text:
    FARMERS STATE BANK, Plaintiff-Appellant, v. GEORGE WEBEL, d/b/a Webel Feed Mill, Defendant-Appellee.
    Fourth District
    No. 4—82—0468
    Opinion filed February 23, 1983.
    — Modified on denial of rehearing April 6, 1983.

      Jonathan H. Barnard and Mark A. Drummond, both of Schmiedeskamp, Robertson, House, Neu & Mitchell, of Quincy, for appellant.
    R. P. O’Connell, of Quincy, and William E. Lowry, of Pittsfield, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff sued defendant in the circuit court of Pike County for the conversion of collateral said to be subject to its security interest. A jury trial was convened on the matter and at the close of the plaintiff’s evidence, the trial court directed a verdict in favor of the defendant. Plaintiff appeals and we affirm.

There are three principal parties involved in the dispute: the plaintiff-creditor, Farmers State Bank, Pittsfield, Illinois (Bank); the debtor, Pigs Unlimited, Inc. (Pigs); and the defendant, George Webel, d/b/a Webel Feed Mill (Webel).

Pigs’ basic business was that of buying and selling “feeder pigs”; incidentally, it sometimes fattened them as described below. The “feeder pig” enterprise consisted of purchasing newly weaned pigs and bringing them up to an average of about 120 to 130 pounds. They would then be sold to purchasers who would make such disposition of them as they chose. During its existence, Pigs sold to the public approximately 72,000 feeder pigs. It was licensed by the Department of Agriculture of Illinois as a feeder swine dealer. The original base of operations was on a farm in Pike County; later it leased two facilities on farms located in Hancock County and two facilities in Schuyler County.

In the fattening operation the pigs were retained and brought up to a “market” weight of 200-250 pounds and then sold to packing houses, such as Swift & Company, which was joined as an original defendant but dismissed by the Bank prior to trial. This would occur when, apparently because of market conditions, a feeder pig would remain unsold and exceed the weight of 120 to 130 pounds. It would then be retained, fattened to market weight, and sold to a packing house. This constituted about 5% of Pigs’ operation.

Pigs entered into financing arrangements with the Bank. During the period from September 1975 to November 1976 it furnished the Bank with 21 notes totaling approximately $800,000. It was understood that the line of credit was $100,000 maximum, against which Pigs would draw from time to time, evidenced by short term notes. The proceeds of sale were to be deposited by Pigs in the Bank and the record contains no indication that this was not done. In fact, about $3,700,000 was so deposited. Also, from time to time as notes became due, they would be renewed upon payment of the accrued interest.

In connection with the loans the Bank took two security agreements and filed financing statements based thereon in each of the three counties in which Pigs conducted operations. A summary of the financing statements is as follows:

Filed March 29, 1976, for the “Pittsfield” location in Pike County — “1200 head mixed pigs averaging 90 lbs. (90-150 range) located on farm land situated 7 miles west of Pittsfield and owned by Donald Sperry and Dave Doerring, running along route 54 and any and all livestock acquired hereafter.
The above security is to cover all indebtedness either now or any in the future dating from January 19,1976.”
Filed June 16, 1976, for the “Pittsfield” location Pike County— “1280 head hogs located on land owned by Donald Sperry located in South East Quarter of Section 31, Township 5, South Range 4 West Pike County, Illinois.”
Filed June 16, 1976, for the “Carthage” (Sutton & Whitcomb land) and “Dallas City” (Rohn land) located in Hancock County. “1070 head hogs located in Hancock County on the following tracts of land: land belonging to Don Rohn located in the Southwest Quarter, Section 3, Twp 7, North Range 6W; Paul Sutton in NE 1/4, Sec. 26, 5N, 6W & SE 1/4, 5N, 6W Sect. 26; Ron Whitcomb — SE 1/4 Sect. 34, 5N, 7W. All the above property is located in Hancock County and belonging to respectively above named persons.”
Filed June 16, 1976. The Bank claims that this filing covers livestock in the “Camden” location on land 8 miles away and that described here in which is owned by a man named Eck. “1000 head hogs located on land belong to J. W. Byers located in Schuyler County SE 1/4, Sec. 9, 2N, 9W.”

One of Pigs’ customers was defendant Webel, who owned and operated a feed mill at Pittsfield. From time to time Webel purchased feeder pigs and either placed them on his own farm for fattening for market, or on the farms of others with whom he had a fattening arrangement.

In addition to purchasing feeder pigs, Webel also entered into a special fattening arrangement with Pigs. The nature of this arrangement was such that Webel would pay Pigs for a number of feeder pigs which were either already located on one of the above lots controlled by it, had been purchased by Pigs but had not yet arrived, or were then obtained and delivered to one of the lots of Pigs. Feeder pigs were bought COD and most of the time they were sold, and the money deposited, before they arrived. Not more than 25% of the pigs Webel purchased would have already been in Pigs’ lots. Its records would not differentiate among the pigs.

Webel would provide the feed for the pigs. Pigs provided the facilities, the day-to-day care, and would decide when to take the hogs to market. Upon receipt of the settlement check, Pigs would bring it to Webel, who would deduct out the original price advanced, the feed cost, and any profit would be split between Webel and Pigs. Any loss would be born by Webel.

Under this arrangement Webel did not remove the animals from the premises. Webel’s records did indicate how many and in which pens his pigs were located among the Pigs’ facilities. Webel had no security agreement, or any written agreement concerning this arrangement. He did not investigate to see whether or not anyone else did. He posted no signs or other notice to the public at large concerning his interest, nor were the pigs identified to the public as being Webel’s property. By March 8, 1977, all of the pigs located in Pigs’ lots in Pike, Hancock and Schuyler Counties were the subject of this fattening arrangement and as such, Webel claimed they belonged to him.

By February 1977 it became apparent that Pigs was in serious financial trouble. Officials of the Bank conferred with the principals of Pigs, who gave them a verified inventory of all pigs located at any of the lots including weights, numbers, and approximate values. In fact, all of such pigs were subject to the fattening arrangement with Webel. Based on its further investigations, the Bank determined to call the loan and foreclose the collateral. After about a week of unsuccessful attempts to obtain the cooperation of Pigs’ principals, the Bank on March 8, 1977, went to the Pittsfield location to pick up the livestock. The Bank’s personnel were met by agents of Webel who blocked their attempts; Webel’s agents then took all of the pigs located at Pitts-field, as well as the other locations, about 1,500 in number, and subsequently sold them for approximately $103,000. The Bank claimed that the incident on March 8 was its first knowledge of any claim of ownership by Webel.

The Bank then filed the instant suit on November 8, 1977. It alleged its security agreements and the filing of financial statements, as above described; it further alleged that the debtor, Pigs, agreed not to transfer without the Bank’s consent any interest in the collateral; and that Webel had seized the collateral, as above described.

After a great deal of preliminary skirmishing, including several motions for summary judgment, Webel was required to answer. This he did on March 17, 1981. It was in substance a general denial and with it he filed two affirmative defenses. The first in effect pleaded waiver; i.e., that the Bank never enforced its right under the security agreements to require Pigs to obtain authorization to make sales of the livestock covered by the agreements. The second setup that the livestock in the hands of Pigs was “inventory” and not “farm products” and that Webel was a “buyer in the ordinary course of business” within the meaning of the Uniform Commercial Code. 111. Rev. Stat. 1975, ch. 26, pars. 9 — 109,1—201(9).

At the conclusion of the plaintiff’s evidence, Webel argued strongly for a directed verdict. His first ground was that it had been established by the evidence that he was a buyer of inventory in the ordinary course of business and therefore he took free of the Bank’s security interest under section 9 — 307(1) of the Uniform Commercial Code (UCC). (111. Rev. Stat. 1979, ch. 26, par.9 — 307(1).) He further argued that the security agreements did not cover after-acquired property and that the security agreement on the “Camden” location contained a misdescription.

As has been indicated, the trial court granted the motion. Upon being pressed by the Bank to articulate its reasons, the trial court declined and commented only that the security agreements were “not valid.”

While we do not agree with the trial court that the security agreements were invalid, the question on appeal is always whether its judgment is justified in the law for any reason or ground appearing in the record, irrespective of the trial court’s assigned reasons. Harrison v. Kamp (1946), 395 Ill. 11, 69 N.E.2d 261.

In our opinion the record fully sustains Webel’s contention that he was a buyer in the ordinary course of business and not a buyer of farm products.

The question is controlled by various sections of article 9 of the Uniform Commercial Code — Secured Transactions. (111. Rev. Stat. 1979, ch. 26, par. 9 — 101 et seq.) Most significant is section 9 — 307(1) which provides:

“A buyer in ordinary course of business (subsection (9) of Section 1 — 201) other than a person buying farm products from a person engaged in farming operations takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.” 111. Rev. Stat. 1979, ch. 26, par. 9 — 307(1).

Definitions are provided by section 9 — 109:

“Goods are
* * *
(3) ‘farm products’ if they are crops or livestock or supplies used or produced in farming operations or if they are products of crops or livestock in their unmanufactured states (such as ginned cotton, wool-clip, maple syrup, milk and eggs), and if they are in the possession of a debtor engaged in raising, fattening, grazing or other farming operations. If goods are farm products they are neither equipment nor inventory;
(4) ‘inventory’ if they are held by a person who holds them for sale or lease or to be furnished under contracts of service or if he has so furnished them, or if they are raw materials, work in process or materials used or consumed in a business. Inventory of a person is not to be classified as his equipment.” 111. Rev. Stat. 1979, ch. 26, par. 9-109(3), (4).

Part of the Comment to section 9 — 109 states:

“When crops or livestock or their products come into the possession of a person not engaged in farming operations they cease to be ‘farm products’. If they come into the possession of a marketing agency for sale or distribution or of a manufacturer or processor as raw materials, they become inventory.” 111. Ann. Stat., ch. 26, par. 9 — 109, Uniform Commercial Code Comment, at 83 (Smith-Hurd 1974).

In our judgment Pigs was a marketing agency within the meaning of the Comment and was selling inventory and not farm products. The question is somewhat clouded by the fact that Pigs also engaged in fattening operations. However, the record shows that this was at most incidental to the marketing operation and came about only because some of its inventory (feeder pigs) was unsold and the only feasible disposition was to fatten and market. The record does not sustain any contention that Pigs intended this result but rather it came about from market conditions beyond its control. As to the arrangement with Webel, the record is plain that Pigs sold inventory to him; he purchased feeder pigs; and at that point under section 9— 307(1) he took free of the Bank’s security interest.

Webel fits squarely within the definition of a buyer in the ordinary course of business referred to in section 9 — 307(1). Section 1— 201(9) therein incorporated provides:

“ ‘Buyer in ordinary course of business’ means a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind but does not include a pawnbroker. All persons who sell minerals or the like (including oil and gas) at wellhead or minehead shall be deemed to be persons in the business of selling goods of that kind. ‘Buying’ may be for cash or by exchange of other property or on secured or unsecured credit and includes receiving goods or documents of title under a pre-existing contract for sale but does not include a transfer in bulk or as security for or in total or partial satisfaction of a money debt.” Ill. Rev. Stat. 1979, ch. 26, par. 1— 201(9).

No argument is made that Webel had actual knowledge of the Bank’s security interest; neither is it contended that he did not pay for the feeder pigs, or that the sale was in bulk. It is argued that Webel had constructive knowledge by reason of his joint venture with Pigs. Such an argument ignores that plain language of section 9— 307(1) which protects a buyer in ordinary course, even though he knows of the existence of a perfected security interest.

The Bank has made several subsidiary arguments which require brief mention. It contends that since Webel did not take possession of the pigs, he cannot be a buyer in the ordinary course of business. Initially, it may be questioned whether the record bears out the contention that he did not take possession. It is clear that he furnished feed to the locations while Pigs had the day-to-day care of the animals; it would appear to be a joint possession. However, we do not deem possession to be the controlling factor. A similar argument was rejected in Herman v. First Farmers State Bank (1979), 73 Ill. App. 3d 475, 392 N.E.2d 344. In that case the plaintiff purchased fertilizer and left it with the debtor to be delivered and applied at a later date. The creditor attempted to include it under its security interest and argued that no sale had taken place since delivery had not been made; therefore, plaintiff was not a buyer in the ordinary course of business. The court, after citing a comment to section 9 — 101, stated:

“We do not think the technical passage-of-title rules under article 2 should be applied to defeat the plaintiff’s claim in this case. Rather, we believe the focus in a case such as this should be on the ‘ordinary course of business’ requirement of section 9 — 307. ***. The transaction between plaintiff and Newell was customary in the business, and plaintiff had purchased solution from Newell on the same basis in earlier years.” 73 Ill. App. 3d 475, 479, 392 N.E.2d 344, 346.

We agree with this rationale, and the record here shows that Webel had fattening arrangements with numerous farmers in the area over a period of several years and with Pigs for over a year. It is less clear that such arrangements were a common practice in the area but by the same token there is no evidence to negate the proposition.

Next, the Bank contends that the arrangement between Pigs and Webel was a consignment and subject to the consignment provisions of the Uniform Commercial Code. While the pleadings below raised such a theory, it was not strongly urged as an alternative to the principal one. We have examined the theory as expounded in the briefs of the parties and find it to be without merit.

Thirdly, the Bank makes certain arguments in the realm of public policy, viz., a more favored status for inventory lenders. We feel that these are adequately answered in the following quotation from Herman:

“Finally, defendant contends that a holding in favor of plaintiff would make the entire concept of security on inventory unworkable, placing on any inventory security holder the impossible burden of accounting to numerous unknown creditors of the dealer who had made payments on account, but never received their goods. This contention is without merit. The same argument was raised in both Chrysler and Rex Financial, and the courts firmly responded:
‘If there is a usage of trade which exposes an entruster on floor plan to certain risks, these are risks against which he can guard by audits and accounting procedures or he can. refuse to knowingly expose himself to the risk with the particular dealer. To fail to place the exposure of such risk with the entruster in such situation would make it impossible for retail finance companies to do business with any dealer unless the entruster were directly a participant. To hold otherwise, would expose the retail financer to a double loss as against at most a partial loss for both.’ 56 Misc. 2d 261, [270], 288 N.Y.S.2d 525, 534.
‘If this result exposes an inventory financer to certain risks, they are risks which he is in a better position to guard against than the retail financer.’ (119 Ariz. 176, 178, 580 P.2d 8, 10.)
We fully agree with the reasoning of these courts. We believe that the risks involved in situations such as that at bar should be placed on the inventory financer, not only because it is better able to guard against those risks than the unwary buyer or the retail financer, but also because a contrary rule would inequitably allow the inventory financer a double recovery.” 73 Ill. App. 3d 475, 480-81, 392 N.E.2d 344, 347.

One last matter deserves some comment: the question of waiver and whether Illinois recognizes such a doctrine. The security agreements in the instant case contained what is almost a standard provision: that “[without first obtaining the written consent of the Secured Party, the Debtor will not voluntarily, or permit any involuntary transfer of the Collateral or any interest therein by way of sale, creation of a security interest, levy or other judicial process.”

Substantial evidence appears in the record indicating that the Bank knew it was financing a feeder pig inventory with a rapid turnover; among other things, over $3,700,000 had been deposited on a line of credit of $100,000; it not only made no objection, but apparently expected the same to occur. From this evidence, Webel argues that the Bank waived the requirement under the rationale of the leading case of Clovis National Bank v. Thomas (1967), 77 N.M. 554, 425 P.2d 726.

Courts of other jurisdictions have split widely, some (probably the minority) following Clovis, others following it, but with some modifications. Most commentators regard Clovis as the better rule. (See, e.g., Dolan, Section 9 — 307(1): The UCC’s Obstacle to Agricultural Commerce in the Open Market, 72 Nw. U. L. Rev. 706 (1977).) Only one Illinois case, so far as we have been able to determine, has had occasion to comment on Clovis: Vermilion County Production Credit Association v. Izzard (1969), 111 Ill. App. 2d 190, 249 N.E.2d 352. We do not interpret that case as either accepting or rejecting Clovis.

Since we hold that Webel was a buyer in the ordinary course of business of inventory and not of farm products and hence took free of the security interest under section 9 — 307(1), we need not decide the question of waiver and offer no opinion on it.

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

Affirmed.

TRAPP and GREEN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE WEBBER

license: Public Domain

text:
    COLE HOSPITAL, INC., Plaintiff-Appellee, v. CHAMPAIGN COUNTY BOARD OF REVIEW et al., Defendants-Appellants.—(Marty Finney, Township Assessor, Defendant.)
    Fourth District
    No. 4—82—0473
    Opinion filed March 3, 1983.

      Thomas J. Difanis, State’s Attorney, of Urbana (Trisha Crowley, Assistant State’s Attorney, of counsel), for appellants.
    J. Michael O’Byrne and Nancy Menard Riddle, both of Reno, O’Byrne & Kepley, of Champaign, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

The defendants, Champaign County Board of Review, Ormond Hixson as Champaign County Collector, and Thomas Difanis as Champaign County State’s Attorney (County) appeal an order of the circuit court of Champaign County which enjoined them from assessing and collecting property taxes for 1981 and succeeding years on a portion of the premises occupied by the plaintiff, Cole Hospital, Inc. (Cole). At issue is the long-standing competition between two competing public policies: encouragement of charitable works through tax exemption versus preservation of the property tax base. It is unlikely that anything more than an uneasy truce will ever be found between them. The general rules are almost simplistic in doctrine, but taxing authorities and courts will be called upon to struggle endlessly with their application, a situation not entirely unfamiliar in many areas of the common law.

There is no serious dispute concerning the factual background of the case; the facts were stipulated by the parties. Cole was originally organized as a for-profit Delaware corporation; in 1976 it amended its articles of incorporation to become a not-for-profit corporation and the Illinois Secretary of State issued a certificate of authority to that effect. Thereafter, the United States Internal Revenue Service issued an appropriate determination that Cole was exempt from Federal taxes.

These steps were taken as part of a rebuilding and replacement project by Cole. It had previously occupied an old mansion which did not meet the requirements of the fire code or for accreditation by the Joint Commission on Accreditation of Hospitals and other State requirements. A new structure was completed, and the old mansion was abandoned as a patient care facility.

Cole sought the issuance of State revenue bonds to finance the construction, but because of Cole's financial situation, the State declined to issue them without the backing of a private investor. Cole was unable to find such a person and then explored numerous other sources of financing without success. Somewhere in the process it became aware of Safe Care, Inc., of Seattle, Washington. The exact nature of this organization is nowhere found in the record.

A deal was struck between Cole and Safe Care, Inc., whereby Safe Care would advance to Cole the sum of $51/2 million for construction of the new facility. As part of the transaction Safe Care required a conveyance and lease-back arrangement. The ostensible purpose was to permit Safe Care, in the event of default by Cole, to acquire the property immediately without foreclosure proceedings and to resell or relet it.

The conveyance to Safe Care and the lease back to Cole were executed on March 30, 1978. It is this lease which forms the core of the controversy. The trial court held that sufficient incidents of ownership remained in Cole to sustain exemption. Another lease of a nearby property was also involved in the trial court proceedings. The court held it not to be exempt, and Cole has not appealed this aspect of the order. Our concern here, then, is solely with the Safe Care lease.

That document consists of 24 closely printed pages, plus seven additional pages consisting of an index, addenda, legal descriptions and a plat. It would obviously serve no good purpose to set it forth in full in this opinion, since much of it consists of standard provisions found in such leases. We will note and comment on only the provisions which we consider salient to our decision.

Certain fundamentals are not disputed by the parties. First, the property covered by the Safe Care lease contains both the hospital facilities and parking lots described in sections 19.7 and 19.16 of the Revenue Act of 1939 (111. Rev. Stat. 1979, ch. 120, pars. 500.7, 500.16). Second, that exemption under the foregoing sections requires both ownership and use by a charity. Third, that the question presented here is one of law, since the operative facts are not in dispute.

In its brief and in oral argument the County has conceded that Cole is a charitable organization and that the property is devoted to a charitable use. The contentions revolve around the question of ownership. The County contends that the lease arrangement has divested Cole of sufficient incidents of ownership that it can no longer meet this prong of the test for exemption, although it admits that absolute ownership is not required. Cole, contra, contends that the lease arrangement is in substance a financing method and that it has retained sufficient ownership to meet any such requirement.

Recent decisions of our supreme court (People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 389 N.E.2d 540; Christian Action Ministry v. Department of Local Government Affairs (1978), 74 Ill. 2d 51, 383 N.E.2d 958) have made clear that in Illinois the concept of “ownership” is broader than the mere situs of legal title. In Chicago Title & Trust the court held that revenue collection is not concerned with refinements of title but with the realities of ownership, and although title is to be considered as one factor, it is not decisive. Control and the right to benefits of property are of far greater importance.

That legal title is not required was also expressed in Christian Action Ministry. There the Ministry, a charitable organization, was purchasing property on a contract for warranty deed. The title, legal or equitable, would not pass until payment for the property was completed pursuant to terms of the contract. The court disagreed with the department’s contention that only legal title would satisfy section 19.7’s ownership requirements. The court noted that Ministry had been forced to obtain alternate financing arrangements and that it could not be penalized for failing to obtain conventional financing.

The court went on to state that although statutes granting tax exemptions must be strictly construed in favor of taxation, equitable ownership of property by a charitable organization for charitable purposes could be readily accommodated by section 19.7. The court expressly stated that it was not expanding the area of qualification for tax exemptions. Where the legislature requires legal ownership, it must be respected. However, where it does not, actual ownership, legal or equitable, is proper. The court went on to find that the facts presented in Christian Action Ministry evidenced ownership as contemplated by the legislature.

The County has pointed to two old lease cases in which the supreme court held that exemption would not apply. (People ex rel. Carr v. City of Chicago (1926), 323 Ill. 68, 153 N.E. 725; People ex rel. Harding v. City of Chicago (1929), 335 Ill. 450, 167 N.E. 79.) While not expressly overruled, the holding in these cases may be questioned in the light of the later opinions in Chicago Title & Trust and Christian Action Ministry. Both Carr and Harding concerned themselves with refinements of title, and the reported opinions give no indication as to what, if any, incidents of ownership were retained by the hospital which was the subject of the litigation. As will be more fully explained below, many such incidents were retained by Cole in the instant case.

Nor are the cases of People ex rel. Baldwin v. Jessamine Withers Home (1924), 312 Ill. 136, 143 N.E. 414, and Monticello Female Seminary v. People (1883), 106 Ill. 398, helpful. Both of them were concerned with charitable use, and as we have already indicated, the County has conceded that use is not an issue here.

The focus is then narrowed to the sole question of law: does the Safe Care lease so divest Cole of ownership that it can no longer qualify for exemption? We believe not, and affirm the trial court’s finding. The features of that lease and the elements in the record which lead us to that conclusion will be briefly discussed.

The record is undisputed that Cole made extensive efforts to obtain private financing. It approached a major lender in New York, management corporations, hospital management corporations, bond underwriters, commercial mortgage lenders, and the city of Champaign, all without success. Cole should not be penalized for failure to obtain conventional financing. Christian Action Ministry.

The Safe Care document itself is entitled “Lease and Security Agreement.” There is no provision for a conventional security deposit; this lends further credence to the proposition that this was in reality a financing arrangement.

There is undisputed testimony in the record, albeit hearsay but not objected to, that the reason for the conveyance and lease-back arrangement was to permit Safe Care to take over the property in the event of default without foreclosure proceedings. Cole had had a troubled financial history.

The lease had a primary term of 20 years with options to renew for two additional 10-year terms so that the possible maximum term would be 40 years. The annual rental was 13x/2% of the advancement of $5,500,000. The lease was described as “triple net,” i.e., Cole paid all real estate taxes, insurance and maintenance costs.

At the 11th and 16th anniversary dates Cole had the absolute option to purchase the property at 10 times the annual rental. In the event Safe Care received a bona fide offer of purchase, Cole had the right of first refusal. Further, in the event of sale to a third party, all of the terms of the lease remained in full force and effect, including the purchase options at the 11th and 16th years as well as the options to renew.

In our opinion these factors indicate sufficient incidents of ownership in Cole as to qualify for exemption. The County has pointed to certain other provisions in the lease which it claims circumscribe Cole’s status sufficiently to deny exemption: (1) the requirement that Cole continue to use the property as a hospital and any change in that status required the consent of Safe Care; (2) the requirement that Cole keep the premises in good repair and make no alterations without the consent of Safe Care; (3) the requirement that Cole not terminate a current agreement with a hospital management corporation without the consent of Safe Care.

In our opinion these requirements are aimed not at the question of ownership of the property, but at the question of the security of the property and use. As we have indicated several times already, the County does not dispute the question of use.

There are few, if any, per se rules in the field of property taxation. Obviously not every lease qua lease will qualify for exemption. (Compare Jessamine Withers Home and Monticello Female Seminary.) When, under proper circumstances, a sale-and-lease-back is used as a financing device, alternatively to conventional financing, it may qualify.

For all the foregoing reasons, the order of the circuit court of Champaign County is affirmed.

Affirmed.

TRAPP and MILLER, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN H. SMITH, Defendant-Appellant.
    Fourth District
    No. 4—82—0480
    Opinion filed March 7, 1983.

      Fred W. Johnson, of Robert L. Douglas, Ltd., of Robinson, for appellant.
    David W. Lewis, State’s Attorney, of Marshall (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

Defendant, John H. Smith, appeals from a judgment of the circuit court of Clark County entered on July 14, 1982, after a bench trial, convicting him of driving while his license was revoked (111. Rev. Stat. 1981, ch. 951/2, par. 6 — 303), sentencing him to 30 days’ imprisonment and fining him $100. We affirm.

Defendant’s sole contention on appeal is that the trial court violated his privilege to confront the witnesses against him as guaranteed by the sixth amendment as incorporated in the fourteenth amendment. (U.S. Const., amends. VI, XIV.) He asserts this violation took place when the trial court admitted into evidence an abstract from the office of the Secretary of State, certified to by that officer and containing a copy of an order of that officer revoking defendant’s license to drive on October 6, 1971.

Defendant concedes that, under Illinois practice, the admission of the abstract was proper. Subsections (a) and (b) of section 6 — 117 of the Illinois Vehicle Code (111. Rev. Stat. 1981, ch. 951/2, par. 6 — 117(a), (b)) direct the Secretary of State to keep records of the issuance and revocation or suspension of drivers licenses respectively. Section 6— 118(b) of the Code (111. Rev. Stat. 1981, ch. 95V2, par. 6 — 118(b)) provides for the Secretary to furnish abstracts of drivers records which includes matters of the driver’s “registration.” Section 6 — 118(f) (111. Rev. Stat. 1981, ch. 95V2, par. 6 — 118(f)) states that such an abstract issued to a law enforcement agency upon its request for information as to the “status of [a person’s] driver’s license shall be prima facie evidence of the facts therein stated ***.” In addition, section 2 — 108 of the Code states:

“The Secretary of State is hereby authorized to prepare under the seal of the Secretary of State certified copies of any records of his office and every such certified copy shall be admissible in any proceeding in any court in like manner as the original thereof.” 111. Rev. Stat. 1981, ch. 951/2, par. 2 — 108.

The proof of records of the Secretary of State to show that an individual’s driver’s license has been revoked has been approved. (People v. White (1961), 21 Ill. 2d 373, 172 N.E.2d 794; People v. Younge (1980), 83 Ill. App. 3d 305, 404 N.E.2d 415; People v. Johnson (1978), 64 Ill. App. 3d 377, 380 N.E.2d 1095.) This is but an extension of the common law rule that a public record may be proved by a copy thereof certified by the custodian. See E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 901.8, at 490 (3d ed. 1979).

Relying on the decision of the United States Supreme Court in Ohio v. Roberts (1980), 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531, defendant maintains that, any statutory or common law rule permitting foundation proof of the authenticity of the copy of the records involved by certificate of the Secretary of State without proof of the unavailability of the keeper of the records is violative of the confrontation clause. He argues that the lack of specificity of the statutes as to how the driver's records are to be kept, make it too difficult for an accused in a misdemeanor case to check the records before trial to determine the evidence against him and the accuracy of the records. He claims that his difficulty here is magnified because a misdemeanor charge is involved, and he has no right to discovery. He also maintains that because of the Secretary of State’s interest in keeping unsafe drivers off the roads, the Secretary might be biased in making the certificate.

In Roberts, a transcript of the testimony of a prosecution witness given at a preliminary hearing was tendered by the State and admitted into evidence at trial over defense objection. Certain evidence was introduced as to the unavailability of the witness. Ultimately, the United States Supreme Court held the admission of the evidence was proper. It reasoned that the defense had sufficient opportunity to examine the witness at the preliminary hearing to make the testimony likely to be reliable, and the unavailability of the witness was proved. The court discussed the purpose and operation of the confrontation clause and its relationship to the rules concerning hearsay. The court stated:

“In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” (448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539.)

Previous to the above language, footnote 8 to the opinion noted a Louisiana law review article which stated, ‘ ‘Properly administered the business and public records exceptions would seem to be among the safest of the hearsay exceptions.” Comment, 30 La. L. Rev. 651, 668 (1970), as noted in Ohio v. Roberts (1980), 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539.

From the language used in Roberts, one could infer that the court deemed the unavailability of a record custodian to give foundation testimony to be a condition precedent to proving the contents of a public record by a certified copy. Such an inference would, at most, create dictum, because the Roberts court upheld the introduction of the hearsay evidence, and the evidence did not concern the contents of a public record. Moreover, the opinion stated that unavailability was required “normally.” The rule that the contents of public records may be proved by certified copy would be the most logical exception to that which would be normally required. Rule 902(4) of the Federal Rules of Evidence (Fed. R. Evid. 902(4)) permits proof of public records by copy certified by the custodian or other person authorized to make the certificate. The rule makes no limitation upon the use of such certified copies against an accused in a criminal case. The United States Supreme Court adopted those rules. Despite the broad language of the opinion, we do not interpret it to indicate an intent to modify its own rules or the longstanding practice of proving public records even to the limited extent suggested by defendant. The rule suggested by defendant would be most impractical and would create a dispute in many cases as to the specificity of the statutory language in regard to the keeping of the records and as to the interest of the custodian in enforcement of the laws involved. We reject defendant’s theory.

Accordingly, we affirm.

Affirmed.

WEBBER, P.J., and MILLER, J., concur.


author: JUSTICE SCOTT

text:
    THE DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellant, v. WILLIAM S. LAWLER et al., Defendants-Appellees.
    Third District
    No. 82—220
    Opinion filed January 6, 1983.
    — Modified on denial of rehearing April 8, 1983.
    Tyrone C. Fahner, Attorney General, of Springfield (Raymond E. Meader, James R. Brumund, and Leo N. Cinquino, Special Assistant Attorneys General, of counsel), for appellant.
    Timothy J. Rathbun and George E. Sangmeister, both of McKeown, Fitzgerald, Zollner, Buck, Sangmeister & Hutchison, and Albert H. Krusemark, Jr., both of Joliet, and Joseph J. Tryner, of Wilmington, for appellees
   JUSTICE SCOTT

delivered the opinion of the court:

This appeal arises from 10 separate petitions to condemn filed by the Department of Transportation to acquire land necessary to improve and widen existing State highways. In all 10 cases the land acquired included the underlying fee title for land already within the State highway right of way but for which fee title was vested? in the adjoining farm owner and the fee title to land outside the State highway right of way which would be used for the widening or improvement of existing highways. A common issue of law exists in each case, as to the proper valuation of the condemned land, and in the interest of efficiency and judicial economy, the cases were consolidated by order of the circuit court of Will County.

In each case the defendant farm owners contended that the taking of fee title to the underlying right of way was, as a matter of law, to be valued as land outside the right of way based on section 4 — 501 of the Illinois Highway Code (111. Rev. Stat. 1981, ch. 121, par. 4— 501). The pertinent language of the statute follows:

“When any farm land is acquired for State highway purposes by the exercise of the right of eminent domain, the rate of compensation to be paid by the acquiring agency shall be computed by taking into consideration the total acreage originally involved in the farm land parcel, including that portion of such parcel already part of a right of way for highway purposes but for which legal title lies in the owner of the parcel.”

The Department contended that the fair cash value of all the land taken was a question of fact for the jury to determine and consideration should be given to the effect of the right of way for highway purposes on the value of land so encumbered.

The Department filed a motion in limine to bar the defendants’ valuation testimony based on their alleged misinterpretation of section 4 — 501. That motion was denied by the circuit court, the judge there concluding “that Defendants are as a matter of law entitled to be paid 100% of the fee market value for land encumbered by said right of way for highway purposes as if the same were not so encumbered.” The lower court relied on section 4 — 501. The case proceeded to trial, with the defendants offering their valuation testimony and the Department offering its valuation testimony, the latter by offer of proof. Whereupon, the circuit court directed verdicts for the defendants based upon certain stipulated facts and the ruling on the motion in limine.

The issue presented by this appeal, the proper construction of section 4 — 501, is one of first impression. More precisely, the language giving rise to this dispute was added to section 4 — 501 by the General Assembly in 1979. It took the form of House Bill 567. No reviewing court has previously sought to interpret this recent statutory addition, and to guide us we have only the traditional rules of statutory construction and legislative history. We turn first to the legislative history, and specifically the explanation of the bill provided by the bill’s sponsor, Representative Thomas Ewing, on the floor of the House of Representatives:

“Mr. Speaker and Ladies and Gentlemen of the House, this Bill is put in to clarify the responsibility of the Department of Transportation, to pay for right of way which they take in the construction of new highways. Much of the ground, or some of the ground, which has been taken for highway construction, may have already been in use for a town to country road for rural people. The title for this real estate still belongs in the landowner. They have been paying taxes on it for many years. The Department of Transportation has refused to make payment for the value of this land, whatever it might have been in the appraisal because it was already in road use. The thing they failed to take into consideration is that when they take this land and put in a superhighway, many times they not only cut through the farm, but they make it unaccessible to those people for the use in which it was originally given in easement. This Bill merely directs that the Department of Transportation will pay for the fee title, whenever they take it, even if the fee title is encumbered with a road easement.”

No further discussion of the legislation exists in the debates of the Illinois House or the Illinois Senate.

Several comments are noteworthy in the explanation of House Bill 567. First, the legislators were given to understand that under then existing law, the Department had “refused to make any payment” for the fee interest in land already encumbered by an easement, regardless of what value “it might have been [assigned] in the appraisal.” Secondly, this practice was thought by the sponsor to be inequitable because it “failed to take into consideration” the adverse effects when superhighways “cut through the farm.” Finally, the sponsor in explaining House Bill 567 expressed concern that the new highways “were unaccessible to those people” whose fee titles were condemned without payment. It is clear that the sponsor intended to require the Department to “pay for the fee title.” It is also clear that the sponsor considered the alleged existing practice of refusing to make any payment patently unfair. What is unclear is whether the sponsor, and the legislators who followed his explanation of the statutory amendment, would value the fee title as if unencumbered by easement, or discounted for the burden of the easement.

An analysis of the evils which the sponsor sought to remedy is elucidating. One evil is the damage to farm land which occurs when it is dissected into smaller parcels by highway improvements. An 80-acre farm which is partially condemned for road purposes leaving 75 acres remaining has a greater value if the remaining acres all lie on one side of the road rather than 10 acres on one side and 65 acres on the other. Conversely, the value of the fee title condemned is greater or lesser depending on the remaining configuration of the acreage.

The second evil, that of loss of access, also affects the value of the fee title condemned. In the previous example, the value of the condemned five acres is far greater if those acres represent the farm owner’s access to markets, avenues for movement of machinery, and corridors for traverse by livestock. The value of the remaining acreage is more severely impacted when the fee title condemned limits access in some manner.

To combat these twin evils, the sponsor introduced legislation requiring the Department to value condemned land “by taking into consideration the total acreage originally involved in the farm land parcel, including that portion of such parcel already part of a right of way ***.” (Ill. Rev. Stat. 1981, ch. 121, par. 4 — 501.) Of course, that portion already part of a right of way includes the right of access. Words used in a statute are to be given their plain and ordinary meaning. (Kozak v. Retirement Board (1981), 99 Ill. App. 3d 1015, 425 N.E.2d 1371.) Applying that rule to the instant case, we are directed to consider the value of the entire farm parcel, including the portion burdened by roadway, with whatever value that latter portion may have. Implicit in this approach is the assumption that the proper measure of damages includes not only the fair market value of the fee title condemned, but also any possible damage to the remainder. To interpret the statute in this manner would appear consistent with its plain and ordinary meaning, while representing no departure from existing law. Department of Public Works & Buildings v. Griffin (1922), 305 Ill. 585, 137 N.E. 523; Department of Public Works & Buildings v. Barton (1939), 371 Ill. 11, 19 N.E.2d 935.

Statutes should likewise be construed to effect legislative intent and purpose. (Village of Schaumburg v. Franberg (1981), 99 Ill. App. 3d 1, 424 N.E.2d 1239.) In seeking that intent, a court must consider the evils which a statute seeks to remedy and the goals it seeks to attain. (Miller v. Illinois Department of Public Aid (1981), 94 Ill. App. 3d 11, 418 N.E.2d 178.) In this instance, since the concerns about dissection and loss of access are already addressed by existing law, we must assume that the General Assembly intended to reverse the Department’s policy of refusing “to make payment” for the value of land encumbered by easement.

Under the common law rule, no compensation other than nominal damages is given to an owner of the fee in land already burdened with an easement in the nature of a public road when the land is condemned for a public road. (26 Am. Jur. 2d Eminent Domain, sec. 209 (1966).) If the General Assembly had understood the Department of Transportation to be following this existing rule at the time it adopted House Bill 567, we would endeavor to give substance to the action of the legislature by concluding that mere nominal damages are insufficient payment; however, since the Department’s prior position, as explained by Representative Ewing to the General Assembly, was to make no payment in such circumstances, it is appropriate to construe the legislative enactment as rejecting this executive departure from the common law and as affirming the law as it existed. (Berlin v. Nathan (1978), 64 Ill. App. 3d 940, 381 N.E.2d 1367; Proud v. W. S. Bills & Sons, Inc. (1970), 119 Ill. App. 2d 33, 255 N.E.2d 64.) Hence, we conclude that House Bill 567 worked no change in existing law, but rather retrospectively clarified an erroneous executive application of that law.

It follows, then, that the decision of the circuit court of Will County was in error. Accordingly, we reverse and remand this cause for further proceedings consistent herewith.

Reversed and remanded.

BARRY, RJ., and ALLOY, J., concur.


author: PRESIDING JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNY D. MAQUET, Defendant-Appellant.
    Third District
    No. 82—409
    Opinion filed March 9, 1983.

      Ronald Hanna and Ronald L. Hamm, both of Hamm and Hanna, Ltd., of Peoria, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

On January 21, 1982, the defendant, Denny D. Maquet, appeared pro se for arraignment on four counts of aggravated assault before the Honorable Robert E. Hunt, now retired. At that time, the defendant signed a waiver of jury trial form, and his case was set for bench trial on February 18, 1982. The cause was continued on an ex parte motion by the State, and on March 3, 1982, private counsel entered his appearance on behalf of the defendant, along with a motion to withdraw the defendant’s jury waiver. On March 5, 1982, the Honorable William J. Reardon conducted an evidentiary hearing on the defendant’s motion and denied it.

The cause proceeded to a bench trial before Judge Reardon on April 22, 1982, and the defendant was found guilty of all four counts of aggravated assault. On June 1, 1982, post-trial motions were heard and denied, and the defendant was sentenced to one-year probation with special conditions of a fine of $250 plus costs and 30 days in the Tazewell County jail.

On appeal, the defendant contends that he did not knowingly and understandingly waive his right to trial by jury and that the trial court abused its discretion in denying the defendant’s motion to withdraw his waiver of jury trial.

Because the facts underlying the defendant’s convictions are not relevant to the issues raised, we will proceed directly to a discussion of the defendant’s arguments on appeal.

Every individual accused of an offense has the right to a trial by jury unless that right is understandingly waived by the defendant in open court. (111. Rev. Stat. 1981, ch. 38, par. 103 — 6.) Although it is the responsibility of the trial court to insure that the waiver is expressly and understandingly made (People v. Walton (1979), 77 Ill. App. 3d 905, 396 N.E.2d 841), it is not the responsibility of the trial court to preserve the defendant’s record for appeal. Thus, where the only record of waiver is a docket entry which is not contradicted by any other portion of the record, a presumption will be invoked that the trial court ruled or acted correctly. People v. Young (1980), 86 Ill. App. 3d 306, 408 N.E.2d 104.

In the case at bar, the defendant has failed to provide a record which supports his contentions on appeal. The preparation and certification of a bystander’s report or agreed statement of facts of both the original arraignment, during which he signed the jury waiver form before Judge Hunt, and the hearing on his motion to withdraw the waiver before Judge Reardon would have provided a sufficient record to allow assessment of the errors claimed on review. (87 Ill. 2d Rules 323(c), (d), 612(c).) However, in the absence of such documentation, we will assume the trial judge ruled or acted correctly. (People v. Hamilton (1978), 64 Ill. App. 3d 276, 381 N.E.2d 74.) Furthermore, the arguments of defendant’s counsel at the hearing on the defendant’s post-trial motion cannot serve as a substitute for an agreed statement of facts or bystander’s report.

Where, as is the case here, the common law record indicates that the defendant demanded a jury trial and subsequently waived that right, the waiver is deemed to be knowing. People v. Gentry (1977), 48 Ill. App. 3d 900, 363 N.E.2d 146.

We deem it appropriate to comment upon an earlier case handed down by this court but not cited by either party. In People v. Losa cano (1975), 29 Ill. App. 3d 103, 329 N.E.2d 835, the defendant was charged with four offenses of driving while license was revoked. He entered a plea of not guilty to the initial charge and was subsequently found guilty following a bench trial. He then pleaded guilty to the remaining charges. The defendant first appeared in court on the first charge on August 6, 1973. At that time, his request for the appointment of counsel was dénied. A form indicating the defendant pleaded not guilty and waived trial by jury was signed by the defendant on the same day. Nothing in a bystander’s report submitted on appeal by the defendant elucidated the transactions in court surrounding the defendant’s signing of this form. Based on the record, this court determined the defendant’s waiver of a jury trial on the first charge was ineffective. We further concluded that the waiver was ineffective on the remaining changes to which the defendant pleaded guilty, noting that, so far as the bystander’s report was concerned, it was difficult if not impossible to isolate the guilty plea cases from the one in which the defendant pleaded not guilty.

The case at bar is distinguishable from Losacano. The form used in Losacano was a combined not guilty plea and jury waiver form, whereas the form used in the present case was limited to the question of a knowing and intelligent waiver of a jury trial. The possibility that the defendant in Losacano misunderstood the meaning of the form he signed is much greater than in the present case. In addition, a bystander’s report was filed in Losacano. However, it supplied no information regarding the defendant’s jury waiver. From this silence, one could reasonably presume a lack of the necessary admonishments to the defendant. In contrast, the absence of any bystander’s report in the present case, when combined with the signed waiver form in the record, suggests the presumption that the trial court acted properly. Furthermore, we note that the defendant’s motion to withdraw his jury waiver does not state that the waiver was not knowingly and intelligently made.

For the foregoing reasons, we affirm the judgment of the circuit court of Tazewell County.

Affirmed.

SCOTT and HEIPLE, JJ., concur.


author: JUSTICE STOUDER

text:
    DIANE GAYLE LUTES, Adm’r of the Estate of Shawna Renae Lutes, Deceased, Plaintiff-Appellant, v. WILLIAM J. FARLEY, M.D., et al., Defendants-Appellees.
    Third District
    No. 82—491
    Opinion filed January 13, 1983.
    — Rehearing denied April 11, 1983.
    Charles McRae Leonhard and James E. Gambill, both of Allen Korkowski & Associates, of Rantoul, for appellant.
    Mürvel Pretorius, Jr., of McConnell, Kennedy, Quinn & Johnston, and Douglas J. Pomatto and Roger R. Clayton, both of Heyl, Royster, Voelker & Allen, both of Peoria, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

On April 5, 1982, the plaintiff-appellant, Diane Gayle Lutes, as administrator of the estate of Shawna Renae Lutes, deceased, filed a one-count complaint sounding in medical malpractice against the defendants-appellees, William J. Farley, M.D., and Mary Bradish, a midwife. The defendants filed separate motions for judgment in their favor pursuant to section 48(e) of the Civil Practice Act, now section 2 — 619 of the Code of Civil Procedure (111. Rev. Stat. 1979, ch. 110, par. 48(e), now Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619). Following a hearing, the trial court granted the defendant’s motions and entered judgment in their favor. The plaintiff appealed.

The defendants based their motions on the allegation that the plaintiff’s complaint was barred on its face by the two year statute of limitations found in section 21.1 of the Limitations Act. That statute reads as follows:

“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.

To determine whether the trial court properly applied this statute to enter judgment in favor of the defendants as a matter of law, we must examine the factual basis for the plaintiff’s cause of action. The plaintiff alleged that on May 1, 1978, defendants William J. Farley, M.D., and Mary Bradish, a midwife, negligently rendered medical services to the plaintiff at St. Margaret’s Hospital, resulting in the stillbirth of Shawna Renae Lutes, deceased. The cpmplaint specifically alleged, inter alia, that the defendants administered morphine to the plaintiff, proximately resulting in the death of the deceased. The complaint further alleged that the negligence of the defendants was “unknown or could not have been known to the plaintiff until the middle of July, 1980 when [plaintiff’s] sister embarked upon a nursing course and in the course of her studies, determined that morphine should not be administered to a pregnant mother.”

The plaintiff admits that her complaint was not brought within two years of the stillbirth of the decedent. She submits, however, that her complaint was timely filed pursuant to the “discovery rule” found in section 21.1 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 22.1). The discovery rule as applied to medical malpractice cases means that the cause of action does not accrue in the sense of triggering the statute of limitations until the plaintiff learned of her injury or should have learned of it. (Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 262 N.E.2d 450; Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560; Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869.) In those situations in which the plaintiff neither knew nor had reason to know of the injury at the time it occurred, litigation can be commenced beyond the normal two-year statutory period if it is initiated within the four-year outer limit set forth in the statute. Thus the definition of the term “injury” becomes critical. In those cases where substantial intervals exist between the time at which a plaintiff should have known of the physical injury and the time at which she should have known that it was negligently caused, the definition of “injury” as including or excluding its wrongful causation is significant. Witherell v. Weimer (1981), 85 Ill. 2d 146, 155, 421 N.E.2d 869, 873.

Because the statute of limitations starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused, the burden falls upon the injured person at the time of discovery of the injury and causation, to inquire further as to the existence of a cause of action. (United States v. Kubrick (1979), 444 U.S. 111, 62 L. Ed. 2d 259, 100 S. Ct. 352.) If the time at which an injured party knows or reasonably should have known both of his injury and that it was wrongfully caused is a disputed question, it is to be resolved by the finder of fact. (Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 262 N.E.2d 450.) If only one conclusion can be drawn from the undisputed facts, the question of the timeliness of the plaintiffs complaint becomes one for the court. Berry v. G.D. Searle & Co. (1974), 56 Ill. 2d 548, 309 N.E.2d 550.

In the case at bar, the plaintiff’s injury occurred in May 1978 with the stillbirth of her daughter, Shawna Renae Lutes. The plaintiff alleges in her complaint that she did not learn of the wrongful causation of that injury until July 1980, when her sister embarked upon a nursing course and determined that morphine should not be administered to a pregnant woman. Thus, the question before us is whether the plaintiff’s belated discovery of the alleged wrongful causation of her injury is reasonable. We agree with the lower court’s finding that it is not. Certainly, the stillbirth of a child is a sudden, traumatic event which should prompt some investigation by the injured party and trigger the application of the discovery rule. (Berry v. G.D. Searle & Co. (1974), 56 Ill. 2d 548, 309 N.E.2d 550.) In contrast, where the injury is one with an insidious onset for which a date of injury cannot be fixed, particularly by a layman, the discovery rule is not applied to bar a cause of action brought more than two years after the injury occurs. (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864; Withered v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869.) The fortuitous circumstance of the plaintiff’s sister starting a nursing career more than two years after the stillbirth of the plaintiff’s daughter does not indicate reasonable behavior on the part of the plaintiff such as would have extended the statute of limitations date beyond the normal two-year period.

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

Affirmed.

ALLOY and SCOTT, JJ., concur.


text:
      In re MARRIAGE OF WILLIAM EARL McDONALD, Petitioner-Appellant, and HARRIET KATHERINE McDONALD, Respondent-Appellee.
    Fourth District
    No. 4—82—0463
    Opinion filed March 3, 1983.

      Robert A. Mathis, of Rantoul, for appellant.
    Stephen R. Frank, of Johnson, Frank & Frederick, of Urbana, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

The marriage of the parties was dissolved by a judgment order of the circuit court of Champaign County and in the same order the. court made a distribution of marital property and awarded maintenance to the respondent wife. The petitioner husband appeals certain provisions of the property distribution and the award of maintenance.

Petitioner is a farmer and tills about 540 acres of land of which the parties owned 80 and the balance was on lease arrangements. Respondent had been a beautician and operated her own shop, but at the behest of petitioner had sold the shop on contract in 1978. Thereafter she assisted petitioner in the farming operations. The record indicates that the parties enjoyed a substantial income and had accumulated substantial assets, including a luxury automobile and a vacation home in Florida with a boat and an additional automobile located there. Petitioner had previously been employed by the University of Illinois, but took up farming as his sole occupation about 11 years prior to the dissolution.

An examination of the record discloses that the trial court carefully considered all of the elements set forth in section 503 of the Illinois Marriage and Dissolution of Marriage Act concerning disposition of property and section 504 concerning maintenance. (111. Rev. Stat. 1981, ch. 40, pars. 503, 504.) The parties were in substantial agreement about the nature and valuation of their assets. Without going into unnecessary detail, we observe that petitioner was awarded the marital home and the equipment and machinery needed in farming operations; he was also ordered to assume substantial indebtedness which derived from those farming operations. Respondent was awarded the Florida property, together with the boat and car, the contract on the beauty shop, the luxury automobile, and certain cash items. Each took certain expensive jewelry items and petitioner was awarded his University of Illinois retirement fund. The 80 acres owned by the parties was divided equally, and it appears that the household goods were divided by agreement.

In round figures petitioner received 47% of the net assets and respondent received 53%. Respondent was also awarded $350 per month maintenance.

One of petitioner’s chief complaints relates to grain on hand which had an approximate value of $66,000. The trial court divided this by ordering petitioner to pay to respondent $30,000 as her share. Petitioner claims that this payment will so strip him of available money as to make farming operations impossible. He makes the same argument as to the award of maintenance.

To support his argument petitioner offered copies of his Federal income tax returns for the years 1978, 1979, and 1980, which were received into evidence. Two of these returns show losses from farming operations and the third shows a small profit, although the Schedules “F” attached show substantial income. The difference is attributable to large amounts of depreciation and tax credits.

The use of Federal income tax returns as proof of financial status has become a common practice, particularly in marital litigation. It cannot be doubted that they are admissible, given the proper foundation proof. However, we regard them as much less than conclusive in determining cash flow and hence the ability to pay either sums awarded to the other spouse or maintenance. It is a matter of common knowledge that income may be sheltered from taxation by a variety of legal tax maneuvers, the most common of which is depreciation. Unless it be funded, it represents available funds. If farming operations are to continue in the future, obviously the asset must eventually be replaced. It therefore becomes incumbent on the trier of fact to determine as best he can what disposition is being made of the funds generated through depreciation or other sheltered income: is it being reserved to fund future operations; or is it being used to meet current business expenses, including principal and interest payments on any installment loan, contracts, or other similar liabilities; or is it being used for things not connected with business; or just what is its disposition? This, then, will require a balancing test: viz., the disposition of the current cash flow versus the ability to pay in a dissolution proceeding.

If a spouse pleads an inability to pay, something more than a copy of a tax return is necessary to establish a preponderance of such evidence. Expert testimony would be one method which comes immediately to mind. Others may occur to imaginative counsel.

As applied to the instant case, we find petitioner’s argument without merit. The tax returns do not demonstrate that he will be unable either to continue farming or to pay maintenance. In its judgment order the trial court stated in part: “In connection with Petitioner’s ability to make maintenance payments, the Court has considered the fact that Petitioner is able to shelter certain of his income through tax deductions and credits available to him.”

The standard of review of a property division is that the trial court’s judgment will be disturbed only upon a showing of abuse of discretion. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.) In determining whether the trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court but whether the trial court acted arbitrarily without the employment of conscientious judgment. It can be said that a trial court’s discretion is abused only where no reasonable man would take the view adopted by the trial court. (Lee.) Furthermore, the Illinois Marriage and Dissolution of Marriage Act does not prescribe an equal division of the marital property. (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 376 N.E.2d 1382.) In dividing marital property, if the court has considered all the factors set out in section 503 of the Illinois Marriage and Dissolution of Marriage Act, its discretion will only be reversed where no reasonable man would take the view adopted by the trial court. In re Marriage of Hyland (1981), 95 Ill. App. 3d 31, 419 N.E.2d 662.

We find no abuse of discretion in the property division. Nor do we find any abuse in the award of maintenance. The trial court carefully considered all the factors, as mentioned above. It also indicated that most of the property awarded to respondent was not of an income-producing variety. (Compare In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 412 N.E.2d 1336.) Further, the age of respondent is such that it would be unconscionable to require her to return to work as a beautician; and even if she did, it would require a number of years to build up a clientele. The manifest weight of the evidence is in favor of maintenance.

Petitioner also contends that the trial court abused its discretion in not permitting him to reopen the proofs to show a decline in valuations of farm equipment.

The evidence of value was received on January 20, 1982. Petitioner then stipulated to that value. The trial court took the case under advisement and rendered its judgment order on April 5, 1982. Petitioner then filed a post-trial motion and appended to it a handwritten letter and new valuations of the farm machinery. He argues that the new inventory shows a deflation in value of about $40,000 during the time the trial court had the matter under advisement. The trial court denied the motion.

It is difficult to determine the exact nature of what was intended by the post-trial motion regarding the farm machinery. It was not a motion to reopen the proofs. If it had been, it is doubtful if the motion were well-taken. (Compare In re Marriage of Rogers (1980), 86 Ill. App. 3d 904, 408 N.E.2d 448.) As the motion stands, it simply states that the trial court erred in fixing the stipulated value. We find it difficult to perceive how error can be predicated on a stipulation. The contention is without merit.

The judgment order of the circuit court of Champaign County is affirmed.

Affirmed.

TRAPP and GREEN, JJ., concur.


text:
      In re MARRIAGE OF ILA ALLCOCK, Petitioner-Appellee, and JOHN V. ALLCOCK, Respondent-Appellant.
    Third District
    Nos. 82—302, 82—150, 82—207 cons.
    Opinion filed March 7, 1983.

      Bradley W. Dunham, of McConnell, Kennedy, Quinn & Johnston, of Peoria, for appellant.
    Donald K. Birner, of Pekin, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Petitioner Ila Allcock filed a motion for reconsideration of an order denying her request for attorney fees incurred in a pending appeal. Respondent John Allcock responded with a special appearance. After a hearing on the merits of these two pleadings, the circuit court of Tazewell County found it had jurisdiction and awarded the attorney fees.

An appeal from the principal cause in this action was taken by respondent in 1981. On December 21 of that year, the trial court heard evidence of his financial status. On February 10, 1982, the court heard evidence of petitioner’s financial status and denied her request for attorney fees stemming from the pending appeal. An order to this effect was entered on March 2, 1982. On April 16, 1982, the court considered the. verified itemization of services provided by petitioner’s counsel and ordered respondent to pay him $250 in fees.

The first of three issues presented for our review is whether the trial court had jurisdiction to award attorney fees incurred in a pending appeal. This issue was addressed in In re Marriage of Giammerino (1981), 94 Ill. App. 3d 1058, 1060, 419 N.E.2d 598, 600:

“[T]o hold that the trial court is deprived of jurisdiction to award attorney’s fees under the Act because a notice of appeal has been filed would be to apply a general principle to a specific situation where it is inapposite. The filing of a notice of appeal does not deprive the trial court of jurisdiction in all instances. There are many recognized exceptions to the general principle that the trial court loses jurisdiction upon the filing of a notice of appeal. [Citations.] Plainly, a trial court has jurisdiction to hear matters independent of and distinct from the issues involved in the appeal. The trial court may entertain matters that are purely collateral or supplemental to the appeal [citations], or which arise subsequent to entry of the judgment from which the appeal has been taken and which do not have the effect of interfering with review of the judgment. [Citations.]”

Citing Giammerino, the court in In re Marriage of McBride (1981), 102 Ill. App. 3d 84, 429 N.E.2d 867, reversed its earlier position (see In re Sharp (1978), 65 Ill. App. 3d 945, 950, 382 N.E.2d 1279, 1283) and explained:

“Permitting the filing of a notice of an appeal to serve as a bar to an award of attorney fees for the purpose of defending an appeal is fraught with danger and highly undesirable results. It can be envisioned that the denial of an award of attorney fees could be tantamount to the foreclosure of a party’s right to defend an appeal. Even if such result was not so drastic, the defense of an appeal by an attorney who has no assurance as to the amount of compensation, if any, he will receive may well serve to dilute the amount of energy and enthusiasm that is expected of an attorney. Such an observation is not intended to reflect upon the character of the members of the legal profession, since the profession is noted for its representation of indigent litigants. Nevertheless, it is a well-known adage that a lawyer’s time, education and service constitutes his stock in trade, and when the same is expended on behalf of a client he can rightfully expect to be compensated.” (In re Marriage of McBride (1981), 102 Ill. App. 3d 84, 87, 429 N.E.2d 867, 870.)

Relying, inter alia, on Giammerino and McBride, the court in In re Marriage of Theeke (1981), 105 Ill. App. 3d 119, 433 N.E.2d 1311, also reversed its earlier position and allowed fees for a pending appeal. While we agree with the holdings and rationales of these decisions and the trial court herein had jurisdiction to grant the fees in question, the courts of this State are not uniformly in accord. See, e.g., In re Marriage of Pease (1982), 106 Ill. App. 3d 617, 435 N.E.2d 1361; Fox v. Fox (1978), 56 Ill. App. 3d 446, 371 N.E.2d 1254.

The second issue is whether the trial court abused its discretion in allegedly considering improper evidence and failing to require other proper evidence before awarding attorney fees. This issue is raised as no evidence of the parties’ financial conditions was presented at the hearing of the motion to reconsider, and the court considered the evidence previously submitted on the question. Several factors must here be considered. The hearing of April 16, 1982, provided a forum for argument on a point of law and submission of the itemized fees of petitioner’s attorney. The original decision on the fee question had been rendered on February 10, 1982, when petitioner testified as to her financial status. Respondent’s financial status had been presented to the court on December 21, 1981. No allegation of a change in respondent’s financial circumstances was at any time made. Finally, petitioner’s attorney submitted an affidavit reflecting 20.75 hours of completed services, and petitioner’s motion indicated total anticipated fees of $2,000; the court awarded her $250. While an additional hearing may be necessary in many situations to establish present financial circumstances (see, e.g., In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 277, 411 N.E.2d 947, 950), we do not find the court abused its discretion in not ordering such a hearing under the circumstances herein.

The third issue presented for our review is whether the trial court erred in refusing to set and approve an appeal bond pursuant to Supreme Court Rule 305(a) (73 Ill. 2d R. 305(a)). Respondent argues that setting such a bond would frustrate the theory and rationale of McBride and, to a degree, this may be the case; however, that decision speaks of the situation “of an appeal by an attorney who has no assurance as to the amount of compensation, if any, he will receive” (In re Marriage of McBride (1981), 102 Ill. App. 3d 84, 87, 429 N.E.2d 867, 870). The setting of an appeal bond does not remove that assurance. More importantly, the setting of a bond is not discretionary. As was noted by the court in People ex rel. Doty v. Dusher (1962), 24 Ill. 2d 309, 311, 181 N.E.2d 166:

“Whether the terms and amount of the appeal bond were to be fixed or not fixed was not within the discretion of the judge. The statute says that ‘An appeal to the Appellate or Supreme Court operates as a supersedeas only if and when the appellant, after notice, gives and files a bond in a reasonable amount, to secure the adverse party. If the bond is given before the record is filed in the reviewing court, the amount and terms thereof shall be fixed and the security approved by the trial judge ***.’ (111. Rev. Stat. 1961, chap. 110, par. 82.) (Emphasis supplied.) While mandamus will not lie to control the judicial action of a judge it will lie to compel an act concerning which he has no discretion. People ex rel. Waber v. Wells, 255 Ill. 450; People ex rel. Methodist Deaconess Orphanage v. Leech, 285 Ill. App. 19.”

Similarly, it has been held that if a bond is filed within the time prescribed by statute, in proper amount and with proper sureties, “the duty of the *** court to approve the bond becomes ministerial in character” (People ex rel. Methodist Deaconess Orphanage v. Leech (1936), 285 Ill. App. 19, 22, 1 N.E.2d 546, appeal denied.) The trial court thus erred in refusing to set and approve an appeal bond herein, but it is an error which cannot be corrected by the procedure invoked by the respondent.

Accordingly, the judgment of the circuit court of Tazewell County is affirmed.

Affirmed.

BARRY, P.J., and SCOTT, J., concur.


text:
    THOMAS BEEDING, Plaintiff-Appellee, v. OLIN CHEMICAL CORP., Defendant-Appellant.
    Third District
    No. 82-543
    Opinion filed March 7, 1983.
    William F. Haley and Richard C. Bartelt, both of Wildman, Harrold, Allen & Dixon, of Chicago, for appellant.
    Thomas Monahan and H. Arthur Hammel, both of Joliet, for. appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff Thomas Beeding filed a complaint for damages for personal injuries allegedly occasioned by defendant Olin Chemical Corporation’s violation of the Structural Work Act (HI. Rev. Stat. 1977, ch. 48, par. 60 et seq.). Defendant filed a third-party complaint against plaintiff’s employer, Elens and Maichin, Inc., seeking indemnity. After a jury trial, the circuit court of Will County entered judgment in defendant’s favor. Plaintiff filed a post-trial motion seeking relief from the jury verdict. Almost years later, the court vacated the verdict and ordered a new trial. Pursuant to Supreme Court Rule 306 (87 Ill. 2d R. 306), we granted leave to appeal. At issue is the propriety of two special interrogatories.

Plaintiff sustained his injuries on October 5, 1977, when he fell through the roof of a building owned by defendant. Elens and Maichin had been retained to remove the roof, and plaintiff was engaged in that work at the time he was injured. The first special interrogatory asked:

“Was the Defendant, Olin, the party having charge of the removal of the roof of the building in question?”

The jury answered, “No,” and the trial court held that, under Scully v. Otis Elevator Co. (1971), 2 Ill. App. 3d 185, 275 N.E.2d 905, the interrogatory was improper.

In Scully, three defendants were involved in the construction of a hospital addition. Otis Elevator had been awarded one of 11 prime contracts and was responsible for installing eight elevators and dumbwaiters. At trial, the company submitted the following special interrogatory:

“Do you find from the evidence that Otis Elevator Company was in charge of the erection or construction at the time and place of the accident in question?” (Scully v. Otis Elevator Co. (1971), 2 Ill. App. 3d 185, 194, 275 N.E.2d 905, 911.)

The interrogatory was refused, and the appellate court affirmed the decision:

“Special interrogatories are used to test the general verdict against the jury’s conclusions concerning the ultimate controlling facts. [Citations.] When a special interrogatory is in proper form, the trial court has no discretion but to submit it to the jury. [Citation..] However, the special interrogatory must relate to an ultimate issue of fact. [Citation.] While Otis’ special interrogatory was couched in the language of the Act, it did not relate to an ultimate issue of fact, because a negative answer would not be determinative of whether Otis was in charge within the meaning and intent of the Structural Work Act as defined by case law. Therefore, the special interrogatory could not have tested the general verdict and the trial court properly refused to submit it to the jury.” Scully v. Otis Elevator Co. (1971), 2 Ill. App. 3d 185, 194-95, 275 N.E.2d 905, 911.

The Scully plaintiffs had urged this conclusion as a defendant needn’t be in charge of erection or construction, but only a phase thereof. Thus the jury could have answered the interrogatory in the negative and still found Otis Elevator liable. In the case at bar, the jury was asked if defendant was the party having charge of the removal of the roof. Unlike the comprehensive reference to erection or construction, the removal of the roof was limited to a phase of the work. It was further limited to the phase of the work in which plaintiff was engaged at the time of his injury. Thus the jury could not have answered the instant interrogatory in the negative and still have been able to find defendant liable. In so concluding, we in no way suggest that a party in overall charge of work is not in charge of a particular phase thereof. See McGovern v. Standish (1976), 65 Ill. 2d 54, 71, 357 N.E.2d 1134, 1143 (Goldenhersh, J., dissenting).

We also note part of plaintiff’s issue instruction, based upon Illinois Pattern Jury Instruction, Civil, No. 180.04 (2d ed. 1971) (hereinafter cited as IPI) and presented to the jury:

“The Plaintiff, Thomas Beeding, claims that the Defendant, Olin Corporation, was the person having charge of the removal of the roof of the building in question.”

Where different language was used in an instruction and special interrogatory, it was noted:

“[Interrogatories should contain a single direct question and should not be repetitious, misleading, confusing or ambiguous. The interrogatory should, of course, use the same language or terms as are contained in the instructions.” (Hocking v. Rehnquist (1968), 100 Ill. App. 2d 417, 424-25, 241 N.E.2d 337, 340, rev’d on other grounds (1969), 44 Ill. 2d 196, 254 N.E.2d 515.)

Given these circumstances, we find no error in submitting the special interrogatory to the jury.

The second of the contested interrogatories asked:

“Did the conduct of Olin immediately, before and at the time of the occurrence complained of, constitute a major fault which proximately caused the injury and damage complained of[?]”

The jury answered, “Yes,” and the trial court held the answer was inconsistent with the general verdict.

In Isabelli v. Cowles Chemical Co. (1972), 7 Ill. App. 3d 888, 289 N.E.2d 12, appeal denied (1973), 53 Ill. 2d 603, the defendant made the identical contention. The court responded:

“This contention has no bearing upon the propriety of the general verdict. It is well settled that liability under the Structural Work Act can result from a passive violation as well as from affirmative activity. [Citations.] Furthermore, it is clear from this record that the two special interrogatories had no bearing upon the issues between plaintiff and Cowles. The concept of ‘active misconduct’ used by them is not material in structural work cases. They were submitted to the jury in connection with the issues raised in the third-party litigation by Cowles against Marietta. There was also a general verdict on these issues returned by the jury in favor of Cowles. That verdict had no connection with the general verdict in the original case.” (Isabelli v. Cowles Chemical Co. (1972), 7 Ill. App. 3d 888, 898, 289 N.E.2d 12, 19.)

Subsequent to Isabelli, the drafters of the Illinois Pattern Jury Instruction for indemnity actions expressly rejected use of language about active and passive misconduct (see Przybylski v. Peskins & Will Architects, Inc. (1981), 95 Ill. App. 3d 620, 623, 420 N.E.2d 524, 527, appeal denied (1981), 85 Ill. 2d 575), and adopted major fault and freedom from major fault in their stead (see IPI Civil No. 500.00 et seq., at 45 (1977 Supp.)). As in Isabelli, the special interrogatory at bar was submitted, here by Elens and Maichin, in connection with the issues raised in the third-party litigation and had no connection with the issues raised in the third-party litigation and had no connection with the general verdict. We therefore find no error in submitting the interrogatory to the jury and no inconsistency raised by its answer.

Having found no error in the submission of the special interrogatories to the jury, we need not consider whether defendant was prejudiced by the interval between the filing of plaintiff’s post-trial motion and the trial court’s order.

Accordingly, the order of the circuit court of Will County granting a new trial is reversed and the judgment in favor of the defendant is reinstated.

Reversed.

ALLOY and HEIPLE, JJ., concur.


author: JUSTICE MEJDA

text:
    JOHN WHEATLEY et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT NO. 205, COOK COUNTY, Defendant-Appellee.
    First District (5th Division)
    No. 81—3156
    Opinion filed March 11, 1983.
    Wayne Schwartzman and Peter M. Katsaros, both of Hirsh & Schwartzman, of Chicago, for appellants.
    John H. Hager, P.C., of Chicago (Coin, Crowley & Nord, of counsel), for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiffs, public school teachers who had been sent notices of dismissal, brought a class action for a writ of mandamus and declaratory relief against their employer, defendant Board of Education of District 205, Cook County, Illinois (the Board). The trial court found that the issue raised by plaintiffs was moot and, accordingly, dismissed the complaint. Plaintiffs appeal.

On May 7, 1981, John Wheatley and Celeste Mazor, two honorably dismissed teachers, filed a class action against the Board on their behalf and on behalf of the 59 teachers (26 tenured and 33 nontenured) who had been honorably dismissed by the Board on April 8, 1981, for reasons of economic necessity, declining enrollment, and organizational efficiency. Plaintiffs sought: (1) a declaratory judgment that the Board violated section 24 — 12 of the Illinois School Code by dismissing the teachers without first holding an economic necessity hearing (see 111. Rev. Stat. 1981, ch. 122, par. 24 — 12); and (2) mandamus directing the Board to rescind the dismissals of the 59 teachers and to reinstate all teachers honorably dismissed. By the fall of 1981, at the start of the school year, 21 of the 26 dismissed tenured teachers either had been rehired by the Board or had declined offers of rehire by the Board. The remaining five tenured teachers were neither re-employed nor offered re-employment by the Board. The record is silent as to the employment status of the 33 nontenured dismissed teachers. On September 9, 1981, the Board filed a motion to dismiss the complaint arguing that, as only five tenured teachers remained unemployed, relief was no longer available under the statute and the issue before the court was, therefore, moot. The court found that: (1) section 24 — 12 applies only to tenured teachers; (2) where all but five of the tenured teachers who had been sent dismissal notices were re-employed by the Board or offered re-employment by the Board a public hearing on the economic necessity for the dismissals was not mandated by section 24 — 12; and (3) the public interest exception to the mootness doctrine is not applicable in the instant case. The court concluded that the issues raised in plaintiff’s complaint were moot and dismissed the complaint.

Opinion

The sole issue before this court is whether the trial court erred in dismissing plaintiffs’ complaint for mootness. Plaintiffs argue that the court erred in refusing to apply section 24 — 12 of the School Code (111. Rev. Stat. 1981, ch. 122, pars. 1 — 1 through 36 — 1) to the April 1981 dismissal of 59 teachers. Section 24 — 12 states, in pertinent part:

“Whenever the number of honorable dismissal notices based upon economic necessity exceeds 5, or 150% of the average number of teachers honorably dismissed in the preceding 3 years, whichever is more, then the board shall hold a public hearing on the question of the dismissals. Following the hearing and board review the action to approve any such reduction shall require a majority vote of the board members.” (111. Rev. Stat. 1981, ch. 122, par. 24 — 12.)

It was not disputed that “more than five” is the applicable standard in the instant case.

First, we agree with the trial court’s determination that only tenured teachers are covered by the provisions of section 24 — 12. (111. Rev. Stat. 1981, ch. 122, par. 24 — 12.) This section, in clear and unambiguous language, speaks of the termination procedures for tenured teachers only. (See Bilek v. Board of Education (1978), 61 Ill. App. 3d 323, 377 N.E.2d 1259.) The first sentence of the section refers specifically to “a teacher in contractual continued service.” (Ill. Rev. Stat. 1981, ch. 122, par. 24 — 12.) Construing the statute in accordance with its plain meaning leads to the conclusion that only the 26 tenured teachers in the instant case are covered under the protective provisions of section 24 — 12.

We next address plaintiffs’ argument that the court erred in dismissing their complaint for mootness. The central issue before the trial court was whether the Board’s action on April 8, 1982, violated section 24 — 12 of the School Code and thereby rendered plaintiffs’ dismissals invalid. The Board contends that the issue is moot because all but five of the dismissed tenured teachers were re-employed or offered re-employment by the Board and, therefore, the number of dismissed tenured teachers is less than the minimum number for which an economic necessity hearing is required under section 24 — 12. Plaintiffs argue that the issue is not moot because the statute does not speak to the number of teachers actually dismissed, but rather to the number of dismissal notices sent. Plaintiffs conclude that as the number of dismissal notices exceeded the statutory minimum the Board violated the statute and the dismissals were, therefore, invalid.

It is well established that a court will not review a case merely to decide a moot or abstract question. (Mills v. Green (1895), 159 U.S. 651, 40 L. Ed. 293, 16 S. Ct. 132; Bluthardt v. Breslin (1979), 74 Ill. 2d 246, 384 N.E.2d 1309; La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 121 N.E.2d 486.) A case is moot where there is no existing controversy and nothing remains for the court to decide. (Illinois Bell Telephone Co. v. Illinois Commerce Com. (1979), 67 Ill. App. 3d 616, 385 N.E.2d 159; La Salle National Bank; Szczurek v. City of Park Ridge (1981), 97 Ill. App. 3d 649, 422 N.E.2d 907.) An issue becomes moot where, because of the lapse of time or the occurrence of an event, the issue ceases to exist thereby making; it impossible for the court to give effective relief or making any relief futile. (Bluthardt.) However, where the intervening event forecloses relief to some but not all of the claimants, the rights of the remaining claimants which have crystallized prior to the intervening event are not foreclosed under the doctrine of mootness: See Szczurek; Phillips Petroleum Co. v. City of Park Ridge (1958), 16 Ill. App. 2d 555, 149 N.E.2d 344.

The trial court predicated its finding of mootness upon the fact that, at the time of the Board’s motion to dismiss, only five or fewer tenured teachers remained who would be affected by am order requiring reinstatement of the dismissed teachers: The court concluded that as the statutory minimum of “more than five” cannot be met, a public hearing on the question of such dismissal's was not required. It. is our opinion that the rights upon which this action was brought crystallized when the Board sent the dismissal notices in April 1981 without first holding an economic necessity hearing; Therefore, the issue before the court, the validity of the dismissals resulting from such notices, remains an existing controversy to be decided by the court insofar as relief could be granted to the remaining tenured teachers who were neither re-employed nor offered re-employment by the Board.

Although the issue before the court became moot as to the tenured teachers who had been re-employed or had declined re-employment as no effective relief could be granted them, the issue continues to exist as to the remaining tenured teachers. The re-employment or offer of re-employment of some but not all of the tenured plaintiffs after the suit was filed does- not' negate the alleged unlawfulness of the Board’s April 1981 action or render unavailable to plaintiffs such remedies as are appropriate. (See Ross v. 311 North Central Avenue Building Corp. (1970), 130 Ill. App. 2d 336, 264 N.E.2d 406.) A determination of the validity of the dismissals of the tenured teachers who were neither re-employed nor offered re-employment by the Board remains for decision by the trial court and the granting of such relief as may be appropriate. We conclude, therefore, that the court erred in its determination that the issue before it was moot.

In view of our holding, it is unnecessary to' reach the plaintiffs’ contentions as to whether an exception to the mootness doctrine is present.

We express no opinion as to the merits of the claims in the instant case but reverse the order of the trial court and remand for further proceedings not inconsistent with this opinion.

Reversed and remanded.

WILSON, P.J., and LORENZ, J., concur.

       On November 19, 1981, the date the motion to dismiss was- granted, counsel for the Board represented to the court that only four tenured teachers remained unemployed. As the applicable statutory standard is “more than five,” for the purposes of this appeal, it is, therefore, irrelevant whether five or four teachers remained unemployed.