Rather, a contract is not divisible if the parties assented to all the promises as a single whole and if striking any promise or set of promises would destroy the basis of the bargain. Klubeck v. Division Med. X-Ray, Inc., 439 N.E.2d 506, 108 Ill. App.3d 630 (1983). Where a contract contemplates and intends that the parties are to be performed as a whole, it is not divisible.

) Defendant Edgewater contends that because plaintiff did not raise this issue below or in his appellate brief, it is waived. We agree. 134 Ill.2d R. 341(e)(7); Robles v. Chicago Transit Authority (1992), 235 Ill. App.3d 121, 131, 601 N.E.2d 869 (argument raised for first time in oral argument waived pursuant to Rule 341(e)(7)); Consentino v. Price (1985), 136 Ill. App.3d 490, 494, 483 N.E.2d 297, 300 (theory upon which a case is tried cannot be changed on review, issue not presented to or considered by the trial court cannot be raised for the first time on appeal); Klubeck v. Division Medical X-Ray, Inc. (1982), 108 Ill. App.3d 630, 635-36, 439 N.E.2d 506 (theory advanced below cannot be changed on review). Moreover, appellate courts should not consider different theories or new questions if proof might have been offered to refute them had they been presented at trial.

And so we are persuaded that "it is impossible to affirm that [Rotec] would have assented to any part [of the contract] unless [it] assented to all." Trapkus v. Edstrom's Inc., supra, 95 Ill.Dec. 119, 489 N.E.2d at 347; see also Gladstone v. McHenry Medical Group, 197 Ill.App.3d 194, 143 Ill.Dec. 188, 553 N.E.2d 1174, 1179-81 (1990); Klubeck v. Division Medical X-Ray, Inc., 108 Ill.App.3d 630, 64 Ill.Dec. 255, 439 N.E.2d 506, 510-11 (1982). But Atkinson, noting that the district court decided the case for Rotec on summary judgment, tells us that the question whether a contract is divisible is one of fact, not of law, and so there must be a trial.

Plaintiffs do question whether the Security Agreement was meant to extend to Pinnacle's Medicare reimbursements, which, Plaintiffs claim, would place the agreement in apparent contravention of state and federal law. See 42 U.S.C. § 1396a(a)(32); 305 ILCS 5/11-3; 89 Ill. Admin. Code 140.27; Klubeck v. Division Med. X-Ray, Inc., 439 N.E.2d 506, 509 (1st Dist. 1982); Credit Recovery Sys. LLC v. Hieke, 158 F. Supp. 2d 689, 696 (E.D. Va. 2001) However, given my ruling here and the fact that the parties did not address this issue in their briefs, I offer no ruling on the question. On one occasion, in December 2007, which was after service of the Citation to Discover Assets and after Premier's filing of its objection to the release of funds, Ms. Hirn sent an email to Pinnacle demanding proof of insurance and describing the failure to provide it as an event of default.

Forum directs the Court to a number of cases in which the courts have invalidated contracts that violate public policy; however, each of those cases involved contracts whose substantive terms were, in and of themselves, violations of public policies embodied in state statutes or case law. See Vine St. Clinic v. Healthlink, Inc., 819 N.E.2d 363 (Ill.App.Ct. 2004) (voiding contract that violated Medical Practice Act's prohibition on fee-splitting by permitting payment by medical professionals for referrals);Aste v. Metro. Life Ins. Co., 728 N.E.2d 629 (Ill.App.Ct. 2000) (voiding contract that violated Illinois security law);TLC Laser Center, Inc. v. Midwest Eye Inst. II, Ltd., 714 N.E.2d 45 (Ill.App.Ct. 1999) (voiding contract that violated Medical Practice Act's prohibition on fee-splitting); Klubeck v. Division Medical X-Ray, Inc., 439 N.E.2d 506 (Ill.App.Ct. 1982) (voiding contract that was purposefully drafted to avoid statute which forbid alienation of medical practice's right to payment from the Department of Welfare). As the Bankruptcy Court noted during the hearing, there is nothing illegal about the substance of the Forum Agreement. Forum further contends that the Holding Company Act is designed to protect the public, and therefore a contract which violates its requirements is void.

In other situations, Illinois courts bar assignments which are against public policy. Cf. Klubeck v. Division Medical X-Ray, Inc., 108 Ill. App.3d 630, 64 Ill.Dec. 255, 439 N.E.2d 506 (1st Dist. 1982) (assignment of right to receive welfare reimbursements); Clement v. Prestwich, 114 Ill. App.3d 479, 70 Ill. Dec. 161, 448 N.E.2d 1039 (2d Dist. 1983) (cause of action for malpractice). Hartford cites in support of its position the following cases: In Re Estate of Martinek, 140 Ill. App.3d 621, 94 Ill.Dec. 939, 488 N.E.2d 1332 (2d Dist. 1986); Maneikis v. St. Paul Ins. Co. of Illinois, 655 F.2d 818 (7th Cir. 1981); Aabye v. Security-Connecticut Life Ins. Co., 586 F. Supp. 5 (N.D.Ill. 1984) (Aspen, J.); Browning v. Heritage Ins. Co., 33 Ill. App.3d 943, 338 N.E.2d 912 (2d Dist. 1975); and Brown v. State Farm Mut. Auto. Ins. Assoc., 1 Ill. App.3d 47, 272 N.E.2d 261 (4th Dist. 1970).

SeeIn re Marriage of Rodriguez, 131 Ill.2d 273, 279 (1989). Ikari and Xue contend that, if Mason had raised the issue in the trial court, proofs could have been offered to refute or overcome it (see Klubeck v. Division Medical X-Ray, Inc., 108 Ill. App.3d 630, 636 (1982)) and that the trial court could have determined whether the lease was intended to circumvent the Act and, if so, declared it void (see Gittleman v. Create, Inc., 189 Ill. App.3d 199, 204 (1989). To permit Mason to raise this issue for the first time on appeal would greatly prejudice Ikari and Xue.

One case, Telenois, Inc. v. Village of Schaumburg, 256 Ill. App.3d 897 (1993), involved a contract clause imposing a $100,000 penalty for failure to meet a contract deadline. The other case, Klubeck v. Division Medical X-Ray, Inc., 108 Ill. App.3d 630 (1982), involved an agreement to pledge welfare reimbursements, in violation of the Public Aid Code. (Ill. Rev. Stat. 1979, ch. 23, par. 11-3.) Contrary to the contracts in the above cases, the Agreement is not illegal on its face. Performance of the contract would not violate any Illinois law.

In these cases, a violation of the licensing requirements could have a significant impact on public health or safety. See, e.g., Kaplan v. Tabb Associates, Inc., 276 Ill. App.3d 320 (1995) (architectural license); Ransburg v. Haase, 224 Ill. App.3d 681 (1992) (architectural license); Tovar v. Paxton Community Memorial Hospital, 29 Ill. App.3d 218 (1975) (medical license); Broverman v. City of Taylorville, 64 Ill. App.3d 522 (1978) (pollution); E B Marketing Enterprises, Inc. v. Ryan, 209 Ill. App.3d 626, 630 (1991) (physician fee splitting compromised patient's interests); Klubeck v. Division Medical X-Ray, Inc., 108 Ill. App.3d 630, 635 (1982) (public health compromised by indirect payment to medical service provider). Here, by contrast, public health or safety is not endangered by MFC Wisconsin's failure to obtain a license.

Issues not raised in the proceedings below cannot be raised for the first time on appeal. ( Shell Oil Co. v. Department of Revenue (1983), 95 Ill.2d 541, 550, 449 N.E.2d 65, 69; Klubeck v. Division Medical X-Ray, Inc. (1982), 108 Ill. App.3d 630, 635-36, 439 N.E.2d 506, 510.) The IPTAB attempts to avoid waiver by arguing that this is a jurisdictional matter because plaintiffs have failed to comply with assessment challenging procedures.