castleman, all of Owen, Roberts, Susler & Murphy, P.C., of Decatur, for appellant.
    Samuels, Miller, Schroeder, Jackson & Sly, of Decatur (Nicholas J. Neiers and John E. Pick, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On August 12, 1977, plaintiff filed suit against defendant, Norfolk & Western Railway Company, in the circuit court of Macon County, seeking damages for injuries he suffered when a truck he was driving was struck by one of defendant’s trains on July 20, 1977. On December 5, 1979, that court entered judgment on a verdict in favor of defendant. On appeal, this court affirmed. (Lubbers v. Norfolk & Western Ry. Co. (1980), 89 Ill. App. 3d 1205 (Rule 23 order).) On September 15, 1982, plaintiff filed a petition under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401), formerly section 72 of the Civil Practice Act, requesting that the judgment on the verdict be vacated and a new trial granted. On November 19, 1982, the trial court allowed a motion to dismiss the petition and, on January 4, 1983, denied plaintiff’s request for leave to file an amended petition. Plaintiff has appealed. We reverse and remand.

The thrust of plaintiff’s section 2 — 1401 petition is that defendant (1) produced testimony at trial known to be false, (2) knowingly gave false answers to interrogatories, and (3) fraudulently withheld the names of two persons who had knowledge of a matter upon which inquiry was made by an interrogatory. The petition maintains that plaintiff’s counsel had only recently obtained knowledge of the foregoing. It asserts that if the information now available to him had been available at trial, the outcome would have been different.

In order to appraise the significance of plaintiff’s contentions, certain facts, shown by the record, concerning the original case, must be considered. The collision occurred at a place in Macon County called “Angle Crossing” because of the sharp angle at which a road upon which plaintiff was driving crosses defendant’s tracks. The tracks run in a generally east-west direction. Plaintiff approached the crossing from the southeast. The angle at which he approached was so sharp that it was difficult for him to look down the tracks to the east, the direction from which defendant’s train was coming. The evidence was undisputed that flasher lights at the crossing were flashing as the train approached, and plaintiff testified that he saw the lights flashing when he was a quarter of a mile from the crossing.

Plaintiff’s complaint alleged that he was in the exercise of due care and that defendant was negligent in failing to maintain the warning signs at the crossing and failing to repair or correct any defects. The case was tried prior to the effective date of Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, which proclaimed the doctrine of comparative negligence. The jury not only found for the defendant, but in answer to an interrogatory submitted by defendant, found plaintiff guilty of negligence which was a proximate cause of his injuries.

A portion of plaintiff’s section 2 — 1401 petition was supported by the affidavit of Richard T. Polley who, at the time of the collision, was a signal maintainer for defendant working at a tower in the Decatur yard. This portion stated: (1) he and Donald E Patterson, assistant superintendent for defendant’s Decatur Division were called to the scene of the collision shortly after it happened; (2) upon arrival, Polley unlocked the crossing signal control case and removed a signal inspection card; (3) the card contained no entries indicating inspections in the six-week-period prior to the collision; (4) when Polley showed the card to the assistant superintendent, the latter took the card from Polley and warned Polley he had better keep quiet about what he had seen if he wanted to keep his job; and (5) Polley told no one of this episode until he told Robert D. Owen, one of plaintiff’s attorneys, on March 5,1982.

Prior to trial, plaintiff submitted interrogatories to defendant. His claim of fraud is based partly on the answers to two of them.

Defendant answered “yes” to a question as to whether the lights were “functioning at the time of the accident.” The next interrogatory asked:

“If you contend that all signals and/or devices were functioning at the time of the accident, state all facts on which you base this contention, together with the name and address of each person who observed the signals in question at that time.”

A lengthy answer was given to the interrogatory, but the names of Polley and the assistant superintendent were not mentioned; nor was any mention made that the signal’s inspection card gave no indication that, at the time of the occurrence, no inspection had been made during the immediately preceding six weeks. The answer did say: “Signals checked on July 6, 1977, by David F. Flannell [address] were found to be operating as intended.”

Concerning the maintenance of the signals, plaintiff asked and defendant answered as follows:

“Was there an established schedule for checking the working conditions of such signals and/or devices? If your answer is yes, state what the schedule was, the last date the signals and/or devices were checked, in what manner were they checked and what were the findings.
ANSWER:
(a) Yes.
(b) Flashers are checked every two weeks.
(c) 7/6/77
(d) Drop crossing relay of serving operation of all lights with AC power off. Observe operation of all lights with AC power on. Reenergize X.R.”

Plaintiff also gave notice to defendant to produce all its records regarding all maintenance and repairs in regard to the flashers and bells from 1966 to that date. The petition alleged that in response, defendant produced two pages from a log book which purported to show an inspection of the flashers at the crossing having taken place on July 6, 1977. That document became defendant’s exhibit No. 24 at trial. David Flannell testified at trial that he was the person with responsibility for maintaining the signals at “Angle Crossing” and that defendant’s exhibit No. 24 was from his log book of semi-monthly inspections. The petition alleged that Flannell and defendant knew that the records of defendant had been altered and the testimony of Flannell was false.

The parties are in agreement that, under the decision in Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 283, 433 N.E.2d 253, 257, newly discovered evidence can be the basis of a section 2 — 1401 petition if (1) “the ground for relief [the evidence] had been known at trial it would have prevented the entry of [the] judgment” sought to be set aside, and (2) “failure to discover and present the [evidence] was not the result of [the petitioner’s] lack of diligence.” Defendant maintains that the allegations of the petition as supported by affidavit fail to show either of the foregoing.

We consider first the issue of diligence. Section 2 — 1401(c) requires that the petition be brought within two years of the entry of the judgment sought to be set aside. Here, the petition was not filed until 33 months after the judgment. In addition, an undisputed affidavit of defendant’s claim agent stated that plaintiff had not taken discovery depositions of any of defendant’s employees whose names had been given by defendant in answer to interrogatories. The affidavit also set forth that plaintiff had made no attempt to examine the items produced at trial by defendant in response to plaintiff’s request. However, the diligence issue turns on whether defendant had been guilty of fraudulent concealment of the alleged newly discovered evidence.

In Ostendorf, the court stated that failure on the part of a party to give “full and truthful disclosure” when required constitutes “fraudulent concealment for purposes of tolling a statute of limitations.” (89 Ill. 2d 273, 282, 433 N.E.2d 253, 257.) Further, that court stated that, if an opponent “suppresses information within the scope of the interrogatories in such a way as to prevent the inquirer from realizing what has occurred, the failure to discover the information is the result of the former’s fault, not of the latter’s negligence.” 89 Ill. 2d 273, 285, 433 N.E.2d 253, 258.

Also as in Ostendorf, the question of fraudulent concealment overlaps both the issues of diligence and of whether the newly discovered evidence would have changed the result.

The conduct attributed to defendant’s agents is most serious. Plaintiff alleges that a person in a supervisory position, realizing that the person required to make inspections had not done so, threatened another employee with loss of job if he revealed that evidence. An employer may properly place restrictions on the divulgence of confidential information until the employee is legally required to divulge that information. Here, however, the implication of the language attributed to Patterson was that the employee should not reveal the information to others even within the company. Without the information flowing freely through company channels, accurate information would not be obtained to disclose in response to proper discovery requests. The implication of the statement was also that, if called to testify, the employee should lie.

Although the most egregious malfunction of flasher warning lights occurs when they fail to light when a train approaches, the lights also malfunction when they illuminate when trains are not coming. Plaintiff’s interrogatory concerning the “functioning” of the lights referred to both types of malfunction. As neither Polley nor Patterson were allegedly present at the time of the collision, and as the Polley affidavit does not say that they made any observation of the signals at that time, no showing is made that defendant should have listed their names in answer to the interrogatory. Their alleged knowledge, that required inspections of the signals were apparently not made, would not necessarily be a fact upon which the defendant might base a judgment as to whether the signals were “functioning” at the time of the occurrence. However, here defendant chose to base its decision partly on the fact that Flannell had supposedly made a check of the signals on July 6, 1977. Information that a card kept in the signal box failed to so indicate would have been a matter within the collective knowledge of defendant which should have been disclosed.

While Flannell could well have examined the signals on July 6, 1977, but not recorded his examination on the card, evidence that the card did not indicate an examination would be substantial evidence that no examination was made on that date. If the examination was not made, the answers to two interrogatories were false, as was Flannell’s testimony at trial, and defendant’s exhibit No. 24 contained an untrue entry. If an inspection card existed, defendant violated the court’s production order by not producing it.

The petition, as supported by affidavits, made a sufficient showing of fraudulent concealment to negate any implication that plaintiff had failed to exercise diligence in bringing the petition. The question of whether the alleged withheld evidence would have brought about a different result is more difficult.

In the pre-Alvis trial, the jury’s answer to the interrogatory finding plaintiff guilty of contributory negligence would have controlled any verdict inconsistent with it. (Ill. Rev. Stat. 1977, ch. 110, par. 65.) For this reason, when the case was on direct appeal, we considered only allegations of error that would have affected the answer to the interrogatory. Similarly, only newly discovered evidence bearing upon plaintiff’s exercise of care can be such that might have changed the verdict.

The evidence at trial was undisputed that the lights were flashing at the time of the collision, and that they had been flashing for at least 24 hours before plaintiff’s truck arrived at the crossing. Any negligence upon defendant’s part here with reference to the signals would had to have been that it negligently failed to prevent the lights from flashing before the train neared the crossing, thus sending a false signal to plaintiff. It is difficult to determine from the testimony whether the inspections that Flannell was supposed to have made would detect a tendency of the lights to flash when no train was coming; nevertheless, any failure of Flannell to inspect would, by itself, have had no direct bearing on whether plaintiff was in the exercise of due care when he drove across the crossing. There is no dispute that he did this while the signals were flashing, but under circumstances where he had difficulty in seeing easterly down the track and where he might have thought the lights were still activated by a train that had passed. Under the evidence submitted at trial, the jury found this conduct to be contributory negligence. Further evidence of negligence on the part of defendant would not of itself have changed this.

However, evidence of conduct such as that attributed to defendant in the petition, although not bearing directly on plaintiff’s exercise of care, has been held to be admissible generally on the ultimate issue of liability. The alleged fraudulent withholding of evidence by defendant had a twofold aspect. It consisted not only of withholding evidence bearing upon defendant’s exercise of care but also of withholding evidence of its own fraudulent activity. If defendant’s agents had made an untrue entry on exhibit No. 24 as contended and other discovery had properly been given, plaintiff would have been given information that would have revealed defendant’s suppression of evidence. That evidence of suppression could have been used generally at trial.

A noted text on evidence, in discussing the conduct of a party which constitutes an admission of liability, has stated:

“As might be expected, wrongdoing by the party in connection with his case, amounting to an obstruction of justice is also commonly regarded as an admission by conduct. By resorting to wrongful devices he is said to give ground for believing that he thinks his case is weak and not to be won by fair means. Accordingly, a party’s false statement about the matter in litigation, whether before suit or on the stand, his fabrication of false documents, his undue pressure, by bribery or intimidation or other means, to influence a witness to testify for him or to avoid testifying, his destruction or concealment of relevant documents or objects, *** —all these are instances of this type of admission by conduct.” (Emphasis added.) McCormick, Evidence sec. 273, at 660 (2d ed. 1972).

The foregoing text indicates that evidence of suppression of other evidence should be admitted generally and not just as to the issue upon which the suppressed evidence would bear. The text states that the jury should be instructed accordingly. However, the text notes that the majority rule is that the inference arising from the suppression of evidence is not sufficient, of itself, to support a determination on an issue in the absence of some other evidence also supporting that determination. (Accord, Gage v. Parmelee (1877), 87 Ill. 329.) When the party charged with suppression is a corporation, the text states that the suppression must have occurred with at least the acquiescence of a superior officer.

Plaintiff cites People v. Spaulding (1923), 309 Ill. 292, 141 N.E. 196, and Chicago City Ry. Co. v. McMahon (1882), 103 Ill. 485, as Illinois authority in conformity with the foregoing rule. In Spaulding, the court held that evidence that a person on trial for murder had killed a potential witness was admissible as an admission of guilt by conduct. The court stated: “From the days of Moses to the present time it has been the law that a person who fabricates, suppresses or destroys evidence must take the consequences of the honest indignation which his conduct naturally excites.” (People v. Spaulding (1923), 309 Ill. 292, 305, 141 N.E. 196, 202.) The court stated that such conduct was circumstantial evidence the guilty party’s cause was “unrighteous.” In McMahon, the court held that in a personal injury suit, the attempt by a railroad employee to bribe a witness was circumstantial evidence of an admission by the railroad company that it had no right to a judgment.

An argument can be made that suppression of evidence by a party should be taken as an admission of only that which the suppressed evidence would prove, but neither the cited text nor cases have so indicated. Rather the rule has been that the evidence is admissible generally with the exceptions mentioned. Here, plaintiff had produced some evidence of his due care. He testified that he steered his truck to the best position he could before crossing the tracks, stopped a minute or so, slid over in his seat to get the best view he could, and then proceeded across the tracks. Patterson, who allegedly suppressed the evidence, was one of defendant’s supervising officers. We conclude that evidence of defendant’s suppression of evidence would have been admissible at trial on the general question of defendant’s liability and would have been used by plaintiff at trial if he had then known of the evidence of suppression.

Although the court’s order dismissing the petition indicates that evidence was heard, we find nothing else in the record to so indicate. The briefs state the court considered a deposition of Patterson, but no such document was made a part of the record. Moreover, the ruling was made on a motion to dismiss. As stated in Ostendorf, the petition is to be treated as a civil complaint. The tenor of the motion to dismiss challenged the legal sufficiency of the petition as supported by other matters of record. We treat that as being the issue here.

The allegations of fraudulent suppression of evidence negate any contention that plaintiff was lacking in diligence as a matter of law. Likewise, the allegations of fraudulent suppression of evidence and false testimony set forth grounds, which if found by the court to be true, would be newly discovered evidence which likely would have brought about a different verdict. The issues at the first trial were simple, yet the jury deliberated over eight hours, less time for the evening meal.

Because of our ruling, we need not pass upon the denial of plaintiff’s motion for leave to file an amended petition. The form of plaintiff’s affidavits were faulty and should be amended on remand as plaintiff has requested leave to do. The order of dismissal did not appear to have been based on the form of the affidavits, thus, we have not previously discussed this issue. If we were to affirm the trial court’s dismissal of the petition on those grounds, we would have to remand to grant plaintiff leave to file an amended petition.

The judgment dismissing the section 2 — 1401 petition is reversed. As the defendant has not answered, we follow the procedure directed by the supreme court in Ostendorf and order that the case be remanded to the trial court for further proceedings in connection with the pending petition.

Reversed and remanded.

MILLER, J., concurs.

JUSTICE TRAPP,

dissenting:

I dissent from the reversal and remandment for hearing upon the allegations of plaintiff’s petition.

In the initial appeal, Lubbers v. Norfolk & Western Ry. Co. (1980), 89 Ill. App. 3d 1205, 417 N.E.2d 275 (Rule 23 order), appeal denied (1981), 83 Ill. 2d 570, this court affirmed the trial court’s judgment entered upon the jury verdict finding plaintiff guilty of contributory negligence.

The record in that case disclosed that the defendant’s signal lights had been flashing continuously for more than 24 hours. Thus, it appears that a defect, or negligence in the maintenance of the signal system, was clearly established before the jury. Upon other evidence introduced, the jury concluded that plaintiff was barred from recovery by his own conduct in the nature of contributory negligence.

Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253, is not apposite here. In that case, the jury verdict in the initial trial was a finding, in effect, that a tractor was not unreasonably dangerous. In a subsequent proceeding under section 72 (now section 2—1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401)) evidence was introduced that discovery was withheld as to documents which disclosed that defendant had knowledge that the equipment, or its design, was unreasonably dangerous. The opinion of the supreme court concluded that an accurate response to discovery by the defendant would have disclosed such defect, and defendant’s knowledge of facts sufficient to support liability. The court concluded that there was such fraudulent concealment in discovery as was sufficient to toll the statute of limitations as a matter of law, so that the trial court’s judgment should be vacated.

Here, it is obvious that discovery of the inspection data alleged to have been concealed by defendant would have no relevance to the bar of contributory negligence found by the jury. It would add nothing to the evidence of defendant’s negligent maintenance already before the jury.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    DOLORES G. WILSON, Plaintiff-Appellant, v. THE CHICAGO TRANSIT AUTHORITY et al., Defendants-Appellees.
    First District (4th Division)
    No. 82—1745
    Opinion filed September 29, 1983.

      Anthony M. Colantoni, of McDowell and Colantoni, of Chicago, for appellant.
    John O. Demaret, of Chicago Transit Authority, and Edward J. Egan, both of Chicago, for appellees Chicago Transit Authority and Georgia R. Harris.
    Stanley Garber, Corporation Counsel, of Chicago (Jerome A. Siegan and Robert J. Dargis, Assistant Corporation Counsel, of counsel), for appellees the city of Chicago and William Galioto.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Dolores G. Wilson, brought a complaint against defendants to recover damages for personal injuries sustained in an accident with a Chicago Transit Authority (CTA) bus. At the close of the jury trial, she was awarded $12,500. On appeal, plaintiff raises the following issues for review: (1) whether the trial court erred in directing a verdict in favor in the CTA and its agent, Georgia Harris; (2) whether the trial court erred in limiting the testimony of her medical expert; and (3) whether the trial court erred in refusing two of her jury instructions.

We affirm.

At trial, Richard Kowitz, a Chicago policeman, testified that he investigated the accident which occurred on June 28, 1981, involving plaintiff and a CTA bus. The accident occurred at 2:12 p.m. He arrived at the scene within three minutes. More than one policeman was directing traffic at the intersection of Clark and Addison streets in Chicago, Illinois, but Kowitz did not know the exact number. The victim was lying between the bus and the center of Clark Street. She was 25 to 30 feet north of the crosswalk at the left side and near the rear wheel of the bus.

Officer Kowitz took witness statements from Georgia Harris, Robert Thomas and Officer Galioto. When Kowitz asked Harris, the bus operator, how fast she was driving, she replied five to seven miles per hour, but on page two of her statement she said the bus was stopped. Thomas said that he was on the northeast corner of Clark and Addison when he saw a woman run across the street into the side of the bus.

Plaintiff called Robert Thomas, a CTA bus driver, as an adverse witness. Thomas testified that he was standing on the northwest corner of Clark and Addison for about a minute and a half before he observed the accident. A policeman was directing pedestrians, another was directing buses and a third was in the middle of the intersection. The policeman directing pedestrians was watching the policeman in the intersection and not the one directing buses. A CTA bus traveling north on Clark Street, stopped at Addison and then continued when a policeman directed it through the intersection. When the bus was 15 to 20 feet through the intersection, a man ran in front of the bus which stopped. Thomas was 15 to 16 feet north of the crosswalk. Plaintiff walked at a rapid pace from the northwest corner of Clark and Addison into the bus which had stopped for 15 to 40 seconds. Plaintiff had been looking over her shoulder and apparently talking to a policeman as she walked. After the collision, she fell to the ground, hitting her head. She lay about 10 to 15 feet north of the crosswalk. Thomas did not hear a bus horn before the accident.

Donald Deep, a CTA supervisor, was also called as an adverse witness. Deep testified that he was standing on the southwest corner of Clark and Addison when Thomas told him about the accident. Thomas had been standing on that corner for about 15 minutes before he mentioned the accident. Deep observed the accident scene. Plaintiff was about 10 feet north of the crosswalk and the bus was 15 to 20 feet north of her. The bus driver told Deep that the bus was moving slowly at the time of the accident, but she did not mention that a man had run in front of the bus.

Plaintiff testified that she lived near the scene of the accident. On June 28, 1981, she left her house and walked east. When she arrived at the intersection of Clark and Addison, a policeman indicated that she stop. Then he indicated that she could cross the street. The next thing plaintiff remembered was being in a hospital emergency room. Plaintiff suffered injuries to her head, shoulder, chest, arm, hand and hip. She was hospitalized for nine days and had facial surgery. After the accident she suffered from headaches, double vision, numbness in her face and memory lapses. She could not care for her invalid husband and their two children, who had medical conditions, as well as she did before the accident.

Don Miller, a physician and surgeon, was qualified as a medical expert. He examined plaintiff and her hospital records. Plaintiff complained of pain, numbness, dizziness, forgetfulness and inattention. In Dr. Miller’s opinion, plaintiff’s complaints could have been caused by her contact with the bus. Damage to her nerves was permanent. The trial court refused to allow plaintiff’s counsel to ask Dr. Miller if it was more likely that plaintiff walked or ran into the side of the bus, or more likely the moving bus struck her. The trial court reasoned that Miller was not qualified as an “accidentologist,” that is, a person who reconstructs accidents.

William Galioto, a Chicago policeman, was called by plaintiff as an adverse witness. He was on duty on June 28, 1981, at the accident scene. He was standing in the intersection of the northwest corner of Clark and Addison in the center of the crosswalk. Two other policemen were also directing traffic. When he first observed plaintiff, she was eight to 12 feet north of him and six to eight feet from the intersection. Galioto did not observe her talking to anyone and he never heard a bus horn or saw anyone in front" of the bus. He did not see plaintiff impact with the bus, but he saw her fall backward while the bus was moving at five to 10 miles per hour. Then the bus stopped. Plaintiff fell six to eight feet behind the front wheel well of the bus, about 30 feet north of the crosswalk.

Georgia Harris, the CTA bus driver, was called by plaintiff as an adverse witness. After driving across the intersection of Clark and Addison, she stopped when a man ran in front of the bus. At that time, the bus was 48 to 52 feet from the intersection, and the rear of the bus was eight to 12 feet north of the crosswalk. Harris checked her mirror and looked around. When she was about to proceed, she heard a thump. She saw a woman lying on the ground toward the rear of the bus.

Joseph Bongiomo, a psychiatrist, examined plaintiff. He stated that plaintiff suffered from retrograde amnesia, that is, memory loss for events immediately preceding the trauma. In his opinion, plaintiff’s depression and traumatic neuroses were caused by the accident.

Deana Nannix, the owner of a private nursing service, estimated the cost of providing nursing care to plaintiff’s family.

Plaintiff rested and defendants moved for directed verdicts. The trial court sustained the motion for the CTA and its agent Harris; it denied the motion with respect to the city of Chicago and Galioto. Then the defense rested. The jury found that plaintiff suffered damages of $250,000 but reduced the award 95% to $12,500 because of plaintiff’s contributory negligence. Plaintiff appeals.

The first issue raised by plaintiff is whether the trial court erred in directing a verdict in favor of the CTA and its agent, Georgia Harris. Plaintiff argues that there were substantial factual disputes and questions of witness credibility which were issues for the jury to resolve. There was a dispute as to whether the bus had stopped or was moving, a dispute as to the location of the impact, and a dispute as to how the accident occurred. Plaintiff urges that the jury could have circumstantially inferred that plaintiff, having intended to go to the northeast comer of the intersection, began to walk in the crosswalk upon the signal of the policeman, was somewhere within the crosswalk at the time of the collision with the bus, and was knocked 10 feet to the north by the impact.

Even if we accept plaintiff’s argument that there were disputed issues of fact, these facts are not material — they do not establish negligence by the bus driver. In her complaint, plaintiff alleged that defendant driver failed to yield the right of way to a pedestrian, that she drove at a speed greater than what was reasonable and proper, that she failed to warn by hom of her approach, that she failed to keep a proper lookout, and, finally, that the bus driver failed to see and observe plaintiff when she could and should have done so. Nothing in the testimony at trial suggested that the bus driver did not exercise proper care in driving the bus. The bus driver stated that she first became aware of plaintiff after she heard a thump and saw, in her mirror, plaintiff lying on the ground.

The standard for directing a verdict is that all 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.) This standard is to be employed in a jury trial whether the motion for a directed verdict is considered at the close of all the evidence, or at the close of plaintiff’s case. (Sunseri v. Puccia (1981), 97 Ill. App. 3d 488, 491, 422 N.E.2d 925, 929.) Substantial factual disputes presented by the evidence require the assessment of witness’ credibility or election between conflicting evidence, which falls within the jury’s function, and it is then improper to direct a verdict. Sunseri v. Puccia (1981), 97 Ill. App. 3d 488, 491.

In our opinion, the trial court properly directed a verdict in favor of the CTA and its agent. There were no substantial factual disputes for the jury to resolve with respect to the CTA. A verdict against the CTA could not stand because plaintiff presented no facts establishing negligence by its agent.

Plaintiff next argues that the trial court erred in limiting the opinion testimony of her expert witness. Plaintiff wanted Don Miller, a physician, to answer the question of whether it was more likely that plaintiff walked into the bus or more likely the moving bus struck her. The trial court refused to allow the question to be asked because Miller was not qualified as an accidentologist. Plaintiff further argues that she should have been allowed to expand Miller’s qualifications in order to lay the foundation to qualify him as an expert in reconstructing accidents.

We reject plaintiff’s arguments. Expert testimony is permitted when (1) the opinion of the witness is distinctly related to a science, profession, business or occupation and is beyond the knowledge or experience of an average juror; (2) the witness has sufficient skill, knowledge or experience in that field so that his opinion will aid the trier of fact in the search for truth; and (3) the state of the art of scientific knowledge permits a reasonable opinion to be asserted by an expert. The qualification of a witness to testify as an expert is within the sound discretion of the court. (First National Bank v. Sousanes (1981), 96 Ill. App. 3d 1047, 1054, 422 N.E.2d 188, 193.) Plaintiff’s examination of Miller qualified him as a medical expert but not as an expert in the reconstruction of accidents. We hold that the trial court did not abuse its discretion in limiting the testimony of plaintiff’s expert witness.

Finally, plaintiff argues that the trial court erred in refusing two of her proposed instructions which stated that the city was liable on an agency theory if the jury found its unknown agents and employees liable, and that the city and its unknown agents and employees were negligent in signaling a bus to proceed when plaintiff was crossing the street. The trial court refused the instructions because no evidence supported the charges. Plaintiff cites as evidence of unknown agents the testimony that several police officers were at the intersection. She also claims there was evidence to suggest that the bus was waved through the intersection at the same time plaintiff was directed to cross the street. If the jury had been allowed to consider additional acts or omissions of unknown agents of the city, it might have decreased plaintiff’s contributory negligence and increased her damages.

We reject plaintiff’s argument. It suggests that because she was injured defendants must have been negligent. To justify giving an instruction, all that is required is that there be some evidence in the record to support the theory set out in the instructions. (Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 1095, 410 N.E.2d 266, 273.) We have examined the record and find no evidence that an unknown agent of the city performed a negligent act which proximately caused plaintiff’s injuries. Therefore, we hold that the trial court did not err in refusing plaintiff’s proposed instructions.

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

Affirmed.

ROMITI, RJ., and JIGANTI, J., concur.


author: JUSTICE GOLDBERG

text:
    PROVIDENCE INSURANCE COMPANY, Plaintiff-Appellant, v. LA SALLE NATIONAL BANK, Trustee, Defendant-Appellee—(The Neal and Bess Postraw Trust et al., Interveners).
    First District (1st Division)
    No. 82—2897
    Opinion filed October 3, 1983.
    Rudniek & Wolfe, of Chicago (John K. Kallman, of counsel), for appellant.

      Allen I. Brown, Ltd., of Chicago (Allen I. Brown, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

This litigation commenced on July 23, 1976. On November 3, 1982, an order for summary judgment was entered. Since the inception of the case, numerous changes have been made in the identity of the interested parties by virtue of change of name and transfers of interest. We will refer to the present parties as hereinafter designated with the understanding that certain of the acts ascribed to them may have been performed by their predecessors in interest. The case involves the legal propriety of the summary judgment which permitted the exercise of an option to lease a parcel of land contiguous to the main parcel covered by a lease between the parties.

The factual situation commenced with the execution of the lease which included the option. The lease is dated July 27, 1972. The present lessor is Providence Insurance Company (plaintiff). The present lessee is La Salle National Bank, a national banking association, as trustee under Trust No. 44300 (defendant). An interest in the property in question is also claimed by the Neal and Bess Postraw Trust, the Donald G. Levine Trust, and Donald G. Levine (intervenors).

Plaintiff and defendant each moved for summary judgment. The intervenors stipulated to be bound by orders of the trial court upon said motions. After hearing oral argument by counsel for all parties, the trial court entered a summary judgment which directed specific performance of the option in favor of defendant and against plaintiff. The trial court also found that the interests of the plaintiff and the intervenors in the option parcel were subject and subordinate to the rights of defendant in the real estate. Plaintiff has appealed.

The basic lease term was 35 years. The option clause contemplated a lease of the adjacent parcel for a like term. To exercise the option, defendant was required to notify plaintiff in writing not later than two years from the date of the lease, July 27, 1972. Thus the last date for exercise of the option was July 27,1974.

On Thursday, July 25, 1974, defendant mailed to plaintiff a letter exercising the option. The letter was properly addressed. Proper postage for certified mail, return receipt requested, was appended. The letter was placed in the mail chute of the building containing the Chicago office of the. attorney for defendant. The mailing took place before the last scheduled mail pickup of the day. The office building from which the letter was mailed is less than 10 miles from the letter’s destination; a post office box in a suburb of Chicago. Thursday, July 25, 1974, was two days before the final day of the option term, which was Saturday, July 27, 1974.

There is an affidavit in the record made by an employee of the United States Postal Service. Affiant states that on Monday, July 29, 1974, he delivered this certified letter and obtained a signature of acknowledgment from an employee of plaintiff. This was done at the post office. Monday, July 29, 1974, was the first business day after expiration of the option. However, the record does not show, and the affidavit does not indicate, whether or not this letter was actually deposited in plaintiff’s post office box on Monday, July 29, 1974, or on a previous date.

Plaintiff rejected this exercise of the option as untimely. Plaintiff relied upon a clause in the lease which provided that service of any written notice would be deemed complete five days after mailing, or upon receipt, whichever was earlier. Since the notice was actually received on July 29, 1974, which was the fourth day following mailing, the date of receipt controlled. A separate section of the lease provided that time was of the essence of the lease.

The general rule governing cases similar to the instant one was established in Dikeman v. Sunday Creek Coal Co. (1900), 184 Ill. 546, 56 N.E. 864. There, the tenants entered into a 10-year lease allowing them to remove coal from the lessor’s land. The lease contained an option to renew for an additional 10-year term. To exercise the option, the tenants were required to notify the lessors in writing at least 20 days before the expiration of the original 10-year term. Solely through their own carelessness, the tenants failed to notify the lessors until 13 days before the end of the term. Though their notice was thus one full week late, the tenants sought specific performance of the option. The trial court denied relief, the appellate court reversed, and the supreme court reversed the appellate court. The supreme court held the negligence of the lessee and the delay of seven days required rejection of its claim.

The supreme court stated:

“[The twenty-day written notice] was the sole condition upon which the option rested, and it was not complied with through the negligence of the lessee. The question here is, whether a court of equity can relieve against the consequences of such negligence. *** A court of equity is bound by a contract as the parties have made it, and has no authority to substitute for it another and different agreement, and particular language is not necessary to make the time of performance essential, if right and justice in the individual case demand it. An agreement must be complied with as made unless some stipulation is waived or there is just excuse for non-com/pliance.” (Emphasis added.) 184 Ill. 546, 550-51.

Plaintiff in the instant case asserts Dikeman stands for the proposition that, where time is of the essence of a lease, all conditions precedent to exercise of an option must be strictly complied with and a court of equity can never excuse any delay.

This type of harsh application of Dikeman was specifically rejected by this court in Linn Corp. v. La Salle National Bank (1981), 98 Ill. App. 3d 480, 424 N.E.2d 676. There, the lessees were required to give a one-year written notice of their intention to exercise an option to renew. Although the lessees alleged they gave timely oral notice, they admitted their written notice was three months late. This court pointed out that while the failure to provide timely written notice was not intentional, it was “due to their own carelessness.” (98 Ill. App. 3d 480, 484.) Yet the court stated it was also contended, precisely as in the case at bar, that the failure to give written notice on time did not cause any substantial hardship to the defendants therein. The court ruled: “Based on these allegations, and under the particular circumstances of this case, we think that the trial court exercising its equitable powers could have excused strict compliance with the one-year written notice condition of the option ***.” (98 Ill. App. 3d 480, 484.) Thus, strict performance of conditions precedent may be excused under proper circumstances even where the failure to provide the stipulated notice is due solely to the negligence of the lessee.

In the instant case, the argument in favor of excusing the delay of the lessee is even stronger than in Linn. Here, the written notice was mailed on Thursday, July 25, 1974. The last day for exercise of the option fell on Saturday, July 27, 1974. The notice was actually received by plaintiff on Monday, July 29, 1974, when plaintiff picked it up from plaintiff’s post office box. There is no indication that this delay of one business day in and of itself caused plaintiff any undue hardship.

Moreover, in the instant case there is no showing that the delay was the sole result of any carelessness or negligence on the part of defendant. As above shown, the record does not show the date on which the letter was deposited in plaintiff’s post office box. It indicates only that the letter was mailed on Thursday, July 25, and was picked up at the post office by plaintiff on Monday, July 29.

In addition, Dikeman suggests an exception may be made where circumstances indicate a “just excuse for non-compliance” (Dikeman v. Sunday Creek Coal Co. (1900), 184 Ill. 546, 551). The facts in the instant case demonstrate that the delay of one business day was at least in part beyond the defendant’s control, and did not harm or affect plaintiff in any manner. Consequently the trial court properly found the insignificant delay to be de minimus.

This conclusion is also suggested by analogy to the pertinent statute (Ill. Rev. Stat. 1981, eh. 1, par. 1012), which is deemed incorporated into all contracts entered into during its existence as a matter of law. (See Board of Trustees v. Department of Insurance (1982), 109 Ill. App. 3d 919, 441 N.E.2d 107; Polytechnical Consultants v. Lind Plastic Products, Inc. (1980), 82 Ill. App. 3d 472, 474, 402 N.E.2d 869.) This statute expressly provides that when the last day for performance of an act provided by law falls on a Saturday, Sunday or holiday, such day shall be excluded from the computation of time, as well as any succeeding day which is also a Saturday, Sunday or holiday.

For these reasons the orders appealed from are affirmed.

Orders affirmed.

McGLOON and CAMPBELL, JJ., concur.


author: JUSTICE TRAPP

text:
    RICHARD MATTSON, Plaintiff-Appellant, v. THE DEPARTMENT OF LABOR et al., Defendants-Appellees.
    Fourth District
    No. 4—83—0139
    Opinion filed October 13, 1983.

      Gerald G. Kaluzny, of Prairie State Legal Services, Inc., of Bloomington, for appellant.
    William B. Lawrence, of Bloomington, for appellee Brokaw Hospital.
    Neil E Hartigan, Attorney General, of Springfield (Thomas P. Marnell, Assistant Attorney General, of counsel), for other appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

In a final administrative decision, the Board of Review found that Richard Mattson was disqualified from receiving unemployment insurance benefits from October 18, 1981, until he requalified for benefits under the provisions of section 602(A) of the Unemployment Insurance Act. (Ill. Rev. Stat. 1981, ch. 48, par. 432(A).) Mattson filed this action seeking administrative review of that decision under article III of the Code of Civil Procedure. (111. Rev. Stat. 1981, ch. 110, par. 3— 101 et seq.) The circuit court of McLean County affirmed. We affirm.

Mattson was a maintenance employee at Brokaw Hospital. During the early morning hours of Saturday, August 29, 1981, Mattson appeared on the employer’s premises while under the influence of alcohol. Although this appearance occurred during his off-duty hours, he was warned on September 3 that he would be terminated if there was another such incident.

Another incident occurred on September 30, 1981. The plaintiff worked that day replacing floor tile in the dietary department. After leaving work at 3:30 p.m., he played pool and drank beer. He was joined by another hospital employee, Dennis Shoemaker. According to plaintiff, Shoemaker was going to work that night and asked to be shown what needed to be done in the dietary department. Around 9:30 p.m., several other employees found plaintiff and Shoemaker in the kitchen of the hospital’s dietary department. The plaintiff’s hasty exit was observed by a security guard. Meat was sitting outside a food locker and the freezer had allegedly been tampered with. On the following day, the plaintiff was arrested at work on a theft charge stemming from his presence in the dietary department the previous night. He was advised that he would not be allowed to return to work pending the outcome of the court action.

On October 18, 1981, plaintiff filed an application for unemployment insurance benefits. The employer timely notified the unemployment insurance office of plaintiff’s possible ineligibility for benefits, indicating that he was suspended from duty on October 1, pending investigation and disposition of findings connected with the alleged theft from the employer.

On January 22, 1982, Mattson was tried and acquitted by a jury on the theft charges. Several days later he was told that he could not return to work pending an internal investigation. On February 9, 1982, plaintiff was discharged for failure to cooperate in the employer’s internal investigation.

On February 18, 1982, a claims adjudicator’s determination issued finding plaintiff disqualified from benefits from October 18, 1981, through February 6, 1982, and thereafter until he requalified for benefits. The basis of the disqualification was stated as follows:

“On September 30, 1981, the claimant was discharged from Brokaw Hospital due to an allegation of theft by his employer. Although the claimant denies the allegation of theft, he admits to being in an unauthorized area outside of his usual working hours under the influence of alcohol. The claimant’s actions were a disregard for his employer’s best interest. The claimant was discharged for misconduct connected with his work.” (Emphasis added.)

The plaintiff appealed this determination and a hearing was conducted before a hearings referee on March 3,1982.

On March 9, 1982, the referee’s decision issued. The referee affirmed the determination of the claims adjudicator. He found Mattson was suspended on October 1, 1981, pending investigation and outcome of the theft arrest. He stated that Mattson had a prior warning about appearing on the employer’s property after drinking and that he understood and disregarded the warning. The referee concluded that Mattson was discharged for misconduct in connection with his work.

The plaintiff appealed the referee’s decision. On July 16, 1982, the Board of Review filed a final administrative determination affirming the referee’s decision. The Board made several statements which form the basis of plaintiff’s appeal: (1) Mattson was prosecuted for theft and was placed on a leave of absence pending the outcome of his trial; (2) Mattson was discharged for his refusal to cooperate with the employer in an investigation of the incident; and (3) his refusal to participate in the investigation was, under the circumstances, misconduct within the meaning of the Unemployment Insurance Act.

Plaintiff urges that the Board of Review erred as a matter of law by disqualifying him from benefits from the date of his discharge, February 9, 1982, to the date of his application for benefits, October 18, 1981. Defendants contend that the plaintiff’s suspension for misconduct on October 1, 1981, was tantamount to a discharge and that, therefore, he was properly denied unemployment benefits beginning October 18, 1981.

First, we do not consider this situation, where the employee wished to work but was not allowed to work by the employer, to be a leave of absence. Second, we rely on the underlying finding of the claims adjudicator and the hearings referee that the employer’s action regarding the plaintiff in October 1981 was a suspension for misconduct; the record supports that finding.

The agency’s policy is that a suspension from work for a period of seven or more consecutive days, or of indefinite duration, is a discharge. Whether a suspension constitutes a discharge for misconduct connected with work is decided by principles generally applicable to discharges. We find that this is a reasonable interpretation of the language of section 602(A) disqualifying those discharged for misconduct. Contra, Matson Terminals, Inc. v. Hasegawa (1973), 54 Haw. 563, 512 P.2d 1, and National Airlines, Inc. v. Division of Employment Security (Fla. App. 1980), 379 So. 2d 1033, wherein the agencies interpreted statutory language to exclude suspension as a disqualifying factor and reviewing courts upheld the agency view.

Although section 602(A) is not ambiguous on its face, its literal application leads to an ambiguous practical result. If discharge is not read to include suspension, an employee could be compensated for unemployment caused by work-connected misconduct where his employer chooses not to impose the harsher punitive measure of final termination. Courts will give substantial weight and deference to an interpretation of an ambiguous statute by the agency charged with its administration and enforcement. (Illinois Consolidated Telephone Co. v. Illinois Commerce Com. (1983), 95 Ill. 2d 142, 152, 447 N.E.2d 295, 300.) In this case, the agency policy of including suspension within the term “discharge” for the purpose of benefits disqualification does not extend the statute beyond its fair and reasonable meaning.

Further, the agency’s policy does not appear to be contrary to the administration of the unemployment compensation program in other States. Nineteen States specify by statute that a suspension for misconduct or a disciplinary layoff is a disqualification for unemployment benefits. (Ala. Code sec. 25 — 4—78(3)(c), (d) (1975 & Supp. 1982); Fla. Stat. Ann. sec. 443.101(l)(b) (1981 & West Supp. 1983); Ga. Code Ann. sec. 54 — 610(b) (1982); Hawaii Rev. Stat. sec. 383 — 30(2) (1976 & Supp. 1982); Me. Rev. Stat. Ann. tit. 26, sec. 1193(2)(A) (West Supp. 1982-1983); Md. Ann. Code art. 95A, sec. 6(c) (1979); Mass. Ann. Laws ch. 151A, sec. 25(f) (Michie/Law Coop. (1976)); Mich. Comp. Laws Ann. sec. 421.29(l)(b), (9) (West 1978 & Supp. 1982-1983); Minn. Stat. Ann. sec. 268.09(1)(6) (West Supp. 1983); Mo. Ann. Stat. sec. 288.050(2) (Vernon 1965 & Supp. 1983); N.H. Rev. Stat. Ann. sec. 282:4(L) (1977); N.J. Stat. Ann. sec. 43:21 — 5(b) (West Supp. 1983-1984); Ohio Rev. Code Ann. sec. 4141.29(D)(1)(b) (Page 1980 & Supp. 1982); Or. Rev. Stat. sec. 657.176(2)(b) (1981); Pa. Stat. Ann. tit. 43, sec. 802(e) (Purdon 1964); S.D. Codified Laws Ann., sec. 61 — 6—14 (1978 & Supp. 1982); Wash. Rev. Code Ann. sec. 50.20.060 (1962 & Supp. 1983-1984); Wis. Stat. Ann., sec. 108.04(6) (West 1974).) One State’s statute phrases a disqualification to encompass any employer action based upon an employee’s misconduct. N.Y. Labor Law sec. 593(3) (McKinney 1977).

The generally accepted definition of misconduct has been stated as follows:

“[T]he intended meaning of the term ‘misconduct,’ *** is limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed ‘misconduct’ within the meaning of the statute.” (Boynton Cab Co. v. Neubeck (1941), 237 Wis. 249, 259-60, 296 N.W. 636, 640.)

(See Granite City Steel v. Board of Review (1979), 68 Ill. App. 3d 264, 385 N.E.2d 931.) The record supports the administrative finding of misconduct by plaintiff on September 30,1981.

Affirmed.

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


author: JUSTICE MILLS

text:
    TICK BROTHERS, INC., Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellants.
    Fourth District
    No. 4-83-0148
    Opinion filed September 13, 1983.
    Rehearing denied November 14, 1983.

      Neil F. Hartigan, Attorney General, of Springfield (Kathleen N. Lien, Assistant Attorney General, of counsel), for appellants.
    Joseph J. Neely, of Neely and Neely, of Metropolis, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

Use tax.

Administrative Review.

The Illinois Department of Revenue determined that Tick Brothers, Inc. (a Kentucky corporation whose business is steel distribution), owed a use tax assessment of $28,632.32.

Tick Brothers sought administrative review and the procedural chronology appears from the record to be as follows:

Aug. 27, 1982 Complaint filed, summons issued.
Department filed entry of appearance. Sep. 9, 1982
Tick Brothers appeal bond in the amount of $28,632.32 was presented, approved by the court, and filed. Sep. 27, 1982
Department filed “Motion to Strike Bond, Dismiss Complaint and to Enter Judgment in Favor of Defendants.” Oct. 13,1982
Tick Brothers filed “Motion to Strike Defendants’ Motion to Strike Bond, Dismiss Complaint, and for Judgment.” Oct. 29,1982
Tick Brothers filed memorandum of law in support of their motion. Nov. 10,1982
Department filed memorandum of law in support of its motion. Nov. 15,1982
The court’s docket entry: “Plaintiff’s motion to strike defendants' pleading of October 13, 1982, denied. Defendants’ motion to strike bond dismissed complaint denied. Rule on Dec. 14,1982 defendant to file answer within 30 days and plaintiff to pay cost of answer within 30 days.”
Jan. 19, 1983 Tick Brothers filed motion for entry of judgment in favor of plaintiff.
Jan. 27, 1983 The court entered a written judgment order finding the Department in default for having failed to answer or give notice of cost within 30 days, found Tick Brothers’ complaint to have been confessed by the Department, reversed the Department’s use tax assessment, entered judgment in favor of Tick Brothers and against the Department, cancelled the appeal bond, and awarded Tick Brothers court costs.

The Department elected to stand on its motion to dismiss the complaint and appeals to this court.

The Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1981, ch. 120, par. 451) provides as follows:

“Any suit under the ‘Administrative Review Act’ to review a final assessment or revised final assessment issued by the Department under this Act shall be dismissed on motion of the Department or by the court on its own motion, unless the person filing such suit files, with the court, within 20 days after the filing of the complaint and the issuance of the summons in the suit, a bond with good and sufficient surety or sureties residing in this State or licensed to do business in this State or unless the court, in lieu of said bond, shall enter an order imposing a lien upon the plaintiff’s property as hereinafter provided.”

As the Department correctly argues, the above provision has been held to be mandatory. In Glasco Electric Co. v. Department of Revenue (1981), 86 Ill. 2d 346, 351, 427 N.E.2d 90, 92-93, our supreme court said:

“Thus, there can be no question that, prior to the expiration of the 20-day period following the filing of the complaint, the circuit court had jurisdiction. The question that arises is whether the court was divested of jurisdiction when the plaintiff’s bond was not filed within 20 days. In construing a statute it is of course fundamental that we seek to ascertain the legislature’s intention. We consider that the Department correctly contends that viewing the language ‘shall be dismissed’ in ‘the
context of the entire statute, looking particularly to the purpose of the legislation’ (Zimmerman Brush Co. v. Fair Employment Practices Com. (1980), 82 Ill. 2d 99, 103, [44 Ill. Dec. 308, 411 N.E.2d 277]), the provision that a bond is to be filed within 20 days is to be construed as mandatory. (See also Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 21, [15 Ill. Dec. 648, 373 N.E.2d 1332]; In re Armour (1974), 59 Ill. 2d 102, 104, [319 N.E.2d 496].) This construction is required to protect the Department’s interest against a taxpayer’s dissipating or otherwise disposing of assets while the review before the circuit court is pending. This, we judge, was certainly the legislature’s intent.”

Mandatory though the subject provision is, however, it can be waived. Indeed, it was waived by the Department in Glaseo where a phone conversation with the Illinois Attorney General’s office regarding the bond took place. But waiver is not an applicable theory here, since the Department specifically attempted to invoke and enforce the 20-day provision and then stood on its motion when the court refused to go along with its provision.

But there is another aspect to this matter which is most persuasive with us. And that is the very purpose of the statutory provision. Glaseo teaches us in no uncertain terms that the purpose of the mandatory 20-day provision is to protect the State’s interest against “a taxpayer’s dissipating or otherwise disposing of assets while the review before the circuit court is pending.” In Fredman Brothers Furniture Co. v. Department of Revenue (1982), 110 Ill. App. 3d 479, 480, 442 N.E.2d 627, 628, the Third District held that where there was an overpayment of sales tax, “the filing of a review bond is not mandated where the same is not required for the protection of the Department of Revenue.”

In the case sub judice, the bond was filed late in violation of the mandatory provision and there was no waiver or acquiescence by the Department. But the purpose of the Act — to protect the Department’s interest against dissipation or disposition of taxpayer’s assets — was still protected by the surety bond which was presented and approved by the court. Glaseo; Fredman.

It is also clear to us that this case should be determined upon its merits and not resolved by a lot of fancy procedural footwork and gamesmanship. The 20-day bond provision was up on September 16, yet the Department waited another 27 days before asking for a dismissal and judgment — and 17 days after the bond had been presented and approved by the court. Had the Department moved before the late bond was filed, the cause would indeed be in a different posture; but such is not the case. And it is useless to point to the statutory wording— “or the court on its own motion” — and argue that the court was required to act sua sponte. This is still an adversary system and no court is self-starting. It is unrealistic to expect busy trial judges to perpetually police every case pending and then expect them to do the attorneys’ work for them. The statute gives the court the power, but lawyers are required to follow, monitor and motivate the cases of their clients.

Although this case should be decided on its merits, such cannot be on the posture of this record. Unfortunately, the taxpayers of the State must necessarily forego an addition to the public coffers of whatever amount of use tax — if any — Tick Brothers rightfully owe. The Department of Revenue staked everything on its motion to dismiss the complaint. Its motion was denied and it was ordered to join issue by answer within 30 days. It failed to do so and was defaulted. The Department let everything ride on the motion — and lost. Herein lies the risk of placing all bets on a procedural hand. Although defaults are not favored, there is nothing here which would indicate a mistake, inadvertence, or misapprehension on the part of the Department — the scenario was knowingly and consciously crafted. It was a gamble, and the Department lost.

Affirmed.

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


author: JUSTICE RIZZI

text:
    SENN PARK NURSING CENTER et al., Plaintiffs-Appellants, v. JEFFREY C. MILLER, Director, Department of Public Aid, Defendant-Appellee.
    First District (Third Division)
    No. 81—2781
    Opinion filed September 28, 1983.

      Richard F. Zehnle, of Vedder, Price, Kaufman & Kammholz, of Chicago, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (William A. Wenzel, Special Assistant Attorney General, and Jennifer Rice, Senior Law Clerk, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiffs, Senn Park Nursing Center, Royal Gardens Nursing Center and Coventry Terrace Nursing Center, are the owners and operators of licensed skilled nursing facilities for the elderly and disabled. Defendant, Jeffrey C. Miller, is the director of the Illinois Department of Public Aid (IDEA), which is responsible for administering the Medicaid program in Illinois, including prospective reimbursement of facilities such as. those owned and operated by plaintiffs. On July 25, 1980, IDEA published a notice of emergency rulemaking along with the text of the rule (Emergency Rule 4.14221), to be effective July 16, 1980. The purpose of the emergency rule was to change the method of updating allowable reported health care costs for inflation. Defendant had previously attempted to change the method of calculating the inflation update factor by amending the State Medicaid plan, but on July 9, 1980, in a mandamus proceeding brought by these plaintiffs {Senn Park I), the amendment was held to be invalid due to defendant’s failure to comply with notice and comment requirements. After defendant caused the notice of emergency rulemaking to be published, plaintiffs filed a complaint for declaratory judgment in which they sought a declaration that emergency Rule 4.14221 was void and of no effect because there was no emergency as that term is defined by statute (Ill. Rev. Stat. 1979, ch. 127, par. 1005.02) and the rule was promulgated in violation of the applicable Federal notice requirements (42 C.F.R. sec. 447.205 (1979)).

On December 30, 1980, Emergency Rule 4.14221 was withdrawn. The parties subsequently filed cross-motions for summary judgment. In its order granting defendant’s motion for summary judgment and denying plaintiffs’ motion for summary judgment, the trial court found that (1) Emergency Rule 4.14221 was valid; (2) the action was not moot; and (3) plaintiffs’ monetary claims must be brought in the Illinois Court of Claims. On appeal plaintiffs contend that the trial court erred in finding that emergency Rule 4.14221 was valid and that their monetary claims must be brought in the Illinois Court of Claims. Defendant contends that this matter is moot. We affirm in part, reverse in part and remand.

Initially, we address defendant’s argument that this case is moot because (1) the emergency rule was withdrawn, (2) IDPA’s appropriations for fiscal years 1980 and 1981 have lapsed and (3) this action will be mooted by a reversal in Senn Park I.

A case is moot when it does not involve any actual controversy. Where the issues involved in the trial court no longer exist, an appellate court will not review a case merely to decide moot or abstract questions, to establish a precedent, or to determine the right to, or the liability for, costs, or in effect, to render a judgment to guide potential future litigation. (La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 378-79, 121 N.E.2d 486, 488.) According to defendant, there is currently no actual controversy between the parties because the emergency rule was withdrawn on December 30, 1980, and was replaced by a .duly promulgated rule which incorporated the challenged inflation update procedure. Plaintiffs, however, argue that the withdrawal of the emergency rule did not ipso facto render the controversy moot since monetary relief is also in issue. Plaintiffs contend that a decision regarding the validity of the emergency rule is still necessary in order to determine the amount of reinstatement they will be entitled to under the writ of mandamus to be issued in Senn Park I. We agree with plaintiffs.

If Emergency Rule 4.14221 is found to be invalid, then plaintiffs will be entitled to seek monetary relief from the date the rule went into effect until the date that it was withdrawn. On the other hand, if the emergency rule is found to be valid, plaintiffs will not be entitled to any recovery for that period. Thus, it is clear that there is an actual controversy and that a determination of the validity of Emergency Rule 4.14221 will affect substantial rights of the parties. (See Ashland Chemical Co. v. Pollution Control Board (1978), 57 Ill. App. 3d 1052, 1056, 373 N.E.2d 826, 829; Gribben v. Interstate Motor Freight System Co. (1958), 18 Ill. App. 2d 96, 102-03, 151 N.E.2d 443, 447.) Therefore, the trial court correctly determined that this action should not be dismissed as moot for want of an actual controversy.

In addition, we reject defendant’s contention that this action is moot because defendant's appropriations for fiscal years 1980 and 1981 have lapsed. In support of its position, defendant relies upon West Side Organization Health Services Corp. v. Thompson (1980), 79 Ill. 2d 503, 404 N.E.2d 208. In West Side Organization, plaintiffs sought to compel State officials to expend funds appropriated by the General Assembly for the use of the Dangerous Drugs Commission. Plaintiffs also sought relief which would have prevented the appropriation from lapsing, but the relief was denied. As a result, the appropriation lapsed according to statutory mandate (Ill. Rev. Stat. 1977, ch. 127, par. 161) while the appeal of the case was pending. The relevant portion of the lapse statute states:

“All appropriations shall be available for expenditure for the fiscal year or for a lesser period if the Act making that appropriation so specifies. A deficiency or emergency appropriation shall be available for expenditure only through June 30 of the year when the Act making that appropriation is enacted unless that Act otherwise provides.
Outstanding liabilities as of June 30, payable from appropriations which have otherwise expired, may be paid out of the expiring appropriations during the three-month period ending at the close of business on September 30.” (Ill. Rev. Stat. 1977, ch. 127, par. 161.)

The supreme court ruled that the appellate court erred in refusing to dismiss the appeal as moot in view of the unavailability of funds necessary for the granting of effectual relief to the parties involved. West Side Organization Health Services Corp. v. Thompson (1980), 79 Ill. 2d 503, 508, 404 N.E.2d 208, 211.

The situation here, however, is distinguishable from West Side Organization. The statute relating to the lapse of appropriations contains a third paragraph which was not at issue in West Side Organization. This paragraph states:

“However, medical payments may be made by the Department of Public Aid from its appropriations for that purpose for any fiscal year, without regard to the fact that the medical services being compensated for by such payment may have been rendered in a different fiscal year.” (Ill. Rev. Stat. 1979, ch. 127, par. 161.)

Defendant does not argue that the reimbursement which plaintiffs seek is not for medical services. He does, however, contend that IDPA has discretion as to whether or not payments for medical services rendered in prior years should be made. This contention is untenable under the facts of this case. Even if we were to assume that the use of the word “may” in the statute generally means that medical payments for services rendered in prior years are discretionary with defendant, defendant cannot be permitted to escape his obligation to plaintiffs by simply exercising his discretion to the detriment of plaintiffs. As will be discussed later in this opinion, defendant was required to reimburse plaintiffs in accordance with the formula in effect prior to his attempts to amend the method of calculating the inflation update factor. Such payments, of course, are not discretionary. Accordingly, we reject defendant’s argument that this case is moot because IDPA’s appropriations have lapsed.

Defendant’s additional contention that this case will be mooted by a reversal of the circuit court’s decision in Senn Park I must be rejected in view of our affirmance of that decision as modified in a separate opinion being issued today. See Senn Park Nursing Center v. Miller (1983), 118 Ill. App. 3d 504.

We next address the issue of whether the trial court properly concluded that Emergency Rule 4.14221 was valid. Flaintiffs argue that there was no emergency which justified enactment of the emergency rule. Section 5.02 of the Illinois Administrative Erocedure Act (IAEA) (Ill. Rev. Stat. 1979, ch. 127, par. 1005.02) defines an emergency and governs the manner in which emergency rules shall be promulgated. The statute provides:

“Sec. 5.02. Emergency rulemaking. ‘Emergency’ means the existence of any situation which any agency finds reasonably constitutes a threat to the public interest, safety or welfare. Where any agency finds that an emergency exists which requires adoption of a rule upon fewer days than is required by Section 5.01, and states in writing its reasons for that finding, the agency may adopt an emergency rule without prior notice or hearing, upon filing a notice of emergency rulemaking with the Secretary of State pursuant to section 6.01 of this Act. Such notice shall include the text of the emergency rule and shall be published in the Illinois Register. Subject to applicable constitutional or statutory provisions, an emergency rule becomes effective immediately upon filing pursuant to Section 6, or at a stated date less than 10 days thereafter. The agency’s finding and a statement of the specific reasons therefor shall be filed with the rule. The agency shall take reasonable and appropriate measures to make emergency rules known to the persons who may be affected by them.”

Plaintiffs argue that defendant’s reasons for finding an emergency as set forth in the notice of emergency rulemaking were insufficient to establish the existence of a situation which defendant reasonably could have found to constitute a threat to the public interest, safety or welfare. In the notice of emergency rulemaking, defendant stated that the existence of an emergency situation was demonstrated by the fact that the trial court’s decision in Senn Park I could result in a requirement that defendant reimburse nursing homes and members of the Illinois Council for Long Term Care in a manner other than that approved in title XIX of the State plan which has been approved by the Department of Health and Human Services (HHS). Therefore, defendant stated, the emergency rule was necessary to “1) assure reimbursement of nursing homes according to the approved State Plan and prevent risk of a loss of federal matching funds; and 2) assure that inflation factors are not overstated due to short term fluctuations and prevent the system from providing a disincentive to cost containment.” Another factor considered by defendant in support of his finding of an emergency was a letter he received from the Illinois council for Long Term Care demanding that defendant apply the order in Senn Park / to all nursing homes and long-term care facilities throughout the State.

We first address defendant’s contention that the ruling in Senn Park I created a risk of loss of Federal matching funds. According to defendant, the ruling created this risk because it prevented defendant from complying with Illinois law, which requires that the reimbursement rates established by defendant be consistent with Federal criteria for approval of matching funds. (Ill Rev. Stat. 1979, ch. 23, par. 5 — 5.6.) Defendant points out that under 42 U.S.C. sec. 1396a(a)(13)(E) and 45 C.F.R. sec. 201.6 (1979), Federal funding is conditioned upon the existence of an approved state plan which meets all Federal requirements, including the Medicaid requirement that States “assure that payments *** are not in excess of reasonable charges consistent with efficiency, economy, and quality of care” (42 U.S.C. Sec. 1396a(a)(30)). Moreover, defendant states, in determining nursing home payment rates, he was required to “reasonably take into account economic conditions and trends during the period for which the rates are set” (42 C.F.R. sec. 447.303 (1979)), and the payments must not have been either unnecessary or excessive (Medical Society v. Toia (2d Cir. 1977), 560 F.2d 535, 537; National Union of Hospital & Health Care Employees, RWDSU, AFL-CIO v. Carey (2d Cir. 1977), 557 F.2d 278, 279). Based on these provisions, defendant argues that since HHS had approved the inflation rate change that was found to be invalid in Senn Park I and such approval is necessary in order to be assured of continued Federal matching funds, any failure by the State to comply with the change which had been approved by HHS jeopardized the receipt of Federal funds. If HHS determines that a State is not in compliance with its approved State plan, HHS may withhold Federal funds in whole or in part. (42 U.S.C. Sec. 1396a(c).) We believe that defendant’s argument that the risk of loss of Federal matching funds created an emergency situation is untenable for several reasons.

The rule changing the inflation update procedure declared invalid in Senn Park I was originally proposed by defendant on December 14, 1979. Approval of this change by HHS did not occur, however, until May 14, 1980. Yet, defendant made payments in accordance with the new procedure prior to receiving the requisite approval. Apparently, defendant was not concerned at that time that payments which were not in accordance with the approved State plan would result in the loss of Federal matching funds. In addition, it appears that while the procedure for updating the inflation rate set forth in the December 14, 1979, notice of rulemaking is the same as the procedure set forth in the July 16, 1980, notice of emergency rulemaking, that procedure is not identical in all respects to the method approved by HHS on May 4, 1980. Defendant, however, has not expressed concern that Federal matching funds will be cut off due to this disparity. Furthermore, as plaintiffs point out, the change in the inflation update procedure was not initiated by any action taken by HHS. Under these circumstances, we believe that defendant’s finding of an emergency due to the risk of loss of Federal matching funds is based on mere speculation. It is unreasonable to assume that the Federal monies would be withheld if defendant failed to make payments pursuant to a rule which had been declared invalid by a State court.

In addition, it is important to recognize that the loss of Federal matching funds is not a step that could be taken lightly by HHS. Pursuant to 45 C.F.R. sec. 201.6(a) (1979), HHS can only withhold matching funds from a State if notice and an opportunity for a hearing have been given. Defendant does not claim to have received any notice. Moreover, the withholding of funds can only occur if, after the hearing, HHS finds that the State plan, or administration of the State plan, fails to comply with certain Federal statutory procedures. (45 C.F.R. sec. 201.6(a) (1979).) Since the method of updating the inflation update procedure which existed prior to defendant’s attempts to change that procedure must have been approved by HHS at one time, and there is no indication that HHS has ever withdrawn that approval, it is not likely that HHS would find that the original method of calculating the inflation update factor was not in compliance with Federal procedures. Finally, even if HHS were to make a finding of noncompliance, it could withhold payments only until “the Administrator is satisfied that there will no longer be any such failure to comply” (45 C.F.R. sec. 201.6(e)), a condition which defendant would not have difficulty fulfilling.

We therefore conclude that defendant’s statement in its notice of emergency rulemaking that an emergency existed due to the risk of loss of Federal matching funds is based on mere speculation and is wholly unsupportable, and that the finding of an emergency situation on that basis does not comport with the criteria necessary for establishing an emergency as that term is defined by the IAEA (Ill. Rev. Stat. 1979, ch. 127, par. 1005.02).

The second reason given by defendant for the necessity of issuing Emergency Rule 4.14221 was that the rule would “assure that inflation factors are not overstated due to short term fluctuations and prevent the system from providing a disincentive to cost containment.” In support of his argument that an emergency rule was necessary to accomplish this purpose, defendant again relies on the Federal requirement that the payments made by the States to health care providers not be in excess of reasonable charges consistent with “efficiency, economy, and quality of care” (42 U.S.C. sec. 1396a(a)(30)). According to defendant, the rule invalidated in Senn Park I reflected the agency’s compliance with this mandate, and the emergency rule at issue here represents his continuing attempt to comply with the Federal mandate in view of the ruling in Senn Park I. However, we do not believe that defendant’s efforts to comply with 42 U.S.C. sec. 1396a(a)(30) justified the finding of an emergency. Clearly, the provisions of that statute give the States wide latitude in determining the payments to be made under the Medicaid program. While defendant may reasonably believe that the change in the method of calculating the inflation update factor contained in Emergency Rule 4.14221 will ensure that inflation factors are not overstated and that providers will not have a disincentive to cost containment, we do not believe that these factors provide an adequate basis for the finding of an emergency. Nothing in the record suggests that HHS had expressed disapproval of the inflation update procedure in force prior to defendant’s attempted rule change because it was not in line with Federal requirements for Medicaid payments. We conclude that while assuring that inflation factors are not overstated due to short term fluctuations and preventing the system from providing a disincentive to cost containment may represent important considerations, they do not involve a situation which constitutes a threat to the public interest, safety or welfare.

Defendant’s final reason for finding that an emergency ■ existed was that following the decision in Senn Park I he received a demand from the Illinois Council on Long Term Care that its member nursing homes be reimbursed “in a manner other than that approved in the Title XIX State Plan, ” i.e., in a manner consistent with the ruling in Senn Park I. Defendant’s position must be rejected in view of our decision in Senn Park I where we affirmed the trial court’s ruling that defendant’s attempt to amend the State plan was invalid. Therefore, any payments made to members of the Illinois Council on Long Term Care under the pre-1980 inflation rate procedure would be proper, and, as previously discussed, would not create a risk of loss of Federal matching funds.

We next address the issue of whether defendant failed to comply with the notice and comment requirements of the Federal regulations. At the time Emergency Rule 4.14221 was promulgated, an agency was required under 42 C.F.R. sec. 447.205 (1979) to give notice of changes in statewide methodology or level of reimbursement. Pursuant to this regulation, the notice had to be published at least 60 days before the proposed effective date of the change. (42 C.F.R. sec. 447.205(d)(1) (1979).) In addition, the contents of the notice were to include an address where written comments could be sent and reviewed by the public. (42 C.F.R. sec. 447.205(c)(5) (1979).) Defendant does not deny that he did not comply with these provisions.

Subsequent to the enactment of Emergency Rule 4.14221, however, 42 C.F.R. sec. 447.205 was revised so that it no longer applies to nursing home providers. Instead, a new provision, 42 C.F.R. sec. 447.254, governs the notice and comment procedures applicable to nursing home providers. This provision eliminates the 60-day prior-notice requirement, requiring only that the notice “[b]e published before the proposed effective date of the change.” (42 C.F.R. sec. 447.254(d)(1) (1981).) The regulation retains, however, the requirement that an address be given where written comments may be sent and reviewed by the public. 42 C.F.R. sec. 447.254(c)(5) (1981).

Defendant argues that absent manifest injustice, the appellate court must apply the law in effect at the time it renders its decision (Seniors United for Action v. Ray (8th Cir. 1982), 675 F.2d 186, 189), and that no manifest injustice would result here if the new regulation were to be applied. Defendant further argues that the new regulation exempts changes required by court order from its requirement that public notice of any significant proposed change in methods and standards for setting payment rates be given. (42 C.F.R. sec. 447.254(b) (1981).) According to defendant, “The Senn Park I ruling clearly satisfies this exception to prior notice.” Plaintiffs do not dispute defendant’s contention that the new regulation is appliable here, but rather, they argue that defendant did not comply with the notice requirements of the new regulation and that the change in the inflation update method made by defendant did not come within the “court order” exception. We agree with plaintiffs.

Although the new regulation dispenses with the 60-day prior-notice requirement, it nevertheless still provides that a notice of emergency rulemaking must contain an address where the public may send comments. Clearly, defendant did not comply with this requirement. Moreover, defendant’s argument that compliance with notice and comment procedures was not required because the emergency rule fell within the “court order” exception is manifestly erroneous. According to HHS, the reason for this exemption is that public comment would serve no useful purpose where a change is necessitated by court order because a court order is binding on a Medicaid agency. ([1979] 2 Medicare & Medicaid Guide (CCH) sec. 29,630.) Here, defendant’s emergency rule did not implement a change ordered by the trial court in Senn Park I because the trial court in Senn Park I did not order defendant to change the inflation update procedure. Rather, the trial court declared defendant's amended inflation update procedure invalid because it had not been adopted in conformity with the notice and comment requirements of the IAPA and the applicable Federal regulations. As plaintiffs point out, “Emergency Rule 4.14221 is not the implementation of a procedure imposed by court order upon which notice and comment would not serve a useful purpose, but an attempt to circumvent the court’s finding that the proposed change was invalid precisely because the notice and comment procedure was not followed. The effect of the Circuit Court’s order was not to change a method of Medicaid reimbursement but to prevent such a change without the notice and comment procedure. To allow [the emergency rule] to come within the ‘court order’ exception is once again to defeat the very purpose for which such procedures were promulgated.” We therefore conclude that the emergency rule did not fall within the “court order” exception and that defendant failed to comply with the applicable Federal regulations when he adopted the emergency rule.

Although we agree with defendant that the existence of an emergency is primarily a matter for an agency’s discretion (Schenley Affiliated Brands Corp. v. Kirby (1981), 21 Cal. App. 3d 177, 194-95, 98 Cal. Rptr. 609, 623), courts are not conclusively bound by an agency’s determination that an emergency exists. (Poschman v. Dumke (1973), 31 Cal. App. 3d 932, 941, 107 Cal. Rptr. 596, 602.) The importance of judicial scrutiny of administrative actions cannot be overemphasized. The United States Supreme Court has stated that “[t]he rise of administrative bodies probably has been the most significant legal trend of the last century and perhaps more values today are affected by their decisions than by those of all the courts, review of administrative decisions apart.” (Federal Trade Com. v. Ruberoid Co. (1952), 343 U.S. 470, 487, 96 L. Ed. 1081, 1094, 72 S. Ct. 800, 810 (Jackson, J., dissenting).) The far-reaching effects of the decisions of administrative bodies make it imperative that the agencies adhere to the notice and comment procedures mandated by statute in adopting their rules and regulations. These procedures are at the core of the IAPA. Accordingly, agencies’ use of their emergency rulemaking authority, pursuant to which the notice and comment procedures are curtailed or bypassed, should be limited to those situations where it is clearly necessary so that the notice and comment procedures are not diluted. See Burns, Judicial Enforcement of the Illinois Administrative Procedure Act’s Rulemaking Provisions, 55 Chi-Kent L. Rev. 383, 389 n.35.

The circumstances resulting in the promulgation of the emergency rule at issue here are plainly inadequate to justify circumvention of the notice and comment procedures. The impetus for the adoption of the emergency rule was the trial court’s order in Senn Park I that defendant’s rule changing the method of calculating the inflation update factor was invalid, and the basis for the order was defendant’s failure to comply with the notice and comment procedures of the IAPA. We have today affirmed that part of the Senn Park I order, and it would defeat the purposes of the notice and comment procedures if an agency could dispense with such procedures by enacting an emergency rule where the “emergency” was created by the agency’s failure to follow these procedures in the first place. The “emergency” here was the result of an avoidable administrative failure to properly enact a rule in accordance with statutory requirements, and the reasons given by defendant in support of his finding of an emergency are all tainted by this fact. For all the above reasons, we conclude that Emergency Rule 4.14221 was not validly promulgated.

Finally, we address plaintiffs’ argument that the trial court erred in ordering that plaintiffs’ monetary claims must be brought in the Illinois Court of Claims. In support of the trial court’s order, defendant argues that “[plaintiffs are barred by the doctrine of Sovereign Immunity from attempting to collect any entitlement they may have to additional Medicaid reimbursement in either the Circuit Court or the Appellate Court.”

In regard to the doctrine of sovereign immunity, “An Act in relation to immunity for the State of Illinois” (Ill. Rev. Stat. 1979, ch. 127, par. 801) provides: “Except as provided in ‘An Act to create the Court of Claims, to prescribe its powers and duties, and to repeal An Act herein named’, filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court.” Section 8 of the Court of Claims Act states:

“The court shall have exclusive jurisdiction to hear and determine the following matters:
(a) All claims against the state founded upon any law of the State of Illinois, or upon any regulation thereunder by an executive or administrative officer or agency ***.
(b) All claims against the state founded upon any contract entered into with the State of Illinois.” (111. Rev. Stat. 1979, ch. 37, par. 439.8.)

Defendant argues that since plaintiffs each had a contract with IDEA, this case involves a contractual dispute and therefore the circuit court and the appellate court lack jurisdiction to determine the matter. We disagree.

The claims involved here are not founded upon contracts between plaintiffs and the State, but rather, are founded upon administrative rules and regulations. Thus, the critical issue here is whether this action was actually brought against the State. The determination of whether a suit is brought against the State and thus barred by the doctrine of sovereign immunity does not depend on the identity of the formal parties in the record, but on the issues involved and the relief sought. (Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 37, 101 N.E.2d 71, 72; Betts v. Department of Revenue (1979), 78 Ill. App. 3d 102, 107, 396 N.E.2d 1150, 1153.) Where suit is brought against a State official and the judgment, although nominally against the official, could operate to control the action of the State or subject it to liability, the cause is, in effect, a suit against the State (Boards of Education v. Cronin (1977), 54 Ill. App. 3d 584, 586, 370 N.E.2d 19, 21), although the mere fact that an action would cause money to be paid from the State treasury is not dispositive of the issue (Board of Education v. Cronin (1979), 69 Ill. App. 3d 472, 474, 388 N.E.2d 72, 74). In contrast, where an action seeks to prevent a State official from acting in accordance with an unconstitutional statute, failing to do what he is required by law to do, or taking action beyond his powers, it is a suit against the State official, not against the State itself. (Board of Education v. Cronin (1979), 69 Ill. App. 3d 472, 474, 388 N.E.2d 72, 74; Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 37, 101 N.E.2d 71, 72; Sass v. Kramer (1978), 72 Ill. 2d 485, 492, 381 N.E.2d 975, 977; Valley View Community Unit School District No. 365U v. Cronin (1978), 65 Ill. App. 3d 870, 872, 382 N.E.2d 1298, 1299; See County of Cook v. Ogilvie (1972), 50 Ill. 2d 379, 383, 280 N.E.2d 224, 226.) In this regard, an action to compel a public official to perform a clear and mandatory duty is not a suit against the State. (John M. Bransfield Co. v. Kingery (1936), 283 Ill. App. 405, 412-13; see People v. Stevenson (1916), 272 Ill. 215, 220-21, 111 N.E. 595, 597.) This is because “ ‘[t]he presumption obtains that the State, or a department thereof, will not, and does not, violate the constitution and laws of the State, but that such violation, if it occurs, is by a State officer or the head of a department of the State, and such officer or head may be restrained by a proper action instituted by a citizen.’ ” City of Springfield v. Allphin (1978), 74 Ill. 2d 117, 124, 384 N.E.2d 310, 313, quoting Schwing v. Miles (1937), 367 Ill. 436, 441-42, 11 N.E.2d 944, 947.

Applying these principles to the case before us, we conclude that this action was properly brought in the circuit court and that the circuit court erred in deciding that plaintiffs could only seek monetary relief in the Illinois Court of Claims. The central issue in this action is whether defendant properly promulgated Emergency Rule 4.14221. Since the basis of plaintiffs’ action is that defendant was proceeding in violation of the law by his failure to comply with the statutory prerequisites for enacting an emergency rule, the action is properly against the defendant, not against the State itself. (See Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 37, 101 N.E.2d 71, 72-73; City of Springfield v. Allphin (1978), 74 Ill. 2d 117, 124-26, 384 N.E.2d 310, 312-14.) Additionally, the Illinois Court of Claims does not have exclusive jurisdiction to hear and determine claims against the State founded upon Federal regulations. (See Ill. Rev. Stat. 1979, ch. 37, par. 439.8.) Therefore, defendant’s argument that this action had to be brought in the Hlinois Court of Claims because it is a breach of contract action against the State must fail.

Accordingly, we affirm that part of the circuit court order providing that this case is not moot. We reverse that part of the order which provides that Emergency Rule 4.14221 is valid and that plaintiffs’ monetary claims must be brought in the Illinois Court of Claims. The case is remanded for further proceedings consistent with this opinion.

Affirmed in part, reversed in part and remanded.

McNAMARA, P.J., and WHITE, J., concur.

        Senn Park I is being affirmed as modified in a separate opinion filed today. Senn Park Nursing Center v. Miller (1983), 118 Ill. App. 3d 504.

      This section has been redesignated as 42 U.S.C. sec. 1396a(a)(13)(A), and it no longer requires that HHS approve and verify the State’s cost-finding methods. See Senn Park Nursing Center v. Miller (1983), 118 Ill. App. 3d 504, 507, 509.