author: JUSTICE SPITZ

text:
    ROBERT H. MICHEL, Plaintiff-Appellant, v. MISHAEL O. GARD et al., Defendants-Appellees.
    Third District
    No. 3—88—0464
    Opinion filed April 7, 1989.

      Robert C. Strodel, of Strodel, Kingery & Durree, Associates, of Peoria, for appellant.
    Joshua G. Vincent and Stephen R. Swofford, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, and David E. Jones, of Thomas & Hinshaw, Culbertson, of Peoria, for appellees.
   JUSTICE SPITZ

delivered the opinion of the court:

This appeal involves a legal malpractice action in the circuit court of Peoria County by plaintiff Robert H. Michel, against defendants Mishael 0. Gard, individually, and Swain, Johnson, and Gard, a law partnership. Defendants filed a motion to dismiss plaintiff’s amended complaint pursuant to section 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). After a hearing, the amended complaint was dismissed, with prejudice, on April 22,1988.

On April 28, 1988, plaintiff filed a motion to reconsider. On June 17, 1988, the motion to reconsider was denied. Thereafter, plaintiff appealed.

Plaintiff’s amended complaint is in two counts. The first count is an action in negligence against defendants to recover $14,480, plus costs. Count II is to recover the same damages under a third-party beneficiary theory. The facts alleged in plaintiff’s amended complaint follow.

At all times relevant to this litigation, Gard is a licensed attorney practicing as a partner in the law firm of Swain, Johnson, and Gard in Peoria, Illinois. At some unspecified time in 1971, Phil C. Hauter sought legal counsel from defendants. It is alleged Hauter was acting for himself and as agent for the “potential” shareholders of a corporation, including plaintiff, which defendants were retained to set up. The corporation, known as Morton Towne House Inn, Inc., was to operate a motel and restaurant.

It is alleged that by virtue of performing the legal services pertaining to incorporation and issuance of shares of stock, defendants “assumed legal responsibility for properly creating said corporation, including all legal and reasonable protection of the shareholders, expressly including Plaintiff.” It is further alleged that defendants negligently deviated from recognized standards for the practice of law relevant to formation of corporations, as practiced in Peoria, Illinois, and similar localities, by failing to qualify the corporate shares as section 1244 stock within the meaning of Internal Revenue Code (IRC) section 1244 (26 U.S.C. §1244 (1982)).

In 1985, the corporation became insolvent and the shares worthless. As a direct and proximate result of defendants’ negligence, plaintiff was required to take a capital loss rather than an ordinary loss on his 1985 Federal and Illinois income tax returns, causing him to lose $14,480 which plaintiff would otherwise have been able to deduct. Plaintiff states he had no knowledge of the advantages of section 1244 until the corporation became insolvent in 1985.

In count II, plaintiff alleges that at the time of being retained to set up the corporation, defendants knew the shareholders would be Hauter, plaintiff, Joyce Lee Mueller, n/k/a Joyce Lee Jennings, Gerald C. Mueller, and Fred Novotny. Plaintiff alleges the retention of defendants was to act as attorneys not only for Hauter, but also for the named shareholders as third-party beneficiaries. It is further alleged the defendants owed a duty to said third-party beneficiary shareholders to see to it “that the corporation was organized properly, and that any stock issued by the corporation provided a reasonably advantageous means of distributing income and losses.” In this, plaintiff relied on the professional legal knowledge, prowess, and skills of defendants to protect plaintiff’s interests.

Defendants filed a section 2 — 619 motion (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619) to dismiss the amended complaint. In the motion, the defendants contend (1) defendants owed no duty to plaintiff, (2) the statute of limitations has run, or (3) the case is not yet ripe for litigation. Attached to the motion were the affidavits of Gard and James H. Bunce, a partner in defendant law firm. Both affidavits indicated Hauter was a regular client of the firm. Bunce indicated the firm had formed corporations for Hauter previously. Gard’s affidavit stated Hauter, by letter dated May 3, 1971, requested Gard to organize Morton Towne House Inn, Inc. Gard states neither he nor any member of defendant firm had any contact with plaintiff, or had an attorney-client relationship with plaintiff, or was ever asked by Hau-ter to act as attorney for or on behalf of investors or potential investors in Morton Towne House Inn, Inc. Bunce’s affidavit adds that all contacts were with Hauter and there were no conversations whatsoever with plaintiff. According to Bunce, Hauter never indicated an intent for defendant firm to act as attorneys for or on behalf of investors in the corporation, nor did Hauter or Hauter’s accountants request qualification of the stock as section 1244 stock. From the outset, Gard assigned the formation of the corporation and subsequent representation of the corporation to Bunce.

The May 3, 1971, letter from Hauter was incorporated by reference into each of these affidavits. Because of its significance, the letter is quoted here in its entirety:

“May 3,1971

Mr. Mike Gard

Savings Center Tower

Peoria, Illinois

Dear Mike:

Will you please set up for us a Delaware Corporation, TOWNE HOUSE INN, INC., with the following officers:

President: Fred Novotny, 1704 St. Jude Ct., Peoria Heights, Ill.

Vice-Pres: Robert H. Michel, 1029 N. Glenwood, Peoria, Ill.

Treasurer: Gerald C. Mueller, 138 N. Indiana, Morton, Ill.

Secretary: Joyce Lee Mueller, 138 N. Indiana, Morton, Ill.

Asst. Secy: Phil C. Hauter, 746 W. Jefferson, Morton, Ill.

All of the above will be Directors.

The stock, total of which we will pay in, $50,000.00 will be broken down as follows:

Fred Novotny 30%

Robert H. Michel 20%

Gerald C. Mueller 16%%

Joyce Lee Mueller 16%%

Phil C. Hauter 16%%

Use Phil C. Hauter 746 W. Jefferson, Morton, Illinois, as the Registered Agent.

Jim Depler suggested that it might be advisable to have the shares in smaller amounts so that it would be easier to break down if anyone would make transfers. Use your own judgment on this, or you may if you wish discuss it with Jim.

If you will let me know what checks (if any) are necessary to accompany the request, I will see that you get them.

The purpose of the corporation is to operate restaurant [sic] dispensing food and beverages. While we have no intention at this time to operate a motel, it appears to me there would [be] no harm in also specifying operating motel.

Best regards,

[Signed ‘Phil’]”

Plaintiff filed a response to the motion to dismiss the amended complaint arguing that sufficient facts had been alleged to raise the factual questions of attorney-client relationship and plaintiff’s third-party beneficiary status to preclude dismissal. No counteraffidavits were attached. On March 31, 1988, a hearing was held on the motion to dismiss the amended complaint, and at the conclusion of the hearing, the matter was taken under advisement. On April 22, 1988, the trial court issued an order granting the motion and dismissing the amended complaint with prejudice.

Thereafter, plaintiff filed a motion to reconsider. In support of plaintiff’s motion was plaintiff’s affidavit, in paragraph 3 of which plaintiff states that the May 3, 1971, letter was written by Hauter at the request of plaintiff and the other incorporators, and that plaintiff authorized Hauter to act for plaintiff in retaining legal counsel and “doing those things necessary to incorporate *** including the issuance of shares of stock.” In paragraph 4, plaintiff again states he had no “legal” knowledge as to the ramifications or possibilities of qualifying under section 1244 and relied solely on defendants’ expertise to protect plaintiff’s interest.

Additional support for plaintiff’s motion to reconsider was added in the form of an affidavit by Novotny. Paragraphs 3 and 4 of Novot-ny’s affidavit are identical to those paragraphs in plaintiff’s affidavit.

Defendants filed a response to plaintiff’s motion to reconsider, with no new affidavits attached. Defendants also filed an objection to the affidavits filed in support of plaintiff’s motion to reconsider.

After a hearing held on June 13, 1988, the trial court denied the objection to plaintiff’s affidavits. The disposition of the motion to reconsider was taken under advisement, and on June 17, 1988, the trial court issued its order denying the motion to reconsider.

Before proceeding to further analysis, it seems appropriate to first review the standards to be applied by the trial court, as well as the standard of review in this case.

Section 2 — 619(aX9) provides:

“(a) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:
(9) That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(aX9).)

The purpose of section 2—619 is to avoid duplicative and vexatious litigation between the parties (Tambone v. Simpson (1980), 91 Ill. App. 3d 865, 414 N.E.2d 533) and to provide a means of disposing of issues of law or of issues of fact which may be easily proved. (Smith v. St. Therese Hospital (1980), 87 Ill. App. 3d 782, 410 N.E.2d 219.) A section 2—619 motion must demonstrate a defect in the pleading by reference to a ground for dismissal based on a motion not appearing of record which is not a true affirmative defense and affords a defendant a form of a summary judgment procedure. (Ill. Ann. Stat., ch. 110, par. 2—619, Historical & Practice Notes, at 662 (Smith-Hurd 1983).) In Consumer Electric Co. v. Cobelcomex, Inc. (1986), 149 Ill. App. 3d 699, 703-04, 501 N.E.2d 156, 159, the court discussed the difference between section 2—619 motions and motions for summary judgment:

“Although similar to a summary judgment motion, a section 2 — 619 motion differs in that the court may, in its discretion, decide questions of fact ‘upon the hearing of the motion.’ [Citations.] However, in deciding the merits of the motion, a trial court cannot determine disputed factual issues solely upon affidavits and counteraffidavits. If the affidavits present disputed facts, the parties must be afforded the opportunity to have an evidentiary hearing.”

On appeal, all facts well pleaded are taken as true (Haley v. Merit Chevrolet, Inc. (1966), 67 Ill. App. 2d 19, 214 N.E.2d 347), as are all reasonable inferences which may be drawn from the alleged facts. (Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill. App. 3d 834, 422 N.E.2d 86.) In determining the propriety of the trial court’s order of dismissal, then, the reviewing court’s function is to review each count of the complaint and assess whether the uncontested facts alleged in the counts of the complaint, standing alone, evidence any possibility of plaintiff recovering against defendants. If that possibility appears, the order of dismissal must be vacated. Evans v. Control Products Corp. (1979), 73 Ill. App. 3d 681, 392 N.E.2d 239.

Once dismissed, the trial court has the discretion to vacate the order of dismissal and reinstate the cause of action. (Strong v. Hodges (1951), 344 Ill. App. 306, 100 N.E.2d 667.) On review, the question to be resolved is whether the trial court committed an abuse of discretion in denying or granting the motion to vacate. In this case, there was no “motion to vacate,” but it would seem plaintiff’s “motion to reconsider” was designed to have the same effect and, therefore, the denial of the motion to reconsider should also not be reversed unless an abuse of discretion is found. Here, the motion to reconsider did not present any new “facts” to the trial court, and so if the trial court was correct in dismissing the complaint in the first place, then there was no abuse of discretion in denying the motion to reconsider.

One of the issues raised by plaintiff is whether the affidavits filed by defendants in support of the motion to dismiss were insufficient because they merely aver evidence upon which defendants would contest ultimate facts. This issue cannot be resolved in isolation, but requires consideration in conjunction with a review of the remaining substantive issues. Before proceeding to review the substantive issues, however, it seems appropriate to discuss the rules of law pertinent to the sufficiency of the affidavits.

A section 2 — 619 motion is not an appropriate method for a defendant to utilize merely to controvert the allegations of ultimate facts in the complaint. In deciding a section 2 — 619 motion, the trial court can decide conflicting claims on the basis of proper pleadings, supporting affidavits, counteraffidavits, and any evidence offered where no jury demand has been made or where no issue to be resolved by the jury is involved. After hearing the motion, the trial court may resolve genuine issues of material fact, rather than just determine their existence, but the trial court cannot weigh conflicting affidavits. (In re Marriage of Musa (1982), 103 Ill. App. 3d 189, 430 N.E.2d 727.) Where the matters claimed in the affidavit as a defense to the cause of action are nothing more than the evidence which defendant would expect to present in contesting facts alleged in the complaint, then the affidavits are insufficient to support a motion to dismiss based on “ ‘affirmative matter avoiding the legal effect of or defeating the claim.’ ” Venezky v. Central Illinois Light Co. (1988), 168 Ill. App. 3d 612, 613, 522 N.E.2d 901, 902; Dangeles v. Marcus (1978), 57 Ill. App. 3d 662, 373 N.E.2d 645.

The central issue of the case is whether the amended complaint states facts from which the trial court should have found defendants owed plaintiff a duty. The trial court found defendants owed no duty to plaintiff under the facts alleged in the complaint and averred in the affidavits and both counteraffidavits. It is axiomatic that the existence or nonexistence of a duty is a question of law and is to be decided by the trial court. Therefore, while it is possible the trial court misinterpreted the law or misapplied the law to the facts alleged, the trial court did not misapply the standards for granting a section 2 — 619 motion to dismiss since the trial court merely considered an issue which was clearly within the court’s province to decide.

In this case, the allegations are that defendants owed plaintiff a duty by reason of either (1) Hauter, as plaintiff’s agent, hiring defendants to represent plaintiff or (2) plaintiff being a third-party beneficiary of the contractual relationship between Hauter and defendants. It is also alleged that defendants breached the duty to plaintiff by failing to qualify the corporation so that plaintiff could take advantage of IRC section 1244 when the stock became worthless. Plaintiff alleges defendants knew plaintiff would be a shareholder. Plaintiff does not allege he was an incorporator of the corporation.

The trial court found that Torres v. Divis (1986), 144 Ill. App. 3d 958, 494 N.E.2d 1227, was dispositive of this case. Torres (144 Ill. App. 3d at 963-64, 494 N.E.2d at 1231-32) states:

“A complaint for negligence, to be legally sufficient, must set out, inter alia, facts that establish the existence of a duty owed by the defendant to the plaintiff. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96.) In a legal malpractice action, the facts must show that the plaintiff was a client of the defendant, or that the primary purpose of the attorney-client relationship between the defendant and a third party was to benefit the plaintiff. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96; York v. Stiefel (1983), 99 Ill. 2d 312, 458 N.E.2d 488.) In the instant case the well-pleaded facts and the other materials submitted by Torres do not establish that he was Lambert’s client. The attorney-client relationship is consensual and arises only when both the attorney and the client have consented to its formation. The client must manifest his authorization that the attorney act on his behalf, and the attorney must indicate his acceptance of the power to act on the client’s account. (York v. Stiefel (1982), 109 Ill. App. 3d 342, 440 N.E.2d 440, rev’d in part on other grounds (1983), 99 Ill. 2d 312, 458 N.E.2d 488.) The relationship cannot be created by a third party who has no authority to act. (Zych v. Jones (1980), 84 Ill. App. 3d 647, 406 N.E.2d 70.) Here, although Torres has presented facts showing that Lambert agreed to represent Powers and to incorporate and to represent [the corporation], there are no facts in the record indicating that Lambert agreed to represent Torres. Torres argues that a person seeking to hire an attorney may use an agent to do so. We have no quarrel with that proposition, but there are no facts in this record to show that Powers asked Lambert to represent Torres,' or that Lambert agreed to do so.
Moreover, in our judgment, the facts do not demonstrate that the primary purpose of the attorney-client relationship between Lambert and Powers was to benefit Torres. The interests of the incorporators of a closely held business are not always the same, and they are often adverse. Each incorporator may seek to maximize his personal return and to minimize his personal contributions. In this setting, the fact that Powers requested Lambert to incorporate and represent a corporation in which Torres was to be involved does not prove that Powers’ primary purpose was to benefit Torres. It would be unwise to impose on an attorney, retained by only one of several incorporators for the purpose of organizing a corporation, a duty to act on behalf of all of the incorporators in the absence of an agreement that he do so. Recognition of such a duty would create an unacceptably wide range of potential conflicts of interest. (See Pelham v. Griesheimer (1983), 92 Ill. 2d 13, 440 N.E.2d 96.) Torres has failed to plead or present facts demonstrating that Lambert owed him a duty of care. Accordingly, counts III and VIII were properly dismissed.”

Plaintiff goes to great lengths to try to distinguish Torres. First, unlike Torres, it is here alleged that Hauter was authorized to act as agent for plaintiff in obtaining counsel. Therefore, plaintiff contends, the attorney-client relationship between plaintiff and defendants could be created by Hauter. Here, however, plaintiff has not alleged he was an incorporator, as in Torres. Instead, he alleged only he was a “potential” shareholder. In setting up a corporation, an attorney would represent the incorporators, not the person who might later buy shares in the corporation. There is no allegation the corporation was not properly created pursuant to the laws of the State of Delaware.

Second, plaintiff argues that since it is common in closely held corporations for attorneys to represent a firm and all of its principals in stock transactions, there should be a duty flowing from the attorneys to the shareholders. In support of this argument, plaintiff cites Analytica, Inc. v. NPD Research, Inc. (7th Cir. 1983), 708 F.2d 1263. However, Analytica is a conflict of interest case in which the law firms were disqualified from representing Analytica in a Federal antitrust suit. One of the law firms was retained by the three co-owners of NPD to work out an internal stock transfer to one of the co-owners as part of compensation. In that transaction, the only question was “the cheapest way of doing it.” If the right answer was found, all three co-owners benefitted. Although one of NPD’s accountants had a law degree and worked on the stock transfer, he was not acting as the co-owners’ or NPD’s lawyer. The court added:

“As is common in closely held corporations, [the attorney] was counsel to the firm, as well as to all of its principals, for the transaction. If the position taken by Schwartz & Freeman prevailed, a corporation that used only one lawyer to counsel it on matters of shareholder compensation would rim the risk of the lawyer’s later being deemed to have represented a single shareholder rather than the whole firm, and the corporation would lose the protection of the lawyer-client relationship. Schwartz & Freeman’s position thus could force up the legal expenses of owners of closely held corporations.” (Analytica, 708 F.2d at 1268.)

Thus, the same law firm was prohibited from representing Analytica in a lawsuit against NPD, which it formerly represented.

Initially, it should be noted that Analytica is not mandatory authority for this court. In addition, it seems clear from the opinion that the three co-owners of NPD hired the attorney to consider a matter of the compensation of a person who happened to be a shareholder. So all three hired the attorney, and the court found the attorney also represented the corporation in that transaction, for the limited purpose of determining a conflict of interest. However, the court went on to say that it was irrelevant whether the owner or the corporation was the client, for even if NPD did not retain the law firm, it did supply the law firm with confidential data of the type that would be supplied to retained counsel, and so there was a conflict of interest for the law firm regardless. In any event, the case does not decide that by representing a corporation, an attorney is also representing a shareholder. Furthermore, the nature of the stock transfer in Ana-lytica was significantly different than that in the case at bar. In the case at bar, the attorney represented one incorporator and the corporation.

Arguably, there may be a duty on defendants to ensure the shares are properly issued so as to create ownership interests in the corporation. It may also be that defendants had a duty to advise Hauter of the possible benefits of IRC section 1244. But Analytica does not require defendants to represent plaintiff in the purchase of shares in a corporation and to make sure the shares qualify under IRC section 1244 when the other potential shareholders may well have a contrary interest.

Third, plaintiff contends that Hauter’s letter asks the defendants to undertake the formation of the corporation on behalf of “us.” Again, the act of creating the corporation is a function distinct and separate from advising one of the shareholders about the tax consequences of investing in the corporation. If plaintiff wanted tax counsel, he should have sought it. Had the corporation been improperly established, plaintiff may be correct in his agency theory.

It is for this same reason that plaintiff’s argument as to the third-party beneficiary theory also seems to falter. The letter does not establish that the ‘primary purpose for Hauter’s contacting defendants was to benefit plaintiff. As Torres points out, to impose a duty on defendants to act on behalf of all potential shareholders would create an unacceptably wide range of potential conflicts of interest.

The remaining issues are whether plaintiff’s claim was barred by the statute of limitations or whether plaintiff’s claim was not ripe for litigation. The analyses of these issues are somewhat intermingled with the determination of the existence of a duty. Only if the court finds the existence of a duty which was breached need this court consider the questions of whether the statute of limitations has run or whether the cause of action is premature. Having determined that the trial court properly dismissed plaintiff’s complaint for failure to allege a duty owed by defendants to plaintiff, these remaining issues need not be discussed.

Accordingly, the order of the circuit court of Peoria County is affirmed.

Affirmed.

McCULLOUGH, P.J., and KNECHT, J., concur.


source: Caselaw Access Project

author: JUSTICE RARICK

license: Public Domain

text:
    MIKE SALO, Plaintiff-Appellant and Cross-Appellee, v. DOROTHY SINGHURSE, Defendant-Appellee and Cross-Appellant.
    Fifth District
    No. 5—87—0622
    Opinion filed March 30, 1989.
    — Rehearing denied May 15, 1989.
    G. Patrick Murphy, of Winters, Brewster, Murphy, Crosby & Patchett, of Marion, for appellant.
    Michael J. Pitzer and William M. Corrigan, Jr., both of Brown, James & Rabbitt, P.C., of Belleville, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Mike Salo, filed suit against defendant, Dorothy Singhurse, in the circuit court of Franklin County for damages he sustained in an automobile collision with Singhurse. The jury awarded Salo $24,000 in damages but reduced the amount to $9,600 because it found him to be 60% negligent. Salo filed motions for a directed verdict and for judgment notwithstanding the verdict on the issue of liability, as well as a motion for a new trial on the same issue, all of which were denied. Salo appeals the denial of his motions. Singhurse cross-appeals on the issue of damages.

At approximately noon on January 29, 1983, Salo was traveling south on Illinois Route 148 at a speed of 35 miles per hour, five miles per hour below the posted speed limit. Route 148 runs north and south, and at one point, intersects with Pinckneyville blacktop, which runs east and west. The terrain surrounding the intersection is straight and level. Southbound traffic on Route 148 at the intersection is controlled by an overhead flashing yellow light. Eastbound traffic on Pinckneyville blacktop is controlled by a stop sign and a flashing red light, thereby making Route 148 the preferential highway. Singhurse was traveling east on Pinckneyville blacktop.

As Salo approached the intersection with Pinckneyville blacktop, he glanced over and noticed Singhurse’s car approaching the stop sign. Plaintiff turned his eyes back on the road in front of him and continued to proceed through the intersection when Singhurse’s car struck his car in the middle of the passenger side in the middle of the intersection. Salo’s car was knocked off the road into a ditch, and Salo was thrown against the door. Salo testified there was nothing he could have done to avoid the collision.

Jeff Cook, a motorist traveling behind Salo on Route 148, testified that just past the intersection another car was turning into a store. Salo was slowing down for this car when Singhurse’s car pulled up to the stop sign on Pinckneyville blacktop, made a rolling attempt to stop, and then struck Salo’s car. Singhurse testified she stopped at the intersection before entering Route 148. She also stated she never saw Salo’s car until she hit it. The jury awarded Salo $24,000 in damages, but found him to be 60% negligent and accordingly reduced his award.

Salo argues the trial court erred in denying his motions for a directed verdict and for judgment notwithstanding the verdict and in not granting him a new trial on the issue of liability. Salo contends as a driver on a preferential roadway, he had the right to expect Singhurse to obey the stop signs and yield the right-of-way. Any negligence on his part therefore was irrelevant because such negligence was not a proximate cause of the collision.

Under section 11 — 904(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 904(b)), a driver at a stop sign when his road intersects with a preferential highway must yield the right-of-way to any vehicle which is approaching so closely on the roadway as to constitute an immediate hazard to his vehicle’s moving across or within the intersection. This does not mean, however, that the driver on the preferential road has an absolute right-of-way. (See Twait v. Olson (1982), 104 Ill. App. 3d 191, 194, 432 N.E.2d 1244, 1247.) He too must keep a proper lookout, observe due care in approaching and crossing intersections and drive as a prudent person would to avoid a collision when danger is discovered or, by the exercise of reasonable care, should have been discovered. Kofahl v. Delgado (1978), 63 Ill. App. 3d 622, 625, 380 N.E.2d 407, 410. See also Junker v. Ziegler (1986), 113 Ill. 2d 332, 338, 498 N.E.2d 1135, 1137.

Salo was driving on a preferential highway at the time of the collision. As he approached the intersection, he saw Singhurse’s vehicle approach the stop sign. He did not see her pull out into the intersection as she had not yet reached the stop sign. He had a right to expect she would obey the sign and yield the right-of-way as he passed through the intersection. Singhurse, however, ran into the side of his car. There was no evidence that Singhurse’s vision was obstructed or that Salo’s speed affected her ability to see him approaching. The reasonable inferences therefore are that Singhurse did not look or simply did not stop. By the time Salo was in the intersection, there was little, if anything, he could have done to avoid the collision. Consequently, the sole cause of the collision was Singhurse’s negligence.

Whether or not the jury believed Salo should have exercised more caution under the circumstances of a flashing yellow light by possibly slowing down more or watching Singhurse’s car longer in order to sound his horn or swerve, any negligence on his part was not the proximate cause of the collision. Singhurse had a duty to stop and yield the right-of-way to approaching cars. Instead, she rolled into the intersection and hit Salo’s car after he was already in the intersection at a time when there was nothing he could do to avoid the collision. Salo could not reasonably be expected to anticipate Singhurse entering the intersection in disregard of her duty to yield. But for Singhurse running the stop sign or not looking, the collision would not have occurred. (See Romero v. Ciskowski (1985), 137 Ill. App. 3d 529, 534, 484 N.E.2d 1150, 1154; Matesevac v. County of Will (1981), 93 Ill. App. 3d 280, 283, 416 N.E.2d 807, 809; Kofahl, 63 Ill. App. 3d at 625-26, 380 N.E.2d at 410-11; Hale v. Cravens (1970), 129 Ill. App. 2d 466, 473, 263 N.E.2d 593, 596. See also First National Bank v. Douell (1987), 161 Ill. App. 3d 158, 161-62, 514 N.E.2d 238, 240-41; Marsh v. McNeill (1985), 136 Ill. App. 3d 616, 619-20, 483 N.E.2d 595, 597-98. Cf. Pennington v. McLean (1959), 16 Ill. 2d 577, 584-86, 158 N.E.2d 624, 628.) For the jury to attribute 60% of the fault to Salo under such circumstances is not only contrary to the manifest weight of the evidence, but also beyond comprehension and reason. Clearly Salo was entitled to at least a new trial on the issue of liability. (See, e.g., Junker, 113 Ill. 2d at 339-40, 498 N.E.2d at 1138.) If we were to follow the jury’s apportionment in this case, every time a driver on a preferential highway saw an approaching car on an intersecting road or drive, he essentially would be required to stop to make sure the other car obeyed the stop sign and stayed there or else be found negligent. As the court in Hession v. Liberty Asphalt Products, Inc. (1968), 93 Ill. App. 2d 65, 235 N.E.2d 17 stated: “Stop signs are erected for the obvious purpose of requiring motorists to yield to vehicles on through highways. If the motorist on the through highway had to travel at such a speed that he could stop his car in time to avoid collisions with vehicles which ignore stop signs on intersecting roads, the purpose of having a through highway in the first place would be entirely thwarted. The driver who has the stop sign cannot assume the car on the through highway will stop. It is the other way around.” (93 Ill. App. 2d at 74, 235 N.E.2d at 22.) We therefore reverse the judgment apportioning 60% of the fault to Salo.

Singhurse argues on cross-appeal that the trial court erred in not granting a new trial on the issue of damages. Singhurse believes the jury’s award of $24,000 is excessive because (1) Salo’s medical bills only totaled $3,030.35; (2) he did not receive any medical treatment for the injuries he claims resulted from the collision until some 10 months later, even though he already was being treated for other medical conditions unrelated to the collision; (3) his injuries were limited to soft tissue injuries to his back and neck; (4) there was no testimony regarding the amount of necessary future medical treatment; and (5) he claimed no lost wages as a result of the accident.

We initially note that Singhurse also claims the jury’s award is excessive because there was no evidence of Salo’s activities being restricted as a result of the accident when in fact the evidence is to the contrary. Salo no longer could play in his polka band and no longer drove a cab because he was unable to carry out his customers’ groceries. More importantly, however, the amount of damages and injury to a person are not to be measured solely on the basis of specific medical expenses incurred. (See Lewis v. Northern Illinois Gas Co. (1981), 97 Ill. App. 3d 227, 231, 422 N.E.2d 889, 892; Orlandi v. Caraway (1973), 9 Ill. App. 3d 628, 632, 293 N.E.2d 337, 339.) Nor are comparisons to other awards helpful. Simmons v. Union Electric Co. (1984), 121 Ill. App. 3d 743, 757, 460 N.E.2d 28, 38, aff’d (1984), 104 Ill. 2d 444, 473 N.E.2d 946.

It is always difficult to fix a precise dollar value of compensation for personal injuries, especially when based primarily on pain and suffering. (Orlandi, 9 Ill. App. 3d at 632, 293 N.E.2d at 339.) And, the very nature of personal injury cases makes it impossible to establish a precise formula to determine whether a particular award is excessive or not. (McMahon v. Richard Gorazd, Inc. (1985), 135 Ill. App. 3d 211, 230, 481 N.E.2d 787, 800.) While the extent of the injuries suffered, the claimant’s age, the possibility of deterioration in the future, medical expenses incurred, past and fixture wage losses and any restrictions that the injuries may have placed on the daily activities of the injured claimant are all factors to be considered (see Shaheed v. Chicago Transit Authority (1985), 137 Ill. App. 3d 352, 359, 484 N.E.2d 542, 548), the determination of an adequate award is peculiarly within the province of the jury. Accordingly, great weight must be given to that determination. (See McMahon, 135 Ill. App. 3d at 230, 481 N.E.2d at 800.) Only if the amount falls outside the necessarily flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience will we as a reviewing court reverse the jury’s award. (See Shaheed, 137 Ill. App. 3d at 359, 484 N.E.2d at 548.) Such simply is not the case here. We therefore affirm the jury’s award as to damages.

For the aforementioned reasons, we affirm the jury’s award of damages in favor of Salo, but reverse the apportionment of fault and find in favor of Salo on the issue of liability. Therefore, pursuant to this court’s power under Supreme Court Rule 366 (107 Ill. 2d R. 366), judgment is entered for plaintiff in the amount of $24,000.

Affirmed as modified in part; reversed in part.


author: JUSTICE LEWIS

text:
      In re PAYMENT OF TAXES UNDER PROTEST BY FRANK H. SCHNIEDERJON FOR THE YEARS 1983, 1984 and 1985, PAYABLE IN 1984, 1985 and 1986.
    Fifth District
    No. 5—87—0618
    Opinion filed March 30, 1989.
    Frank H. Schniederjon, of Effingham, appellant pro se.

    Richard Runde, State’s Attorney, of Effingham (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The objector, Frank H. Schniederjon, paid taxes under protest for the years 1983, 1984, and 1985, payable in 1984, 1985, and 1986, on improvements he made upon property owned by the Effingham Water Authority and leased to him. The objector maintains that the improvements he has placed on the property as lessee are personal property and, as such, are not subject to taxation. The case was submitted to the trial court upon a stipulation of facts and briefs of the parties. The trial court found in favor of the collector and against the objector. The objector now appeals raising a single issue for review: whether, as stated in his reply brief, the improvements to the leasehold “remain personal property or become part of the real estate under all the facts so that the same could be taxed.” The objector expressly makes no objection to taxes levied upon the leasehold but objects to the taxation of improvements placed by him upon the leased premises after the inception of the term of the lease.

In the trial court the parties stipulated that the objector “has placed [on the leased premises] a four-room summer cottage constructed on a concrete slab and has also constructed thereon a boathouse and a shed which is on skids.” The improvements are not further described elsewhere in the record. The parties stipulated further:

“3. That the Effingham Water Authority is a public corporation in the County of Effingham and State of Illinois, and its duties and authorities consist primarily of providing a public water supply for the City of Effingham and has acquired real estate, which real estate is not subject to tax because Effing-ham Water Authority is a public corporation, for a large artificial lake which is commonly known as Lake Sara, including for its protection a surrounding zone of marginal shore land, and the leasing of the borders of such shore land for the protection of the land from pollution, undue erosion and other injury, prohibiting forestation, the development of suitable vegetation and the improvement, care and maintenance of the premises. That the lease is issued by the Effingham Water Authority for the furtherance and in aid of said public purposes, all as provided in the provisions of said Effingham Water Authority lease.
4. That at the time of the execution and delivery of the lease, a copy of which is attached hereto, the premises were unimproved, and whether or not such leasehold was to be improved by the lessee was within the discretion of the lessee (known as ‘custodian’ in the lease).”

The lease in question was executed on January 12, 1962, for a term of 99 years from the date of execution of the lease, which provides in article 2 for the making of improvements upon the leased lot and that “[s]uch dwelling house and appurtenances shall be and remain the property of the Custodian, with the right to remove the same.”

In an extensive and well-reasoned order entered on the record sheet, the trial court denied the tax objections, finding in part as follows:

“That under Illinois law, persons dealing with land and improvements may consider buildings and improvements as personalty for their own purposes, but such treatment, as between individuals^] does not change the essential characteristics of buildings as realty. ***
In leasing the lakeshore area of Lake Sara, the lease states, in behalf of the Effingham Water Authority, that it was entering into the lease to protect the lake from pollution, undue erosion, and other injury. The lease contemplates that dwelling houses and appurtenances would be located on said leaseholds though no lessee (custodian) was required to erect any building or structure, and that lessee could remove improvements. Between the Effingham Water Authority and the lessee, the lease appears to treat the improvements as personalty.
The improvements erected upon the leasehold, rented by the Effingham Water Authority lease, are such as are contemplated to be placed upon the leasehold. The improvements are adapted to the use to which the leasehold was contemplated to be devoted. Certainly the lessee did not lease the leasehold to simply provide erosion control and pollution control for Lake Sara— but to enjoy the leasehold for lawful residence and recreation. ‘The terms “real property” and “real estate” include not only land but also “all buildings, and other permanent fixtures” located “thereon.” (Ill. Rev. Stat. 1973, ch. 120, par. 432.13[)].’ In re Objections of Hutchens, 34 Ill. App. 3d 1039.
The improvements on this leasehold are real estate for purposes of taxation and may be taxed with the leasehold. The fact that the lease from the Effingham Water Authority may indicate that the parties attempt to consider such improvements as personal property, does not change their taxable characteristics from that of real estate — and the assessment and taxation of said improvements does not violate our Constitutional prohibition of an ad valorem personal property tax.
The leasehold was created by the subject lease and is clearly and admittedly taxable. The lease clearly contemplates and regulates improvements and/or appurtenances on said leasehold, to be thereafter affixed or constructed. The buildings and improvements herein are real estate and properly assessed and taxed as real estate together with the leasehold.”

Initially the collector asserts that the objector’s brief should be dismissed for its failure to conform to the requirements of Supreme Court Rules 341(eXl), (eX3), and (eX6) (107 Ill. 2d Rules 341(eXl), (eX3), (eX6)) concerning the setting forth of points and authorities, the issue presented for review, and the statement of facts. In this regard we have considered the arguments of the collector and of the objector in his reply brief, and we decline to dismiss the appeal.

The objector contends that, because section 26 of the Revenue Act of 1939 (Ill. Rev. Stat. 1987, ch. 120, par. 507) does not refer to improvements that may be placed on leased property at the option of the lessee after the inception of the term of the lease, the provisions of section 26 “do not effect [sic] the assessment of taxes on improvements placed on the leased property in question.” Section 26 provides in pertinent part:

“[W]hen real estate which is exempt from taxation is leased to another whose property is not exempt, and the leasing of which does not make the real estate taxable, the leasehold estate and the appurtenances shall be listed as the property of the lessee thereof, or his assignee, as real estate.” (Ill. Rev. Stat. 1987, ch. 120, par. 507.)

The objector maintains that the improvements in question are personal, not real, property and are,, hence, not taxable, in accord with section 5, subsection (c), of article IX of the Illinois Constitution of 1970 (Ill. Const. 1970, art. IX, §5(e)), which abolished all ad valorem personal property taxes.

The objector relies particularly upon B. Kreisman & Co. v. First Arlington National Bank (1980), 91 Ill. App. 3d 847, 415 N.E.2d 1070, which involved the appeal of a judgment imposing a mechanic’s lien against real estate. In Kreisman the appellants contended that certain items of restaurant equipment installed on the premises were trade fixtures and, therefore, not lienable. The court in Kreisman listed three factors to be considered in the determination of whether an article installed in a building is lienable or is to be deemed a trade fixture not subject to a mechanic’s lien; preeminent among the three factors, the court said, is the intent of the parties as to whether the articles become a part of the realty. On the basis of Kreisman, the objector argues that “the intent of the parties as gathered from all the circumstances of the case controls] the question of whether or not the improvements placed on said real estate [after the inception of the term of the lease] become part of the real estate or remain personal property.” On the basis of the intent of the parties to the instant lease, the objector attempts to distinguish In re Tax Objections of Hutchens (1976), 34 Ill. App. 3d 1039, 341 N.E.2d 169, cited by the trial court in its order denying the instant tax objections, and Ayrshire Coal Co. v. Property Tax Appeal Board (1974), 19 Ill. App. 3d 41, 310 N.E.2d 667, followed by the reviewing court in Hutchens.

The objector stresses that “under the terms of the lease, a clear intent is expressed to retain improvements placed thereon by lessee as personal property.” However, as was said in Hutchens (34 Ill. App. 3d at 1041-42, 341 N.E.2d at 171),

“[V]alid business and economic reasons exist for recognizing ‘bookkeeping practices’ and agreements between landlord and tenant and seller and purchasers concerning whether buildings and machinery shall be considered personal property and whether the same may be removed as far as the rights of the parties *** are concerned. We agree with the ruling in Ayrshire Coal Co., however, that such practices and agreements are no longer controlling as far as property taxes are concerned.”

In Hutchens the objector purchased a cabin that was transported to premises leased by the objector. The lease provided that the objector might remove the cabin at the termination of the five-year lease. The trial court in Hutchens had found the cabin to be sufficiently attached to the land to have “become a part of it” (Hutchens, 34 Ill. App. 3d at 1040, 341 N.E.2d at 170) by virtue of the placement of the cabin on concrete blocks and a provision of the lease for plumbing connections between the cabin and a septic tank and a well. The trial court’s finding that the cabin was part of the real estate was not, the court said on review, contrary to the manifest weight of the evidence. Recently, following Hutchens, the court in Decatur Sports Foundation v. Department of Revenue (1987), 156 Ill. App. 3d 623, 509 N.E.2d 1103, determined that a stadium, bleachers, press box, restroom facilities, and other improvements in question constituted part of the real property despite lease provisions allowing their removal.

In Ayrshire heavy mining machinery and equipment was claimed by the taxpayer coal company to be personal property but was held by the court of review to be real property. A conditional sales agreement between the coal company and the designer and builder of some of the machinery had provided that no item furnished by the latter should be considered a. fixture and that any part might be separated from the real estate to which it was attached for the purpose of repossession. In reaching its decision the court in Ayrshire (19 Ill. App. 3d at 46, 310 N.E.2d at 671), reasoned in part: “Where property is adapted to the use to which the realty is devoted the use thereof in such manner furnishes such strong evidence of intent to make it a part of the freehold as not to be overcome by bookkeeping practices.” Similarly, in United States v. 19.86 Acres of Land (7th Cir. 1944), 141 F.2d 344, the court held a building to be real property and subject to condemnation despite a contract of sale covering the materials of which the building was constructed and designating those materials as personal property. Having considered certain Illinois cases, the court in 19.86 Acres (141 F.2d at 348) observed that “parties may for their own purposes consider a building as personalty. This does not mean, however, that it loses its essential character as realty.” The court took note of the “general and perhaps universal rule in Illinois and elsewhere that a building permanently connected with the soil is real property.” 19.86 Acres, 141 F.2d at 347.

As defined in the Revenue Act of 1939, the terms “real property” and “real estate” include not only the land itself but also “all buildings, structures and improvements, and other permanent fixtures, of whatsoever kind, thereon.” (Ill. Rev. Stat. 1987, ch. 120, par. 482(13); Hutchens, 34 Ill. App. 3d 1039, 341 N.E.2d 169.) Here, according to the parties’ stipulation of facts, the objector placed on the leased property a four-room summer cottage “constructed on a concrete slab” together with a boathouse and a shed. The improvements erected here, as the trial court noted, are such as are contemplated to be placed upon the leasehold and are adapted to the use to which the leasehold was contemplated to be devoted. The lease expressly anticipates in article 2 the construction of a “dwelling house and appurtenances” on the property and, in article 3, provides that the custodian, or lessee, shall pay “all taxes that may be levied against said premises for improvements thereon ***.” Pursuant to article 6 of the lease, the custodian has the power to mortgage the leasehold “together with all improvements of the Custodian now or hereafter on the leased premises.” Article 16, concerning “Use Restrictions,” provides in part, in subparagraph “A,” that “[a]ll land or lots are to be used only for single family residences and the usual accessory buddings and uses including private garages, boat piers, and swimming piers or platforms.” Article 16 provides further for the location of wells and for septic tanks, specifying in subparagraph “0” that “[n]o residence shall be constructed without indoor toilet facilities and adequate facilities for the disposal of sewerage “and in subparagraph ‘P’ that [w]henever a system for the collection, treatment and disposal of sanitary sewerage is provided within a subdivision or portion thereof, all residences within 300 feet of such sewer line shall connect thereto within six months after the completion of the line.” Article 17 of the lease provides for a specified rate of payment to the custodian for “the actual cost of all improvements placed by the Custodian on the premises with the Authority’s approval” in the event the Authority should require the leased premises to be used exclusively for any public purpose inconsistent with the custodian’s occupancy. Article 18 of the lease provides that at the expiration of its term, which is, as we have said, 99 years, the custodian, if not in default, shall be preferred over all others in the further leasing of the premises. In view of the facts as stipulated and the provisions of the lease, it was not against the manifest weight of the evidence for the trial court to conclude that, though the parties to the lease may, as between themselves, consider the buildings and improvements to be personal property, as evidenced by the lease provision allowing removal, the buddings and improvements on this leasehold are real estate for purposes of taxation.

The objector relies in part upon In re Maplewood Coal Co. (1904), 213 Ill. 283, 284, 72 N.E. 786, 786-87, wherein the court, in an appeal involving the assessment of certain property, held buildings constructed by the coal company upon leased land to be personal property, saying:

“If appellant leased the right to mine and operate certain mining rights owned by the [lessor], with the agreement that appellant should construct the buildings necessary thereto and upon complying with the conditions of the lease should have the right to remove the buildings, the latter were personal property and the property of [Maplewood] until it had been determined that [Maplewood] had forfeited its rights, when the buildings would become attached to and a part of the realty by reason of the forfeiture.”

The collector points out correctly that mineral and surface estates are severable and, when severed, give rise to two estates subject to independent ownership and to separate taxation (Miller v. Ridgley (1954), 2 Ill. 2d 223, 117 N.E.2d 759); severance of the mineral estate by lease or deed carries with it the right to use so much of the surface of the land as is necessary to enjoyment of the right acquired pertaining to the minerals (see Threlkeld v. Inglett (1919), 289 Ill. 90, 124 N.E. 368). In Maplewood (213 Ill. at 285, 72 N.E. at 787), “[b]y the purchase of the mining rights by [Maplewood] there was a separation of such rights from the land.” In the instant case there has been no severance of the surface and mineral estates; hence, Maplewood is inap-posite here.

With regard to the objector’s contention that the provisions of section 26 of the Revenue Act of 1939 have no effect upon the assessment of taxes on improvements placed upon the property after the inception of the lease, he argues that section 26 must be strictly construed because it is “in degradation of the common law,” under which a leasehold interest was deemed to be personal, rather than real, property. However, we consider the argument not well taken in view of the statutory scheme of the Revenue Code of 1939 providing for periodic revision of the assessment of listed property. See Ill. Rev. Stat. 1987, ch. 120, pars. 513, 524, 525.

Accordingly, we hold that the improvements to the leasehold in question are real property subject to taxation as such.

Affirmed.

WELCH, P.J., and HARRISON, J., concur.


text:
    JO ANN FISHER, Petitioner-Appellant, v. BOARD OF EDUCATION OF WEST WASHINGTON COUNTY COMMUNITY UNIT DISTRICT NO. 10, WASHINGTON COUNTY, ILLINOIS, Respondent-Appellee.
    Fifth District
    No. 5—87—0816
    Opinion filed March 30, 1989.

      Drach & Deffenbaugh, P.C., of Springfield, for appellant.
    Barry L. Kroll, David M. Galanti, and Lloyd E. Williams, Jr., all of Williams & Montgomery, Ltd., of Chicago, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Petitioner, Jo Ann Fisher, a teacher for respondent, Board of Education of West Washington County Community Unit District No. 10, filed a petition for writ of mandamus, requesting that the circuit court order respondent to reinstate her after taking a leave of absence. Both respondent and petitioner filed motions for summary judgment, and on August 5, 1987, arguments on both parties’ motions were heard. The circuit court took the matter under advisement and on November 12, 1987, entered a written order in which it granted respondent’s motion but denied petitioner’s motion for summary judgment. Petitioner appeals.

The facts of this case are undisputed. Petitioner had been employed as a full-time teacher by respondent since 1972 and had attained contractual continued service status. On August 16, 1984, approximately nine days prior to the beginning of the school term, petitioner hand-delivered a letter to the principal and the superintendent of schools of respondent, in which she requested a one year’s leave of absence for the 1984-85 school term. Her reason for requesting the leave of absence was because in June 1984 her doctor had stated that “job related stresses may be contributing to the unexplainable infertility” problems which she and her husband had been experiencing.

Although petitioner’s request was not timely, her letter was considered at respondent’s school board meeting on August 16, 1984. Petitioner did not attend this meeting. At that meeting, the following resolution was passed by the school board:

“Mrs. Jo Ann Fisher’s request for a year leave of absence while not mutually agreeable to the Board of Education and said teacher (section 24 — 13) and to avoid any penalty to said teacher (section 24 — 14) the teacher’s request for a one year leave of absence is granted with the following conditions: there shall be no guarantee of return to employment in District No. 10 following the one year leave of absence; should employment in District No. 10 resume after the year leave of absence no credit for experience will be granted or credited during the leave of absence; the granting of the leave of absence shall fulfill requirement of Teacher Retirement System for experience credit if the employee chooses to make the contribution to the Retirement System; insurance coverage by District No. 10 shall cease as of September 1,1984.” (Emphasis added.)

Petitioner was advised of the school board’s action by a letter dated August 17, 1984, from the superintendent of schools in which the aforementioned resolution was completely quoted.

Petitioner talked to the principal and the superintendent by telephone the day after the school board meeting. The principal advised her that the school board had granted her leave of absence but that he did not know the conditions of the leave and that she should discuss this with the superintendent. The superintendent told her that she would be receiving a letter in which the school board’s action was stated but he mentioned to her that there was no guarantee of employment for her after the leave of absence.

Petitioner received the superintendent’s letter early the following week. After receipt of the superintendent’s letter, petitioner called the superintendent and advised him that she was going to take the leave of absence. Petitioner questioned the superintendent regarding her right to retain her insurance coverage and inquired about her retirement, but she did not discuss with him the other conditions imposed by the school board.

Thereafter, within the first days of the 1984-85 school term, petitioner came to the school but for the sole purpose of removing her personal belongings. She did not ask to teach nor did she present herself as willing to teach. A nontenured teacher was hired to fill petitioner’s teaching position.

On February 7, 1985, petitioner sent a letter to the superintendent which stated:

“This letter is to inform you that I shall be returning to West Washington County School District 10 for the 1985-1986 school year. My letter is to further inform you that I have not relinquished my rights to the position I hold as a tenured teacher within West Washington County School District 10. I am looking forward to being back with the District next fall.”

This letter was considered at the next scheduled school board meeting on February 21, 1985, and in a resolution at that meeting the school board determined that petitioner’s leave of absence had not been mutually agreeable and had been taken without guarantee of a return to employment. Further, the school board determined that it was not obligated to reemploy petitioner and that petitioner’s employment with the school district “is and has been terminated.” The school board voted not to reemploy petitioner. The school board’s resolution was stated in its entirety in the superintendent’s letter to petitioner dated February 26, 1985. From these facts, the circuit court found that summary judgment should be granted in favor of the respondent and against the petitioner. The circuit court entered an extensive and a well-reasoned order, which we affirm. We now address the issues petitioner raises on appeal.

Petitioner contends that section 24 — 13 of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 24 — 13) protected her tenure rights when she was granted her leave of absence, requiring respondent to rehire her at the end of her leave; that the respondent had no right to impose conditions upon her leave of absence; that the circuit court erred when it determined that the respondent denied her leave of absence and that petitioner abandoned her tenure rights; and that respondent’s action at the school board meeting on February 21, 1985, was a dismissal of petitioner requiring the school board to conform to the procedural requirements of section 24 — 12 of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 24 — 12). Because petitioner’s first two contentions, i.e., that her tenure rights were protected by section 24 — 13 and that respondent had no right to impose conditions upon her leave of absence, resolve the remainder of petitioner’s issues, we will address those issues first.

Initially, we note that the facts of this case are not in dispute and that the only issue is a question of law, which the circuit court resolved by summary judgment. Summary judgment is proper where, as here, the issue is a question of law and not of fact. (American Buyers Club of Mt. Vernon, Illinois, Inc. v. Zuber (1978), 57 Ill. App. 3d 899, 373 N.E.2d 786; Deizman v. Board of Education, District 201 (1977), 53 Ill. App. 3d 1050, 369 N.E.2d 257.) Therefore, our inquiry on appeal from the summary judgment is whether respondent was entitled to summary judgment as a matter of law.

For a mandamus to issue, it must be shown that “there is a clear right to the requested relief, a clear duty on the part of the respondent to act, and clear authority in the respondent to comply with the terms of the ’writ.” (In re Claudia K. (1982), 91 Ill. 2d 469, 476, 440 N.E.2d 78, 81.) Here, the sole determination was whether petitioner had a clear right under section 24 — 13 to the requested relief, for if petitioner retained her continued contractual service, the respondent had a clear duty to act and had clear authority to comply with the terms of the writ.

The statutory section around which this case revolves is section 24 — 13 of the School Code. Section 24 — 13 appears in that portion of the School Code in what has often been referred to as the teachers’ tenure laws. According to the Illinois Supreme Court, “[t]he tenure system is *** intended to provide continuity and stability for students; provide some degree of job security, thus affording teachers the ability to pursue a career free from arbitrary hiring and firing; attract teachers of high quality; and retain experienced teachers.” (Johnson v. Board of Education of Decatur School District No. 61, 85 Ill. 2d at 344, 423 N.E.2d at 906.) The supreme court in Johnson went on to state that because the teacher tenure laws created liability where none otherwise existed, the tenure statutes must be strictly construed in order not to unduly interfere with a school board’s responsibility to efficiently operate its schools. (Johnson, 85 Ill. 2d 338, 423 N.E.2d 903; Evans v. Benjamin School District No. 25 (1985), 134 Ill. App. 3d 875, 480 N.E.2d 1380.) Therefore, section 24 — 13 must be strictly construed.

Section 24 — 13 states in pertinent part as follows:

“The contractual continued service status of a teacher is not affected by *** leave of absence mutually agreed upon between the teacher and the board ***.” (Ill. Rev. Stat. 1985, ch. 122, par. 24 — 13.)

This section protects a teacher’s contractual continued service status when specified leaves of absence enumerated in the statute are taken. Under a strict construction of the language of this section, petitioner’s contractual continued service status will only be preserved if her leave of absence was one which was mutually agreeable to both the school board and to her. Petitioner’s leave of absence was not mutually agreeable to the school board, as was clearly stated in the school board’s resolution, and therefore, her leave of absence was not within the ambit of section 24 — 13 of the School Code and petitioner’s status as a tenured or contractual continued service teacher was not preserved.

Petitioner argues that while the school board stated that the leave was not mutually agreeable, nevertheless, it went on to grant petitioner’s leave of absence with conditions, thereby negating the school board’s position that the leave was not mutually agreeable and preserving her status as a tenured teacher. We do not agree with this position, but determine that the school board’s imposing the conditions on the leave of absence as it did placed petitioner on further notice that her leave was not one contemplated by the statute as preserving her rights as a tenured teacher. Petitioner understood the language of the school board’s resolution, and thus, she had the choice of taking the leave offered with the conditions clearly stated or of returning to her teaching position that fall. Petitioner opted for the former course of action and her actions conform to the conclusion that she was unwilling to teach and voluntarily abandoned her rights as a contractual continued service teacher. Brown v. Board of Education, Galatia Community Unit School District No. 1 (1976), 38 Ill. App. 3d 403, 347 N.E.2d 791.

Further, we do not find, as petitioner contends, that respondent’s only power under section 24 — 13 is to either grant or deny a leave of absence and that respondent is foreclosed by the statute from imposing conditions upon a leave of absence. We do not perceive the language of that section to be so restrictive. The language of section 24 — 13 does not expressly prohibit a school board from granting other types of leave other than stated in section 24 — 13, but only preserves a teacher’s tenure if the leave is mutually agreeable.

Numerous express powers of a school board are set out in the School Code; however, a broad spectrum of implied and incidental powers may be inferred from these express statutory grants. (Ambroiggio v. Board of Education of School District No. 44 (1981), 101 Ill. App. 3d 187, 427 N.E.2d 1027.) Additionally, since “the legislature has empowered a school board to perform certain functions, the courts will not interfere with the exercise of such powers or substitute their discretion for that of the school board unless the board’s action is palpably arbitrary, unreasonable or capricious.” Tyska v. Board of Education of Township High School District 214 (1983), 117 Ill. App. 3d 917, 922, 453 N.E.2d 1344, 1350.

The most obvious implied power that is gleaned from a school board’s express powers is that, first and foremost, a school board not be hampered in its responsibility to operate its schools. To this end, a school board has the implied power to impose conditions upon an extended leave of absence such as was requested by petitioner in this case. A leave of absence places a school board in the position of seeking a replacement for the teacher and does not provide for the orderly operation of a school. As was stated in Tyska, “[t]o be thorough and efficient, school operations cannot depend upon the choice or whim of others.” (Tyska, 117 Ill. App. 3d at 926, 453 N.E.2d at 1353.) Thus, respondent’s imposing of conditions upon petitioner’s leave of absence was not unreasonable and was within its implied powers. We conclude that petitioner had no clear right to have an order of mandamus entered.

Having previously determined that petitioner relinquished her status as a contractual continued service teacher, either by taking a leave of absence not mutually agreeable to the school board or by taking the leave with the conditions imposed, petitioner’s remaining contentions have no merit. As a nontenured teacher, petitioner had no right to be rehired but is in the position of a new teacher applying for a teaching position, and the school board need not give petitioner a reason for not being hired. Likewise, the school board’s actions of February 21, 1985, were not subject to the procedural requirements of section 24 — 12 pertaining to the dismissal of a contractual continued service teacher.

For the foregoing reasons, we affirm the order of the circuit court of Washington County granting respondent’s motion for summary judgment.

Affirmed.

WELCH, P.J., and HARRISON, J., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. JOSEPH PERRUQUET, Petitioner-Appellant.
    Fifth District
    No. 5—87—0466
    Opinion filed March 30, 1989.

      Robert Agostinelli and Verlin R. Meinz, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Charles Garnati, State’s Attorney, of Marion (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Petitioner, Joseph Perruquet, appeals from a judgment of the circuit court of Williamson County which dismissed, as frivolous, his petition for post-conviction relief. On this appeal, petitioner argues that he should not have received an extended-term sentence of 30 years’ imprisonment on his conviction for aggravated kidnapping because that was not the most serious offense for which he was found guilty. We agree. For the reasons which follow, we therefore reverse the judgment dismissing the petition and modify petitioner’s sentence on the aggravated kidnapping conviction.

The circumstances giving rise to this appeal are not in dispute. Following a jury trial in the circuit court of Williamson County, petitioner was convicted of deviate sexual assault, two counts of rape, and aggravated kidnapping. The circuit court sentenced him to extended terms of 60 years on each of the convictions for deviate sexual assault and rape, which were Class X felonies (see Ill. Rev. Stat. 1981, ch. 38, pars. 11—1(c), 11—3(b)). Thé court also gave defendant an extended-term sentence, this one for 30 years, on the conviction for aggravated kidnapping, a Class 1 felony (see Ill. Rev. Stat. 1981, ch. 38, par. 10— 2(bX2)). Two of the 60-year sentences were to be served consecutively, while the remaining sentences were to be served concurrently.

On direct appeal to this court, the circuit court’s judgment was affirmed. (People v. Perruquet (1983), 118 Ill. App. 3d 293, 454 N.E.2d 1055.) One of the claims which defendant made on that appeal was that the extended-term sentence he received for aggravated kidnapping could not stand. Defendant argued that under the extended-term sentencing statute, section 5 — 8—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2), extended-term sentences could be imposed only for the most serious offense or offenses of which a party was convicted. Here, that would be the rape and deviate sexual assault convictions, all of which, as we have indicated, were Class X felonies. Correspondingly, he claimed that an extended-term sentence was not authorized for his conviction for aggravated kidnapping, which was only a Class 1 felony and therefore a lesser offense.

We expressly rejected this argument. (See Perruquet, 118 Ill. App. 3d at 299, 454 N.E.2d at 1059-60.) Petitioner appealed the matter no further. One year later, however, our supreme court issued an opinion in People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569, which indicated that we had been wrong and that petitioner had been correct about how the extended-term statute should be interpreted. In its opinion, the court held that under the statute, “extended-term sentences may only be imposed for the offenses within the most serious class of offense of which the accused is convicted.” (103 Ill. 2d at 207, 469 N.E.2d at 576.) Giving petitioner an extended-term sentence on the aggravated kidnapping conviction, which was not within the most serious class of offenses for which he was convicted, thus exceeded what the statute permits.

Petitioner subsequently filed a petition for post-conviction relief. As we have indicated, that petition was dismissed as frivolous, and petitioner has appealed. On this appeal, petitioner argues simply that in light of People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569, his extended-term sentence for aggravated kidnapping cannot stand. We agree.

Although the supreme court’s decision in People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569, was not rendered until after petitioner’s direct appeal had concluded, the general rule in this State is that a decision will be applied retroactively unless the court expressly declares that its decision is a clear break with the past, such as when a court explicitly overrules its own past precedent, disapproves a practice that it has previously approved, or overturns a well-established body of lower court authority. (Larrance v. Human Rights Comm’n (1988), 166 Ill. App. 3d 224, 230, 519 N.E.2d 1203, 1208.) There is nothing in Jordan to suggest that it should not be applied retroactively. What lower court authority existed at the time it was decided was hardly well established. To the contrary, the appellate courts were divided on the matter. (See People v. Perruquet (1983), 118 Ill. App. 3d 293, 298, 454 N.E.2d 1055, 1059.) Moreover, the court in Jordan did not overrule its own past precedent. Rather, it merely reaffirmed its prior holding in People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520 (People v. Jordan (1984), 103 Ill. 2d 192, 205, 469 N.E.2d 569, 575), and the effect of Jordan was simply to declare what the statute in question had meant from the date of its effectiveness onward. There can therefore be no serious doubt that Jordan would apply to all whose cases remained pending at the time it was decided. It has, in fact, been so applied. (See People v. Holland (1987), 121 Ill. 2d 136, 161, 520 N.E.2d 270, 281.) Under these circumstances, to refuse to consider application of Jordan to petitioner’s case merely because his attorney failed to take steps to keep his direct appeal open until Jordan was decided would be inherently unfair and could result in a denial of equal protection. See People v. Pride (1986), 144 Ill. App. 3d 612, 615, 494 N.E.2d 509, 511.

The State nevertheless argues that the question of whether petitioner should have received an extended term for aggravated kidnapping is simply a matter of statutory construction and that erroneous statutory construction is not an issue of constitutional magnitude which is cognizable in a post-conviction proceeding. We note, however, that under Jordan, the extended-term sentence imposed by the circuit court on the aggravated kidnapping conviction exceeded what was authorized by statute. Where a court imposes a sentence in excess of what a statute permits, the legal and authorized portion of the sentence is not void, but the excess portion of the sentence is void. (In re C.T. (1985), 137 Ill. App. 3d 42, 46, 484 N.E.2d 361, 364.) To the extent that the excess sentence is void, the judgment is void also, and a void judgment may be vacated at any time. Given this, we believe that petitioner’s attack on his extended-term sentence is, in effect, an attack on a void judgment. Such an attack does not depend upon the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122—1 et seq.) for its viability, and the question of whether a constitutional violation has occurred is therefore entirely academic. People v. Miller (1986), 144 Ill. App. 3d 69, 70-71, 493 N.E.2d 1095, 1096.

The State further argues that petitioner should not be allowed to challenge the extended-term sentence because: (1) the issue was previously decided against him by this court on direct appeal and is therefore res judicata; and (2) the question of whether the extended-term sentence was proper was not raised by petitioner at the circuit court level in this case and has therefore been waived. Neither of these claims has merit.

Principles of res judicata will not bar relitigation of a claim in a post-conviction proceeding where fundamental fairness so requires. (People v. Smith (1985), 136 Ill. App. 3d 300, 304, 483 N.E.2d 655, 659.) Given that petitioner’s extended-term sentence for aggravated kidnapping has now been shown to be void, this is surely a case in which fundamental fairness requires that petitioner be allowed to challenge that sentence again, our previous ruling on the matter notwithstanding.

We likewise believe that petitioner’s failure to challenge the propriety of his extended-term sentence at the circuit court level in this proceeding should not bar our consideration of the issue on grounds of waiver. This is so for two reasons. First, the improper sentencing of petitioner to an extended-term on the aggravated kidnapping conviction is cognizable by this court under the doctrine of “plain error.” (People v. Bivens (1987), 156 Ill. App. 3d 222, 234, 509 N.E.2d 640, 648.) Second, and more to the point, the argument that a judgment in a criminal case is void is, as we have indicated, a matter which can be raised at any time. This is so regardless of whether the argument was properly preserved for review. People v. Pride (1986), 144 Ill. App. 3d 612, 614, 494 N.E.2d 509, 511.

For the foregoing reasons, the judgment of the circuit court of Williamson County dismissing petitioner’s post-conviction petition is reversed, and petitioner’s sentence for his conviction for aggravated kidnapping is modified to 15 years’ imprisonment, the maximum sentence of imprisonment authorized by statute for a Class 1 felony. (See Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1 (a)(4).) We order this modification pursuant to our authority under Supreme Court Rule 615(b) (107 Ill. 2d R. 615(b)).

Reversed; sentence modified.

WELCH, P.J., and HOWERTON, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL HEDEEN, Defendant-Appellee.
    Fifth District
    No. 5—87—0460
    Opinion filed March 30, 1989.

      Charles Grace, State’s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Michael Hedeen, of Murphysboro, appellee pro se (David L. Antognoli, of Bernard & Davidson, of Granite City, of counsel), for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Defendant, Michael Hedeen, was arrested on April 8, 1987, at 12:26 a.m. for driving under the influence of alcohol, pursuant to section 11 — 501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par 11 — 501). On that date, defendant was given a written notice of the summary suspension of his driving privileges pursuant to section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1). On April 28, 1987, defendant filed a petition to rescind statutory summary suspension in which he alleged that he did not refuse to take the breathalyzer test and that his failure to complete the test was not due to any “fault or wilful intent” of himself. A hearing was held on May 28, 1987, in which two matters were considered. The first matter considered at the hearing was defendant’s charge of driving under the influence of alcohol, to which defendant entered a plea of guilty. The remainder of the hearing concerned the defendant’s petition to rescind his statutory summary suspension. After considering the evidence presented, the circuit court granted defendant’s petition to rescind his summary suspension. From this order, the State appeals.

At the hearing on defendant’s petition, Officer Murphy testified that on April 8, 1987, at approximately 1:14 a.m., he attempted to administer a breathalyzer test to the defendant. Officer Murphy advised defendant that refusal to take the breathalyzer test or failure to complete the test, which would be deemed a refusal, would result in defendant automatically losing his driving privileges for six months. Defendant agreed to take the breathalyzer test, and before administering the test, Officer Murphy instructed the defendant that upon seeing the words “Please blow” light up on the machine, defendant was to take a deep breath and blow into the mouthpiece, which would activate a tone. Defendant was to continue to blow into the mouthpiece until the tone stopped, approximately three to five seconds.

Officer Murphy attempted to give defendant the breathalyzer test five times. Before each of the tests, Officer Murphy explained to defendant that failure to complete the test would be considered a refusal to take the test and he repeated his instructions on how to take the test. Officer Murphy testified that in four of the test attempts by defendant the tone was never activated when defendant blew into the mouthpiece. According to the officer, for these four tests, defendant blew for only a short time, then removed his mouth from the mouthpiece and stated that he could not blow any longer. The machine printout for those four attempts indicated that these tests were an “invalid test.”

In the fifth test, defendant blew into the mouthpiece and the tone was activated, but for only a short period of time. Officer Murphy stated that when the tone was activated, defendant “backed off of the mouthpiece” and the tone stopped. The printout of this test indicated that there was a “deficient sample” from which to obtain a reading.

Only two printouts of the test results were admitted into evidence, one stating “invalid test” and one stating “deficient sample,” which were identified by Officer Murphy as the results of the first and last tests attempted. Officer Murphy recalled that the other three tests had indicated “invalid test.” Officer Murphy initially testified that the printout stating “invalid test” was for defendant’s first attempt to take the breathalyzer test and that the printout stating “deficient sample” was for the last test attempted, but he later corrected himself and explained that the “deficient sample” was for the first test, and “invalid test” was for the last test.

According to Officer Murphy, a printout stating “invalid test” normally indicates operator error. However, Officer Murphy explained that in the four tests in which this occurred, the printouts of “invalid test” were due to his intentional resetting of the machine for defendant to retake the test after defendant failed to activate the tone. Officer Murphy did this at defendant’s repeated insistence that he was willing to take the test. He further explained that “deficient sample” indicated that an insufficient air sample had been obtained. On cross-examination, Officer Murphy testified that if the machine were malfunctioning, it would have so indicated, which it did not do.

After the fifth attempt by defendant to take the test, Officer Murphy concluded that defendant was not cooperating and deemed his inability to complete the breathalyzer test a refusal. Officer Murphy conjectured that defendant was placing his tongue over the hole of the mouthpiece and blowing, thus making it appear that defendant was blowing into the mouthpiece. However, Officer Murphy did not see defendant’s tongue over the mouthpiece.

Officer Robert Ledbetter testified that he was the officer who arrested defendant for driving under the influence of alcohol on April 8, 1987. Officer Ledbetter was present when Officer Murphy attempted to administer the breathalyzer test to defendant, and he corroborated that defendant attempted to take the test five times. Officer Ledbet-ter heard Officer Murphy explain to the defendant how to take the breathalyzer test, but that defendant did not follow the instructions given. He testified that Officer Murphy instructed defendant to blow continuously into the machine to produce a solid tone and to continue to blow until the tone stopped, but that defendant did not do this in any of the tests attempted. According to Officer Ledbetter, only an intermittent tone was ever activated. In Officer Ledbetter’s opinion, he did not believe that defendant wanted to take the test even though defendant expressed that he was willing to do so. Officer Ledbetter admitted he was not a qualified operator of the breathalyzer machine.

Defendant testified that on April 8, 1987, he was arrested by Officer Ledbetter for driving under the influence. He admitted that in the evening prior to his arrest, from 6 p.m. to 12 midnight, he had consumed 8 to 10 beers. Defendant also admitted that he had entered a plea of guilty to the charge of driving under the influence of alcohol earlier in this hearing.

Defendant stated that he attempted to take the breathalyzer test five times, and that Officer Murphy instructed him on how to take the test, but that the officer’s instructions were unclear. Officer Murphy explained to him that when the “ready to blow” light came on, that he was to blow continuously until a tone came on, and that he was to blow continuously for approximately three to five seconds until the numbers registered on the machine. Defendant stated that he followed these directions but that nothing registered on the machine. He denied that he placed his tongue over the mouthpiece or that he restricted the flow of air into the mouthpiece in any manner. Defendant claimed that on the last two tests he attempted, he blew into the mouthpiece until he was beginning to hyperventilate and to feel dizzy.

Defendant knew that the failure to complete the test would be deemed a refusal as he knew the law and because the officers had told him. Defendant was adamant about wanting to complete the test. Defendant stated that he had a clear head that evening, and he admitted that he had no medical problems that would prevent him from performing the breathalyzer test.

After considering this evidence, the circuit court stated its findings, which were in pertinent part as follows:

“The Court finds that it is undisputed that there were five tests administered to Mr. Hedeen on the evening in question commencing at 1:11 A.M. and terminating at 1:22 A.M. The Court has in the court file admitted Petitioner’s Exhibit 1 being the first test administered to Mr. Hedeen and Petitioner’s Exhibit 2 being the fifth test being administered to Mr. Hedeen. There is no question but that Mr. Hedeen did not complete the test. In Chapter 95V2, Section 2 — 118.1, subparagraph (b), sub-paragraph 3 regarding the issues, ‘Whether such person, after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person refused to submit to and complete the test or tests, did refuse to submit to or complete such test or tests to determine the person’s alcohol or drug concentration.’ This is the standard implied consent, old implied consent situation regarding the issues. I don’t believe, and there is no case that I know of in the state of Illinois, that the word ‘complete’ is carved in granite. I think that failure to complete the test requires some showing that it was either an affirmative action or an affirmative action by the defendant [sic], that the defendant did something so that the test could not be completed. *** But based upon all the testimony here, I do not find any evidence to indicate to this Court that the failure for this test to be completed was attributable to Mr. Hedeen. I’m going to find no refusal.”

On appeal, the State raises only one issue, whether defendant’s conduct constituted a refusal to take the breathalyzer test. The State contends that the defendant’s failure to complete the breathalyzer test was either willful or was the result of his intoxicated condition and that the circuit court’s rescission of defendant’s summary suspension was manifestly erroneous. Defendant contends that the issue is one of credibility and that the circuit court found that Officer Murphy was not credible.

Initially, we note that although the State proceeded first at defendant’s hearing on his petition, that the burden of proof rests with the defendant. (People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210.) Therefore, our analysis must be from the perspective of whether the defendant presented sufficient evidence to satisfy his burden.

As the circuit court correctly stated, section 2 — 118.1(bX3) of the Illinois Vehicle Code states that a person’s driving privileges will be suspended if that person refused to submit to or complete a breathalyzer test. (Ill. Rev. Stat. 1987, ch. 95V2, par. 2 — 118.1(bX3).) Thus, under this section, a failure to complete the test alone is sufficient to trigger the statutory summary suspension penalty. In the case sub judice, the circuit court, in its order, found that the defendant did not complete the test, but that there was no evidence that this failure was attributable to any affirmative action by the defendant. Therefore, the question we must resolve is, where there is no apparent conduct by the defendant which prevents him from completing the breathalyzer test, will the failure to complete the test be deemed a constructive refusal by the defendant?

It has been held that an inability to take the test because of intoxication, and, by inference, not because of an intentional act by the defendant, is sufficient to be deemed a refusal. (People v. Carlyle (1985), 130 Ill. App. 3d 205, 474 N.E.2d 9.) Similarly, we are of the opinion that it is unnecessary to find that the defendant performed an affirmative action to conclude that a defendant’s failure to complete the test is a constructive refusal. If we were to conclude otherwise, the purpose of the statute, i.e., to protect the citizens of Illinois by removing drunk drivers from the highways, would be circumvented. (People v. Doherty (1986), 144 Ill. App. 3d 400, 494 N.E.2d 933; Carlyle, 130 Ill. App. 3d 205, 474 N.E.2d 9.) To accomplish its statutory purpose, section 2 — 118.1 is to be liberally construed. Carlyle, 130 Ill. App. 3d 205, 474 N.E.2d 9.

Having determined that a defendant’s actions need not be an affirmative or intentional act in order to satisfy the statute, we must evaluate the evidence of this case to determine why the defendant was unable to complete the breathalyzer test. It would appear that there are three logical sources for why a breathalyzer test cannot be completed: (1) a malfunctioning machine; (2) operator error; or (3) the defendant’s inability or unwillingness to complete the test.

In the instant case, the evidence presented did not show that the breathalyzer machine malfunctioned when defendant attempted to take the tests. Officer Murphy stated that if the machine had malfunctioned, the machine would have so indicated. Officer Murphy testified that he had changed the mouthpiece on the machine three times during the five tests attempted, thereby removing any conclusion that the failure to complete the test was due to a defective mouthpiece. Evidence was not presented as to when the breathalyzer machine had been certified for accuracy prior to defendant’s attempts to take the tests, but there was evidence that the machine was certified for accuracy on May 26, 1987. Therefore, it cannot be concluded from this evidence that the breathalyzer machine malfunctioned.

It also cannot be determined that Officer Murphy erroneously operated the breathalyzer machine. Officer Murphy testified that he was a licensed operator of the machine. He explained that the tickets from the machine which stated “invalid test” would normally indicate operator error, but that he intentionally invalidated the tests so that he could reset the machine for the defendant to retake the test. Additionally, on defendant’s first attempt to take the test, a short tone was produced and enough air entered the machine’s chamber to indicate there was an insufficient air sample and a printout was given which stated “deficient sample.” This evidence gives rise to the inference that the machine was being properly operated but that the defendant was supplying an insufficient air sample. This evidence also supports the conclusion that the machine was functioning properly.

We further find that there was evidence in the record that the defendant’s actions were responsible for his failure to complete the test. Officer Murphy testified that he did not believe that defendant was cooperating. Officer Ledbetter’s testimony that defendant was not following Officer Murphy’s instructions reinforced Officer Murphy’s testimony. The only evidence presented by the defendant was his testimony that he followed Officer Murphy’s instructions when he attempted the tests and that he did not restrict the flow of air from his lungs into the mouthpiece. The evidence presented supported the inference that defendant was not supplying a sufficient air sample for the machine to obtain a reading, an act attributable to the defendant to circumvent the breathalyzer test. Therefore, we find that the defendant did not prove that the failure to complete the breathalyzer test was not attributable to him by a preponderance of the evidence, that defendant’s failure to complete the test was properly deemed to be a constructive refusal, and that the circuit court’s order rescinding defendant’s summary suspension was manifestly erroneous.

Lastly, we find the defendant’s contention that the circuit court found Officer Murphy’s testimony was not credible without merit. The circuit court did not state that it did not believe that the officer lacked credibility, and, in fact, the circuit court makes no specific finding as to why the test was not completed. The only finding the circuit court made was that the defendant did not perform an affirmative act to defeat the breathalyzer test.

For the foregoing reasons, we reverse the order of the circuit court of Jackson County rescinding the defendant’s statutory summary suspension and remand this cause for further proceedings consistent with this opinion.

Reversed and remanded.

WELCH, P.J., and HARRISON, J., concur.