source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    PAMELA REAL, Special Adm’r of the Estate of William P. Real, Deceased, Plaintiff-Appellant, v. K. S. KIM, M.D., et al., Defendants-Appellees.
    First District (5th Division)
    No. 81—2883
    Opinion filed January 13, 1983.

      James H. Canel, Ltd., of Chicago (James H. Canel and Peter J. Posner, of counsel), for appellant.
    Steven H. Jesser and McDermott, Will & Emery, of Chicago (Lee J. Dunn, Jr. and Stewart W. Karge, of counsel), for appellee Northwestern Memorial Hospital.
    French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Richard G. French, Patrick J. Fanning, and Michael J. Hennig, of counsel), for appellees K. S. Kim, M.D., and Northwestern Radiology Group S.C.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff Pamela Real, as special administrator of the estate of William Real, filed an action under the Wrongful Death Act and the Probate Act of 1975 (111. Rev. Stat. 1979, ch. 70, par. 1 et seq.; ch. IIOV2, par. 27 — 6) alleging that medical malpractice by the defendants (K. S. Kim, M.D., Northwestern Memorial Hospital, and Northwestern Radiology Group, a medical corporation) caused the death of William Real.

Defendants’ motions to dismiss plaintiff’s complaint were granted by the trial court on the grounds that her claims were barred by section 21.1 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 22.1, now codified at section 13 — 212 of the Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, par. 13 — 212) and that, as a matter of law, the defendants were not estopped from asserting the Limitations Act as a defense. A claim apparently remains pending before the trial court against another physician, but the court found that there was no just reason for delaying appeal of its order (see 87 Ill. 2d R. 304(a)). In her appeal plaintiff presents the following issues:

(1) whether section 21.1 of the Limitations Act bars a special administrator from maintaining a medical malpractice action on behalf of a decedent’s estate in a case where the alleged acts of negligence occurred more than four years before the complaint was filed;

(2) whether a wrongful death action can be brought in a case where, on the date of the death complained of, the Limitations Act would have precluded the decedent from bringing an action on his own behalf for the acts which allegedly caused his death;

(3) whether the complaint states facts which, if proven, would es-top the defendants from raising the Limitations Act as a defense;

(4) whether an entity formed under the Medical Corporation Act (111. Rev. Stat. 1979, ch. 32, par. 631 et seq.) to diagnose and treat human ailments constitutes a “physician” under section 21.1 of the Limitations Act.

The following allegations (which are assumed to be true for the purpose of resolving the legal issues presented by this appeal) are material to our decision:

William Real suffered from an unidentified neurological ailment and, as part of a medical evaluation, he was referred to Northwestern Memorial Hospital in April of 1976 for what the complaint calls “an EMI scan with and without infusion.” This test was performed by various unknown physicians who worked for Northwestern Radiology Group, a medical corporation, and on April 13, 1976, the test results were evaluated and reported as normal by Dr. K. S. Kim, another employee of the medical corporation.

According to the complaint, this diagnosis was incorrect because proper interpretation of the results of the EMI test would have “disclosed the presence of an abnormality.” In the alternative, the complaint alleges that the defendants failed to properly conduct the test, or failed to report that the test results were so equivocal that they were “of no diagnostic value.” Each of these acts or omissions allegedly constitutes negligence.

In June of 1979, more than three years after he was allegedly misdiagnosed, William Real was diagnosed as having brain cancer. But because the misdiagnosis allegedly given by the defendants in April of 1976 induced William to delay seeking further medical assistance, the cancer was terminal by the time it was discovered, and William died on August 9, 1980.

Then, on June 19, 1981 (more than four years after the alleged acts and omissions concerning the EMI test), plaintiff filed a medical malpractice action against the defendants.

The pertinent portion of section 21.1 of the Limitations Act provides that,

“No action for damages for injury or death against any physician or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.” Ill. Rev. Stat. 1979, ch. 83, par. 22.1, now codified at section 13 — 212 of the Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, par. 13-212.

The first issue is whether this limitations provision barred plaintiff from bringing a medical malpractice action against the defendants. Plaintiff asserts that a cause of action for medical malpractice did not accrue, and the two-year “discovery” limitations period did not begin to run, until the point in time when William Real’s brain cancer became incurable. Thus plaintiff concludes that the defendants had the burden of proving that plaintiff’s complaint was not filed within two years of when William knew or should have known that his cancer had become incurable.

We need not decide whether plaintiff has correctly identified when William Real’s cause of action accrued because section 21.1 bars the survival action filed on behalf of William’s estate even if a cause of action did not accrue until William died.

Section 21.1 plainly states that “in no event shall [a medical malpractice] action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of [the complained of] injury or death.” (111. Rev. Stat. 1979, ch. 83, par. 22.1, now codified at section 13 — 212 of the Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, par. 13 — 212.) Under this portion of section 21.1, the four-year limitations period begins to run from the date of the alleged acts of negligence, even if the resulting injury or death did not occur (and a cause of action for negligence did not accrue) until after the limitations period expired.

We recognize that it offends common sense notions of justice for the law to say that the right to invoke a legal remedy expired before the alleged wrongdoing was or could reasonably have been discovered (see West American Insurance Co. v. Sal E. Lobianco & Son Co. (1977), 69 Ill. 2d 126, 131), but

“Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349. They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the voidable and unavoidable delay.” Chase Securities Corp. v. Donaldson (1945), 325 U.S. 304, 314, 89 L. Ed. 1628, 1635, 65 S. Ct. 1137, 1142.

Where, as with section 21.1 of the Limitations Act, the General Assembly has clearly manifested its intent through unambiguous statutory language, the only legitimate role for the courts is to give effect to the statute in question — unless it is unconstitutional. (Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 84; Modern Dairy Co. v. Department of Revenue (1952), 413 Ill. 55, 66.) “There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.” Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350.

In the present case, the alleged acts and omissions of medical malpractice occurred in April of 1976, but a cause of action was not filed until June of 1981 — more than five years after the alleged wrongdoing. Plaintiff does not argue that section 21.1 is unconstitutional (see Anderson v. Wagner (1979), 79 Ill. 2d 295, 311-21), and our only legitimate role is to apply the unambiguous statutory language which bars a medical malpractice action from being brought more than four years after the acts or omissions which eventually caused the complained of injury or death.

It is not clear whether plaintiff asserts that section 21.1 is not applicable to cases brought under the Probate Act of 1975, but a statute of limitations runs against a cause of action, not against the holder of the cause of action. (O’Connell v. Chicago Park District (1941), 376 Ill. 550, 557.) Under the Probate Act of 1975, the right to bring a cause of action is transferred, by operation of law, from the decedent to the representative of his estate. (See Prosser, Torts sec. 127, at 901 (4th ed. 1971).) Consequently, “a cause of action which a deceased in his lifetime was estopped from asserting is not available to his personal representative ***.” 2 Horner, Probate Practice and Estates sec. 817, at 64 (4th rev. ed. 1975).

The second issue is whether plaintiff can maintain an action under the Wrongful Death Act even though, on the date of the death complained of, the decedent would have been barred from bringing an action for the acts which purportedly caused his death.

Section 1 of the Wrongful Death Act states that,

“Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.” Ill. Rev. Stat. 1979, ch. 70, par. 1.

The pertinent portion of section 2 of the Wrongful Death Act states that “[ejvery [wrongful death] action shall be commenced within 2 years after the death” which is the basis for the lawsuit. (Ill. Rev. Stat. 1979, ch. 70, par. 2.) Focusing on the limitation period provided in section 2, plaintiff asserts that her wrongful death action is timely because it was filed within two years of when William Real died.

According to plaintiff, we should “refuse to extend” section 21.1 of the Limitations Act to wrongful death cases. But plaintiff misapprehends the distinction between the two-year limitations period established by section 2 of the Wrongful Death Act and the fact that there is no liability under the Act unless the condition precedent specified by section 1 has been fulfilled.

The plain language of section 1 provides that there will be no liability under the Wrongful Death Act unless the decedent could have maintained an action for damages “if death had not ensued” (Ill. Rev. Stat. 1979, ch. 70, par. 1), and the supreme court has consistently acknowledged and given effect to this unambiguous provision. (See Howlett v. Doglio (1949), 402 Ill. 311, 319; Clarke v. Storchak (1943), 384 Ill. 564, 571-72; Biddy v. Blue Bird Air Service (1940), 374 Ill. 506, 514-15.) As the supreme court stated in Mooney v. City of Chicago (1909), 239 Ill. 414, 423:

“The statute gives a right unknown to the common law in cases where the wrongful act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages. One condition upon which the statutory liability depends is that the deceased had a right of recovery for the injuries at the time of his death, and there is no right in the administrator to maintain an action unless the deceased had the right to sue at the time of his death.”

Under the plain language of section 1, the particular reason why the decedent would have been barred from maintaining an action for damages simply isn’t significant, and we are not persuaded by plaintiff’s efforts to distinguish away these supreme court decisions based on the particular reason why each decedent would have been barred from maintaining an action on his own behalf.

Plaintiff also finds it significant that these supreme court cases were decided before Holton v. Daly (1882), 106 Ill. 131, was overruled by Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423. According to plaintiff, the results in Mooney, Biddy, Clarke and Howlett would have been different if Murphy v. Martin Oil Co. was the law in Illinois when these other cases were decided. But, in overruling Holton, Murphy merely held that “the administrator of the decedent’s estate could, independent of the Wrongful Death Act, bring an action [under the Survival Act] for damages which would encompass decedent’s lost wages, lost property, and pain and suffering endured during the [interval] between injury and death.” Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 139.

We recognize that Murphy v. Martin Oil Co. represents a very significant development in Illinois law, but it has no bearing in determining whether a decedent could have maintained an action for damages if he had survived. Consequently, Murphy has no bearing on whether the representative of a decedent’s estate can maintain an action under the Wrongful Death Act.

Similarly, the remaining cases upon which plaintiff relies—Coleman v. Hinsdale Emergency Medical Corp. (1982), 108 Ill. App. 3d 525; Fure v. Sherman Hospital (1978), 64 Ill. App. 3d 259 (both applying the so-called “discovery rule” to the two-year limitations period provided in section 2 of the Wrongful Death Act); and Wilson v. Tromly (1949), 404 Ill. 307 (holding that the limitations period established by section 2 of the Wrongful Death Act is applied to cases brought under the Act, rather than the more general provisions of the Limitations Act) — are irrelevant to determining whether a decedent could have maintained an action “if death had not ensued.” Ill. Rev. Stat. 1979, ch. 70, par. 1.

Finally, plaintiff argues that invoking section 21.1 of the Limitations Act to bar her cause of action for wrongful death violates section 13 of article IV of the 1970 Illinois Constitution. This constitutional provision (which states that “The General Assembly shall pass no special or local law when a general law is or can be made applicable” (Ill. Const. 1970, art. IV, sec. 13)) requires that there be a reasonable basis for legislative classifications. (Anderson v. Wagner (1979), 79 Ill. 2d 295, 314-15.) But in Anderson the court held that section 21.1 does not violate the proscription against “special legislation” (79 Ill. 2d 295, 316-21), and the fact that section 21.1 is now being considered in the context of a wrongful death case does not justify disregarding the supreme court’s holding on the constitutionality of this limitations provision.

As we noted above, at the time death ensued, section 21.1 of the Limitations Act would have precluded William Real from maintaining an action for the conduct which allegedly caused his death. It necessarily follows that section 1 of the Wrongful Death Act precludes plaintiff from bringing a wrongful death action for the same alleged malpractice.

The next issue is whether the complaint states facts which, if proven, would estop the defendants from asserting the defense of limitations.

Equitable estoppel precludes a litigant from denying his prior assertions in cases where it would be unjust to permit the litigant to disavow express or implied statements upon which another party has relied. (Dill v. Widman (1952), 413 Ill. 448, 455-56; see also Cessna v. Montgomery (1976), 63 Ill. 2d 71, 86; City of Quincy v. Sturhahn (1960), 18 Ill. 2d 604, 614.) Thus, equitable estoppel is merely an application of the fundamental principle that a litigant will not be permitted to take advantage of his own wrongdoing. Bomba v. W. L. Belvidere, Inc. (7th Cir. 1978), 579 F.2d 1067, 1070.

Application of the doctrine of equitable estoppel “will prevent a defendant, whose representations or other conduct have caused a plaintiff to delay filing suit until after the running of the statutory period, to assert the statute of limitations as a bar to the action.” Burke v. Gateway Clipper, Inc. (3d Cir. 1971), 441 F.2d 946, 948; see, e.g., Witherell v. Weimer (1981), 85 Ill. 2d 146, 158.

Nevertheless, equitable estoppel “comes into play only after the limitations period has run.” (Bomba v. W. L. Belvidere, Inc. (7th Cir. 1978), 579 F.2d 1067, 1070.) Therefore,

“[A] defendant is not estopped to raise a limitations point because of any alleged ‘lulling’ of the plaintiff into inaction until after the limitation period where the ‘lulling’ period, if there was any, expired months before the statute barred the action and where there was ample time and opportunity for the plaintiff to avail of any legal rights he has.” Reat v. Illinois Central R.R. Co. (1964), 47 Ill. App. 2d 267, 274-75; accord, Sabath v. Mansfield (1978), 60 Ill. App. 3d 1008, 1014; see also Annot., Plaintiff’s Diligence as Affecting His Right to Have Defendant Estopped From Pleading the Statute of Limitations, 44 A.L.R.3d 760, 764-65 (1972).

The approach taken by the appellate court in Beat and Sabath is consistent with the rule applied by the supreme court in cases where a plaintiff relies on section 22 of the Limitations Act. (Ill. Rev. Stat. 1979, ch. 83, par. 23, now codified at section 13 — 215 of the Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, par. 13 — 215.) Under section 22, if a defendant has “fraudulently concealed” the existence of a cause of action, the injured party has five years in which to file a lawsuit after he learns of his right of action.

In Anderson v. Wagner, the supreme court (while noting that it was not deciding whether section 22 could be applied to medical malpractice actions) stated that,

“If at the time the plaintiff discovers the ‘fraudulent concealment’ a reasonable time remains within the applicable statute of limitations, section 22 of the Limitations Act does not toll the running of the limitation period.” 79 Ill. 2d 295, 322.

Applying the applicable equitable principles to the present case, we find that the complaint fails to state facts which would, if proven, estop the defendants from asserting a limitations defense.

Briefly stated, plaintiff’s estopped argument is that, in April of 1976, the defendants negligently administered and interpreted a medical test, and that they should be precluded from relying on the Limitations Act because, allegedly, this single act of negligence kept William Real from discovering his true medical condition until his disease was terminal.

However, the complaint also alleges that in June of 1979, William was diagnosed as having brain cancer. At that point, William knew or should have known that he might have been misdiagnosed in 1976. As a result, he then had the burden of investigating whether he had a cause of action for medical malpractice. (See Witherell v. Weimer (1981), 85 Ill. 2d 146, 156.) Moreover, the limitations period for any medical malpractice claim which William may have had against the defendants did not expire until April of 1980 — approximately 10 months after he knew or should have known of his possible cause of action.

We need not decide whether mere negligence in diagnosing a patient could give rise to an estoppel, because the circumstances relied upon as justifying a delay in filing suit (i.e., Williams’ ignorance of the alleged misdiagnosis) ceased to be operational when he was diagnosed as having cancer (i.e., when he should have known he may have been originally misdiagnosed). From that point, William had 10 months in which to file a lawsuit. As a matter of law, this was sufficient time in which to bring an action. See Sabath v. Mansfield (1978), 60 Ill. App. 3d 1008, 1015 (eight-month period after inducement for delay had passed held sufficient).

Furthermore, the complaint does not state any facts which would show that the defendants did or said anything after the discovery date to induce William to delay filing an action against them. Accordingly, we hold that the complaint does not state facts which would, if proven, estop the defendants from asserting a limitations defense.

The final issue is whether Northwestern Radiology Group, a medical corporation, is covered by section 21.1 of the Limitations Act. Section 21.1 applies to “any physician or hospital duly licensed under the laws of this State” (Ill. Rev. Stat. 1979, ch. 83, par. 22.1, now codified at section 13 — 212 of the Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, par. 13 — 212), and plaintiff argues that a medical corporation is neither a licensed physician nor a licensed hospital.

We disagree. A physician is a person who practices medicine (i.e., diagnoses and treats human ailments) (People ex rel. Gage v. Siman (1917), 278 Ill. 256, 257-58), and section 2 of the Medical Corporation Act authorizes the formation of corporations “for the study, diagnosis and a treatment of human ailments and injuries ***.” (Ill. Rev. Stat. 1979, ch. 32, par. 632; compare People v. United Medical Service, Inc. (1936), 362 Ill. 442, 454, 456 (decided before the Medical Corporation Act was enacted; holding that Illinois law prohibited corporations from practicing medicine).) Moreover, a corporation formed to practice medicine must be licensed by the State. (Ill. Rev. Stat. 1979, ch. 32, pars. 635 through 642.) Therefore, a corporation formed under the Medical Corporation Act can lawfully practice medicine, just like any individual who is a licensed physician.

The Medical Corporation Act was passed in 1963 (1963 Ill. Laws 3513), but the pertinent portion of the Limitations Act wasn’t enacted until 1975 (Pub. Act. 79 — 960, 1975 Ill. Laws 2894). So the key question in this case is whether the legislature intended that the phrase “physician,” as used in section 21.1 of the Limitations Act, should encompass medical corporations.

As commonly used, the word “physician” suggests a natural person. But the law regards corporations as artificial persons (1 W. Fletcher, Cyclopedia of Corporations sec. 7, at 37 (1974 rev. ed.)), and courts have frequently construed the term “person” in constitutional and statutory provisions as encompassing both natural persons and corporations. See, e.g., Charles Friend & Co. v. Goldsmith & Seidel Co. (1923), 307 Ill. 45, 50-51; Mineral Point R.R. Co. v. Keep (1859), 22 Ill. 9, 18-19.

In determining the legislature’s intent in enacting section 21.1 of the Limitations Act, it is important to note that all the officers, directors, and shareholders of medical corporations, as well as the employees who practice medicine on behalf of such corporations, must be licensed physicians. (Ill. Rev. Stat. 1979, ch. 32, pars. 632, 643.) It would have been illogical for the legislature to provide that all the officers, directors, shareholders, and physician-employees of medical corporations could take advantage of the special limitations period provided by section 21.1 for medical malpractice actions, but that the corporation itself was subject to the so-called “long tail” of potential liability which used to exist for physicians when most malpractice actions were governed by section 14 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 15, now codified at section 13 — 202 of the Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, par. 13 — 202) as construed by Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 40 (holding that a cause of action for medical malpractice did not accrue until the “discovery date” — no matter how far in the future that date occurred).

We are convinced that the legislature did not intend this discrepancy, and we hold that the word “physician,” as used in section 21.1 of the Limitations Act, includes corporations formed to practice medicine under the Medical Corporations Act.

Based on all the preceding reasons, the judgment of the circuit court is affirmed.

Affirmed.

SULLIIAN, P.J., and WILSON, J., concur.


author: PRESIDING JUSTICE ROMITI JUSTICE JIGANTI,

text:
    WELL DONE HEATING & SHEET METAL CO., Plaintiff, v., RALPH SCHWARTZ & ASSOCIATES et al., Defendants-Appellants.—(Steven I. Brown, Indiv. and d/b/a Custom Cycle Sales, et al., Defendants-Appellees.)
    First District (4th Division)
    No. 82—1945
    Opinion filed January 27, 1983.

      JIGANTI, J., dissenting.
    Michael L. Shakman, of Krupp & Miller, of Chicago, for appellants.
    Hartigan & Ward, of Chicago, for appellees.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Appellant was a contractor on a construction project for appellee, the owner of the property. After the work was completed a subcontractor filed suit to foreclose its mechanics’ lien. Although appellant was joined as a defendant in the action, it did not file a counterclaim to foreclose its own lien until well after two years from the date of completion of the project. Accordingly appellee successfully moved to have appellant’s lien expunged. The trial court also denied appellant’s motion to amend its complaint to add a counterclaim seeking to foreclose the lien. We affirm, holding that:

(1) by statute (Ill. Rev. Stat. 1977, ch. 82, par. 9), the contractor to preserve its lien was required to file a suit or counterclaim within two years after completion of the contract. Since the contractor failed to do either within the two-year period, the lien was properly expunged; and

(2) liberal as section 46(2) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 46(2)), now section 2 — 616(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616(b)), is, the appellant cannot, after the time for protecting its lien has passed, amend its answer to add a counterclaim to foreclose the lien.

On July 28, 1975, Steven Brown as owner, executed a construction contract with Bonnie Dee Builders, as contractor. According to the contract, the contractor was to construct an extensive addition to the owner’s existing store. Disagreements arose during the course of construction. The owner contended the building was not completed on time, did not comply with city codes and was not constructed in a workmanlike manner. The contractor and various subcontractors filed mechanics’ liens. It is not clear from the record exactly when the construction was completed, probably around June 1976.

On September 10, 1976, one subcontractor, Well Done Heating & Sheet Metal Co. (Well Done), filed suit to foreclose its mechanics’ lien. It joined the owner, contractor, and several subcontractors who had or claimed a lien on the property. Well Done sought recovery against both the owner and the contractor. Contractor filed an answer which admitted all of the allegations of the complaint to foreclose including the allegation that contractor had or claimed a lien on the property. It asked that an accounting be taken by the court as to the amount due subcontractor; that subcontractor be decreed to be entitled to a mechanics’ lien but that owner and not contractor be held liable for the amount due Well Done and that contractor be decreed free of said indebtedness. Well Done had asked that if the amount was not paid, the property be foreclosed and defendants (including contractor) be barred of all right in the premises. Contractor did not respond to the prayer. It also did not in any manner ask that its own lien be protected or foreclosed. Other subcontractors did file counterclaims for foreclosure of their mechanics’ liens.

In 1979 the contractor filed a counterclaim in contract against the owner for the unpaid portion of the contract price. There was no request for foreclosure. In 1980 Well Done’s claim was settled and its complaint dismissed with prejudice. Although such dismissal is prohibited by section 9 of the Mechanics’ Lien Act (Ill. Rev. Stat. 1979, ch. 82, par. 9), except with the consent of the other lien claimants, there is no evidence in the record that contractor ever objected to this dismissal.

In 1982, about six years after the building was completed, owner moved to expunge the lien filed by contractor since no suit or counterclaim had been filed by contractor within the two years required by statute. The trial court held that the answer satisfied the requirements of the act but concluded that it became moot when the complaint was dismissed. It therefore granted the motion to expunge. The trial court also denied contractor’s motion to amend its answer to add a cross-complaint to foreclose since that amendment set forth a new cause of action and was barred by the time limitations of section 9 of the Mechanics’ Lien Act.

I

The contractor contends that section 9 of the Mechanics’ Lien Act unambiguously provides that once a mechanics’ lien claim has been filed by one lien claimant, an answer thereto by another lien claimant, filed within two years after the completion of the work, is sufficient to permit enforcement of the second claimant’s lien; that the court may not require any further pleadings and that this has been the law in Illinois for over a century.

First of all it would appear that contractor’s answer here was insufficient to set up a lien claim even under the old law. Those cases seem to hold that an answer setting forth fully the facts upon which a claim for a lien was founded, and asserting the lien against the fee title, thus asserting a claim for affirmative relief, is sufficient to set forth a claim for foreclosure. (E. W. Blatchford & Co. v. Blanchard (1895), 160 Ill. 115, 43 N.E. 794; Thielman v. Carr (1874), 75 Ill. 385; Gilbert v. Croshaw (1913), 178 Ill. App. 10; Shields v. Sorg (1906), 129 Ill. App. 266, aff’d (1908), 233 Ill. 79, 84 N.E. 181.) The answer in this case did not set forth fully the facts upon which a lien claim was founded or in any other way set out a claim for affirmative relief. To the contrary, contractor, while praying that only the owner be held liable, did not answer subcontractor’s prayer that if the property be foreclosed, defendants, including contractor, be barred of all rights in the property.

We need not decide this question, however, since the statute was amended before contractor’s answer was filed and no longer permits an answer to serve as a cross-bill or counterclaim as the statute provided. The statute prior to October 1,1976, read:

“If payment shall not be made to the contractor having a lien by virtue of this act of any amount due when the same becomes due, then such contractor may bring suit to enforce his lien by complaint or petition in any court of competent jurisdiction in the county where the improvement is located, and in the event that the contract relates to two or more buildings or two or more lots or tracts of land, then all of said buildings and lots or tracts of land may be included in one complaint or petition. Any two or more persons having liens on the same property may join in bringing such suit, setting forth their respective rights in their complaint or petition; all lien claimants not made parties thereto may upon application become defendants and enforce their liens by answer to the complaint or petition in the nature of an intervening petition, and the same shall be taken as a counterclaim against all the parties to such suit; and the said complaint or petition shall not thereafter be dismissed as to any such lien claimant, or as to the owner or owners of the premises without the consent of such lien claimant. The plaintiff or petitioner, and all defendants to such complaint or petition may contest each other’s right without any formal issue of record made up between them other than that shown upon the original complaint or petition, as well with respect to the amount due as to the right to the benefit of the lien claimed: Provided, that if by such contest by co-defendants any lien claimants be taken by surprise, the court may, in its discretion, as to such claim, grant a continuance. The court may render judgment against any party summoned and failing to appear, as in the other cases of default. Such suit shall be commenced or answer filed within two years after the completion of the contract, or completion of the extra or additional work, or furnishing of extra or additional material thereunder.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 82, par. 9.)

(Earlier statutes were similar in wording.) But effective October 1, 1976, the statute now reads in relevant part:

“Any two or more persons having liens on the same property may join in bringing such suit, setting forth their respective rights in their complaint; all lien claimants not made parties thereto may upon filing a petition to intervene become defendants and enforce their liens by counterclaim against all the parties to the suit; and the complaint shall not thereafter be dismissed as to any lien claimant, or as to the owner or owners of the premises without the consent of such lien claimant. The plaintiff and all defendants to such complaint may contest each other’s right without any formal issue of record made up between them other than that shown upon the original complaint, as well with respect to the amount due as to the right to the benefit of the lien claimed: Provided, that if by such contest by co-defendants any lien claimants be taken by surprise, the court may, in its discretion, as to such claim, grant a continuance. The court may render judgment against any party summoned and failing to appear, as in other cases of default. Such suit shall be commenced or counterclaim filed within two years after the completion of the contract, or completion of the extra or additional work, or furnishing of extra or additional material thereunder.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 82, par. 9.)

All references to “answer” in the previous statutes have been removed and replaced by the word “counterclaim” and the provision in the old statutes that the answer or intervening petition should be taken as a counterclaim has been deleted. Thus it is clear that under the statute, as amended, an answer, at least one failing in effect to set forth a counterclaim and ending with an appropriate prayer for relief (see Ill. Rev. Stat. 1977, ch. 110, par. 34, now Ill. Rev. Stat. 1981, ch. 110, par. 2—604); Thielman v. Carr (1874), 75 Ill. 385), is insnfficip.nt to preserve the lien claim. The lienor must either file a suit or a counterclaim within the two-year period or its claim falls and it has no right to a lien (Rochelle Building Co. v. Oak Park Trust & Savings Bank (1970), 121 Ill. App. 2d 274, 257 N.E.2d 542), since the time fixed for commencing an action under the Mechanics’ Lien Act is a condition of liability and not of the remedy alone. North Side Sash & Door Co. v. Hecht (1920), 295 Ill. 515, 129 N.E. 273; Muehlfelt v. Vlcek (1969), 112 Ill. App. 2d 190, 250 N.E.2d 14; Anderson v. Gousset (1965), 60 Ill. App. 2d 309, 208 N.E.2d 37.

The contractor contends that the statutory language does not apply to it because it was made an original defendant by the complaint and the pertinent clauses only apply to lien claimants not made parties to the suit. That same contention, however, was made and rejected in Rochelle Building Co. v. Oak Park Trust & Savings Bank (1970), 121 Ill. App. 2d 274, 257 N.E.2d 542. Rochelle held that even though the party in question was made a defendant by the original complaint, as was the contractor in the present case, he could not rely on the date the suit was brought and since he only filed his appearance and failed to file an answer (as already noted the statute in 1970 referred to answers) or counterclaim within the two-year period, his lien was lost. Here, the statute expressly requires that either the suit or the counterclaim be filed within two years if the lien is to be protected. It no longer permits an answer to suffice for this purpose. The contractor did not file a counterclaim within two years. While a suit was filed within two years, it was not filed by the contractor. As held in Rochelle the contractor, although named as a defendant in the suit, was still required to file his own suit or counterclaim and could not rely on the fact a subcontractor filed his own lien action. The filing of the answer which sought no affirmative relief was not equivalent to filing its own suit under the statute. Rochelle; Galloy v. Sparrow (1911), 166 Ill. App. 197.

II

Contractor contends that in any event it should have been allowed to amend its answer to add the counterclaim since section 46(1) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 46(1)), now section 2 — 616(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616(a)), allows a pleading to be amended any time up to judgment. Section 46(1), however, is not applicable since while it permits amendments up to judgment, it does not provide for amendments after the statute of limitations has ran. Sections 46(2) and 46(4) do under certain limited circumstances but they are not applicable here. Ill. Rev. Stat. 1981, ch. 110, par. 46(2), (4).

While Illinois allows a party to amend its pleading, even sometimes to the extent of altering the nature of the claim previously made, it is still the law that generally an amendment asserting a new cause of action is not permitted once the statute of limitations has expired (Millsaps v. Bankers Life Co. (1976), 35 Ill. App. 3d 735, 342 N.E.2d 329, appeal denied (1976), 63 Ill. 2d 552; Beam v. Erven (1971), 133 Ill. App. 2d 193, 272 N.E.2d 685), particularly where, as here, there had been no attempt of any kind to set forth the claim prior to the running of the statute.

This case is remarkably similar to the recent case of Shriners Hospitals for Crippled Children v. First National Bank (1981), 101 Ill. App. 3d 626, 428 N.E.2d 751, appeal denied (1982), 88 Ill. 2d 555, which we find persuasive. Shriners involved a will contest. A party seeking to contest a will must do so within six months after the admission of the will to probate just as a contractor wishing to preserve his lien must file suit or counterclaim within two years from the date of completion. In Shriners a beneficiary under a previous will filed suit to contest the will naming among the defendants Masonic Home, a beneficiary under both the wills. Likewise in our case, Well Done, a subcontractor, filed suit against several defendants including the contractor and sought both to recover from the contractor and to bar contractor’s rights in the property. In Shriners, Masonic merely filed an answer demanding Shriners make strict proof of its allegations; it did not, at that time, seek to contest the will. In the present case, contractor merely denied its liability to the subcontractor; it did not, at that time, seek to foreclose its own lien. In Shriners, after the six-month period expired, Shriners over Masonic’s objection moved to have its petition dismissed with prejudice which motion was later granted. In the present case, Well Done did dismiss its complaint with prejudice; there was no objection by the contractor. In Shriners, when Shriners sought to dismiss its complaint, Masonic sought leave to amend its answer by adding a counterclaim contesting the present will. In the present case, the contractor over IV2 years after the dismissal of the complaint sought to amend its answer to add a counterclaim to foreclose its lien. The court in Shriners denied the motion to amend the answer, stating at 101 Ill. App. 3d 626, 629-30, 428 N.E.2d 754:

“A broad reading of Nupnau and Watt might suggest that section 46 of the Civil Practice Act is controlling once a will contest has been timely filed by any party. However, it is important to note that in neither of those cases, nor in any other case cited by those courts, was a party seeking to change its position from that of a party supporting the will to that of a party attacking the will. Such a realignment would have the effect of allowing one party to take advantage of another party’s timely actions, even though each party originally had its own cause of action to contest the will and one party chose not to do so within the required time.
In essence, this is what has happened. Masonic Home had a cause of action for the contest of the decedent’s purported will for the 6-month statutory period. It chose not to assert that cause of action. In like manner, Shriners also had a cause of action for contest of the decedent’s purported will. It chose to assert its cause of action by commencing this suit. Masonic Home entered the case by filing an answer which was silent as to its own cause of action. It chose alignment in the suit as a defendant, or perhaps as a neutral, rather than as a contestant. When Shriners then withdrew its suit, Masonic Home moved to be permitted to assert the cause of action possessed by Shriners. We hold that even a liberal interpretation of section 46 of the Civil Practice Act does not permit such realignment in this case.”

In addition, it is well settled in Illinois that a complaint to foreclose a mechanics’ lien cannot, after the statutory period, be amended to add a new defendant. (Muehlfelt v. Vlcek (1969), 112 Ill. App. 2d 190, 250 N.E.2d 14; Anderson v. Gousset (1965), 60 Ill. App. 2d 309, 208 N.E.2d 37.) Contractor contends this rule is inapplicable since the owner was already a party to the suit. But the owner was not a party to any claim filed by contractor because contractor had filed no claim. Furthermore, it was established in Dignan v. Midas-International Corp. (1978), 65 Ill. App. 3d 188, 382 N.E.2d 559, that a cross-claim against a co-defendant cannot be brought once the statute of limitations has run.

For the foregoing reasons, the judgment of the trial court expunging the lien and denying the motion to amend the complaint is affirmed.

Affirmed.

LINN, J., concurs.

JUSTICE JIGANTI,

dissenting:

The question is what must a mechanics’ lien claimant do to foreclose its lien claim when it is already a defendant in a foreclosure action. The contractor, appellant here, was named a defendant in an action brought by its subcontractor. The contractor filed its answer to the subcontractor's claim and contends that this answer is sufficient to preserve its own foreclosure action against the owner. The owner, appellee here, contends that the contractor must either file a counterclaim or set up its claim by way of its answer. Since the contractor did not file a counterclaim and since its answer did not set up its claim because it did not request that its lien be foreclosed, the owner contends that the contractor’s foreclosure action has been lost.

To resolve the question of what is necessary to preserve the contractor’s mechanics’ lien foreclosure action against the owner, we must interpret section 9 of the Mechanics’ Lien Act (111. Rev. Stat. 1979, ch. 82, par. 9). The pertinent parts of section 9 read as follow:

“Any two or more persons having liens on the same property may join in bringing [a mechanics’ lien foreclosure] suit, setting forth their respective rights in their complaint; all lien claimants not made parties thereto may upon filing a petition to intervene become defendants and enforce their liens by counterclaim against all the parties to the suit; ***. The plaintiff and all defendants to such complaint may contest each other’s right without any formal issue of record made up between them other than that shown upon the original complaint, as well with respect to the amount due as to the right to the benefit of the lien claimed: ***. Such suit shall be commenced or counterclaim filed within two years after the completion of the contract ***.” (Emphasis added.)

This statute, which was amended in 1976, must be interpreted in light of prior case law. Where the word “counterclaim” is underlined above prior statutes stretching back over the last century used the word “answer.” The change from the word “answer” to the word “counterclaim” would appear to be dispositive of this appeal because the statute would seem to clearly indicate that a counterclaim and not an answer was intended and is absolutely necessary. This argument was persuasive with the majority. It would persuade me except for the fact that the change in the law was not intended to change the substance of the prior statute or its interpretation under prior case law. This is clear because the amending Act, Public Act 79-1358, is entitled “An Act amending various Acts and repealing parts of Acts to conform statutory references and languages to the Judicial Article of the Illinois Constitution of 1970.” 1976 Ill. Laws 713.

The 57 page act amends not only the Mechanics’ Lien Act but 17 other acts as well. I believe it is fair to say that all of the changes made by this amendment were merely procedural. The word “order” replaced the word “decree” and the term “circuit court” replaced the words “any court of competent jurisdiction.” Consequently in my estimation, there was no substantive change in mechanics’ lien foreclosure law and the law must be interpreted as it has always been. What the law has been in the past forms the basis of the central issue in this appeal.

Citing to the statute, the contractor contends that he may, as a defendant, contest his claim for foreclosure without any formal issue of record being made up other than that shown by the complaint. The contractor states that he answered the complaint filed by Well Done Heating & Sheet Metal Co. and that this pleading should be sufficient. Well Done’s complaint alleged that it had entered into a subcontract with the contractor. The complaint also alleged that the contractor had filed a mechanics’ lien claim against the owner and specifically listed the filing date of this claim and its exact recording number. The complaint prayed that Well Done’s lien be foreclosed and that judgment be entered against both the owner and the contractor. In its answer, the contractor admitted these allegations. It admitted that it had a mechanics’ lien claim on file; it admitted that Well Done was entitled to foreclose its lien; it admitted that the owner should pay the amount requested by Well Done; and it also stated that the contractor itself should be declared free from any indebtedness or obligation to Well Done. The answer did not specifically pray, as the owner says it must, that judgment be entered in favor of the contractor and against the owner.

Both parties substantially rely upon the century-old case of Thielman v. Carr (1874), 75 Ill. 385. The contractor emphasizes the language in Thielman which states:

“When one lien holder has filed his petition to subject the property to the payment of his claim, it is a proceeding to subject the property as a fund, not only for the satisfaction of his own lien, but for all other liens enumerated in the statute. It from that time forward becomes a fund for distribution among the lien holders. And the answer of all the defendants, whether brought in by service, or who intervene, are to be regarded as claimants, who are required to prove their claims against the fund.” (Emphasis added.) 75 Ill. 385, 390-91.

The contractor contends that the answer it filed was sufficient under this language.

The owner contends, and clearly stated this position in oral argument, that an answer must not merely answer the allegations but also set up a claim. The owner emphasizes the language in Thielman which states:

“As we have understood the practice under this statute, it has never required a co-claimant to file a formal cross-bill, but only by answer, set up his claim, and so of any other lien holder.” .(Emphasis added.) 75 Ill. 385, 390.

The positions of both the owner and contractor are reasonable. It certainly would be a better procedure if a contractor who is a party defendant in a lien foreclosure action filed an answer specifically asserting its own claim against the owner. However, I do not believe it was the intention of the statute, nor does the statutory interpretation of Thielman mandate that this procedure be followed. Exactly what is necessary to be stated in the answer was not the issue in Thielman, nor was it the issue in two other cases that also interpret this statute. See Gilbert v. Croshaw (1913), 178 Ill. App. 10, and Rochelle Building Co. v. Oak Park Trust & Savings Bank (1970), 121 Ill. App. 2d 274, 257 N.E.2d 542.

The statute clearly envisions a more informal procedure. It says that “all defendants” may contest each other’s right “without any formal issue of record made up between them.” Thielman interpreted this language to mean that the filing of an answer was all that was necessary to preserve a mechanics’ lien foreclosure suit. Thus, an informal procedure of perfecting a mechanics’ lien claim by merely filing an answer was acceptable more than a half century before the more liberal civil practice acts were initiated throughout the country.

Furthermore, the rationale set out in Thielman and quoted above is that the initial lawsuit sets up a fund in which all mechanics’ lien claimants who filed a timely complaint can participate. As the court said in Rochelle Building Co. v. Oak Park Trust & Savings Bank (1970), 121 Ill. App. 2d 274, 257 N.E.2d 542, “In a mechanic’s lien foreclosure suit all lien claimants must join as plaintiffs or be joined as defendants so that the trial court can adjust all equities and render a decree properly distributing the proceeds of the sale.” (121 Ill. App. 2d 274, 277, 257 N.E.2d 542, 543.) An informal procedure accords with this rationale because the issues between the parties in a mechanics’ lien foreclosure action are readily ascertainable.

A more informal procedure would also suffice in the instant action. Here the owner was on notice of the contractor’s mechanics’ lien claim because the contractor had recorded a mechanics’ lien claim, as it must in most circumstances, in apt time because Well Done had pleaded a claim in its complaint and because the answer of the contractor stated that it filed that lien.

Thus in my view, the amendment to the Act was an amendment in form and not in substance. The law is presently what it always has been. The answer of a defendant preserves its own mechanics’ lien foreclosure action because the pleadings between the parties are to be informal. The answer of the defendant here has satisfied the requirements of the Act.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MOSES FREE, Defendant-Appellant.
    Fourth District
    No. 4—82—0306
    Opinion filed February 8, 1983.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On April 3, 1982, after a trial by jury in the circuit court of McLean County, the court entered judgment on a verdict finding defendant, Moses Free, guilty of unlawful use of weapons (Ill. Rev. Stat. 1981, ch. 38, par. 24 — l(a)(10)). The indictment charged a Class 3 felony, because it was alleged defendant committed the offense within five years of his release from the penitentiary after a conviction for murder. On April 29, 1982, the court sentenced defendant to two years’ imprisonment which was to be served concurrently with a sentence defendant was then serving.

On appeal, defendant asserts: (1) his guilt was not proved beyond a reasonable doubt; (2) the trial court abused its discretion by denying him a continuance; (3) his conviction should be reduced to a misdemeanor; (4) the court failed to consider the possibility of placing defendant on probation; and (5) the mittimus should be amended to give him credit for time incarcerated prior to trial.

Section 24 — l(a)(10) of the Criminal Code of 1961 states that a person commits the offense of unlawful use of weapons when he knowingly:

“Carries or possesses on or about his person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town, except when an invitee thereon or therein, for the purpose of the display of such weapon or the lawful commerce in weapons, or except when on his land or in his own abode or fixed place of business, any pistol, revolver, stun gun or taser or other firearm.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 24 — l(a)(10).

The evidence relied upon to support defendant’s conviction is undisputed. On November 21, 1981, defendant was employed as a dishwasher at Maxwell’s restaurant in Bloomington. While working there that evening, defendant was engaged in an argument with another employee who, in the course of the argument, cut defendant’s arm with a knife. Defendant then left the restaurant but later returned and was seen in the back of the kitchen carrying a pistol. Defendant approached the employee who had knifed him, whereupon the latter ran from the kitchen into the front of the restaurant. Defendant followed but returned to the kitchen and then went out the back door into the restaurant parking lot. He entered his car and started to leave, but he was stopped by police before his car left the parking lot.

The issue as to whether the jury could have properly found defendant’s guilt to have been proved beyond a reasonable doubt, turns upon the legal question of whether, when defendant carried a pistol in the restaurant of his employment and its adjacent parking lot, he was in his “fixed place of business” within the exception of section 24 — l(a)(10) of the Criminal Code of 1961. We conclude that he was not and hold that the proof of his guilt was sufficient.

In People v. Cosby (1969), 118 Ill. App. 2d 169, 255 N.E.2d 54, the only reported case interpreting the meaning of the phrase “fixed place of business” in section 24 — l(a)(10), the court held that a cabdriver while driving a taxicab was not in his “fixed place of business,” noting that the vehicle would move about rather than being fixed to one place. However, cases from other jurisdictions have held that similar language does not create an exception which would permit the carrying of a dangerous weapon by an employee who is at his place of work but has no proprietary interest in the business.

In Berkley v. United States (D.C. App. 1977), 370 A.2d 1331, the defendant was found guilty of violating a weapons statute similar to Illinois’ and argued that he was on his place of business. The defendant was a lab technician in the blood unit of a local hospital and was in possession of a hand gun in the hospital when he was arrested. The court of appeals affirmed his conviction stating, “it cannot be assumed that [Congress] intended, in a jurisdiction where there are countless numbers of employees reporting every day to governmental agencies, to write in an exception permitting every employee to carry a loaded pistol while working.” (370 A.2d 1331, 1333.) The court stated that the fixed place of business exemption was applicable only to those who have a controlling, proprietary or possessory interest in the business premises in question. Since the defendant had no such interest in the hospital’s blood unit the defendant’s conviction was affirmed.

In State v. Valentine (1973), 124 N.J. Super. 425, 307 A.2d 617, the defendant was convicted of carrying a weapon in a public place without a permit. Defendant was the manager of a bar and had complete control of the business from 6 p.m. to 2 a.m. when the owner was not present. He had a loaded revolver in his pocket when the police searched him while he was working behind the bar. The defendant argued that he was about his place of business and therefore was exempted from the weapons statute. The appellate court noted that the defendant had no proprietary interest in the bar and there was no evidence that the revolver had been acquired by the owner of the bar and in the possession of the defendant in connection with the operation of the business. The defendant’s conviction was affirmed.

In People v. Francis (1974), 45 App. Div. 2d 431, 358 N.Y.S.2d 148, the defendant pleaded guilty to attempted possession of a weapon. Defendant was arrested while on his job in the United States Post Office attached to John F. Kennedy Airport. The court stated that defendant had no authority or delegation to carry the revolver and the possession of the gun was not in any way in furtherance of any function or duty being performed by him for the postal service. His conviction was affirmed.

Unless the employee carrying the weapon needs to use the weapon in his employment, such as is the case with a guard or night-watchman, little authority supports the view that the employee comes within statutory exemptions similar to that in section 24— l(a)(10) (Annot., 57 A.L.R.3d 938, 942, 960 (1974)). The logic for this is much as stated in Berkley, that legislative bodies cannot be assumed to have intended to permit all employees to carry weapons while at work. The drafting committee for the Criminal Code of 1961 stated, in reference to the rationale for article XXIV of the Code, that:

“The possession and use of weapons inherently dangerous to human life constitutes a sufficient hazard to society to call for prohibition unless there appears appropriate justification created by special circumstances.” (Ill. Ann. Stat., ch. 38, par. 24 — 1, Committee Comments, at 83 (Smith-Hurd 1977).)

We conclude that neither the drafting committee nor the legislature intended that each employee, while at his place of work, should be entitled to possess a weapon. No “special circumstances” would have required that. Rather, we deem the committee and the legislature to have intended that a proprietor have this right in the proprietor’s “fixed place of business.”

On December 3, 1981, prior to indictment, the public defender of McLean County was appointed to represent defendant. On March 2, 1982, the date the case was set for trial, defendant requested he be granted a continuance to obtain a lawyer of his own choosing. Defendant vociferously protested against the counsel appointed for him, complaining that counsel advised him as to the manner in which the case should be presented with particular reference to (1) whether the defendant should testify, (2) what testimony of the defendant might be admissible, and (3) what the defendant should state to the court. Defendant stated that he had gotten his “income tax papers back,” perhaps indicating that he had some tax refund. He also mentioned that his financial situation had changed and that if he had more time, he “might” be able to hire counsel. Some of the comments of defendant, who was black, indicated he thought his white assistant public defender was racist.

In claiming his right to counsel was violated, defendant relies upon People v. Green (1969), 42 Ill. 2d 555, 248 N.E.2d 116, where a conviction was set aside because the defendant was forced to trial with a counsel appointed by the court on the day of trial. A church group had apparently obtained counsel for that defendant, but the lawyer did not appear for trial. The court stated that a defendant “cannot be permitted to bring about an ‘indefinite thwarting of the administration of justice.’ ” (42 Ill. 2d 555, 557, 248 N.E.2d 116, 117.) Defendant also relies on People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229, People v. Isenberg (1978), 60 Ill. App. 3d 325, 376 N.E.2d 778, and People v. Wallace (1976), 44 Ill. App. 3d 89, 357 N.E.2d 858, where, in holding that denial of a continuance did not deprive the defendant of his right to counsel, the courts repeated the language of Green concerning the indefinite thwarting of justice.

We do not understand the language of the above cases to permit a defendant, as a matter of right, to even temporarily thwart the administration of justice. The trial judge is placed in a very difficult position when a defendant in a criminal case moves, within a few days of trial, for a continuance to obtain new counsel. We have struggled with the question for a long time. However, where, as here, there was no counsel identified as being ready, willing and able to take over, we held in People v. Koss (1977), 52 Ill. App. 3d 605, 367 N.E.2d 1040, that denial of a continuance to obtain new counsel was not a breach of discretion. This case differs from Green in that there the defendant had an attorney who had failed to appear. It also differs from Green in that the court appointed attorney who represented the defendant here was prepared. Although defendant was incarcerated prior to trial, he had ample time to attempt to obtain counsel of his own choosing if he so wished and was able to do so. There was no indication that defendant’s ability to obtain private counsel would have improved substantially if he had obtained a continuance. The circumstances imply that defendant’s request was for the purposes of delay. The denial of his request was not a breach of discretion by the trial court and did not deprive defendant of his right to counsel.

Section 24 — 1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 24 — 1(b)) provides that a person commits a Class 3 felony when that person was previously convicted of a felony and, within five years of release from prison where he was serving sentence for that felony, that person violates any subsection of section 24 — 1. Defendant was sentenced here upon a basis that he came within the above provision and, thus, committed a Class 3 felony. He contends the evidence was insufficient to prove this.

Evidence was presented at trial that (1) a “Moses Free” had been incarcerated at the Pontiac State Prison and was released in January 1980, and (2) a parole officer of the State testified he had been assigned to defendant, and that defendant came under his supervision in September 1980. The foregoing was probably insufficient proof that defendant was the “Moses Free” who had been released in January 1980. (People v. Stewart (1961), 23 Ill. 2d 161, 177 N.E.2d 237.) However, the supreme court has held that a determination to enhance a sentence because of a prior conviction may be made at sentencing where, a defendant has notice that a prior conviction is being relied upon and the conviction is proved beyond a reasonable doubt. (People v. Hayes (1981), 87 Ill. 2d 95, 429 N.E.2d 490.) Here, the charge informed defendant that his prior conviction for murder and his discharge from the penitentiary within five years would be relied upon to enhance his punishment. A presentence report, available to defendant, was furnished at sentencing. The reported showed defendant was convicted of murder in 1971 and released on parole in 1980. The evidence presented at trial was properly before the court at sentencing (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 4—1(a)(1)). This, together with the presentence report, was sufficient to prove defendant’s prior conviction and release within five years of the commission of the present offense beyond a reasonable doubt.

Furthermore, the record of the proceedings of defendant’s arraignment before a different judge than the sentencing judge shows defendant admitted he had previously been convicted of murder in this State and discharged from the penitentiary in January 1980. Defendant made the admission while testifying in support of his request to be admitted to bail.

In People v. Green (1959), 17 Ill. 2d 35, 160 N.E.2d 814, the defendant was convicted of armed robbery. After the trial court announced the sentence, the defendant asked that he be allowed to address the court and was granted permission to do so. The defendant then acknowledged his guilt. On appeal, the defendant assigned various errors relating to the sufficiency of the evidence against him. The supreme court stated that the defendant could not question the sufficiency of the evidence against him because he was bound by his confession. The court indicated that the defendant’s confession waived any error concerning the evidence of his guilt. An analogous waiver arising from defendant’s admission of the enhancing factors operates here to prevent defendant from questioning the sufficiency of the proof of those factors.

Defendant’s final contention concerns claims that the trial court failed to consider the possibility of placing defendant on probation and failed to give him credit for time spent in jail pending trial.

Section 5 — 6—1(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—1(a)) states:

“Except where specifically prohibited by other provisions of this Code, the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstances of the offense, and to the history, character and condition of the offender, the court is of the opinion that:
(1) his imprisonment or periodic imprisonment is necessary for the protection of the public; or
(2) probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.”

Upon the Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1001 — 1—1 et seq.) becoming effective January 1, 1973, section 5 — 1—18 of the Code (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 5 — 1—18) defined probation as a sentence. The Code made no provision that application by a defendant for a type of sentence was a prerequisite for receiving that sentence. Where, as here, a defendant was eligible for probation, section 5 — 6—1(a) made consideration of probation by the court mandatory. Thus, the former rule that a defendant need not be considered for probation absent application (People v. Ward (1971), 1 Ill. App. 3d 888, 275 N.E.2d 256) was no longer in force. Any indication to the contrary in People v. Johnson (1975), 33 Ill. App. 3d 957, 338 N.E.2d 895, is incorrect. The State’s claim that this defendant waived any right to probation by failing to request it is also incorrect. However, the sentencing court need make only substantial compliance with section 5 — 6—1(a). If the court recites that reasons showing why a sentence of imprisonment is necessary, substantial compliance is shown. (People v. Kuesis (1980), 83 Ill. 2d 402, 415 N.E.2d 323.) On the other hand, if no explanation for imposing imprisonment is given, no substantial compliance is shown, and the defendant is entitled to resentencing. People v. Cox (1980), 82 111.2 d 268, 412 N.E.2d 541.

In this case the trial court made no findings, and its only remarks were directed to negating the request by the State that a term of five years’ imprisonment be imposed. The trial court noted the strong provocation for the defendant to commit the offense and stated that, accordingly, the court would impose the minimum sentence of imprisonment. Although the trial court was obviously trying to be very fair to the defendant, it did not give any explanation as to why imprisonment rather than probation or an even lesser sentence than probation should not be imposed. This was not substantial compliance with section 5 — 6—1(a) and requires remand for resentencing.

At resentencing, the court should make a determination as to the sentence credit to which he is entitled for the time he was incarcerated for the offense prior to sentencing. Section 5 — 8—7(b) of the Unified Code of Corrections states:

“The offender shall be given credit on the determinate sentence or maximum term and the minimum period of imprisonment for time spent in custody as a result of the offense for which the sentence was imposed ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—7(b).)

The State maintains that the credit should only be that time from defendant’s arrest until a hold order was issued by the Department of Corrections pursuant to proceedings to revoke defendant’s parole. The State relies upon People v. Vahle (1978), 60 Ill. App. 3d 391, 376 N.E.2d 766. There, unlike here, the defendant had been released on bail prior to being taken into custody for an alleged probation violation. Here, defendant was in custody when the order was issued. We know of no authority for a theory that defendant’s sentence credit for an offense for which he is in custody should terminate upon the issuance of a hold order by the Department of Corrections.

We cannot determine the credit to which defendant is entitled, because we do not know the date he was brought into custody.

Defendant’s conviction is affirmed. The sentence is reversed. The case is remanded to the circuit court of McLean County for resentencing.

Affirmed in part, reversed in part, remanded.

TRAPP and MILLER, JJ., concur.


author: JUSTICE KARNS

text:
    ILLINOIS POWER COMPANY, Plaintiff-Appellee, v. THE POLLUTION CONTROL BOARD, Defendant-Appellant.
    Fifth District
    No. 81—627
    Opinion filed February 1, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (Greig R. Siedor, Assistant Attorney General, of counsel), for appellant.
    Sheldon A. Zabel and Susan R. Lichtenstein, both of Schiff, Hardin & Waite, of Chicago, for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

On October 30, 1981, the circuit court of Madison County granted summary judgment for plaintiff, Illinois Power Company, finding that its petition for permit review had concluded by operation of law for failure of the defendant, Illinois Pollution Control Board (Board), to take final action within 90 days as provided in section 40(a) of the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. IllV2, par. 1040(a)) and enjoining the Board from taking any action inconsistent with this determination. From this decision the Board appeals.

The facts are not in dispute. Illinois Power Company (IPC) operates the Wood River steam-electric power plant located in East Alton, Illinois. IPC was originally issued a permit to discharge pollutants from the plant into Illinois waters pursuant to State regulations. When the Illinois permit expired, Illinois had been given the authority to administer the Federal water pollution control permit program, the National Pollutant Discharge Elimination System (NPDES). Therefore, IPC made application with the Illinois Environmental Protection Agency (IEPA) for a NPDES permit and it was issued on October 24, 1979.

On November 21, 1979, IPC petitioned the Board for review of certain conditions in the permit imposed by the IEPA pursuant to section 40(a) of the Environmental Protection Act (111. Rev. Stat. 1981, ch. llD/a, par. 1040(a)). At the same time, IPC filed a motion for stay requesting that the contested conditions be stayed until disposition of the review. The motion for stay was denied and on January 11, 1980, IPC filed a motion for rehearing. This motion was discussed at the Board’s January 24, 1980, meeting but because several questions were raised concerning the motion, action was continued until February 7, 1980. At the February 7 meeting, the motion for rehearing was denied. Subsequently, a hearing officer was appointed to preside over a hearing on IPC’s original petition for review. The hearing was set for October 2,1980.

IPC then sought a declaratory judgment in the trial court that the review of the permit had concluded, that the Board was without jurisdiction to hold the October 2 hearing and that the permit as issued and appealed be deemed in effect. IPC relies on section 40(a) of the Act, which reads in part:

“If the Agency refuses to grant a permit under Section 39 of this Act, the applicant may, within 35 days, petition for a hearing before the Board to contest the decision of the Agency. *** If there is no final action by the Board within 90 days, petitioner may deem the permit issued under this Act ***.” (Ill. Rev. Stat. 1981, ch. 111½, par. 1040(a).)

Inasmuch as the Board did not act within the 90-day period, IPC claims the permit issues as a matter of law. See Marquette Cement Manufacturing Co. v. Pollution Control Board (1980), 84 Ill. App. 3d 434, 439, 405 N.E.2d 512, 516.

Here, the Agency did not “refuse to grant a permit” to IPC; rather, a permit was granted with certain conditions that IPC found unacceptable. In the trial court, the Board contested the applicability of the procedural requirements of section 40(a) to permit reviews where the Agency had not denied a permit but only attached conditions which an applicant found unacceptable. On this appeal, the Board has conceded the applicability of section 40(a) to this permit review but has requested that we not address this question in a precedential manner in our opinion. IPC has declined to accept this concession and has argued that the court should decide this important question. We agree.

We believe that it is apparent that the IEPA could effectively deny a permit to an applicant by attaching conditions to the grant of the permit that the applicant could not possibly satisfy. Only section 40 of the Act deals with the subject of permit reviews before the Board, and we are satisfied that the General Assembly intended the procedural time requirements to apply to all permit actions taken by the IEPA, otherwise the review of permit conditions would be outside the Board’s jurisdiction, a result we believe could not be intended considering the comprehensive nature of the Act and the quasi-judicial function of the Pollution Control board. (See Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 554, 387 N.E.2d 258, 262.) The use of the wording “refuses to grant a permit” in section 40(a) of the Act is, in our opinion, equivalent to “denies a permit application as requested by the applicant.” This is the view taken by the first chairman of the Board, Professor David P. Currie. Currie, Enforcement Under the Illinois Pollution Law, 70 Nw. U. L. Rev. 389, 477 n.435 (1975).

The Board admits no final action was taken within the 90 days but contends that section 40(a) does not apply to NPDES permit reviews; although, the wording of section 40(a) does not distinguish between permits issued under section 39(a) of the Act (Ill. Rev. Stat. 1981, ch. HV-k, par. 1039(a)) and NPDES permits issued under section 39(b) of the Act (Ill. Rev. Stat. 1981, ch. HV-k, par. 1039(b)), the latter section being drafted to insure that any such permit shall be in compliance with both Illinois law and regulations and the Clean Water Act of 1977 (33 U.S.C. sec. 1251 et seq. (Supp. 1978)) and regulations pursuant thereto. Because of the relationship between State and Federal law in the issuance of NPDES permits, the IEPA need not act on NPDES permit applications within 90 days. The United States Environmental Protection Agency has 90 days to object before a NPDES permit may issue (33 U.S.C. sec. 1342(d) (Supp. 1978)). But once the IEPA has acted, the permit review provisions of section 40 make no distinction between NPDES permits and other permits issued under the Act.

Instead, the Board asserts that section 13(b)(1) of the Act is controlling. That section provides:

“(b) Notwithstanding other provisions of this Act and for purposes of implementing an NPDES program, the Board shall adopt:
(1) Requirements, standards, and procedures which, together with other regulations adopted pursuant to this Section 13, are necessary or appropriate to enable the State of Illinois to implement and participate in the National Pollutant Discharge Elimination System ***.” (Ill. Rev. Stat. 1981, ch. lllVa, par. 1013(b)(1).)

Under this section all regulations adopted were to be consistent with Federal law and otherwise consistent with the Illinois act.

Because the Board believed application of section 40(a) to NPDES permits would cause a conflict with Federal law, it stated in the Environmental Register (No. 205, November 27, 1979) and in a Board opinion (Nichols Homeshield Inc. v. Environmental Protection Agency (Feb. 21, 1980), 37 Ill. P.C.B. Op. 391) that section 40(a) would not apply to NPDES permit review by the Board. Its reasoning was that permits granted by operation of law under section 40(a) would issue with or without the conditions sought by the party seeking review; in other words, the permit would issue as requested by the applicant. For example, the permit might contain effluent limitations less strict than the Federal limits required under the Clean Water Act (33 U.S.C. sec. 1251 et seq. (1978)). As a result, violations of Federal law would occur and continued Illinois authority to administer the program would be jeopardized.

We cannot conclude that the General Assembly authorized the Board to repeal the 90-day time limit for NPDES permit reviews. We would note that the Board never attempted to adopt a formal rule purporting to remove NPDES permits from the operation of section 40(a). (See Ill. Rev. Stat. 1981, ch. HV-k, pars. 1026, 1028.) Furthermore, such a delegation of legislative power would raise serious constitutional problems, which we need not address, considering our disposition of the other issue raised by the Board. We simply cannot read into section 13(b)(1) an intention that the General Assembly authorized the Board to amend the clear procedural requirements of section 40(a); nor do we find that the application of section 40(a) to NPDES permits causes a conflict with Federal law.

The result of inaction by the Board during the 90 days period is that the “petitioner may deem the permit issued.” (Ill. Rev. Stat. 1981, ch. 1111/2, par. 1040(a).) Our reading of that language in context of the rest of the Act leads us to conclude, as indeed IPG has argued, that a permit issued by operation of law under section 40(a) does not issue with or without any particular conditions or in the manner requested by the aggrieved party as the Board has argued. A permit issued by operation of law after initial denial could not contain conditions. In fact, a determination of the specific content of permit conditions was not sought by IPC nor made by the trial court. Instead, the effect of inaction by the Board for 90 days is that the party seeking review has a permit and is protected from charges of operation without a permit, a violation of both State and Federal law. (Ill. Rev. Stat. 1981, ch. IllV2, par. 1012(b), (f); 33 U.S.C. secs. 1311, 1342 (Supp. 1978).) it does not insulate the permittee from compliance with all Federal and State substantive standards and limitations. This result does not make the review superfluous as the Board suggests, for legally unjustified or arbitrary conditions in the permit are no longer binding on IPC. In the case of a permit review challenging conditions, if the permit issues by operation of law, the permit issues without the challenged conditions.

If the conditions were properly imposed under the Act and regulations, IPC concedes that they would remain valid and enforceable. In summary, IPC is vulnerable to any charge for a legal violation except that of operating without a permit. Thus, there can be no conflict with Federal law. As IPC has so aptly stated, the 90-day requirement of section 40(a) evinces legislative concern with bureaucratic delay. It was not the intent of the General Assembly to create a “license to pollute.”

Our decision is supported by a comparison to the provisions governing air operating permits issued pursuant to section 9.1 of the Environmental Protection Act. (Ill. Rev. Stat. 1981, ch. HV-k, par. 1009.1.) As with water pollution control, Federal law establishes substantive standards and limitations for the control of air pollution. (42 U.S.C. sec. 7401 et seq. (1981).) State regulations are to be in substance identical with Federal regulations in order to implement the Act. (Ill. Rev. Stat. 1981, ch. llV-k, par. 1009.1(c).) However, as to air operating permits, the General Assembly explicitly made section 40(a) applicable. Thus, if the Board does not act within 90 days to review denial of a permit or conditions imposed in a permit, the air operating permit issues by operation of law. (See Marquette Cement Manufacturing Co. v. Pollution Control Board (1980), 84 Ill. App. 3d 434, 405 N.E.2d 512.) If, as the Board contends, the permit issues with the conditions sought by the party in effect, the Federal regulations could be violated. The General Assembly, by providing for review of permits under section 40(a), precluded any interpretation of the section except that the permit protects the party from charges of operating without a permit.

It is true that IPC would not have the burden of proof in an enforcement action for violation of a standard, as it does in a permit review. We note, however, that section 40(a) was enacted to counter administrative delay in issuing permits and all the Board must do to avoid the problem is to act within the 90 days.

A final point raised by the Board is that the United States Environmental Protection Agency (USEPA) was a necessary party to this action.

Sections 2 — 404 and 2 — 405 of the Code of Civil Procedure (111. Rev. Stat. 1981, ch. 110, pars. 2 — 404, 2 — 405) establish the boundaries within which the court must operate in determining who is a necessary party. The supreme court has further refined the law in the context of specific cases. (Mills v. Ehler (1950), 407 Ill. 602, 617, 95 N.E.2d 848, 856; Oglesby v. Springfield Marine Bank (1944), 385 Ill. 414, 423, 52 N.E.2d 1000, 1004.) In this case, we believe USEPA would be a necessary party if its interest in the subject matter of the suit would be materially affected by a judgment entered in its absence. Lain v. John Hancock Mutual Life Insurance Co. (1979), 79 Ill. App. 3d 264, 268-69, 398 N.E.2d 278, 283.

The IEPA is required to provide notice to the USEPA of every action related to a permit application. The USEPA is then given the opportunity to review permits proposed to be issued by the States. It can prevent issuance of a permit by exercising its veto power or it may acquiesce in a permit’s issuance. (33 U.S.C. sec. 1342(d)(1), (d)(2) (Supp. 1978); Memorandum of Agreement between the Illinois Agency and USEPA.) The authority to review permits is needed to preserve the Federal effort to control pollution of the nation’s waters. It is needed to see that Federal law is being upheld and enforced. (United States v. Cargill, Inc. (D. Del. 1981), 508 F. Supp. 734, 740, 742.) Because IPG’s permit only protects it from charges of operating without a permit, no violation of Federal law could occur. The interest of the USEPA is not materially affected if the permit issues since USEPA’s purpose in reviewing the permit has been satisfied. Therefore, we hold that the USEPA is not a necessary party to this action.

Contrary to the assertion of the PCB, the judgment of the trial court did not have the effect of granting IPC a permit containing the changes sought by IPC. It provided that the permit review had concluded by operation of law, “leaving said permit as appealed in effect.”

In accordance with the views expressed herein, the judgment of the circuit court of Madison County is affirmed.

Affirmed.

HARRISON, P.J., and KASSERMAN, J., concur.