author: JUSTICE LEWIS

text:
    ILLINI FEDERAL SAVINGS & LOAN ASSOCIATION, Plaintiff-Counterdefendant-Appellant and Cross-Appellee, v. ELSAH HILLS CORPORATION et al., Defendants.—(David Bailey et al., Intervening Counterplaintiffs-Appellees and Cross-Appellants.)
    Fourth District
    No. 4—82—0231
    Opinion filed January 26, 1983.

      James H. Bandy, of Listeman, Bandy & Hamilton, of Belleville, and W. Stanley Walch and John W. Finger, both of Thompson & Mitchell, of St. Louis, Missouri, for appellant.
    Claude J. Davis, of Suddes, Davis & Wittman, of Jerseyville, for appellees.
   JUSTICE LEWIS

delivered the opinion of the court:

This declaratory judgment action was brought in the circuit court of Jersey County for construction of restrictive covenants affecting land use in a subdivision. The trial court granted in part and denied in part summary judgment for intervening counterplaintiffs, David Bailey et al. (Bailey), and against plaintiff, Illini Federal Savings & Loan Association (Illini). Judgment was entered on the court’s finding. Illini appeals and Bailey cross-appeals. We affirm.

In 1963, Elsah Hills Corporation had legal title to approximately 60 acres and was purchasing on contract 200 acres less the previously acquired 60 acres, all in Jersey County, Illinois. On December 30, 1963, the corporation recorded a document entitled “Subdivision Restrictions” with the county recorder. During 1963 and over the next 14 years, the corporation sold lots within the 60-acre tract to over 60 title holders. On December 2, 1977, Illini acquired (by means not appearing of record) title to the 140-acre balance as well as several lots within the 60 acres. The 140 acres is in two noncontiguous parcels and was never assigned lot lines or numbers.

On June 5, 1979, a document was recorded which purported to make changes in the original subdivision restrictions as allowed by its procedures for amendment. On May 29, 1981, Illini filed this declaratory judgment action against Elsah Hills Corporation. Illini maintained that the subdivision’s restrictive covenants prohibited amendments until December 31,1983, 20 years after their initial recording.

The trial court granted leave to intervene to a group of lot owners led by David Bailey. On July 23, 1981, they filed a countercomplaint seeking a declaration that the 1979 amendments to the restrictive covenants went into effect immediately upon their recording and that covenants in the original restrictions applying only to “lots” were equally applicable to the two parcels making up mini’s unsubdivided 140 acres.

Defendants Elsah Hills et al. (Elsah Hills) moved for summary judgment against Illini on its complaint and said motion was denied. (Elsah Hills did not cross-appeal.) Bailey moved for summary judgment on his complaint. The court denied the motion as to the effective date of the amendments, but granted the motion regarding the scope of the original restrictions. Judgment was entered on that finding.

Paragraph 23 of the original “Subdivision Restrictions” provides:

“These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty (20) years, from the date these covenants are recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by a three-fourths (3k) majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part.”

Illini maintains that amendments can only be recorded after the lapse of the first 20-year period. Thus, its prayer for relief requests that the 1979 amendments be declared null and void and be expunged from the record of the Jersey County recorder’s office. Bailey argues that the amendatory clause allows for amendments at any time and that they become effective immediately upon recording. We believe that neither interpretation follows the natural meaning of the language.

First, the interpretation by Illini is patently wrong. The provision clearly states that unless properly amended, the covenants will be automatically extended for 10 more years at the end of the 20-year period. The covenants are not amended until an instrument so doing is recorded. If no amendatory instrument was recorded prior to December 31, 1983, the original restrictions would have continued in effect for 10 more years. Using the same reasoning, a clause almost identical to the one here was also so construed in Failla v. Meaux (La. App. 1970), 237 So. 2d 688. We conclude that it was appropriate to record amendments any time after the recording of the original restrictions.

Bailey maintains that amendments become effective immediately upon being recorded. In order for the paragraph in question to have this meaning, the last clause “unless an instrument signed by a three-fourths (3/é) majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part” must be found to modify the entire sentence rather than the immediately preceding clause, “after which time said covenants shall be automatically extended for successive periods of ten (10) years.” Neither rules of construction nor logic countenance such a result.

According to the “last antecedent clause” rule of construction, a qualifying phrase is to be confined to the last antecedent unless there is something in the instrument requiring a different construction. (Zimmerman v. Willard (1885), 114 Ill. 364, 2 N.E. 70; Storybook Homes, Inc. v. Carlson (1974), 19 Ill. App. 3d 579, 312 N.E.2d 27; Tondre v. Pontiac School District No. 105 (1975), 33 Ill. App. 3d 838, 342 N.E.2d 290.) Not only is there nothing in the instrument requiring a different construction, if the restrictions can be amended at any time, the 20-year and successive 10-year time periods would be rendered meaningless. Meaning and effect must be given each part of an instrument and it is presumed that each provision served a purpose. (White v. White (1978), 62 Ill. App. 3d 375, 378 N.E.2d 1255.) It may have been intended that the period in which no amendment may take effect would serve as a time of stability to allow for long-term planning on the part of the property owners without the fear of immediate changes in restrictions. In any event, the 20-year period is in the provision, and no reason has been advanced as to why it should be ignored. See White v. Lewis (1972), 253 Ark. 476, 487 S.W.2d 615; Robinson v. Morris (La. App. 1973), 272 So. 2d 444.

The record contains an affidavit by Carol Beldon, an officer and director of Elsah Hills Corporation. Beldon, one of the drafters of the “Subdivision Restrictions,” states that it was the intention of the drafters to permit amendments during the 20-year period. The affidavit is extrinsic evidence and may not be considered in order to contradict the clear meaning of the instrument. (Storybook.) Furthermore, the affidavit was apparently drafted by an attorney for purposes of this litigation and as such is self-serving and not particularly helpful in finding intent and purpose. Diamond Bar Development Corp. v. Superior Court (1976), 60 Cal. App. 3d 330, 131 Cal. Rptr. 458.

The trial court made no specific finding on the effective date of the amendments, but only refused to grant summary judgment on the position taken by Bailey. We affirm, based on the conclusion that the amendments to the original restrictions become effective after December 30, 1983.

Construction of the second disputed aspect of the restrictions requires a much more detailed examination of the instrument entitled “Subdivision Restrictions.” It begins with the legal description of the 60 acres to which Elsah Hills Corporation had title in 1963 and of the 140 acres which was being purchased under contract. It then states:

“WHEREAS, said Elsah Hills Corporation is about to subdivide and sell said real property now owned by it and subsequently to subdivide and sell said real estate being purchased by it, and desires in that behalf, for the benefit of itself and the several purchasers of lots or parcels of said real property to prescribe certain standards, relating to the use and occupation of such real property.
NOW, THEREFORE, in consideration of the premises, and for the uses and purposes herein set forth, said Elsah Hills Corporation hereby declares that all conveyances of lots or parcels of said real estate comprised in the above described real estate made by said Elsah Hills Corporation, its grantees, successors and assigns, shall be subject to the conditions, provisions, restrictions and covenants hereinafter referred to as ‘conditions’, which shall apply to and bind the parties thereto, their heirs, successors, grantees, mortgagees and assigns.”

There follow 25 provisions, 17 of which are proscriptions pertaining to land use. The balance are procedural or entitling in nature. Fifteen of the seventeen proscriptive provisions (Nos. 1-9, 12-15, 18, and 20) either are worded “no lot shall ***” or describe an activity which shall not be done “on any lot.” Provision No. 10 forbids billboards on “any of said property,” and provision No. 11 prohibits the keeping of livestock on “any lot or parcel.” In toto, the restrictions prescribe conditions for a subdivision consisting of single family dwellings. The instrument contains no definition of either “lot” or “parcel.”

Illini concedes that the recorded “Subdivision Restrictions” applies to all 200 acres in which Elsah Hills Corporation at one time had an interest. However, it contends that the two “parcels” which make up the unsubdivided 140 acres are not subject to the 15 proscriptive provisions which refer only to “lots.” This assertion is mainly based on the argument that since the drafters referred to “lots and parcels” in the preamble, and thereafter applied some restrictions only to lots, and others to lots and parcels, then they intended to distinguish between the two. “The expression in a contract of one or more things of a class implies the exclusion of all not expressed.” (Suga v. Suga (1962), 35 Ill. App. 2d 355, 359, 182 N.E.2d 922, 924.) We think the instrument itself raises serious doubts as to whether the drafters intended such a fine distinction.

The term “parcels” is only found four times in the instrument; twice in the preamble, in the prohibition of livestock, and the $25 per year limit on regular assessments. In all four instances, it is used in conjunction with “lots.” Illini makes no attempt to distinguish between a “lot” and a “parcel,” but merely maintains that a distinction must exist. Applying Illini’s strict construction to the entire instrument, parcel owners are: (1) liable for general assessments, but are not subject to the delineated collection procedures; (2) are not subject to special assessments; (3) cannot vote on amendments to the restrictive covenants; and (4) cannot vote on the composition of the subdivision building committee. We think it unlikely that the draftsmen intended such a result.

Paragraph 11 of the restrictions prohibits the keeping of livestock on “lots and parcels.” However, paragraph 10 prohibits billboards on “any of said property.” Either there is something other than a lot or parcel on which livestock can be kept, or, and more likely, the drafters were inconsistent in their use of language even in contiguous paragraphs.

Illini has suggested that the two proscriptive covenants which apply to more than merely “lots,” i.e., the prohibitions against livestock and billboards, are of a distinctive nature, and that many of the other proscriptive covenants could not logically be applied to a large parcel. For example, Illini would be limited to building only one dwelling on each of the two parcels making up the 140 acres. We conclude that this presents no barrier inasmuch as the parcel can be subdivided into lots, thus allowing more dwellings, and as discussed hereunder, such subdivision was intended. Furthermore, there is no logical reason why parcels would not have been made subject to many of the remaining covenants such as those prohibiting (1) water and sewage systems not in compliance with the State Board of Health regulations, (2) obnoxious activities, (3) construction without approval of the building committee, and (4) fences on comers which obstruct vision from roadways.

Also, the intention of the drafters should not be determined by referring to particular words or isolated phrases (Leiter v. Fleetwood Realty Corp. (1981), 95 Ill. App. 3d 212, 419 N.E.2d 519), but each part should be viewed in the light of the other parts (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 154 NE.2d 683). The preamble states that Elsah Hills Corporation’s intent was to subdivide and sell all 200 acres, and that the restrictions were being imposed for the benefit of itself and the purchasers. We think it clear from the preamble that Elsah Hills Corporation intended all of the restrictions to apply to all of the property in order to encourage sales of the lots, and at worst, the confused use of terminology in the body of the instrument creates an ambiguity.

An examination of the extrinsic evidence supports the position that Elsah Hills intended all of the restrictions to apply to all the property. Within this opinion is a reproduction of a brochure describing the planned Elsah Hills subdivision. The brochure was attached to an affidavit by Bailey and submitted for consideration in his motion for summary judgment. His uncontradicted statement was that the brochure was handed to him at the time he considered purchasing a lot in Elsah Hills.

Illini’s two parcels are shown as located in the south central, and far east, plus far north areas of the subdivision and are labeled future development. These sections of the map contain dotted lines showing the prospective lots and streets. The unsubdivided property virtually surrounds the existing lots. We note that when the subdivided restrictions were recorded, Elsah Hills Corporation was not owner of record of the 140 acres, and thus it had not been subdivided. The record does not reflect whether Elsah Hills Corporation ever gained title to the 140 acres.

The first sentence of the second paragraph of the brochure reads, “Spacious lots of about one acre are laid out on high, broad ridges of a two hundred acre tract adjacent to Principia College.” The brochure is clearly an attempt to attract prospective residential homeowners to a 200-acre subdivision containing only single-family dwellings. We think it patently obvious that a developer would wish to assure prospective homeowners in such a subdivision that the surrounding land would also be used for single-family dwellings. As declared in its preamble, it is for that purpose that the subdivision restrictions were drafted and recorded.

Illini argues that the previously discussed attempt by the lot owners to amend the restrictive covenants, and certain comments contained in a letter written by David Bailey and circulated with the proposed amendments among the lot owners show that the lot owners knew that not all of the existing restrictions applied to the 140 acres. We think that the same is only evidence that the lot owners were concerned as to how the restrictive covenants might be construed. It sheds little light on the intent of the drafters. We conclude that Elsah Hills Corporation’s intent was to subdivide the entire 200-acre tract, and that each and every covenant of the “Subdivision Restrictions” was to apply to all 200 acres. Since we decide that “lots” and “parcels” are equivalent terms within the “Subdivision Restrictions,” we need not consider whether the subdivision lot owners would be entitled to equitable relief in the absence of applicable recorded covenants.

Affirmed.

MILLS and TRAPP, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WHITE

license: Public Domain

text:
    THE CHICAGO RIDGE PARK DISTRICT, Plaintiff-Appellee, v. THE OAK LAWN PARK DISTRICT et al., Defendants-Appellants.
    First District (3rd Division)
    No. 80—3241
    Opinion filed February 2, 1983.
    Thomas J. Farrell, of Oak Lawn, for appellants.
    Barry L. Moss, of Moss and Bloomberg, Ltd., of Bolingbrook, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

On October 17, 1980, certain voters in the village of Chicago Ridge brought an action in the circuit court of Cook County seeking disconnection of described territory from the Oak Lawn Park District and annexation of the territory to Chicago Ridge Park District. Defendants-appellants’ motion to dismiss this action was denied. The circuit court ordered submission of the proposition to the voters in an election on February 24, 1981. At that election the proposition was passed overwhelmingly. This appeal is from the order which ordered the election. We are asked to reverse the order for the election and to set aside the election results.

Appellants raise no issue of the propriety of the procedures followed or of fraud in the election. They question only the sufficiency of the petitions calling for the election. Appellants maintain that the election consolidation act (Ill. Rev. Stat. 1979, ch. 46, par. 28 — 2) which became effective December 1, 1980, applied to this election even though the petitions for this election were circulated before the effective date of the act. It is their contention that such application is not unconstitutionally retroactive. We agree. See Korte-Reinheimer v. City Council (1981), 94 Ill. App. 3d 219, 225, 418 N.E.2d 783; Weisberg v. Byrne (1981), 92 Ill. App. 3d 780, 784, 416 N.E.2d 298.

Appellants further maintain that the court ordered election on February 24, 1981, pursuant to petitions calling for an election on the disconnection/annexation proposal on “November 22, 1980, or such other time as the court may deem proper” was in contravention of the election consolidation act, which provides in pertinent part:

“A petition *** initiating the submission of a public question may specify a regular election at which the question is to be submitted, and must so specify if the statute authorizing the public question requires submission at a particular election. *** A petition *** initiating a public question which specifies a particular election at which the question is to be submitted shall be so limited, and shall not be valid as to any other election ***.
If a petition *** does not specify a regularly scheduled election, the public question shall be submitted to referendum at the next regular election ***.” (Ill. Rev. Stat. 1979, ch. 46, par. 28-2.)

Appellants argue that the petitions which the voters signed were valid only as to an election held on November 22, 1980, and point to the provision that “a petition *** which specifies a particular election at which the question is to be submitted shall be so limited and shall not be valid as to any other election” to support their contention. The weakness of this argument is that although the petitions in this case state a date for the election, they also state “or such other time as the court may deem proper.” No reason has been advanced as to why these words should not be given their plain, ordinary meaning. To do so would comport with the goals of this election reform act. As was said in Korte-Reinheimer:

“With respect to the evils to be remedied, it is clear that the legislature in section 28 — 2 sought to avoid the confusion emanating from circulating a petition setting a proposition for consideration at one election which does not take place on the appointed day, as well as precluding the unfairness inherent in obscuring consideration of important questions by shifting the elections thereon from one date to another or still others.” Korte-Reinheimer v. City Council (1981), 94 Ill. App. 3d 219, 226.

In the instant case, the petitioning registered voters received precisely what they requested. The language of their petition indicated that the November 22 date was a tentative one when it prayed in the alternative “or such other time as the court may deem proper.” When the petition to annex was tiled in the circuit court of Cook County on October 17, 1980, November 22 was a proper date for an election on an annexation proposal. Under the Election Code at that time, the date on which such an election could be held was within the trial judge’s discretion. (See Ill. Rev. Stat. 1979, ch. 105, pars. 3 — 12, 3— 3.) Appellants, who now urge that November 22, 1980, was the only proper election date, initiated proceedings in the form of motions in the trial court which extended the court’s certification proceedings beyond that date. As a result, the election was not held on November 22, 1980. On December 22, 1980, the trial judge granted appellee leave to amend its petition to conform to the requirements of the election consolidation act, which had become effective December 1, 1980. The date for which the trial court rescheduled the election, February 24, 1981, was consistent with the requirements of the act. (See III. Rev. Stat. 1979, ch. 46, pars. 28 — 2, 2A — 1.1(b).) Under section 28 — 2, “[a] petition *** may specify a regular election at which the question is to be submitted ***” but it need not. If it does not, “the public question shall be submitted to referendum at the next regular election ***.” (Ill. Rev. Stat. 1979, ch. 46, par. 28-2.) The date of the next regular election as provided by the act was the fourth Tuesday in February, i.e., February 24, 1981 (Ill. Rev. Stat. 1979, ch. 46, par. 2A— 1.1(b)), and the trial court ordered the election on that date.

Appellants rely on Korte-Reinheimer v. City Council (1981), 94 Ill. App. 3d 219. In that case, appellee filed a petition setting forth a public question to the electorate of the city of Palos Hills. The petition requested that the election take place on or before August 26, 1980. However, the trial court issued a writ of mandamus ordering a new date to be set for the election sometime after December 1, 1980. This court reversed the trial court’s order on the ground that due to the requirements of section 28 — 2 of the election consolidation act, the petition in question was valid only as to the date specified. As to other dates, the petition was void and the election held pursuant to it was invalid.

Korte-Reinheimer is distinguishable from the case at bar for a number of reasons. First, because the petitions in Korte-Reinheimer stated that the election was to be held on or before August 20, their validity was limited to that period of time. In the present case, although the petitions stated that the election was to be held on November 22, 1980, they also stated “or such other time as the court may deem proper.” Second, in Korte-Reinheimer the date on which the election was to be held was changed a number of times which could have the effect of obscuring the question and confusing the electorate. Here, however, there was none of that shifting of election dates and resulting confusion and unfairness, and the appellants do not allege that there was any improper voting. We conclude, therefore, that the election held pursuant to appellee’s petition complied with the requirements of the election consolidation act.

Accordingly, we affirm the order of the circuit court of Cook County.

Affirmed.

McNAMARA, P.J., and RIZZI, JJ., concur.

      This was the language used on all the petitions signed by the voters. These signed petitions were filed in the circuit court of Cook County. They were attached to a pleading headed “Petition” which mentioned only a November 22, 1980, date and omitted “or such other time as the court may deem proper.”


author: JUSTICE O’CONNOR JUSTICE O’CONNOR

text:
    JOE ANN McCLANDON, Plaintiff-Appellant, v. BELL AND HOWELL SCHOOLS, Defendant-Appellee.
    First District (1st Division)
    No. 81—2100
    Opinion filed January 10, 1983.
    — Supplemental opinion filed on denial of rehearing February 28, 1983.

      Roslyn C. Lieb, of Northwestern University Legal Clinic, of Chicago, for appellant.

      Marian C. Haney, of Vedder, Price, Kaufman & Kammholz, of Chicago, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, Joe Ann McClandon, filed suit on November 25, 1980, in the circuit court of Cook County charging defendant, Bell and Howell Schools, with employment discrimination in violation of the Illinois Human Rights Act (IHRA) (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1 — 101 et seq.), of article I, section 17 of the 1970 Illinois Constitution and of section 1981 of the Civil Rights Act of 1866 (42 U.S.C. sec. 1981 (1974)).

Counts I and II allege employment discrimination with respect to plaintiff’s salary and job classification and retaliation for the filing of a discrimination charge. The jurisdiction for these counts is based on section 8.01a of the Fair Employment Practices Act (FEPA) (Ill. Rev. Stat. 1979, ch. 48, par. 858.01a; repealed and replaced by section 9— 102(B)(1) of the IHRA, Ill. Rev. Stat., 1980 Supp., ch. 68, par. 9— 102(B)(1)). Count III is based on 42 U.S.C. sec. 1981 (1976) and alleges race discrimination by the defendant in its treatment of plaintiff’s salary and job classifications. Count IV alleges race and sex discrimination under article I, section 17 of the Illinois Constitution.

On May 4, 1981, the trial court dismissed plaintiff’s complaint with prejudice. Upon defendant’s motion, the trial court found: the jurisdictional predicate for counts I and II, section 8.01a of the FEPA, was unconstitutional; count III did not state a cause of action and was time barred; and count IV was time barred. On July 23, 1981, the court, on plaintiff’s motion, refused to reconsider its judgment and denied plaintiff the opportunity to file an amended complaint. Plaintiff’s motion in this respect included a proposed amended complaint.

Plaintiff appeals, contending (1) section 8.01a of the FEPA is constitutional; (2) her claim brought pursuant to 42 U.S.C. sec. 1981 (1976) states a cause of action and is not time barred; (3) the claim of race and sex discrimination in employment practices under the Illinois Constitution is not time barred; and (4) the trial court abused its discretion in refusing to allow plaintiff leave to amend her complaint.

Plaintiff started working for defendant in October 1974 as a data entry supervisor. On December 1, 1974, she was assigned additional responsibilities without any additional compensation. In October 1975 plaintiff’s position was upgraded without a salary increase. During the four-month period beginning in October 1974 and ending April 1975 plaintiff was not compensated for overtime work. After filing the initial charge of employment discrimination in October 1975, some of plaintiff’s authority and job responsibilities were removed by defendant. Plaintiff remained on the job until August 1976.

Conciliation attempts between plaintiff and defendant apparently failed. The FEPC then issued an administrative complaint against defendant on November 22, 1977. On December 4, 1978, the FEPC informed plaintiff of her right to pursue the claims on her own in the circuit courts. This notice was in response to the addition of section 8.01a to the FEPA which provided a remedy for certain individuals whose discrimination charges were not acted upon by the FEPC within the 180-day time limit. Ill. Rev. Stat. 1979, ch. 48, par. 858.01a.

After an administrative law judge refused to dismiss the FEPC complaint, defendant instituted an action for declaratory relief on February 21, 1979. In that matter, Bell and Howell Schools v. Earle Tockman and Joe Ann McClandon, No. 79 CH 1085, the circuit court dismissed the action upon FEPC’s motion to dispose of the case. The court's order, dated July 2, 1980, also stated that the FEPC was without jurisdiction to proceed on plaintiff’s charges then before it.

On September 10, 1980, the Illinois Human Rights Commission (Commission) (successor to the FEPC) dismissed for lack of jurisdiction the administrative complaint relative to plaintiff’s charges. As mentioned above, plaintiff then filed her present action.

Since the trial court’s dismissal of this cause and the pendency of this appeal three cases have been decided which control our review of the issues before us. In Wilson v. All-Steel, Inc. (1981), 87 Ill. 2d 28, 428 N.E.2d 489, the Illinois Supreme Court determined that section 9 — 102(B) of the IHRA is unconstitutional special legislation. Insofar as section 9 — 102(B) is the successor statute to section 8.01a, we are constrained to find that the trial court’s ruling that section 8.01a is unconstitutional is correct. Thus, plaintiff’s rights cannot be predicated upon it.

However, in a case with many factual similarities the United States Supreme Court found that an individual’s access to the FEPA’s adjudicatory procedures was a property interest protected by the due process clause of the fourteenth amendment. (Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 71 L. Ed. 2d 265, 101 S. Ct. 1345.) In Logan, the petitioner sought resolution of employment discrimination charges with the FEPC. The FEPC failed to convene a fact-finding conference within the prescribed 120 days of the filing of the charges. The Illinois Supreme Court determined that the FEPC lacked jurisdiction because the 120-day period was mandatory. (See Zimmerman Brush Co. v. Fair Employment Practices Com. (1980), 82 Ill. 2d 99, 411 N.E.2d 277.) In reversing this determination, the United States Supreme Court found that Logan was deprived of a property right without due process when an administrative delay (for which he was not responsible) led to the dismissal of his complaint.

In Lott v. Governers State University (1982), 106 Ill. App. 3d 851, 436 N.E.2d 569, the original issue on appeal was whether a suit against the State under section 9 — 102(B) of the IHRA could seek monetary damages. The court stated that this issue became moot after the supreme court’s decision in Wilson invalidating that section. (106 Ill. App. 3d 851, 852.) This court was then confronted with the dilemma of reconciling Wilson and Logan. First we found that plaintiff had a protected property interest in his employment discrimination claim and that he could not constitutionally be deprived of that interest by the inaction of the FEPC. (106 Ill. App. 3d 851, 854.) In determining what process was due plaintiff, we said (106 Ill. App. 3d 851, 855):

«*** In Logan v. Zimmerman Brush Co., the court found that ‘Logan is entitled to have the Commission [FEPC] consider the merits of his charge, based on the substantiality of the available evidence, before deciding whether to terminate his claim.’ ([455] U.S. [422], [434], 71 L. Ed. 2d 265, 277, 102 S. Ct. 1148, 1157.) The same minimum process is due the plaintiff here. Lott is entitled to have the Department of Human Rights and the Human Rights Commission (the successors to the FEPC) consider the merits of his discrimination charge in accordance with the procedures set out in articles 7 and 8 of the IHRA. The IHRA provides that the Department of Human Rights must accept and investigate charges of civil rights violations. The Department may, upon determining that there is no substantial evidence of a violation, dismiss the complaint. When a complaint is supported by sufficient evidence and there has been no settlement or adjustment through conciliation, the Department must file a written complaint with the Human Rights Commission, which is empowered to adjudicate the dispute and enforce its findings. See Ill. Rev. Stat., 1980 Supp., ch. 68, pars. 7 — 102, 8 — 102.
It follows that the Department of Human Rights and the Human Rights Commission are necessary parties in this action. Upon remand to the trial court, plaintiff should be permitted to amend his complaint and add these entities as parties defendant. (See Ill. Rev. Stat. 1979, ch. 110, par. 26 (new parties may be added, by order of court, at any stage of the cause, as justice may require).) The trial court should then order the Department to accept and process plaintiff’s charge as set out in the IHRA. We foresee no limitations problem here, as plaintiff’s original charge was timely brought before the FEPC.”

We agree with this determination and find plaintiff here to be in a similar position. Accordingly, counts I and II are remanded so that plaintiff may amend those counts and add the appropriate entities as parties defendant.

Defendant argues that plaintiff may not now argue the constitutionality of section 8.01a because of the disposition of the earlier declaratory action. In light of Wilson, this is now not at issue. Defendant further argues that Lott is not applicable because it did not consider the defendant’s due process rights. It is specifically argued that the dismissal of the administrative complaint was not defendant’s fault and to subject defendant to further proceedings would potentially subject it to increased back-pay liability. We recognize that an employer has a right to an expeditious determination of his liability (87 Ill. 2d 28, 36); plaintiff, however, “is entitled to have the Commission consider the merits of his charge, based upon the substantiality of the available evidence, before deciding whether to terminate [her] claim.” (Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 434, 71 L. Ed. 2d 265, 277, 102 S. Ct. 1148, 1156.) Since plaintiff left defendant’s employ in August 1976, it is doubtful that further proceedings will result in increased liability other than that normally encountered by litigants engaged in our appellate process.

To the extent this decision may be considered retroactive in application, we find the result reached in this case will not be an undue hardship on the parties involved. Considering the particular relations and conduct of the parties to this case and the rights asserted by them, we feel this decision to be appropriate in light of public policy and the statutory scheme involved. See Linkletter v. Walker (1965), 381 U.S. 618,14 L. Ed. 2d 601, 85 S. Ct. 1731.

Count III, based on 42 U.S.C. sec. 1981 (1976), claims that plaintiff was not compensated for overtime work, that she was assigned additional job responsibilities without an increase in rate of pay and that when her position was finally upgraded she was not given a salary increase as were other nonblack employees. Count IV makes similar allegations based upon article 1, section 17, of the Illinois Constitution. The trial court found these counts were time-barred largely in response to defendant’s argument that there are no allegations of continuing violations of plaintiff’s right to be free from employment discrimination. See United Air Lines, Inc. v. Evans (1977), 431 U.S. 553, 52 L. Ed. 2d 571, 97 S. Ct. 1885; Patterson v. General Motors Corp. (7th Cir. 1980), 631 F.2d 476, cert. denied (1981), 451 U.S. 914, 68 L. Ed. 2d 304, 101 S. Ct. 1988.

On appeal, plaintiff argues that her complaint does indeed make allegations of continuing violations of her rights. She argues that the discriminatory pay scheme and defendant’s acts of retaliation continued until August 1976, when she left the company after the division with which she worked went out of existence. It is clear to us, after examination of the complaint, that it is deficient for the lack of allegations of continuing violations.

This determination, however, is not entirely dispositive of this issue. Plaintiff requested leave to file an amended complaint which would allegedly cure the defects by sufficiently alleging continuing violations on the part of defendant so as not to be barred by the five-year limitations period for bringing a section 1981 action (see Waters v. Wisconsin Steel Works of International Harvester Co. (7th Cir. 1970), 427 F.2d 476, cert. denied (1970), 400 U.S. 911, 27 L. Ed. 2d 151, 91 S. Ct. 137) or for bringing an action under the Illinois constitutional provision. As noted above, plaintiff included her proposed amended complaint with her motion to reconsider or, alternatively, for leave to file an amended complaint. Courts exercise broad discretion when deciding to grant or deny leave to amend pleadings. Wheat v. Freeman Coal Mining Corp. (1974), 23 Ill. App. 3d 14, 319 N.E.2d 290.

Because the complaint was filed November 25, 1980, plaintiff must allege continuing violations occurred after November 25, 1975. The allegations made in counts III and IV of the proposed amended complaint show: from December 1, 1974, to October 4, 1975, plaintiff was given additional job responsibilities without additional compensation; on October 4, 1975, plaintiff’s job was upgraded, but she did not receive an increase in salary; defendant gave salary increases to nonblack employees upon their assignment to additional responsibilities; plaintiff was deprived of the same right to employment opportunities enjoyed by nonblack employees as the result of defendant’s intentional policy of discrimination; plaintiff was not compensated for overtime work done during the period of October 25, 1974, to April 1975; and defendant retaliated against plaintiff for filing charges with the FEPC by taking away some of her authority and job responsibilities.

Plaintiff’s claims for additional compensation prior to October 4, 1975, and for overtime compensation up to April 1975 must fail for not being made in a timely fashion. So too must the claims for not receiving a salary increase. Plaintiff’s claim of a discriminatory salary policy is tied into her assertion that she was employed at a lower grade classification than other nonblack employees with less experience. As an example, she cites the promotion of a nonblack supervisor to a higher grade classification and rate of pay than she was given. These allegations essentially complain of discrimination on the part of defendant by not promoting plaintiff to a better paying grade classification. The failure to promote or “upgrade” her position which plaintiff alleges is, absent special circumstances, a “single act by an employer *** [which] begins the running of the statute of limitations and the natural effects of the allegedly discriminatory act are not regarded as ‘continuing.’ ” (London v. Coopers & Lybrand (9th Cir. 1981), 644 F.2d 811, 816; see Patterson v. General Motors Corp.) Plaintiff makes no specific allegation of the time frame in which she was not promoted and for this reason her pleading is insufficient to avoid the time limitation imposed on this case.

For these reasons we find the trial court did not abuse its discretion in denying plaintiff an opportunity to amend her complaint.

The order of the circuit court of Cook County dismissing counts I and II is reversed and the cause is remanded for further proceedings consistent with this opinion; as to counts III and IV, the order of dismissal is affirmed.

Reversed and remanded in part; affirmed in part.

CAMPBELL and GOLDBERG, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant argues, in a petition for rehearing, that the result of this court’s decision allowing plaintiff to add the Department of Human Rights and the Human Rights Commission as parties defendant is precluded by the res judicata effect of the unappealed ruling of the circuit court in Bell and Howell Schools v. State of Illinois Fair Employment Practices Commission et al, No. 79 CH 1085 (cited in our opinion as Bell and Howell Schools v. Earle Tockman and Joe Ann McClandon). In that declaratory action, defendant was the plaintiff seeking a ruling that the FEPC lacked jurisdiction over the administrative complaint because it was not filed within 180 days of the filing of McClandon’s discrimination charges. See Ill. Rev. Stat. 1979, ch. 48, par. 858.01(a).

As mentioned in the body of our opinion, that action was dismissed upon the FEPC’s motion to dispose of the case. There was also a finding that the FEPC was without jurisdiction to proceed on McClandon’s charges. The administrative complaint embodying Mc-Clandon’s charges was then dismissed by the administrative law judge, also a party to the declaratory action. Pursuant to notice from the FEPC (see Ill. Rev. Stat. 1979, ch. 48, par. 858.01(a)), McClandon filed the complaint in the circuit court which is now before us on appeal.

On this appeal, McClandon contended that section 8.01a of the FEPA is constitutional. In support of this contention, she looks to the rationale of the Supreme Court decision in Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148. Defendant construes McClandon’s argument to be directed at the constitutionality of section 8.01(a). This is a “straw-man” argument.

McClandon’s arguments are directed at section 8.01a. Defendant’s declaratory action was related to the jurisdiction of the FEPC to proceed on an administrative complaint filed after the 180-day period required by section 8.01(a) (HI. Rev. Stat. 1979, ch. 48, par. 858.01(a)).

Therefore, the effect of the declaratory action, if any (the action was dismissed rather than granted), was to defeat plaintiff’s claim before the FEPC. Thus, plaintiff was in the same position as Lott after his charges were not acted upon within 180 days pursuant to section 8.01(a). (106 HI. App. 3d 851, 854.) The reasoning and holding of Lott therefore applies. 106 HI. App. 3d 851, 855.

The petition for rehearing is denied.

GOLDBERG and CAMPBELL, JJ., concur.


author: JUSTICE MEJDA

text:
      In re MARRIAGE OF HELEN CARINI, Petitioner-Appellant and Cross-Appellee, and MICHAEL CARINI, Respondent-Appellee and Cross-Appellant.
    First District (5th Division)
    No. 82—1023
    Opinion filed January 21, 1983.

      Sidney H. Axelrod, of Axelrod & Hammer, of Chicago, for appellant.
    Arthur M. Solomon and Lois Solomon, both of Solomon & Behrendt, of Chicago, for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

Petitioner Helen Carini appeals from those portions of a dissolution of marriage judgment relating to the award of nonmarital property, the division of marital property, and the reservation of maintenance. Respondent Michael Carini appeals from a separate order requiring him to pay petitioner’s attorney fees and costs. We affirm.

The issues raised for review are: (1) whether the court erred in finding one parcel of real estate to be nonmarital property; (2) whether the court erred in failing to value two business interests; (3) whether the unequal division of marital property was an abuse of the court’s discretion; (4) whether in light of the unequal division of property the trial court erred in reserving maintenance; (5) whether the distribution of property should be amended because of an error in calculation; and (6) whether the court erred in requiring respondent to pay petitioner’s attorney fees.

The parties were married on February 14, 1955. One child was born of the marriage on July 21, 1960. Petitioner was employed outside the home for only a short period at the beginning of the marriage and since that time has remained at home. Her formal education ended after the sixth or seventh grade. Petitioner speaks and reads English but cannot write English; she speaks some Italian but cannot read or write it. Petitioner has had various health problems and testified that she is unable to stand or walk for more than an hour at a time.

Respondent worked as a carpenter during most of the marriage despite the fact that he lost four fingers of his right hand in an industrial accident at the age of 15 years. He testified that he is unable to work at the present time because of the hand injury. Respondent is a partner in two family-owned businesses: Carini Construction Company and Garcy Construction Company. He has been actively involved in these businesses for the last 20 years and, in the four years preceding trial, he devoted full time to partnership activities.

During the term of the marriage the parties acquired interests in various parcels of real estate, including a one-sixth interest in property located in Laguna Beach, California. In 1976 respondent’s mother executed a deed conveying an interest in the Laguna Beach property to respondent and his brothers. Respondent’s mother testified that she lived on the property for 16 years, that she is the sole owner of said property, that she receives all of the income from the property, that although the deed recites consideration of $100,000 she received no payment for the property, and that the deed was prepared solely to avoid probate upon her death. Respondent and his brothers corroborated her testimony. Other property acquired by the parties include the marital home, held in joint tenancy, and fractional interests in various income-producing properties held as tenants in common with members of respondent’s family and others.

The trial court found that the total value of the real estate which was marital property amounted to approximately $541,000 and that the annual cash flow from these properties is $17,500. On July 28, 1980, the court entered a judgment for dissolution of marriage awarding petitioner the marital home and three-fourths of respondent’s interest in property located in Elmwood Park, Illinois. This award represented equity of approximately $208,000 with an annual cash flow of $9,200. Petitioner was also awarded the furniture and personal property contained in the marital home. The court found that the Laguna Beach property was nonmarital property and awarded the interest in that property to respondent. The court also awarded respondent the remaining real property having a total equity of approximately $333,000 and an annual cash flow of $8,300. The court reserved the questions of maintenance and attorney fees. On October 23, 1980, the court entered an order requiring respondent to pay petitioner’s attorney fees.

Petitioner previously appealed from the judgment insofar as it apportioned the property and reserved the question of maintenance. Respondent cross-appealed from the order requiring him to pay petitioner’s attorney fees (appeal No. 80 — 2333). We found nothing in the record to indicate “whether the apportionment is in lieu of or in addition to maintenance” as provided by section 503(c)(9) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (111. Rev. Stat. 1981, ch. 40, par. 101 et seq.\ par. 503(c)(9)). We therefore concluded that the property disposition portion of the judgment was not final and thus not subject to appeal, and further that the cross-appeal could not be considered until a final property disposition had been made. The appeal was dismissed on February 26, 1982 (In re Marriage of Carini (1982), 104 Ill. App. 3d 1199, 437 N.E.2d 942) by an order entered pursuant to Supreme Court Rule 23 (73 Ill. 2d R. 23).

Thereafter, the trial court in further proceedings entered a memorandum opinion wherein it set forth that the property division was in addition to maintenance; that petitioner’s prospects for increased income are poor but that respondent, because of his demonstrated business ability, may enjoy substantial earnings and income in the future; and that in view of respondent’s present income, an award of maintenance was reserved for future determination should the parties’ circumstances change.

The parties now again appeal the court’s original judgment and order and raise the identical issues and arguments contained in the first appeal.

Opinion

The first issue raised by petitioner is whether the court erred in its finding that the Laguna Beach property was nonmarital property. Section 503(a) of the Act provides that all property acquired by either spouse subsequent to the marriage is marital property unless it comes within one of the specific exceptions listed in that section. (Ill. Rev. Stat. 1981, ch. 40, par. 503(a).) One such exception is “property acquired by gift, bequest, devise or descent.” (Ill. Rev. Stat. 1981, ch. 40, par. 503(a)(1).) The record shows that the subject property was the marital home of respondent’s parents and that respondent’s mother receives all the income from the property. Although the deed conveying an interest in the property to respondent and his brothers shows consideration of $100,000, there was testimony that such consideration was never paid. It is our opinion, therefore, that the record supports the finding that respondent’s interest in the property at Laguna Beach is within the foregoing exception and is nonmarital property.

Petitioner’s second contention is that the trial court erred in failing to assign appropriate value to the two partnership business interests of respondent. The Act does not require the court to place a specific value on each item of property (In re Marriage of Thompson (1979), 79 Ill. App. 3d 310, 398 N.E.2d 17), but only that there be competent evidence of the value and that the court’s division of the property be supported by the evidence (In re Marriage of Hyland (1981), 95 Ill. App. 3d 31, 419 N.E.2d 662). In the instant case the record shows that the two partnerships owned certain real estate which is accounted for in the schedule of properties in which respondent had an interest. There was evidence regarding the value, income and amount of indebtedness associated with each of these parcels. Petitioner introduced no evidence of other assets held by the partnerships or of income received by respondent beyond the amount shown on his tax returns. Although there was no testimony regarding the specific value of the partnership business interests, there was competent evidence of the value of all of the property owned by the partnerships. We conclude, therefore, that the court’s division of property was supported by the evidence.

The third issue raised by petitioner is whether the unequal division of property was contrary to the manifest weight of the evidence and an abuse of the court’s discretion. There is no requirement that marital property be divided equally between the parties. (See Ill. Rev. Stat. 1981, ch. 40, par. 503.) An unequal division of property is not an abuse of the court’s discretion. (In re Marriage of McMahon (1980), 82 Ill. App. 3d 1126, 403 N.E.2d 730; In re Marriage of Lloyd (1980), 81 Ill. App. 3d 311, 401 N.E.2d 328.) Section 503(c) of the Act provides that in a proceeding for dissolution of marriage the court shall divide the marital property in “just proportions” considering all relevant factors. That section sets out 10 factors to be included in the court’s consideration. (Ill. Rev. Stat. 1981, ch. 40, par. 503(c).) An examination of the record shows that each of the factors listed in section 503(c) was considered in arriving at the division of property. The court noted that the parties were married for 25 years, that respondent had been actively involved in the acquisition of the real estate interests which comprise most of the marital property, that the economic circumstances of the parties made cash flow an important factor in the division of property, and that it was desirable to award the family home to petitioner. See In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 412 N.E.2d 1336.

We disagree with petitioner’s contention that the court disregarded the following factors: (1) the value of the property set apart to each spouse; (2) the age, health, and occupational situation of each of the parties; (3) whether the apportionment is in lieu of or in addition to maintenance; and (4) the reasonable opportunity of each spouse for future acquisition of capital assets and income (See Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(2), (7), (9) and (10).) The record shows that the court considered the nonmarital property of respondent but acknowledged that respondent does not presently benefit from the cash flow from that property. It was noted that petitioner is virtually unemployable due to her age, health and lack of employment skills, and further, that although respondent suffered a hand injury at an early age, he worked as a carpenter and in the real estate business for many years after the accident. In its memorandum opinion the court stated that its division of property was in addition to maintenance but reserved the award of maintenance at the time of the judgment. Finally, the court observed that petitioner has little opportunity to acquire further assets or increase her holdings but that respondent has a reasonable opportunity for such acquisition in the future.

If the trial court has considered all the factors set out in section 503 of the Act, it will only be reversed where it has abused its discretion. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.) Such an abuse of discretion occurs only where no reasonable man would take the view adopted by the trial court. 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126, 129.

In the instant case the court awarded respondent real estate interests valued at approximately $333,000 with an annual cash flow of $8,300. Petitioner was awarded real estate interests valued at approximately $208,000 with an annual cash flow of $9,200. The trial court was faced with the problem of trying to divide the property in “just proportions” and assure each of the parties a certain amount of cash flow. The court’s division was made more complex by the fact that title to the parcels in issue was held in various forms by respondent and his brothers, except for title to the marital home which was held by the parties as joint tenants. The court noted the undesirability of a division of property having the effect of putting petitioner into a business partnership with respondent or his brothers. (See In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087.) We conclude that, in view of all the circumstances, the trial court’s decision was within the bounds of reason and supported by the evidence and was not, therefore, an abuse of discretion.

The fourth issue raised by petitioner is whether, in light of the unequal division of property, the court erred in reserving maintenance. The necessity for and the amount of the maintenance award are decisions within the sound discretion of the trial court. These decisions will not be set aside unless found to be contrary to the manifest weight of the evidence and, therefore, an abuse of discretion. (In re Marriage of Lovejoy (1980), 84 Ill. App. 3d 53, 404 N.E.2d 1092.) Although the division of marital property is among the factors which must be considered in the award of maintenance (In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 397 N.E.2d 488), it is not the only factor. Ill. Rev. Stat. 1981, ch. 40, par. 504.

The Act provides that the court may grant maintenance if it finds that the spouse seeking maintenance (1) lacks sufficient property to provide for his reasonable needs, and (2) is unable to support himself, or (3) is otherwise without sufficient income. (Ill. Rev. Stat. 1981, ch. 40, par. 504(a)(1), (2), (3).) The amount and period of the award are determined after consideration of all the relevant factors including “the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently ***” (El. Rev. Stat. 1981, ch. 40, par. 504(b)(1)), and “the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance” (El. Rev. Stat. 1981, ch. 40, par. 504(b)(6)).

The Elinois Supreme Court recently held that there must be appropriate circumstances for entering a judgment of dissolution of marriage while reserving the question of maintenance. (In re Marriage of Cohn (1982), 93 Ill. 2d 190.) One such circumstance is where a party is unable to pay maintenance if so ordered. (Cohn) The record in the instant case shows that the parties were awarded substantial interests in various parcels of real estate which provide petitioner and respondent with annual cash flows of $9,200 and $8,300, respectively. The court gave due consideration to all the relevant factors regarding the situations of the parties, including present and future potential for employment and further income. The court found that although petitioner satisfied the requisite combination of standards, respondent was then unable to pay any amount to petitioner and continue to meet his own needs due to the limited flow of funds presently available to him. Accordingly, we conclude that the court did not err in its reservation of maintenance.

Finally, petitioner argues that the distribution of marital property should be amended to correct what she terms an “error in calculation” and conform with the intention of the trial court. The trial judge identified specific parcels of real estate to be awarded to petitioner and stated that their aggregate value was $247,000. The remaining property, which he stated was valued at $294,000, was awarded to respondent. Due to a mathematical error these amounts were misstated. When each party received the parcels identified by the court, the amount of cash flow stated by the court was correct but the value of property awarded to petitioner was only $208,000 while respondent received property valued at $333,000.

Although in certain situations the trial court has the power to amend a final order or judgment to correct a clerical error to reflect the judgment of the court (Bradley v. Burrell (1981), 97 Ill. App. 3d 979, 424 N.E.2d 15; In re Marriage of Gingras (1980), 86 Ill. App. 3d 14, 407 N.E.2d 788), the record shows that the division of property in the instant case was not the result of a clerical error. As previously noted, the marital property consisted of several parcels of real estate having different values and cash flows. The court was concerned with dividing the property in such a way that each party would, as nearly as possible, share equally in the cash flow as this was the only income available to them. A division of property reflecting the values stated by the trial court would result in petitioner receiving a much greater portion of the cash flow; The record clearly shows that equalization of cash flow was a major consideration of the court. We conclude, therefore, that the division of property as stated in the judgment correctly reflects the intention of the trial court.

In his cross-appeal, respondent argues for reversal of the order requiring him to pay $6,855 in petitioner’s attorney fees and costs. Section 508(a) of the Act directs the court to consider the financial resources of the parties before ordering payment of a spouse’s attorney fees. (Ill. Rev. Stat. 1981, ch. 40, par. 508(a).) The criterion for assessing fees is the relative financial resources of the parties. (In re Marriage of Stewart (1979), 79 Ill. App. 3d 1125, 398 N.E.2d 1199.) To justify an award of fees, the party seeking relief must show financial inability to pay and the ability of the other spouse to do so. In re Marriage of Dulyn (1980), 89 Ill. App. 3d 304, 411 N.E.2d 988; In re Marriage of Fleming (1980), 80 Ill. App. 3d 1006, 400 N.E.2d 625.

In the instant case petitioner was awarded the marital home and a fractional interest in one other piece of property. The award was valued at $208,000 and provides her an annual cash flow of $9,200. Petitioner established that she is unable to obtain employment. Respondent was awarded property valued at $333,000 which provides an annual cash flow of $8,300. Although respondent states that he is not employed, he has amassed the subject real estate and has a potential for future earnings. In assessing the relative financial resources of the parties, the trial court found that respondent has substantially greater resources and a greater potential and capacity for future earnings. We conclude that, on the record before us, the court did not err in requiring respondent to pay $6,855 in attorney fees incurred by petitioner.

Accordingly, for the reasons stated herein, we affirm the judgment and order of the trial court.

Judgment affirmed; order affirmed.

WILSON, P.J., and SULLIVAN, J., concur.


author: PRESIDING JUSTICE WEBBER

text:
    ROBERT G. BULLARD, Adm’r of the Estate of Scott R. Bullard, Deceased, et al., Plaintiffs-Appellees and Cross-Appellants, v. BRUCE E. BARNES et al., Defendants-Appellants and Cross-Appellees.
    Fourth District No.
    4—82—0363
    Opinion filed February 1, 1983.
    Rehearing denied March 4, 1983.

      Thompson, Strong & Blakeman, Ltd., of Pontiac (Kenneth L. Strong, of counsel), for appellants.
    Kinate & Morgan, of Fairbury, and Gomien, Root & Masching, of Morris, for appellees.
   PRESIDING JUSTICE WEBBER

Defendants appeal from a judgment entered upon jury verdicts in the total amount of $326,250 against them in the circuit court of Livingston County. Plaintiffs have cross-appealed the dismissal of certain counts in the amended complaint seeking damages for emotional distress. For the reasons hereinafter set forth, we reverse the judgment against the defendants and remand for a new trial on damages only; we affirm the dismissal of the emotional distress counts.

Defendants have raised a host of issues concerning matters which occurred at nearly every stage of the trial. We shall deal first with what we consider the more significant issues which led to error below and then comment more briefly on other matters which do not constitute error but which should be avoided on retrial.

The factual background demonstrated that Scott Bullard, a 17-year-old youth, was killed when the automobile he was driving collided with another on a blacktop road north of Pontiac. The accident occurred between 7:30 and 8 am. on the very foggy morning of October 1, 1979. Bullard was driving south on the blacktop; two vehicles were being driven north in the same area, one by Harold Bohm and the other by Robert Graves. Behind the Bohm and Graves vehicles was a semi-trailer truck owned by the defendant Livingston County Ready-Mix, Inc., and driven by defendant Barnes, its employee. According to the testimony of Bohm and Graves, the truck pulled out into the southbound lane and passed both of them, then returned to the northbound lane and continued north without stopping. This forced Bullard’s vehicle off the road and out of control. It veered back onto the highway and collided with the Bohm vehicle. Bullard suffered injuries from which he died.

Shortly after the accident Bullard’s mother, Sharon Bullard, came upon the scene while driving another son to school. She stated that Scott was lying in the front seat of the car and moving his hand. She observed no blood upon him. A deputy sheriff arrived in response to a call received at 7:53 a.m., took Scott’s pulse, and determined that he was alive at about 8:10 or 8:15 a.m. A rescue squad arrived and took Scott to a hospital in Pontiac; his father, Robert Bullard, arrived later and the family was informed that Scott was dead.

An eight-count complaint was filed in the circuit court of Livingston County against the defendants by Robert, the father, individually and as administrator of Scott’s estate, and by Sharon, the mother, and Paul and Todd, decedent’s brothers, individually. Counts I and II sounded under section 1 and 2 of the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, pars. 1, 2) and alleged wilful and wanton misconduct in count I and negligence in count II with the same factual allegations in each count. Counts III and IV alleged property damage to Robert’s automobile and reiterated the factual allegations from count I. Count III was based on wilful and wanton misconduct and asked for compensatory and punitive damages. Count IV sought compensatory damages only for negligence. Counts V and VI sounded under “An Act to revise the law in relation to husband and wife” (Ill. Rev. Stat. 1979, ch. 40, par. 1015) (Family Expense Act) and reiterated the factual allegations from count I. As with the preceding counts, count V was predicated on wilful and wanton misconduct and count VI on negligence. Counts VII and VIII sounded under the Survival Act (Ill. Rev. Stat. 1979, ch. 110½, par. 27 — 6) and sought damages for the suffering of the decedent from the time of the collision until the time of his death. These counts also reiterated the factual allegations of count I with count VII being based on wilful and wanton misconduct and count VIII being based on negligence.

Motions to dismiss were allowed as to the complaint and the first amended complaint and on November 6, 1980, the defendants were ordered to answer the second amended complaint whose structure was basically the same as the complaint described above. The trial date had originally been set for April 3, 1981, but was continued on motions for continuance by the parties.

On September 4, 1981, plaintiffs sought to amend their pleading by adding counts IX-XII and to add a specific prayer for punitive damages to count I (Wrongful Death — wilful and wanton) and to count VII (Survival Act — wilful and wanton). The trial court denied the motion as to punitive damages but allowed it as to the additional counts. These alleged in general emotional agony and suffering by the mother and father and were based on wilful and wanton misconduct and negligence as with the prior counts. The wilful and wanton counts sought punitive damages.

Later, on October 7, 1981, plaintiffs were granted leave to amend further by striking a specific figure ($12,000) asked for as punitive damages in count III (property damage — wilful and wanton). Trial was then set for November 23, 1981. On October 13, 1981, plaintiffs once again amended by adding count XIII. It alleged that the defendant Livingston County Ready-Mix, Inc., was negligent in hiring defendant Barnes and in entrusting the vehicle to him.

A pretrial was held on November 13, 1981, and in this proceeding the trial court dismissed counts IX-XII (emotional agony and suffering by the parents) and ordered the defendant to answer count XIII (negligent entrustment). Defendants thereupon moved for a continuance and it was denied. Defendants also moved for a severance of the compensatory damage counts from the punitive damage counts. The trial court denied the severance motion but indicated that it would reconsider if the defendants admitted liability.

Voir dire commenced on November 16, 1981, and continued through November 17. Before its close defendants admitted liability on counts II, IV, VI, and VIII (wrongful death, property damage, family expense, and survival — all negligence) and moved to dismiss counts I, V, VII and XIII (wrongful death, family expense, and survival — all wilful and wanton; and negligent entrustment). The trial court denied the motion to dismiss and thereupon the defendants admitted liability on counts I, V, VII and XIII. They further admitted that liability under the Family Expense Act was $3,236.10. Judgment was then entered on count V in that amount and count VI was dismissed.

The trial court then found that the admissions of liability precluded judgment on count XIII (negligent entrustment) and dismissed that count. It further entered summary judgment as to liability against the defendants on count III (property damage — wilful and wanton) on the ground that defendants had admitted liability as to count IV (property damage — negligence) and that both counts alleged the same facts.

Following the admissions of liability, the trial court allowed the defendants’ motion for severance. It found that plaintiffs had alleged wilful and wanton misconduct (admitted) in counts I and VII but had not sought punitive damages under these counts. It further observed that counts II and VIII alleged ordinary negligence (admitted) and that count III was the only remaining count which sought punitive damages. It therefore ordered that the compensatory damage counts, II and VIII (wrongful death and survival — negligence), and I and VII (wrongful death and survival — wilful and wanton), be first submitted to the jury and that immediately upon the return of this verdict, count III (property damage — wilful and wanton — punitive damage claim) be then submitted to the same jury.

The jury returned a single general verdict for wrongful death in the amount of $285,000 and a single general verdict of the decedent’s pain and suffering in the amount of $40,000. The following day the matter of property damage and its concomitant punitive damage claim were submitted. Before trial the defendants had admitted that the property damage was $750. The jury returned a verdict for punitive damages in favor of the plaintiffs and against defendant Barnes in the amount of $500; the verdict was in favor of the defendant Livingston County Ready-Mix, Inc. and against the plaintiffs.

Judgment was entered on the verdicts, post-trial motions were denied, and this appeal followed. Defendants, as previously indicated, have appealed a variety of issues; plaintiffs have cross-appealed the dismissal of counts IX-XII (emotional suffering).

In our judgment the two issues raised by the defendants which have sufficiently tainted the proceedings as to require a retrial on damages are the jury instructions and the presentation of evidence going to the question of liability.

The trial court gave to the jury a plaintiff’s instruction (Illinois Pattern Jury Instruction, Civil, No. 31.03 2d ed. 1971) (hereinafter cited as IPI Civil), modified as follows:

“In determining pecuniary loss to the parents and the weight to be given to the presumption of pecuniary loss to the parents, you may consider what benefits of pecuniary value, including money, goods and services the decedent might reasonably have been expected to contribute to his parents and brothers had the decedent lived, bearing in mind what you find the evidence shows concerning the decedent’s age, sex, health, physical and mental characteristics, habits and the parents loss of society with the decedent." (Emphasis added.)

We gather that the trial court’s decision to give this instruction was based upon Elliott v. Willis (1980), 89 Ill. App. 3d 1144, 412 N.E.2d 638, which held that loss of consortium was an element of damage under the Wrongful Death Act. This decision was afterwards affirmed by the supreme court. (Elliott v. Willis (1982), 92 Ill. 2d 530, 442 N.E.2d 163) and upon denial of rehearing was made applicable to all cases theretofore filed. However, we do not understand either the appellate or the supreme opinion to sanction the loss of society of a child as an element of damage under the Wrongful Death Act.

In reviewing the history of the matter in Elliott, the supreme court commented that in Kaiserman v. Bright (1978), 61 Ill. App. 3d 67, 377 N.E.2d 261, the appellate court had affirmed the dismissal of one count in a complaint seeking compensation for the loss of the society of a child but had incorrectly cited Zostautas v. St. Anthony De Padua Hospital (1961), 23 Ill. 2d 326, 178 N.E.2d 303, for the proposition that loss of society cannot be included within pecuniary injuries under the Wrongful Death Act. Kaiserman was criticized but not overruled. Zostautas held that the negligence of a surgeon in causing the death of a child was a “default” under section 1 of the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, par. 1) and with regard to damages the court stated:

“With respect to the elements of damage recoverable, it is evident that while defendant’s alleged breach of contract is the basis of liability, the damages recoverable are limited by the terms of the Wrongful Death Act. Recovery thereunder is based upon the pecuniary value of decedent’s life to his next of kin. *** Consequently, plaintiffs’ request for damages for their mental anguish must be rejected.” 23 Ill. 2d 326, 336-37, 178 N.E.2d 303, 308.

In Elliott the supreme court then went on to say:

“We agree with the appellate court in this case that the loss of the decedent’s society, companionship and conjugal relations is sufficiently distinct from bereavement to distinguish this action from the complaint in Zostautas.” 92 Ill. 2d 530, 539, 442 N.E.2d 163,167.

We believe that there is a qualitative difference between the “society” of a spouse and that of a child. “Society” is inherent in the marital relationship. The appellate court recognized this in its opinion in Elliott:

“Thus, Illinois case law permits either spouse to sue for loss of consortium following nonfatal injuries to the other spouse and implies that for death, the Wrongful Death Act provides compensation sufficient to obviate a common law action for lost society or consortium.” (89 Ill. App. 3d 1144, 1147, 412 N.E.2d 638, 641.)

By extension of this logic, there being no common law action for loss of society of an injured child in nonfatal cases, we can find nothing for the Wrongful Death Act to obviate in death cases. There was no right of recovery for wrongful death at common law. (Howlett v. Doglio (1949), 402 Ill. 311, 83 N.E.2d 708.) If, as the appellate opinion in Elliott implies, the Wrongful Death Act is to supply the gap for fatal injuries and is the obverse of common law nonfatal actions, there is no basis for including within its damage provisions the loss of society of a child. The supreme court in Elliott once again reaffirmed a broad interpretation of pecuniary injuries under the Wrongful Death Act, but limited its holding to loss of consortium.

Defendants raised the question of excessive damages in their post-trial motions but have not argued it in this court nor raised it as an issue in their brief. It might therefore be considered waived under Supreme Court Rule 341(e)(7) (87 Ill. 2d R. 341(e)(7)). Furthermore, errors in instructions going to the measure of damages are viewed as harmless when there is no allegation of excessive damage. Geving v. Fitzpatrick (1978), 56 Ill. App. 3d 206, 371 N.E.2d 1228; Sheley v. Guy (1975), 29 Ill. App. 3d 361, 330 N.E.2d 567, aff'd (1976), 63 Ill. 2d 544, 348 N.E.2d 835.

The supreme court has recently stated, reaffirming prior decisions, that Rule 341(e)(7) is not a limitation on the reviewing court’s jurisdiction. (Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill. 2d 208.) We regard the matter of the loss-of-society instruction as so fundamental as to be neither waived nor harmless and sufficient to warrant reversal.

Defendants have raised three additional instruction issues which may be more briefly considered. First, they complain that the trial court refused a burden-of-proof instruction (IPI Civil No. 21.01). Since liability was admitted, this instruction would only have served to confuse the jury and it was not error to refuse it.

Second, defendants contend that two plaintiffs’ instructions were repetitious and inconsistent. We agree. The trial court gave a non-IPI instruction as follows:

“There are two questions of damage for you to consider in this case and you will return a verdict as to each question of damages.
The first question is damages resulting from the pain and suffering experienced by Scott R. Bullard prior to his death.
The second question is the amount of damages sustained by the next of kin as a result of the death of Scott R. Bullard.”

It then followed this instruction with another as follows:

“In the claim of pain and suffering of Decedent in this case, you must fix the amount of money which will reasonably and fairly compensate the Estate of Scott R. Bullard, Deceased, for the conscious pain and suffering experienced by Scott R. Bullard from the time he sustained the injuries until death. Plaintiffs’ Instruction No. 15, IPI 30.01, 30.05.”

It is apparent that the latter is an amalgam and modification of Nos. 30.01 and 30.05, although this is not indicated on the face of the duplicate as required by Supreme Court Rule 239(c) (87 Ill. 2d R. 239(c)). The two quoted instructions above are repetitious and inconsistent in that they refer sometimes to “pain and suffering” and other times to “conscious pain and suffering” from which it might be inferred that there is such a thing as “unconscious pain and suffering.” On retrial the first instruction quoted above, designated in the record as “Plaintiffs’ Instruction No. 12,” should not be given and plaintiffs’ No. 15 should be edited to state “conscious pain and suffering” in both instances.

Third, the defendants complain that the verdict form given to the jury and used by it on the wrongful death counts was the duplicate and bore the notation “Plaintiffs’ Instruction No. 9 IPI - 45.01 Modified.” Furthermore, it instructed the jury to assess damages for the “death of Scott R. Bullard” rather than for the “pecuniary loss to the next of kin.” Defendants also suggest that the damage amount might have been filled in before the form arrived in the jury room.

The trial judge stated that he was “mystified” as to how all this came about. Since the case must be retried, the error becomes harmless, and we believe that more meticulous attention to detail will prevent its recurrence.

Our second major area of concern has to do with the admission of irrelevant and inflammatory evidence. As has been indicated, the defendants admitted liability both as to negligence and as to wilful and wanton misconduct. Therefore, the trial was on damages only. Nevertheless, the trial court admitted evidence of the weather conditions, the actions of defendant Barnes in his passing maneuver, the failure of Barnes to stop after the accident, and pictures taken at the coroner’s office of the decedent’s corpse.

It is so fundamental as to need no citation of authority that admission of evidence is a matter largely within the discretion of the trial judge and reversal is not warranted in the absence of an abuse of that discretion. In our judgment discretion was abused in this case.

Error in the admission of evidence does not require a reversal if there has been no prejudice or if the evidence has not materially affected the outcome of the trial. (Cummings v. Chicago Transit Authority (1980), 86 Ill. App. 3d 914, 408 N.E.2d 737; Plasti-Drum Corp. v. Ferrell (1979), 70 Ill. App. 3d 441, 388 N.E.2d 438.) However, “harmful error” may exist when improperly admitted evidence is so pursued or of such a nature that it influences the verdict by an appeal to passion. Tate v. Coonce (1981), 97 Ill. App. 3d 145, 421 N.E.2d 1385; Gilberto v. Nordtvedt (1971), 1 Ill. App. 3d 677, 274 N.E.2d 139.

The only issues to be decided by the jury were the pecuniary loss by reason of his death to the next of kin and his conscious pain and suffering from the time of the accident until his death. The means of his demise and the operative facts of the accident were immaterial.

As to the testimony about the weather conditions: Sharon Bullard and Bohm both testified without objection that the weather was very foggy. There was objection to Graves’ testimony which was to the same effect. Where the same evidence to which objection is made has been admitted without objection, a party cannot assign error in the overruling of the objection. (In re Carthen (1978), 66 Ill. App. 3d 780, 384 N.E.2d 723.) Therefore, the objection to Graves’ testimony came too late, and while evidence about the weather conditions was irrelevant and immaterial to the issues being tried, it cannot now be claimed as error.

As to the passing maneuver: Bohm testified that defendant Barnes passed him and Graves, then testified that he was passed by Barnes. The testimony of both indicates that Bullard was forced off the road to avoid hitting Barnes while he was passing Bohm. In addition, the testimony was augmented by extensive use of drawings showing the location of the various vehicles from the time defendant’s truck was behind Graves until immediately after the collision.

Defense counsel objected and continued to object to Graves’ testimony; he had also made a motion in limine to prohibit testimony as to the location of the vehicles. All of these objections and the motion were overruled. Plaintiffs argue that the location and speed of the vehicles were material to the nature and extent of decedent’s injuries. This would be true in an injury case, especially when there is ground for believing that the plaintiff is exaggerating his injuries. However, it has no place in a wrongful death case, where the injuries led to death. The testimony of Sharon Bullard, the deputy sheriff, and the rescue squad was available to describe decedent’s condition prior to his death. How he got into that condition became irrelevant upon the admission of liability. It was reversible error to admit it.

As to Barnes’ failure to stop: as with the testimony about the passing maneuver, this evidence too was irrelevant and immaterial to the issues and was particularly inflammatory. Bohm testified that Barnes “didn’t stop, he took off. He never stopped.” The trial court made a sort of split-phase ruling in which what Barnes did was stricken from the record but the fact that he did not stop was to remain in the record. We fail to see such a fine distinction.

Graves also testified about the failure to stop. He stated over objection that the semi was “on down the road” when he first saw the Bullard car on the west shoulder.

The admission of the testimony of Bohm and Graves was reversible error.

As to the pictures: generally photographs which depict injuries are relevant to the nature and severity of the injury and the resultant pain and suffering. The photographs here are not particularly gruesome, but we fail to see how they could have been of any aid to the jury in determining conscious pain and suffering. There is no evidence in the record as to the cause of decedent’s death. There is slight evidence that he was alive after the collision, but there is no evidence of consciousness of pain. The photographs were not there to corroborate any diagnosis or other objective evidence which might aid the jury in its determination. It was reversible error under the circumstances here to admit them.

Because the jury was improperly instructed and because irrelevant and immaterial evidence which had only the effect of being inflammatory and prejudicial to the defendants was admitted, this cause will be remanded for a new trial. Liability has been admitted and the allegations of the complaint sufficiently state a cause of action for wilful and wanton misconduct on the part of the defendants. Therefore, the retrial will be on damages only in accordance with the views set forth in this opinion.

We turn next to the cross-appeal by the plaintiffs. As has been indicated, the trial court dismissed the counts alleging emotional trauma to the parents of the decedent and this is the subject of the cross-appeal.

Illinois has long followed the contemporaneous impact rule in mental distress cases. (See Carlinville National Bank v. Rhoads (1978), 63 Ill. App. 3d 502, 380 N.E.2d 63.) This rule was partially abandoned in Rickey v. Chicago Transit Authority (1981), 101 Ill. App. 3d 439, 428 N.E.2d 596, appeal allowed (1982), 91 Ill. 2d 556.) However, in Rickey the plaintiff was present at the scene of the injury and witnessed it, although not suffering any contemporaneous impact. In the instant case, the record is clear that the mother was not present at the time of the collision but arrived thereafter only by fortuitous circumstance and that the father was never present at the scene. The rule has been criticized and abolished in many other jurisdictions (see Rickey), but we adhere to the statement in Rhoads that any alteration in this State must come from the supreme court.

The trial court’s action in dismissing these counts was correct and it is affirmed in that regard.

Defendants have raised several other issues which are not likely to arise on retrial but which merit some brief mention. Throughout the proceedings and in this court they contend that it was error for the trial court to allow the same factual allegations to stand as to both ordinary negligence and to wilful and wanton misconduct.

Prior authority is split on this question. It poses difficulties for both plaintiffs and defendants. The plaintiff may well be uncertain as to how his proof will stand up on trial as to wilful and wanton and therefore needs a fail-back position on ordinary negligence. On the other hand, it is only fair for the defendant to know what he is being called upon to defend.

The issue is somewhat clouded by defendants’ admission of liability. Plaintiffs argue that this admission has waived the point. We do not agree. An admission of liability is only an admission of the facts showing a breach of a legal duty. The supreme court has held that admissions of fact do not preclude nor waive any right to question the sufficiency of the pleadings. (Henning v. Sampsell (1908), 236 Ill. 375, 86 N.E. 274.) Both sides were entitled to a ruling on the question, and it was never forthcoming. In our opinion the facts pleaded in the second amended complaint sufficiently state a cause of action in wilful and wanton misconduct. The defendant Barnes exhibited a reckless disregard for the safety of others (Klatt v. Commonwealth Edison Co. (1965), 33 Ill. 2d 481, 211 N.E.2d 720) by driving on the left side of the road for a long distance and for a long time during poor visibility in such a manner as to force another motorist off the road.

Defendants complaint about the voir dire, particularly with reference to what they deem an attempt by plaintiffs’ counsel to predispose the jury to a large verdict. At one point defense counsel moved the trial court to take over the voir dire under Supreme Court Rule 234 (87 Ill. 2d R. 234) and the court denied the motion but admonished counsel not to mention specific figures. We have examined the very lengthy voir dire record; indeed, it comprises the bulk of a very bulky record; while we believe that the trial court might have exercised a greater degree of control over the questioning, we do not find anything so out of line in a hard-fought and sensitive trial as to warrant reversal on that basis.

Defendants maintain that it was erroneous for the trial court to enter summary judgment as to liability on count III (property damage-wilful and wanton — punitive damages). The trial court gave as its reason that the admission as to count IV (property damage — ordinary negligence) was sufficient. We do not agree. This is another aspect of the problem already discussed wherein the trial court treated ordinary negligence and wilful and wanton misconduct in pari materia. However, as we have noted, the allegations will support a wilful and wanton charge and therefore the error was harmless.

We have examined other contentions by the defendants and find that either they are without merit or will not recur at retrial.

The judgment in favor of the plaintiffs and against the defendants under the Wrongful Death Act and the Survival Act is therefore reversed and the cause is remanded for a new trial on damages only pleaded in count I (wrongful death — wilful and wanton) and count VII (Survival Act — wilful and wanton) in accordance with the views expressed in this opinion. The judgment is otherwise affirmed.

Affirmed in part, reversed in part, and remanded for a new trial on damages only.

GREEN and MILLER, JJ., concur.