author: JUSTICE HARRISON

text:
    LINDA SUE PACE, Petitioner, v. THE HUMAN RIGHTS COMMISSION et al., Respondents.
    Fifth District
    No. 5—88—0403
    Opinion filed August 9, 1989.

      Harry J. Sterling and John Long, both of Sterling, Kelley & Long, P.C., of Fairview Heights, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Diane Curry Grapsas, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.
    Steven N. Mottaz, of Thomas, Mottaz, Eastman & Sherwood, of Alton, for respondent Lockhaven Country Club.
   JUSTICE HARRISON

delivered the opinion of the court:

Petitioner, Linda Sue Pace, appeals to this court pursuant to section 8 — 111(A) of the Illinois Human Rights Act (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 111(A)) from an order of the Illinois Human Rights Commission (the Commission) which dismissed, with prejudice, a complaint which she had filed against respondent Lockhaven Country Club alleging that she had been harassed and constructively discharged from her employment based on her sex. The sole basis for the Commission’s dismissal order was that petitioner’s complaint was untimely under section 7 — 102(G)(2) of the Human Rights Act (Ill. Rev. Stat. 1987, ch. 68, par. 7 — 102(G)(2)) because it was not filed within 30 days of the expiration of the 300-day period following the initial filing of her charge of a civil rights violation with the Department of Human Rights.

On this appeal, petitioner argues that the Commission should not have invoked the 30-day filing requirement to bar her complaint because that requirement is so burdensome and restrictive that it violates section 17 of article I of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §17) and deprives her of due process of law in violation of the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV). For the reasons which follow, we affirm.

The facts necessary to the disposition of this appeal are not in dispute. On September 8, 1986, petitioner filed a charge of discrimination with the Illinois Department of Human Rights pursuant to section 7 — 102 of the Human Rights Act (Ill. Rev. Stat. 1987, ch. 68, par. 7 — 102). In that charge, petitioner alleged that she was harassed and constructively discharged from her job as a “Secretary/Accounts Payable” by respondent Lockhaven Country Club based upon her gender. Approximately one year after this charge was filed, petitioner submitted a written request to the Department of Human Rights asking that the charge be withdrawn. That request was granted, and petitioner’s charge was dismissed by the Department in an order entered on October 5,1987.

On December 26, 1987, more than 21k months later, petitioner filed a civil rights complaint directly with the Human Rights Commission. Respondent Lockhaveii Country Club then moved to dismiss the complaint on the grounds that it did not comply with the time requirements set forth in section 7 — 102(G)(2) of the Human Rights Act (Ill. Rev. Stat. 1987, ch. 68, par. 7 — 102(G)(2)). Following arguments by the parties, an administrative law judge recommended that respondent’s motion be granted. The Commission adopted this recommendation, and on June 28, 1988, it issued an order dismissing petitioner’s complaint with prejudice. From this order petitioner now appeals.

Section 7 — 102(G) of the Human Rights Act (Ill. Rev. Stat. 1987, ch. 68, par. 7 — 102(G)) provides:

“(1) When a charge of a civil rights violation has been properly filed, the Department, within 300 days thereof or within any extension of that period agreed to in writing by all parties, shall either issue and file a complaint in the manner and form set forth in this Section or shall order that no complaint be issued. Any such order shall be duly served upon both the complainant and the respondent.
(2) Within 30 days of the expiration of the 300-day period or such longer period as shall have been agreed upon pursuant to subparagraph (1), the aggrieved party may file a complaint with the Commission, if the Department has not sooner filed a complaint or ordered that no complaint be issued. The form of the complaint shall be in accordance with the provisions of paragraph (F). The aggrieved party shall notify the Department that a complaint has been filed and shall serve a copy of the complaint on the Department on the same date that the complaint is filed with the Commission. Upon such notice, the Department shall cease processing the charge.
(3) Unless and until the aggrieved party files a complaint with the Human Rights Commission pursuant to paragraph (2) of this subsection, the Department shall continue its investigation and conclude it with the greatest promptness that is administratively feasible.”

On this appeal, petitioner does not dispute that her complaint with the Commission was not filed within 30 days of the expiration of the 300-day period following the initial filing of the charge of a civil rights violation with the Department, as provided in section 7— 102(G)(2) (Ill. Rev. Stat. 1987, ch. 68, par. 7-102(G)(2)). (Her complaint was not, in fact, filed until 475 days after the filing of her initial charge.) Petitioner claims, however, that the 30-day period is so short that it violates her rights under section 17 of article I of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §17) and deprives her of due process of law in violation of the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV). Accordingly, she reasons that the 30-day period should not be permitted to stand as a bar to her complaint.

A threshold problem with petitioner’s position is that she withdrew her charge with the Department prior to filing her complaint with the Commission. As the text of section 7 — 102(G) of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 7 — 102(G)) indicates, however, the right of an aggrieved party to file a complaint directly with the Commission presupposes that a charge is pending before the Department. There can' be no dispute, for example, that if no charge has been filed with the Department, then section 7 — 102(G) does not even come into play. Likewise, it would appear that if a charge has been filed and then dropped by the aggrieved party, the provisions of section 7 — 102(G) cease to apply. Once this has happened, the aggrieved party will never be entitled to file a complaint with the Commission under authority of section 7 — 102(G)(2). Accordingly, whether petitioner here filed her complaint within 30 days, six months, or even a year after expiration of the initial 300-day period is of no consequence. Once she decided to withdraw her charge, her statutory right to file a complaint with the Commission ended.

Even if this were not the case, we would nevertheless be compelled to affirm the Commission’s order of dismissal, for we are not persuaded that the 30-day filing requirement is invalid under either the State or Federal Constitution. Statutes are presumed to be constitutional, and one who challenges a provision has the burden of establishing its invalidity. (Pre-School Owners Association of Illinois, Inc. v. Department of Children & Family Services (1988), 119 Ill. 2d 268, 275, 518 N.E.2d 1018, 1022, appeal dismissed (1988), 487 U.S. 1212, 101 L. Ed. 2d 897, 108 S. Ct. 2861.) Petitioner has not sustained this burden.

Article I, section 17, of the 1970 Illinois Constitution provides:

“All persons shall have the right to be free from discrimination on the basis of race, color, creed, national ancestry and sex in the hiring and promotion practices of any employer or in the sale or rental of property.
These rights are enforceable without action by the General Assembly, but the General Assembly by law may establish reasonable exemptions relating to these rights and provide additional remedies for their violation.” (Ill. Const. 1970, art. I, §17.)

Pursuant to its authority under this provision, the General Assembly has promulgated the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1987, ch. 68, par. 1 — 101 et seq.). Section 8 — 111(C) of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 111(C)) provides:

“Except as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act.”

In accordance with this provision, the courts have now uniformly recognized that where the Act applies, it is the exclusive source for redress of alleged civil rights violations. Ritzheimer v. Insurance Counselors, Inc. (1988), 173 Ill. App. 3d 953, 960, 527 N.E.2d 1281, 1286.

This does not mean, of course, that every procedural requirement imposed by the Act is proper merely because it has been promulgated by the General Assembly under color of the authority granted to it by article I, section 17, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §17). Procedural requirements which unreasonably burden the ability of a party to secure redress for discrimination in employment are not authorized by article I, section 17 (Ill. Const. 1970, art. I, §17), and cannot be sustained thereunder. We do not believe, however, that the 30-day period specified by section 7— 102(G)(2) of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 7-102(G)(2)) is such an unreasonable burden.

Although 30 days is not a long period of time, the failure of a party to comply with the 30-day time restriction is not fatal to his or her ability to obtain redress under the Act. If no complaint is filed with the Human Rights Commission within the 30-day period, the Act expressly provides that “the Department shall continue its investigation and conclude it with the greatest promptness that is administratively feasible.” (Ill. Rev. Stat. 1987, ch. 68, par. 7 — 102(G)(3).) If the Department determines that there has been a violation of the Act, it will first attempt conciliation of the parties, and if that effort fails, issue a complaint against the respondent. If, on the other hand, the Department determines that there is no substantial evidence of discrimination, the complainant may seek review of this determination before the Human Rights Commission, and if the Commission affirms the Department’s finding of lack of evidence of discrimination, this finding will, in turn, be subject to judicial review. Mein v. Masonite Corp. (1985), 109 Ill. 2d 1, 5-6, 485 N.E.2d 312, 314.

Thus, even if a complaining party is unable to personally file a complaint directly with the Human Rights Commission because the statutory time period has passed, recourse remains available. The provision of section 7 — 102(G)(2) of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 7 — 102(G)(2)) which permits an aggrieved party to file a complaint directly with the Commission within 30 days after expiration of the initial 300-day period merely provides an optional, alternative method by which an aggrieved party may proceed if he or she is not satisfied with the progress made by the Department.

Because failure to meet the 30-day requirement imposed by section 7 — 102(G)(2) (Ill. Rev. Stat. 1987, ch. 68, par. 7-102(G)(2)) does not preclude an aggrieved party from continuing to seek relief under the Act, we do not believe that the 30-day time period is analogous to a statute of limitations, as urged by petitioner. We note, moreover, that procedural rules requiring that action be taken within 30 days are not uncommon in the law. Perhaps the most obvious example is Supreme Court Rule 303(a)(1) (107 Ill. 2d R. 303(a)(1)), governing appeals from final judgments of the circuit courts in civil cases. Under that rule a notice of appeal must ordinarily be filed within 30 days after entry of the final judgment appealed from. Failure to act within this 30-day period will normally be fatal to one’s appeal rights, yet the appropriateness of this 30-day period is well established. Under the Human Rights Act, by contrast, missing the 30-day deadline will not defeat a party’s claim. As we have previously indicated, the claim will continue to be processed. Under these circumstances, we fail to see how imposition of a 30-day period on the use of the alternative procedure provided by section 7 — 102(G)(2) of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 7 — 102(G)(2)) can be regarded as unreasonable.

We recognize that because petitioner here withdrew her discrimination charge from the Department’s consideration after expiration of the 30-day period for filing her own complaint directly with the Commission, her failure to file her complaint with the Commission within the 30-day period means that her right to obtain any redress under the Human Rights Act will be lost. This, however, does not alter our conclusion. Even if one does not accept our previous analysis of the Act, it is clear at least that petitioner was not required to dismiss her charge before filing a complaint with the Commission. Her decision to do so was apparently based on an ultimately unsuccessful tactical decision by her attorney to abandon the State administrative proceeding and to pursue the matter in Federal court under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq. (1981)). That decision scarcely renders the Illinois statutory scheme infirm.

We likewise find no merit to petitioner’s argument that the 30-day period under section 7 — 102(G)(2) of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 7 — 102(G)(2)) violates her due process rights under the fourteenth amendment to the United States Constitution. Due process is not offended where the State refuses to consider the merits of a claim because the claimant has failed to comply with a reasonable procedural requirement or failed to file a timely charge. (Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 434 n.7, 71 L. Ed. 2d 265, 277 n.7, 102 S. Ct. 1148, 1157 n.7.) For reasons previously discussed, we believe that the 30-day period in dispute here constitutes such a reasonable requirement.

In view of this disposition, we need not reach respondents’ additional argument that judicial review of the Commission’s decision is precluded by petitioner’s failure to file exceptions to the administrative law judge’s recommended order or to request a rehearing of the Commission’s final order dismissing her complaint.

For the foregoing reasons, the order of the Illinois Human Rights Commission dismissing petitioner’s complaint with prejudice is affirmed.

Affirmed.

LEWIS and CHAPMAN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE WELCH

license: Public Domain

text:
    B.T. EXPLORATIONS, INC., Plaintiff-Appellant, v. DAVID STANLEY, d/b/a Stanley Law Offices, Defendant-Appellee.
    Fifth District
    No. 5—88—0505
    Opinion filed August 11, 1989.

      Peter K. Woody, of Springfield, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (George W. Spellmire, Bruce L. Carmen, and Debra A. Winiarski, of counsel), for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, B.T. Explorations, Inc., appeals the dismissal with prejudice of its third amended complaint alleging legal malpractice against defendant, David L. Stanley, doing business as Stanley Law Offices. The third amended complaint was dismissed with prejudice by order of the circuit court of White County dated July 18,1988. We affirm.

Plaintiff’s third amended complaint, filed February 23, 1988, alleges that sometime prior to September 27, 1982, plaintiff retained and hired defendant to negotiate for it the purchase of a mineral leasehold estate on certain real estate. The complaint alleges that defendant was to examine the title of the seller, to ascertain the state of said title and any encumbrances thereon, to advise plaintiff of any problems with the title and to cure, if possible, any such problems or encumbrances. The complaint alleges that defendant undertook to examine said title for consideration and had a duty to exercise the ordinary care of an attorney as it relates to examining mineral titles. The complaint alleges that defendant verbally advised plaintiff that the seller had “good title” and that plaintiff could proceed with the purchase and would receive clear title.

Relying on defendant’s advice, plaintiff purchased the seller’s mineral estate and drilled and completed an oil well thereon. The complaint alleges that defendant breached his duty of reasonable care in the examination of the title in that the seller had no claim or interest in the real property and that defendant knew or should have known that the seller had no interest in the real estate. Finally, the complaint alleges that plaintiff was damaged in the amount of the purchase price of the real estate and the cost of drilling and completing the oil well.

On March 28, 1988, defendant filed a motion to dismiss the third amended complaint for the reasons that: (1) plaintiff is judicially estopped from claiming that it did not receive clear title to the mineral estate when it had asserted under oath in a prior judicial proceeding that it did have clear title; (2) plaintiff did not list the pending lawsuit on its petition in bankruptcy and therefore should not be allowed to recover herein; and (3) plaintiff cannot demonstrate causation and damages because it voluntarily transferred its interest in the mineral estate to another and received consideration therefore. In a docket entry order dated July 18, 1988, the trial court dismissed plaintiff’s complaint with prejudice, “adopting the argument of Judicial estoppel cited by the defendant.”

Plaintiff appeals, arguing that all the requirements necessary for application of the doctrine of judicial estoppel have not been satisfied. We find it unnecessary to discuss the propriety of the application of the doctrine of judicial estoppel to this case because we find that the judgment of the circuit court may be affirmed on a different basis.

It is well settled that a reviewing court is not bound by the reasons given by the trial court for its judgment and the judgment of the trial court may be affirmed upon any ground warranted in the record, regardless of whether it was relied on by the trial court. (Alexander v. DePaepe (1986), 148 Ill. App. 3d 831, 836, 499 N.E.2d 1065, 1068.) Defendant argues in his brief, and we agree, that plaintiff’s third amended complaint was properly dismissed with prejudice because it failed to state a cause of action, was plaintiff’s fourth attempt at stating a cause of action and was not substantially different than the complaints that had come before.

In order to state a cause of action for legal malpractice, a plaintiff must allege facts demonstrating: (a) the existence of an attorney/client relationship; (b) a duty arising from that relationship; (c) a breach of that duty on the part of defendant/counsel; (d) proximate cause; and (e) damages. Claire Associates v. Pontikes (1986), 151 Ill. App. 3d 116, 122, 502 N.E.2d 1186, 1190.

Defendant argues that the complaint does not set forth sufficient facts to demonstrate a breach of duty because it does not allege that had defendant done what he was hired to do he would have discovered a title defect. Plaintiff’s complaint alleges that defendant breached his duty of reasonable care to plaintiff in the examination of the title because the seller did not have title to the real estate and defendant knew or should have known seller did not have title. That defendant “knew or should have known” that the seller did not have title to the real estate is a mere conclusion and is not supported by any facts. The complaint does not allege that there was a defect in the record chain of title, what that defect was or, most importantly, that the defect was one which defendant should have discovered in the exercise of reasonable care. Although pleadings are to be liberally construed, a complaint must, nevertheless, contain facts necessary to state a cause of action. (Ritchey v. Maksin (1978), 71 Ill. 2d 470, 474, 376 N.E.2d 991, 992.) A complaint fails to state a cause of action when it omits facts the existence of which are necessary for plaintiff to recover. (Ritchey, 71 Ill. 2d at 474-75, 376 N.E.2d at 992.) The third amended complaint does not plead sufficient facts to establish a breach of duty by defendant.

Although we find that the third amended complaint was properly dismissed, we must now determine whether dismissal with prejudice was appropriate. A complaint may be dismissed with prejudice if it furthers the ends of justice. Thus, the court may determine the ultimate efficacy of a claim and whether plaintiff had previous opportunities to assert his claim. (Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 749, 431 N.E.2d 1175, 1182.) Plaintiff’s third amended complaint was its fourth attempt to state a cause of action against defendant. The series of complaints did not differ substantially from one another. We find that plaintiff has had adequate opportunity to state a cause of action against defendant and has failed to do so. A party does not have a right to unlimited amendment. (Plocar, 103 Ill. App. 3d at 750, 431 N.E.2d at 1182.) Plaintiff’s third amended complaint was properly dismissed with prejudice.

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

Affirmed.

RARICK and GOLDENHERSH, JJ., concur.


text:
      In re SUMMARY SUSPENSION OF DRIVER’S LICENSE OF LESTER C. RAKERS (The People of the State of Illinois, Petitioner-Appellee, v. Lester C. Rakers, Respondent-Appellant).
    Fifth District
    No. 5-88-0041
    Opinion filed August 14, 1989.

      Dennis L. Koch, of Highland, for appellant.
    Dick Allen, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Respondent, Lester C. Rakers, appeals from an order of the circuit court of Madison County, entered December 10, 1987, which sustained the statutory summary suspension of his driving privileges for his refusal to submit to a chemical test of his breath following his arrest for driving under the influence of alcohol. We affirm.

At approximately 2:45 on the morning of November 8, 1987, respondent was arrested by City of Highland police officer, Tom Anglin, for driving under the influence of alcohol. Respondent was transported to the Highland police station, where he was asked by Officer Anglin to submit to a breathalyzer test. Respondent refused and, pursuant to section 11 — 501.1 of the Illinois Vehicle Code, the Illinois Secretary of State summarily suspended his driving privileges. Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501.1.

On November 16, 1987, respondent filed a petition for hearing pursuant to section 2 — 118.1 of the Illinois Vehicle Code requesting a judicial hearing on the four issues permitted by that section. (Ill. Rev. Stat. 1987, ch. 95^2, par. 2 — 118.1.) Hearing was held on the petition on December 10, 1987. Immediately prior to the hearing, respondent waived hearing on the first two issues raised, leaving for determination only the issues of (1) whether respondent had been advised by the arresting officer that his driving privileges would be suspended if he refused to submit to and complete the test and whether he refused to submit to and complete the test, and (2) whether respondent was advised by the arresting officer that his driving privileges would be suspended if he submitted to a chemical test which showed an alcohol concentration of 0.10 or more and whether the test disclosed an alcohol concentration of 0.10 or more.

Officer Anglin testified that, after transporting respondent to the Highland police station, he asked respondent for his driver’s license. Respondent stated that he did not have his driver’s license, but produced an Illinois firearm owner’s identification card. Respondent was informed that he was being arrested for driving under the influence of alcohol. Officer Anglin read to respondent a form entitled “Warning to Motorist,” which informs the motorist that refusal to submit to a chemical test will result in the statutory summary suspension of his driving privileges for a specified period of time, and that if the motorist submits to the test and it shows an alcohol concentration of 0.10 or more, a statutory summary suspension of driving privileges for a specified period of time will be imposed. The warning further informs the motorist that if the arrest is for anything other than a first offense, the period of suspension will be longer. Officer Anglin inquired of respondent whether he understood the warning, and respondent stated that he did. Respondent then produced his driver’s license, but refused to submit to a breathalyzer test.

Officer Anglin further testified that since January 1, 1986, he had made approximately 9 or 10 arrests for driving under the influence of alcohol. In each of those arrests, he had given the same warnings he gave to respondent.

Respondent testified that after he was transported to the Highland police station, he was asked to sit in a chair. Officer Anglin sat at a desk and began writing. Shortly thereafter, Anglin asked respondent to “come over and blow in the Breathalyzer.” Respondent refused and Anglin said, “You know that’s automatic suspension of your license if you don’t blow it.” Respondent stated that he understood but still refused to submit to the test. Anglin sat down and started writing again. When respondent left the police station after paying bail, he was given a written “Warning to Motorist” form.

At the close of evidence and argument, the trial court found the testimony of Officer Anglin to be more credible than that of respondent. The trial court found that respondent had been properly informed that his refusal to submit to the test would result in the statutory summary suspension of his driving privileges and sustained the suspension.

On December 17, 1987, respondent filed a motion to reconsider and vacate the judgment sustaining the suspension of his driving privileges. The motion also sought an immediate stay of the summary suspension. The motion was denied on December 17,1987.

On December 28, 1987, respondent filed a notice of appeal and a motion to stay the suspension of his driving privileges pending appeal. The motion to stay pending appeal was granted by the circuit court of Madison County on January 21,1988.

Respondent raises three issues on appeal: (1) whether the failure to give him a written warning that refusal to submit to a chemical test would result in suspension of his driving privileges violates due process, or alternatively, violates section 11 — 501.1(c) (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1(c)); (2) whether the provision in section 2 — 118.1(b) that the judicial hearing shall not stay the summary suspension violates the separation of powers doctrine (Ill. Rev. Stat. 1987, ch. 95V2, par. 2 — 118.1(b)); and (3) whether section 11 — 501.1 is self-contradictory and void for vagueness (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501.1). We will address the arguments in the order presented.

Section 11 — 501.1(c) of the Illinois Vehicle Code requires that a person requested to submit to a chemical test be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in the statutory summary suspension of such person’s driving privileges in accordance with section 6 — 208.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 208.1). Section 6— 208.1 sets forth the periods of suspension. (Refusal to submit to the test results in a six-month suspension; test results showing an alcohol concentration of 0.10 or more results in a three-month suspension; for any person other than a first offender a 12-month suspension is imposed. (Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 208.1).) Section 11— 501.1 does not set forth the form of the warning or require that it be in writing.

Respondent argues that, because of the complexity of the warning, including the various periods of suspension, due process requires that the warning be given in writing. This is especially so, respondent argues, because under the current statutory scheme, a prehearing suspension is permissible and possible.

It is now well settled that the due process clause applies to the suspension of driving privileges as a driver’s license is a protectable property interest. (People v. Honaker (1984), 127 Ill. App. 3d 1036, 1038, 469 N.E.2d 1120, 1122.) Thus, the statutory scheme for summary suspension of a driver’s license must pass muster under the due process provisions of both the Illinois and United States Constitutions. (People v. Farrell (1987), 158 Ill. App. 3d 690, 692, 511 N.E.2d 265, 267.) In Honaker, the court held that any warning, whether oral or written, that a person’s driving privileges will be suspended for failure to submit to a breathalyzer test is not constitutionally mandated, since under the Constitution, the person could be required to submit to the test without his consent. Our legislature has by statute granted the driver the right to refuse to take a breathalyzer test, but this right is not constitutionally required. Since a person does not have the constitutional right to refuse the test, due process does not require that the person be warned, either orally or in writing, of the consequences of his refusal. Because no warning is required by due process, it follows that a written warning is not required by due process prior to suspension of a person’s driving privileges.

We do not think it matters that the statutory scheme at the time Honaker was decided provided for a hearing prior to suspension while the current statutory scheme may result in a post-suspension hearing. A presuspension hearing is not constitutionally mandated. (Mackey v. Montrym (1979), 443 U.S. 1, 61 L. Ed. 2d 321, 99 S. Ct. 2612.) A driver is entitled to a prompt hearing within 30 days of request (Ill. Rev. Stat. 1987, ch. 951k, par. 2 — 118.1), and this right is protected by due process. (In re Summary Suspension of Driver’s License of Trainor (1987), 156 Ill. App. 3d 918, 922, 510 N.E.2d 614, 617.) This hearing may be either pre- or post-suspension, depending on when the driver requests a hearing. In the instant case, respondent actually received a presuspension hearing. The hearing was held December 10, 1987, only 32 days after his arrest. The oral warning given respondent was sufficient to satisfy due process.

Alternatively, respondent argues that this court should find as a matter of statutory interpretation that section 11 — 501.1(c) itself requires that the warning be given in writing. The plain language of the statute does not so require. It requires only that the driver “shall be warned.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1(c).) Prior to amendment effective January 1, 1982, section 11 — 501.1 required that the warning be given both orally and in writing. Public Act 82 — 311 amended section 11 — 501.1 to its present form, which requires only a warning. We think this amendment indicates a legislative intent to delete the requirement of a written warning. When the legislature amends an act by deleting certain language, it is presumed that the legislature intended to change the law in that respect. (Board of Trustees of Community College District No. 508 v. Burris (1987), 118 Ill. 2d 465, 475, 515 N.E.2d 1244, 1249.) Furthermore, the amendment of an unambiguous statute, as here, indicates a purpose to change the law. (People v. Youngbey (1980), 82 Ill. 2d 556, 563, 413 N.E.2d 416, 420.) Section 11 — 501.1 in its present form does not require a written warning. Furthermore, in In re Summary Suspension of Driver’s License of Trainor (1987), 156 Ill. App. 3d 918, 925, 510 N.E.2d 614, 619, the appellate court indicates, albeit in dicta, that section 11 — 501.1(c) is satisfied if the arresting officer reads the “Warning to Motorist” form to the driver.

The trial court found that Officer Anglin’s testimony was credible. Officer Anglin testified that he orally warned respondent of the consequences of his refusal to submit to a breathalyzer and that respondent indicated he understood the warning. Thus, the purpose of the warning, to apprise the driver of the consequences of his refusal, was served. The requirements of section 11 — 501.1(c) were met and respondent has not been deprived of due process by the failure of Officer Anglin to give him a written warning.

The second argument advanced by respondent is that the following provision in section 2 — 118.1(b) of the Illinois Vehicle Code violates the separation of powers doctrine: “This judicial hearing, request or process shall not stay or delay the statutory summary suspension. Such hearings shall proceed in the court in the same manner as in other civil proceedings.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1(b).) Respondent argues that this provision directly conflicts with section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203(b)), which provides that a motion filed in apt time after judgment in a nonjury case stays enforcement of the judgment, and Supreme Court Rule 305(b)(1), which provides for stay of a judgment pending appeal (107 Ill. 2d R. 305(b)(1)). He points out that the trial court denied his request for a stay of his suspension upon the filing of his motion to reconsider and vacate, but granted a stay of the suspension pending appeal.

The State argues that respondent has no standing to argue that section 2 — 118.1(b) violates the separation of powers doctrine because he has not shown that he was aggrieved by the operation of that section. The State argues that because respondent was granted a stay pending appeal, he was not prejudiced by the operation of section 2 — 118.1(b). We disagree. Respondent was arrested on November 8, 1987, and, presumably, was served with the notice of statutory summary suspension on that date. Pursuant to statute, the summary suspension takes effect on the 46th day following service of the notice. That date was December 24, 1987. Respondent’s first motion to stay was filed and denied on December 17, 1987. The stay pending appeal was granted on January 21, 1988. It appears that respondent may have been aggrieved by the denial pursuant to section 2 — 118.1(b) of his motion for stay on December 17, 1987. He therefore has standing to challenge its constitutionality. People v. Esposito (1988), 121 Ill. 2d 491, 512, 521 N.E.2d 873, 882.

In any event, we find no conflict between these three statutes, nor do we believe section 2 — 118.1(b) of the Illinois Vehicle Code violates the separation of powers doctrine. It has already been held that section 2 — 118.1(b) does not conflict with Supreme Court Rule 305(b)(1), and does not violate the separation of powers doctrine in that respect. (In re Summary Suspension of Trainor (1987), 156 Ill. App. 3d 918, 510 N.E.2d 614.) The question remains whether section 2 — 118.1(b) of the Illinois Vehicle Code conflicts with section 2— 1203(b) of the Code of Civil Procedure and violates the separation of powers doctrine thereby.

Section 2 — 118.1(b) provides that the original implied consent hearing will not stay the statutory summary suspension. Section 2— 1203(b) provides that a timely post-trial motion stays enforcement of the judgment, in this case the judgment of the circuit court sustaining the summary suspension. Unlike Supreme Court Rule 305(b)(1), which provides that the court may stay an administrative order pending appeal, section 2 — 1203(b) does not provide for a stay of the administrative suspension. The circuit court does not impose the suspension; the suspension is imposed by the Secretary of State. (See Koss v. Slater (1987), 116 Ill. 2d 389, 395, 507 N.E.2d 826, 829.) In fact, to construe section 2 — 1203(b) as staying the administrative suspension upon the filing of a post-trial motion might create a separation of powers problem. Statutes must be construed so as to affirm their constitutionality and validity. (Trainor, 156 Ill. App. 3d at 924, 510 N.E.2d at 619.) We find no conflict between section 2 — 118.1(b) of the Illinois Vehicle Code and section 2 — 1203(b) of the Code of Civil Procedure.

The final issue raised by respondent is that section 11 — 501.1 is self-contradictory and void for vagueness. Respondent argues that subparagraphs (e), (f — 1) and (i) are contradictory in that paragraph (e) requires the Secretary of State to “enter” the statutory summary suspension, paragraph (f — 1) requires the arresting officer to serve immediate notice of the suspension on the driver and the suspension shall take effect 46 days thereafter, while paragraph (i) provides that the Secretary of State shall confirm the suspension by mailing a notice to the driver and court unless the sworn report submitted by the arresting officer is defective by not containing sufficient information or having been completed in error. In that case, the confirmation shall not be mailed to the driver, but the sworn report shall be returned to the court and arresting officer. Respondent sets forth a variety of hypothetical situations in which he argues the statute is ambiguous and vague.

We find section 11 — 501.1 to be neither contradictory nor vague. Instead, we find the statutory scheme set forth therein to be internally consistent and clear.

Under section 11 — 501.l(f— 1), the arresting officer provides a driver with notice that the statutory summary suspension will become effective on a certain date and that the driver may request a hearing. (Ill. Rev. Stat. 1985, ch. 951/2, par. 11 — 501.l(f— 1).) The officer is merely providing a driver with notice of what the procedure entails. The officer does not, by giving this notice, suspend the driver’s license. Only the Secretary of State may suspend the driver’s privilege to drive, and that suspension is predicated upon receiving a proper report from the arresting officer.

When the Secretary of State’s office receives a sworn report from an arresting officer, that office has a statutory duty to ensure the sworn report is in proper statutory form in order that a driver’s license is not suspended on the basis of inadequate information. (Ill. Rev. Stat. 1985, ch. 951/2, par. 11 — 501.1(e).) The statutory language of subparagraph (e) provides that upon receipt of a sworn report, the Secretary of State “shall” enter the statutory summary suspension. The language of subparagraph (i) provides, “[h]owever, should the sworn report be defective by not containing sufficient information or be completed in error, the confirmation of the statutory summary suspension shall not be mailed to the person or entered to the record, instead the sworn report shall be forwarded to the court of venue with a copy returned to the issuing agency identifying any such defect.” (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501.l(i).) Respondent argues that these two provisions are contradictory because the term “shall” in subparagraph (e) is mandatory, but the language of subparagraph (i) contradicts the mandate of subparagraph (e). While the term “shall” as used in subparagraph (e) has been held to be mandatory rather than permissive (People v. Gerke (1988), 123 Ill. 2d 85, 94, 525 N.E.2d 68, 72), that does not mean that it is without exception. The statute must be read and construed as a whole, and the entire statute should be construed to produce a harmonious whole. (Stelzer v. Matthews Roofing Co. (1986), 140 Ill. App. 3d 383, 385, 488 N.E.2d 1293, 1295, aff’d (1987), 117 Ill. 2d 186, 511 N.E.2d 421.) When read and construed in such a way, there is no contradiction between subparagraph (e) and subparagraph (i). The Secretary of State shall enter the summary suspension to the record unless the sworn report is defective by not containing sufficient information or is completed in error. Furthermore the clerk at the Secretary of State’s office who determines whether to enter the suspension to the record does not determine whether there was probable cause to arrest a driver for driving under the influence, but simply whether or not the sworn report contains sufficient information and is completed in error.

The respondent contends that the law enforcement officer who issues a notice of statutory summary suspension is acting on behalf of the Secretary of State without statutory authority to do so. The police officer is an agent of the State for the purpose of enforcing the State law as embodied in the Illinois Vehicle Code. The Secretary of State is also an agent of the State for the purpose of enforcing the Illinois Vehicle Code. The legislature, through the provision of the statute allowing police officers to serve notice of statutory summary suspension, has authorized a nonemployee of the Secretary of State’s office to serve as an agent for the Secretary of State. The legislature has not vested the police officer with the power to suspend a motorist’s license, but merely with the duty to serve notice of the potential suspension. The implementation of the statutory summary suspension rests with the Secretary of State’s office, not with the notice-serving officer.

Where, as here, a due process vagueness challenge is raised and the first amendment is not involved, two requirements must be fulfilled. First, the statute must give a person of ordinary intelligence a reasonable opportunity to know what conduct is lawful or unlawful. Second, the statute must provide standards, so as to avoid arbitrary and discriminatory enforcement and application. (People v. O’Donnell (1987), 116 Ill. 2d 517, 522, 508 N.E.2d 1066, 1068.) Section 11-501.1 meets these requirements.

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

Affirmed.

LEWIS and CHAPMAN, JJ., concur.


text:
    DAVID L. BROWN, Plaintiff-Appellant, v. TOM MORRISON et al., Defendants-Appellees.
    Fifth District
    No. 5—88—0556
    Opinion filed August 14, 1989.

      David L. Brown, of Menard, appellant pro se.

    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jennifer A. Keller, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

On July 1, 1988, plaintiff, David L. Brown, an inmate at Menard Correctional Center, filed a pro se petition seeking a writ of mandamus directing defendants to vacate an adverse finding and sanctions imposed as a result of disciplinary proceedings taken against him. He also prayed that three defendants be discharged and sought damages from all defendants. Defendants include two correctional officers, three members of the disciplinary committee, a hearing officer and the warden of the Menard facility.

On August 10, 1988, defendants moved to dismiss plaintiff’s petition for failure to state a cause of action or entitlement to relief. The motion was supported by plaintiff’s written admissions, the correctional officers’ reports, the hearing officer’s report and the committee’s summary report. Plaintiff filed a response to defendant’s motion and a supporting memorandum of law. On September 2, 1988, the circuit court dismissed plaintiff’s petition. The sole issue on appeal is whether the circuit court properly dismissed plaintiff’s petition for a writ of mandamus. We reverse and remand.

In this case, defendants failed to designate the provision of the Code of Civil Procedure pursuant to which their motion to dismiss was brought, as should have been done. The motion speaks of failure to state a cause of action, a matter properly raised under section 2— 615 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). A section 2 — 615 motion admits all well-pleaded facts and attacks only the legal sufficiency of the complaint. (Longust v. Peabody Coal Co. (1986), 151 Ill. App. 3d 754, 756, 502 N.E.2d 1096, 1097.) The thrust of the defendants’ argument here, however, was not that the allegations in plaintiff’s petition were facially insufficient to state a valid cause of action, but that the facts underlying plaintiff’s petition were such that plaintiff could not ultimately prove a right to issuance of a writ of mandamus. That is why they submitted the various documents referred to above.

These documents were clearly taken into account by the trial court in reaching its decision. There can be no dispute that consideration of the documents would be improper under section 2 — 615 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). The only other possible explanation for the court’s action was that it believed that defendants meant to proceed under section 2 — 619(aX9) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(aX9)), which provides that a defendant may move for dismissal on the grounds that “the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” If the trial court based its decision on this provision, it was again in error.

“Affirmative matter” within the meaning of section 2— 619(a)(9) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(aX9)) is something in the nature of a defense that negates an alleged cause of action completely or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint. It must, however, be something more than evidence offered to refute a well-pleaded fact in the complaint, for, as in the case of a motion under section 2 — 615 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), such well-pleaded facts must be taken as true for the purposes of a motion to dismiss under section 2 — 619(a)(9) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(aX9)). (Longust v. Peabody Coal Co. (1986), 151 Ill. App. 3d 754, 757, 502 N.E.2d 1096, 1098.) In this case, that “something more” is absent. All the defendants have attempted to do through their motion is negate the factual basis upon which plaintiff has premised his request for issuance of a writ of mandamus. We note, moreover, that the evidence submitted by defendants in support of their challenge to the facts alleged in plaintiffs petition fails to comport with the requirements of Supreme Court Rule 191(a) (107 Ill. 2d R. 191(a)). No affidavits were adduced, and the documents attached to defendants’ motion were neither sworn nor certified.

If defendants believed that there was no genuine issue as to any material fact underlying this dispute and that they were entitled to judgment as a matter of law, what they should have done is brought a motion for summary judgment pursuant to section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1005). (Longust v. Peabody Coal Co. (1986), 151 Ill. App. 3d 754, 757, 502 N.E.2d 1096, 1098.) They did not do so, and they make no claim on appeal that their motion to dismiss was or should now be considered as the functional equivalent of a motion for summary judgment. There is nothing in the record to suggest that they have ever urged that their motion should be construed as anything other than a motion to dismiss directed toward the sufficiency of plaintiff’s pleadings. As so construed, the motion was improper for the reasons set forth above and should not have been granted.

Although plaintiff filed a verified reply to defendants’ motion which itself included attached exhibits, he did object to the form of the documents submitted by defendants in support of their motion, and the record indicates that he basically understood defendants’ motion to be directed toward the facial sufficiency of his petition, not the ultimate truth or falsity of the facts underlying his claim. As it turns out, he was wrong, but in view of the motion practice followed here, such confusion is hardly surprising. This is the very type of problem which the Code of Civil Procedure and the rules of our supreme court were designed to prevent, and we do not believe that defendants’ lack of precision should now be permitted to operate to plaintiff’s prejudice.

Accordingly, the order of the circuit court of Randolph County granting defendants’ motion to dismiss and dismissing plaintiff’s cause is reversed, and this cause is remanded for further proceedings consistent with this order.

Reversed and remanded.

WELCH, P.J., and CHAPMAN, J., concur.


author: JUSTICE RARICK

text:
      In re R.M.S., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. T.S., Respondent-Appellant).
    Fifth District
    No. 5-88-0115
    Opinion filed August 15, 1989.
    Stanley P. Stasiulis, of Effingham, for appellant.
    Paula Phillips, State’s Attorney, of Effingham (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.
   JUSTICE RARICK

delivered the opinion of the court:

Respondent, mother of R.M.S., a minor, appeals from the order of the circuit court of Effingham County terminating her parental rights.

R.M.S. was bom in March of 1985. By June a petition for shelter care hearing had been filed alleging the child was abused by reason of her failure to thrive. After several hearings, various petitions, and psychiatric evaluations, the trial court entered an order on October 27, 1987, finding respondent to be an unfit person as defined in section 1(D) of the Adoption Act (Ill. Rev. Stat. 1985, ch. 40, par. 1501(D)) based upon her failure to protect the child from conditions within her environment injurious to her welfare and her inability to discharge her parental responsibilities due to her mental retardation. Although the docket minutes clearly stated respondent’s parental rights were terminated, the order of October 27 failed to include such a statement. An amended order was entered expressly terminating parental rights on April 28,1988.

Respondent argues on appeal the October 27 order did not terminate her parental rights, and as a result, the seven-month delay in filing an amended order violated her due process rights. She further contends the record is unclear as to what statutory grounds were relied upon in terminating her rights. According to respondent, the court, in enumerating the grounds for unfitness, specifically referred to certain grounds which it already had stricken for insufficient evidence. Respondent also believes the record does not support either order.

In reviewing a case involving the termination of parental rights, in order to uphold the trial court’s determination, we must find clear and convincing evidence on the record that respondent is an unfit parent. (In re Tolbert (1978), 62 Ill. App. 3d 927, 930, 378 N.E.2d 565, 568.) We believe such a record exists here. It is clear that respondent loves her daughter and wishes to take care of her. She has attempted to comply with all requirements set for her and has repeatedly tried to learn how to care for her child, yet she has been unable to learn such elementary skills as feeding and diapering. While the effort and desire is there, the ability simply is not. Respondent, a resident of a group home, with an IQ of 65 and problem-solving skills at the level of a seven- or eight-year-old, is barely able to meet her own basic needs, let alone those of a young child. It goes without saying that a parent certainly can be unfit without fault. (In re Devine (1980), 81 Ill. App. 3d 314, 319-20, 401 N.E.2d 616, 620-21.) Such is the case here. While we recognize respondent’s love for and her efforts and desire to raise her child, the paramount issue, nevertheless, is the best interests and welfare of the child. As we have noted before: “A child is no less exposed to danger, no less dirty or hungry because his parent is unable rather than unwilling to give him care.” (Devine, 81 Ill. App. 3d at 320, 401 N.E.2d at 621. See also Tolbert, 62 Ill. App. 3d at 930-31, 378 N.E.2d at 568.) We therefore find the record clearly and convincingly supports the trial court’s determination that respondent is unfit based on her failure to protect the child from conditions within her environment injurious to the child’s welfare and on her inability to discharge parental responsibilities as a result of mental retardation. It matters not that the child is no longer in the mother’s environment, living in a foster home under proper care, for it is ultimately the parent’s fitness that is at issue. Because the evidence of respondent's unfitness is uncontradicted, we have no choice but to affirm the trial court’s decision.

We do agree with respondent there is some confusion initially on the record as to which statutory grounds the trial court relied upon in making its determination of unfitness. In referring to the grounds on which it was basing its termination order, after setting forth the appropriate language, the court inadvertently mislabeled these grounds with the two subparagraph letter designations it had previously dismissed. The assistant State’s Attorney pointed out this error, and the trial court attempted to correct the misdesignations. The court then stated: “Now I’m not going to clarify it any further because I just didn’t refer to it by subsection. I cited the terminology of those subsections ***.” Any confusion therefore was obviated. Under such circumstances, we cannot say the grounds upon which the unfitness determination was based are unclear requiring reversal. Nor do we find any reversible error in the lack of express language terminating respondent’s parental rights in the written October 1987 order. It is true this written order inadvertently omitted such language, but the extensive docket minutes did not. Respondent certainly could have appealed from the order as entered in the record sheet, especially when the trial court specifically stated the lengthy docket entry was to serve as a guide to the parties. (See Heritage Shelter Care Home, Inc. v. Miller (1975), 31 Ill. App. 3d 700, 703, 334 N.E.2d 355, 358.) Any delay in the entry of a formal written order terminating her parental rights, therefore, was not prejudicial, and certainly was not a denial of her due process rights. (See People v. Lawson (1977), 67 Ill. 2d 449, 458-59, 367 N.E.2d 1244, 1248-49.) Respondent was not even the one who brought the issue of a possible lack of an appealable order to the trial court’s attention. In any event, nothing in the delay of filing a corrected order warrants returning a minor to an unfit parent when the primary concern is the welfare of the child.

For the aforementioned reasons, we affirm the order of the circuit court of Effingham County terminating respondent’s parental rights.

Affirmed.

WELCH, P.J., and GOLDENHERSH, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID WOODWORTH, Defendant-Appellant.
    Fifth District
    No. 5—87—0820
    Opinion filed August 15, 1989.

      Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    H. Wesley Wilkins, State’s Attorney, of Jonesboro (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.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, David Woodworth, appeals from the denial by the circuit court of Union County of his motion to withdraw his guilty plea. We affirm.

In January of 1987, defendant was charged by information with a weapons offense. The information alleged defendant, who had previously been imprisoned for a felony, knowingly possessed a .22 caliber revolver. The caption alleged the charge was a Class 3 felony, “unlawful use of a firearm by a felon,” while the body of the charge, according to defendant’s current viewpoint, alleged a misdemeanor version of the offense.

The testimony from defendant’s preliminary hearing revealed that the police officer who arrested defendant stopped defendant because he was driving erratically. Once defendant stumbled out of his car, the officer noticed the butt of a handgun sticking out from under the driver’s seat. Defendant later admitted to the police he knew his possession of a firearm was illegal.

In April, defendant pleaded guilty to the felony weapons charge. At the outset of the hearing the trial court asked: “What is this matter coming on today for, gentlemen?” Defense counsel replied: “A plea, Your Honor. Mr. Woodworth will plead guilty to unlawful use of weapon by a felon.” The trial court then stated: “That is a class three felony and provides for a determinative sentence of not less than two nor more than five years.” Defense counsel responded the court was correct. The trial court subsequently accepted defendant’s plea and set the matter for sentencing. At defendant’s sentencing hearing, however, defense counsel alerted the trial court an error had been made and urged sentencing for the misdemeanor offense as charged in the body of the information. The trial court ultimately held that because defendant believed he was pleading guilty to a Class 3 felony, he would be sentenced accordingly. Defendant was sentenced to a two-year term of probation with home confinement. Defendant’s motion to withdraw his guilty plea, as being not knowingly, intelligently and voluntarily given, was denied.

Defendant argues on appeal the trial court erred in sentencing him for a Class 3 felony when in fact the charge was in the language of and cited to the misdemeanor offense. Defendant contends because the body of the charging instrument controls (see People v. Sirinsky (1970), 47 Ill. 2d 183, 187, 265 N.E.2d 505, 507), he only had notice of the misdemeanor offense. He therefore only could plead guilty to the misdemeanor offense even though he believed he was pleading guilty to the felony offense. We disagree.

Prior to January 1, 1988, the date for repeal of section 24— 3.1(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 24 — 3.1(a)(3)) (the misdemeanor offense), the act of a convicted felon’s possession of a firearm could be prosecuted as either a felony under the unlawful use or possession of weapons by felons statute (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1(a)) or a misdemeanor under the unlawful possession of firearms and firearm ammunition statute (Ill. Rev. Stat. 1985, ch. 38, par. 24 — 3.1(a)(3)). Both offenses consisted of the same two elements: possession of a firearm and the possessor being a convicted felon. It was up to the prosecutor in the exercise of his discretion to choose which offense to charge. (See People v. McCollough (1974), 57 Ill. 2d 440, 444-45, 313 N.E.2d 462, 465.) Defendant believes, however, the felony offense has an additional element: “on or about his person.” This element, which the body of the information failed to include, requires that the felon, according to defendant, actually possess the firearm on or about his person. Here the factual basis only revealed defendant had the gun on the floor of his car. Defendant therefore argues he could not have pleaded guilty to the felony offense under any circumstance. In this context, however, “possessing on or about one’s person” is no different than “having in one’s possession” or simply “possessing.” (See People v. Rangel (1987), 163 Ill. App. 3d 730, 739, 516 N.E.2d 936, 942.) The key is within one’s reach. Clearly the firearm on the floor of his car under his seat was within defendant’s reach. “On or about his person” is not the distinguishing element defendant wishes it to be.

A factor in support of the State’s position, however, is that the body of the information did include the word “knowingly.” While it may be true any possession must be knowing, the specific use of this word in the body of the information more closely tracks the language of the felony statute. Furthermore, any mistake with regard to any statutory citation would amount to merely a formal defect which the State could amend at any time. See People v. Hampton (1969), 105 Ill. App. 2d 228, 230, 245 N.E.2d 47, 47.

Putting aside all of the technical language arguments, the most important point here is the fact that defendant believed and understood he was pleading guilty to a felony. Everyone — defendant, defense counsel, the State, and the trial court — operated under the assumption defendant was charged with and was pleading guilty to a felony. Defendant was admonished the charge was a felony. He was advised of possible penalties in connection with the felony offense. And, he was represented by able counsel throughout, counsel who also believed defendant was charged with a felony. Defendant cannot claim he had no notice of pleading otherwise. Defendant clearly was charged with and pleaded guilty to the felony offense. Cf. United States v. Partida-Parra (9th Cir. 1988), 859 F.2d 629.

For the aforementioned reasons, we affirm the denial by the circuit court of Union County of defendant’s motion to withdraw his guilty plea.

Affirmed.

GOLDENHERSH and HOWERTON, JJ., concur.


author: JUSTICE CHAPMAN

text:
    ALPHONSO FARMER, Plaintiff-Appellant, v. CHARLES KOEN, Defendant-Appellee. — ALPHONSO FARMER, Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant-Appellee (Charles Koen, Indiv. and d/b/a Charles Koen & Associates, Nominal Defendants-Appellees).
    Fifth District
    Nos. 5—87—0197, 5—87—0699 cons.
    Opinion filed August 16, 1989.

      Michael P. O’Shea, Jr., of Cairo, for appellant.
    Walker & Williams, P.C., of Belleville (Anthony L. Martin, of counsel), for appellee United States Fidelity & Guaranty Company.

      James P. Chapman and Kathleen Hogan Morrison, both of James P. Chapman & Associates, Ltd., of Chicago, for appellee Charles Koen.
   JUSTICE CHAPMAN

delivered the opinion of the court: These consolidated cases arise out of a fire which destroyed a bank building in Cairo, Illinois, on September 19, 1985. The building was owned by Charles Koen and Associates, a corporation formed by the defendant, Charles Koen, and the plaintiff, Alphonso Farmer. The building was insured by United States Fidelity and Guaranty Company (USF&G), the defendant in appeal No. 5 — 87—0699. Prior to the fire, on August 25, 1985, Koen and Farmer entered into an agreement whereby Koen purchased Farmer’s interest in Charles Koen and Associates for a total price of $58,000. The agreement provided that the $58,000 was payable one year after execution of the agreement or:

“B. If the $58,000 is not paid on August 22nd, 1986, then the $58,000 is to be paid as follows: $10,000 on August 22nd, 1986; $10,000 on August 22nd, 1987; $10,000 on August 22nd, 1988; $10,000 on August 22nd, 1989; $10,000 on August 22nd, 1990; and $8,000 on August. 22nd, 1991. If any of the above-mentioned dates falls on the weekend, then the payment is due on the following Monday.
C. If the payment of $10,000 is not paid on the mutually agreed upon date, interest as established by the First State Bank of Olmsted will be added to the payment of the $10,000.
D. For any payments that are late the current interest rate of the First State Bank of Olmsted will be added to the late payment. It is understood that this interest rate does not apply to the outstanding principal that exist [sic] at that date but only to the late payment.
E. As part of the consideration for the sale and conveyance, Charles Koen agrees to pay all the indebtedness of the Corporation of Charles Koen and Associates, and to hold A1 Farmer free from any liability therefrom.
II.
A. Retiring owner in consideration of the payment of the sum specified and in consideration of the covenants of continuing owner all as contained in Article I, hereby sells, assigns, transfers and conveys unto continuing owner all of his part, share and interest in and to all and singular, the leasehold and premises and the machinery and equipment, leasehold improvements, stock-in-trade and other effects, and debts, credits, contracts, profits and assets of every description of the Corporation.”

Subsequent to the fire, the plaintiff filed a suit in the circuit court of Alexander County seeking, inter alia, rescission of the agreement based on a mutual mistake of fact. The trial court found that the agreement was enforceable and denied rescission, and this court affirmed. (Farmer v. Koen (1987), 161 Ill. App. 3d 1165 (unpublished Rule 23 order).) Following the circuit court’s unfavorable ruling in his initial suit, the plaintiff filed two additional suits which are the subject of this appeal. In No. 5 — 87—0197, Farmer appeals from the trial court’s dismissal of his complaint, which again sought to rescind the agreement between Farmer and Koen, this time based on the allegation that defendant Koen “materially and substantially breached” the agreement by failing to make the first $10,000 payment under the agreement. The trial court found that the remedy of rescission was unavailable and dismissed the complaint based on its finding that the failure to make the first installment payment did not constitute a substantial breach.

In No. 5 — 87—0699, Farmer filed a complaint against USF&G, seeking to recover under the insurance policy. The trial court dismissed the complaint, finding that Farmer was not a proper party to the suit and he had no standing to bring such an action. The court noted that a suit for breach of an insurance contract is personal in nature and should be brought by a contracting party rather than by a stranger to the contract.

APPEAL NO. 5-87-0197

The plaintiff contends that the trial court erred in finding that the failure to pay the initial $10,000 installment payment was not a substantial breach justifying rescission of the agreement. We do not agree.

A party may seek rescission of a contract when there has been substantial nonperformance or breach by another party. (Builders Concrete Co. v. Fred Faubel & Sons, Inc. (1978), 58 Ill. App. 3d 100, 103, 373 N.E.2d 863, 867.) The remedy of rescission is not granted as a matter of right, but is rather a matter left largely to the sound discretion of the trial court, whose decision will not be disturbed absent a clear abuse of discretion. (Klucznik v. Nikitopoulos (1987), 152 Ill. App. 3d 323, 327, 503 N.E.2d 1147, 1150; Luciani v. Bestor (1982), 106 Ill. App. 3d 878, 882, 436 N.E.2d 251, 255.) We find no error in the trial court’s determination that defendant Koen’s failure to make the initial installment payment was not a substantial

breach justifying rescission. This is particularly so when, as in the instant case, the contract terms provide an adequate remedy for failure to make timely payment. (See Scott & Fetzer Co. v. Montgomery Ward & Co. (1984), 129 Ill. App. 3d 1011, 1020-21, 473 N.E.2d 421, 429-30, aff’d (1986), 112 Ill. 2d 378, 493 N.E.2d 1022.) The plaintiffs legal remedy is set forth in paragraphs 1(D) and (E) of the contract, which provide that interest, as established by the First State Bank of Olmsted, will be added to any late payment. It is well established that equitable relief will not be granted when there is an adequate remedy at law. (Scott & Fetzer Co., 129 Ill. App. 3d 1011, 471 N.E.2d 421; see also Sta-Ru Corp. v. Mahin (1976), 64 Ill. 2d 330, 333, 356 N.E.2d 67, 68; Gibbons v. Stillwell (1986), 149 Ill. App. 3d 411, 416, 500 N.E.2d 965, 969.) Accordingly, we affirm the trial court’s dismissal of the plaintiff’s complaint in No. 5 — 87—0197.

APPEAL NO. 5-87-0699

In this cause, as related above, plaintiff Farmer brought suit against defendant USF&G to recover on the insurance policy issued by USF&G to Charles Koen and Associates. Charles Koen and Charles Koen and Associates were also named as nominal defendants in this action. The trial court dismissed Farmer’s complaint because it found that Farmer was not a proper party to this suit.

Farmer does not dispute that the insurance policy was issued to Charles Koen and Associates, and that prior to the fire which destroyed the bank building, Farmer conveyed his interest in Charles Koen and Associates to Koen. At one point in his brief, however, Farmer argues that standing to sue under the insurance contract should be measured at the time of the execution of the contract and not at the time of the loss. It is clear, however, that recovery under an insurance policy is predicated on the existence of an insurable interest at the time of the loss. (See Lieberman v. Hartford Fire Insurance Co. (1972), 6 Ill. App. 3d 948, 287 N.E.2d 38; Patterson v.Durand Farmers Mutual Fire Insurance Co. (1940), 303 Ill. App. 128, 133, 24 N.E.2d 740, 744; see also Hawkeye-Security Insurance Co. v. Reeg (1984), 128 Ill. App. 3d 352, 354-55, 470 N.E.2d 1103, 1105.) Since Farmer conveyed his entire interest to Koen before the fire occurred, he had no insurable interest in the bank building at the time of the fire.

Furthermore, Farmer admits in his brief that our decision in No. 5 — 87—0197 is dispositive of his claim in this cause:

“Farmer further concedes that on August 22nd, 1985, he agreed to sell and transfer to Koen his undivided one-half interest in the joint venture for the sum of $58,000 and other consideration. And, if indeed this agreement is not set aside or rescinded by this appellate court in a companion appeal (Docket No. 5 — 87—0197), Farmer’s prayer for relief against USF&G must be denied.”

In view of the above, we affirm the circuit court’s dismissal of plaintiff’s complaint in No. 5 — 87—0699.

In addition to the foregoing, the motion of defendant Charles Koen in appeal No. 5 — 87—0197, and the motion of defendants Koen and USF&G in appeal No. 5 — 87—0699, both of which were taken with the case, asking that the plaintiff’s appeals be dismissed as moot, are denied. The defendant’s motions were based on the action of Farmer in filing yet another suit, cause No. 89 — L—10, seeking damages for breach of contract and an accounting. Defendants contend that in filing the suit for breach of contract, Farmer has abandoned his claim of rescission and has affirmed the validity of the agreement between Farmer and Koen. However, we do not view the plaintiff’s filing of the suit for breach of contract as abandonment of his rescission action. The suit on the contract is in the nature of an alternative remedy should the plaintiff’s rescission claim be rejected. There can be little doubt that the decision in the instant case will have a direct effect on the parties involved and on the further course of litigation. (See People ex rel. Bernardi v. City of Highland Park (1988), 121 Ill. 2d 1, 6-7, 520 N.E.2d 316, 318 (“There is life in the appeal because our decision could have a direct impact on the rights and duties of the parties”).) We hold that these appeals are not moot and the motions to dismiss them are denied.

Finally, defendant Koen prays in his brief that this court award him the costs of this appeal because of Farmer’s “continuing pattern of violating” the rules of appellate procedure. We decline to do so.

Accordingly, the judgment of the circuit court in No. 5 — 87—0197 is affirmed. The judgment of the circuit court in No. 5 — 87—0699 is also affirmed.

Affirmed.

LEWIS and HARRISON, JJ., concur.


author: JUSTICE HOWERTON

text:
    MARGARET HORN, Plaintiff-Appellant and Cross-Appellee, v. PAUL A. CROEGAERT, Defendant-Appellee and Cross-Appellant.
    Fifth District
    No. 5-87-0568
    Opinion filed April 26, 1989.
    Rehearing denied September 6, 1989.

      Eric L. Terlizzi, of Pfaff, Garner & Terlizzi, of Salem, for appellant.
    Robert E. Shaw, of Musick & Mitchell, P.C., of Mt. Vernon, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

A jury will hear Margaret Horn’s claim that her lawyer committed malpractice, because we reverse summary judgment entered against her and remand for further proceedings.

Summary judgment can be entered only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005.

We find issues of fact. We find the need for a jury.

Margaret Horn is the widow of an Illinois judge and a pensioner as his surviving spouse.

She knew Frank Yockey, an oil man, who had few assets, but she liked him anyway. She wanted marriage but did not want her pension to perish. Yockey also wanted to marry her, but saw the pension business the same as she. So, plaintiff and Yockey decided to meet with defendant, a lawyer.

Defendant told them that if they married, plaintiff would lose her pension, so they should just go on living together as if they were man and wife, and, in addition, enter into a business relationship.

They did both.

The business part involved oil.

But, plaintiff was uneasy. She felt her best interests called for a written agreement covering the oil business with Yockey and she asked defendant about it. According to plaintiff, defendant said in reply, “You can’t get an oil man to sign anything in writing. They can’t read.” So, she never asked Yockey for a written agreement.

Plaintiff and Yockey pursued a make-believe man and wife relationship, Yockey with little other than a nose for oil, and plaintiff with her economic assets, including her pension.

They pursued oil as partners.

Then, as surely as foreshadowed in any soap opera, Yockey struck oil, hauled down what he had professed to be a flag of love, broke camp, packed up and dumped plaintiff.

Plaintiff, of course, knew that Yockey could not have been so cavalier had they been married, and naturally remembered the business relationship touching oil she and Yockey had. She sued Yockey for her share of the oil business. But, along the way, as she pressed for payment, it became obvious that it is easier to prove a deal when it is in writing than when one’s word is pitted against another’s. So, she settled for less than she felt she was entitled.

Feeling short-changed by the results of her case against Yockey, she sued defendant for legal malpractice. She claimed the legal malpractice was (a) bad advice and (b) failure to give advice.

Her theory: (a) bad advice — the only thing that prevented marriage was the pension question, and contrary to defendant’s advice, marriage would not have destroyed the pension; therefore, advising plaintiff and Yockey to live as man and wife without benefit of marriage was bad advice, which deprived her of the protections afforded by marriage; and (b) defendant failed to advise plaintiff to get the business deal with Yockey in writing, which made it difficult to prove the existence of the business relationship as well as its extent, causing plaintiff to collect from Yockey, when she caught up with him, less than what she would have been able to collect had the business relationship been in writing instead of oral.

The circuit court granted summary judgment, holding: (1) damages for marital protection are speculative as a matter of law; (2) there was no causal connection between defendant’s failure to advise plaintiff to get a written partnership agreement with her paramour and her lack of a partnership agreement; (3) the damages resulting from having no written partnership agreement are speculative as a matter of law; and (4) defendant was not guilty of a conflict of interest.

We deal with the circuit court’s holding in the same order as listed above.

I

DAMAGES FOR MARITAL PROTECTION

Damages for marital protection, in this case, could consist of economic as well as noneconomic losses, depending of course on proof at trial.

A

ECONOMIC LOSSES

The economic losses are not speculative.

We hasten to add that we do not give the circuit court a “laundry list” of economic losses. Nor do we intend to exhaust all possibilities of economic losses. We only point out the following in order to show that economic losses are not speculative.

Plaintiff has said that the only thing which kept her from marrying Yockey was defendant’s advice. Therefore, the date of marriage can be reasonably determined. The time plaintiff would have sought dissolution of the marriage, likewise, is capable of proof. Further, the assets acquired during the time plaintiff and Yockey would have been married can be proved. This would form the basis for one element of damages, because these assets would have been “marital property.”

It is true that “marital property” does not exist until dissolution. But, plaintiff’s case is not to recover marital property. It is for legal malpractice, and one element of her damages is marital property she could have recovered had not defendant’s advice prevented marriage.

The problem of uncertainty of damages is raised by defendant. He says the amount of plaintiff’s award in a dissolution, had there been a marriage, would have been disputed, and therefore, the amount is uncertain and untouchable by plaintiff because of this uncertainty. Allowing retrieval does not violate the rule prohibiting recovery of uncertain damages. Although uncertain damages cannot be recovered, once the fact of damage has been established, the extent of damages can be proven as a matter of reasonable inference, even though the result is only an approximation. (De Koven Drug Co. v. First National Bank (1975), 27 Ill. App. 3d 798.) In that regard, plaintiff could have presented testimony that she would not have had to sue Yockey on an oral contract had they been married. Instead, she would have been awarded her share of marital property. This is the fact of damage. The assets acquired during the time they would have been married can be calculated. The contributions of each toward acquisition of those assets can be determined. Therefore, within a reasonable degree of certainty, her portion that would have been carved out and awarded to her in a dissolution proceeding could be found. That amount would be one element of her damages.

Other economic losses, likewise, may be presented and.calculated. We do not list them. That is a function of counsel.

B

NONECONOMIC LOSSES

Plaintiff may have noneconomic losses by virtue of not having a marriage. Loss of self-esteem, shame, public ridicule and moral anguish may be some of these losses, depending on the proof, and depending how a jury attributes causation of loss of esteem, shame, pub-lie ridicule and moral anguish. But, the fact remains that for summary judgment purposes we cannot say these losses cannot exist. They are not speculative. They can be calculated. These losses do not strike us as significantly different from noneconomic losses that are determined by juries everyday in personal injury cases.

In days of waning virtue, marriage still has value.

II

LACK OF WRITTEN AGREEMENT, CAUSATION BY FAILURE TO ADVISE

Plaintiff says had defendant advised her about the differences in consequences between having a written agreement on the one hand and not having one on the other, instead of just telling her, “You can’t get an oil man to sign anything in writing. They can’t read,” then she would have acted differently. She actively would have pursued a written agreement. But, it is for a jury to decide if she would have gotten a written agreement had she pursued one. Questions of causation ordinarily are for the trier of fact. Juliano v. Oravec (1973), 53 Ill. 2d 566.

III

SPECULATIVE DAMAGES-NO WRITTEN AGREEMENT

The circuit court found damages resulting from lack of a written agreement speculative, because plaintiff had settled her case against Yockey brought by her on an oral partnership theory.

The circuit court missed the point. Her claim is for deprivation of the quality of evidence. As such, it is not speculative. It can be calculated. Plaintiff says defendant’s failure to advise her about the consequences of not having a written agreement caused her not to get one when she could, and this made it more difficult to prove both the existence of partnership and the extent of her participation in the partnership, which in turn, in recognition of realities inherent in litigation, caused her to settle with Yockey for less than she could have recovered had all been in writing. This claim is subject to proof, can be opposed by defendant, and can be calculated and awarded, or rejected and denied, all as a jury sees fit.

Of course, only plaintiff’s side has been examined in this opinion. No doubt a jury will hear defendant’s. However, in summary judgment only the position of the party against whom summary judgment has been entered is considered in order to determine if there is any issue, any conflict, to be resolved by a jury.

IV

CONFLICT OF INTEREST

Mrs. Horn alleges in her amended complaint that the defendant was engaged in a conflict of interest by representing Yockey at the time she was receiving advice from defendant. The defendant denies any current attorney-client relationship with Yockey. This situation — a genuine issue of material fact — is to be resolved by a trier of fact, not by summary judgment.

The circuit court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

HARRISON and GOLDENHERSH, JJ., concur.


author: JUSTICE GREEN

text:
    STANLEY D. PARR et al., d/b/a Redwood Motor Inn, Plaintiffs-Appellees, v. MICHAEL NEAL, Warden, Danville Correctional Center, et al., Defendants-Appellants.
    Fourth District
    No. 4—88—0856
    Opinion filed August 4, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert Ruiz, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Charles C. Hall, of Welsch & Hall, of Danville, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

On June 2, 1986, plaintiffs Stanley D. Parr and Gracie Parr, doing business as Redwood Motor Inn, filed a complaint in the circuit court of Vermilion County against defendants Michael Neal, warden of the Danville Correctional Center, and Michael Lane, Director, Department of Corrections, State of Illinois. Plaintiffs alleged defendants had authorized, constructed, and operated a firing range at the Danville Correctional Center (Correctional Center) which was adjacent to property owned by plaintiffs. This property was used by plaintiffs in the operation of a motel. Plaintiffs contended the operation of the range constituted a nuisance and requested the defendants be enjoined from further operation of the range. The case was subsequently tried at bench upon a second-amended complaint alleging the firing range was a danger to personal safety and a private nuisance.

On August 10, 1988, the circuit court entered an order permanently enjoining defendants “from firing weapons on the aforesaid range at its present location.” (Emphasis added.) On September 9, 1988, defendants filed a motion for reconsideration and clarification. The motion alleged that (1) the relief was “not so confined as to achieve its purpose at the least burden to the defendants”; and (2) the order did not clearly “establish whether any firing range may be utilized in the present location.” After a hearing on the motion, the circuit court entered a further order on October 20, 1988, denying reconsideration of its prior order but clarifying that order by stating that order “permanently enjoined the present use of the weapons fir ing range.” (Emphasis added.)

Defendants have appealed maintaining, much as they did upon request for rehearing, that the order enjoining the use of the range was “impermissibly overbroad.” They rely upon the following language of the fifth district:

“The restraint imposed by an injunction should not be more extensive than is reasonably required to protect the interests of the party in whose favor it is granted, and should not be so broad as to prevent defendant from exercising his rights.” (People ex rel. Traiteur v. Abbott (1975), 27 Ill. App. 3d 277, 282-83, 327 N.E.2d 130,134.)

Defendants do not seriously dispute that the allowance of some injunctive relief by the circuit court was sufficiently supported by the evidence. For reasons we subsequently explain, we conclude the award by the trial court of the injunction, in its full force, was not contrary to the manifest weight of the evidence and must be affirmed.

On appeal, defendants still express concern as to the meaning of the injunction. They express concern as to whether they can make continued use of a classroom which is located on the range facility. When the latest order in regard to enjoining “the present use” of the range is considered within the context of the earlier order prohibiting the firing of weapons at the “present location” and, in view of the evidence, we deem it clear the court did not enjoin use of the classroom as long as weapons are not fired from it.

We interpret the order of the court to be that the Department of Corrections cannot use the firing range for the firing of weapons unless the injunction is subsequently modified. The circuit court has continuing power to modify this injunction upon a showing of a sufficient change in the structure of the range to alleviate the dangers which now exist. (Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, Inc. (1941), 312 U.S. 287, 85 L. Ed. 836, 61 S. Ct. 552; Material Service Corp. v. Issacs (1962), 25 Ill. 2d 137, 183 N.E.2d 164.) We express no opinion as to what change in circumstances would be necessary to support or to require such a modification.

The evidence of the layout of the firing range was undisputed. The range was some 100 yards in length running from the west, where most firing took place, to the east where the farther targets were located. The range was on the south border of the Correctional Center and bordered plaintiffs’ property, a 40-acre tract, on the south of the Correctional Center. The closest point of the range to the motel was approximately 900 feet, but the motel’s sewer plant was 800 feet from the range, and a water well was 600 feet away. Considerable other development existed in the area of the Correctional Center, but none was as close to the range as plaintiffs’ motel.

At the east end of the range was a berm 40 feet in height. Affixed to the berm at a height of about 12 feet from the bottom was a timber “eyebrow” extending perpendicular to the slope of the berm to form “an upward bullet trap” for bullets aimed at targets below. A fence made from railroad ties and having a height of seven or eight feet surrounded the range. The range also contained two “overhead baffles of pea gravel and plywood sandwich construction.”

An important and controversial feature of the range was a practice tower, nearly as tall as the berm. This was used for firing simulating that which guards would do with mostly .223 caliber rifles but also with rifles and .37 millimeter gas guns. The tower was open on three sides. A former Department of Corrections employee, impeached because she had been fired by that department, testified she had seen a Correctional Center lieutenant fire numerous .223 rifle rounds from the tower to the ground merely to waste ammunition.

The principal support for the issuance of the injunction came from two sources. One was the testimony of plaintiff Stanley D. Parr. The other source was the testimony of Robert Lucas, an expert witness with a background of experience in security system design and law enforcement and security training. He testified he had taken numerous police science and firearms instruction courses, was a trained shooter, and had been firearms instructor and range officer for the Peoria Heights police department. He testified he had prepared designs for the safe layout of firing ranges.

Plaintiff Stanley D. Parr testified he first noticed the range in early 1986 and that firing, heavy at times, had occurred thereafter with some of it occurring during the night. He stated that when firing occurred at night it was often accompanied by bright lighting and sirens, all of which bothered plaintiffs, their customers, and their employees. Parr described how, in November and December of 1986, on three separate occasions, with the use of a metal detector, he found projectiles in an area southwest of the range and some 50 feet into his land. He further testified that in March 1987 he found a shell casing some 75 to 100 feet into his land. He also described how, on June 24, 1988, he found a projectile and two copper pieces at a point approximately 25 feet into his land from the border of the range.

The items found by Parr was brought into court and admitted into evidence. Lucas identified the items found in 1986 and 1987 as (1) spent soft metal slugs consistent with wood cutter ammunition; (2) a spent .38 millimeter gas grenade; and (3) a .37 millimeter empty casing. The evidence had established that the weapons used at the range consisted of (1) the double action revolver, caliber .28, .38, ruger, mini 14; (2) the 12 gauge shotgun; (3) the .37 millimeter grenade launcher; and (4) “the 30 ought six sniping rifle.” Lucas testified to an opinion that each of the items found by Parr was of the type fired from the range and that these projectiles had, in fact, been fired from the range. Neal agreed with Lucas that the projectiles were of the type used at the range but was of the opinion they had not, in fact, come from the range. Lucas identified at least one of the projectiles as coming from each of the types of weapons used at the range, except none were stated to have been fired by a shotgun.

Lucas was greatly concerned because rifle fire was permitted at the range. He explained that a rifle bullet of the kind fired there had a “killing range” of nearly one mile. He explained the various ways in which a gun can fire without intent of the person handling the gun. Lucas’ concerns were compounded by the presence of the tower. He deemed it significant that the tower was almost as high as the berm and was open on three sides. He considered any unintended firing of any weapon from the tower to be very dangerous but deemed such firing of a rifle to be the greatest hazard because of its range. Lucas expressed an opinion that the placement of a rifle range in an area as developed as that here was very rare indeed. Lucas found no substantial fault with the rules established for the operation of the firing range, but he considered the existence of the various projectiles on plaintiffs’ land to indicate the facility was not sufficient to prevent fired projectiles from landing outside the range.

In the course of his testimony, Lucas discussed the changes necessary to make the range safe. At one point he stated the range was “already safe for shotguns to discharge so long as the pellet size is kept small.” At another time he indicated that, by extending the roof of the baffle and adding a bullet trap, “there’s no reason why the facility could not be used for shotguns and pistols.” Defendants argue this means that, even by the admission of plaintiffs’ key witness, pistol and shotgun fire from ground level should now be permitted at the range. They contend an injunction which did not exclude those uses would be the least restrictive restraint necessary to give plaintiffs any relief to which they are entitled.

Significantly, Lucas’ statements were qualified by limiting shotgun fire to that with small pellets and other shotgun and rifle fire to further improvement of the range. Any permission to use shotguns if limited to use of very small projectiles would be of questionable value to defendants and would have permitted a type of firing which would be hard to police. The improvements sufficient to justify greater use were not present at the time the court ruled. We also note that projectiles from pistols were among those found on plaintiffs’ land.

As defendants point out, recently in Kolstad v. Rankin (1989), 179 Ill. App. 3d 1022, 534 N.E.2d 1373, this court remanded a cause for modification of the injunctive order where we deemed the restrictions placed upon the operation of a firing range were unduly severe. While defendants are correct that, there, the precautions taken to guard against stray bullets were in some respects less than here, there, the area involved was less built up, and the evidence that projectiles had been landing outside the range was less than here.

Defendants properly point out that, before a court may enjoin a nuisance, it must balance the harm to the defendant against the benefit to the plaintiff. (Village of Wilsonville v. SCA Services, Inc. (1981), 86 Ill. 2d 1, 28, 426 N.E.2d 824, 837.) We recognize the need the Department of Corrections has for continued weapons training and practice for its employees at the Correctional Center. We are also aware of the greater efficiency and economy which results when those exercises can be conducted on the grounds. We also recognize the expenses incurred in developing the range. However, this must be balanced against the showing made by plaintiffs of danger to people. The trial court saw and heard the witnesses and appraised the worth of their testimony. The court was then in a better position to perform that balancing than we are. We do not find the result of the injunctive order in all of its restrictiveness to be contrary to the manifest weight of the evidence or to be a breach of discretion. Brown v. Commercial National Bank (1969), 42 Ill. 2d 365, 247 N.E.2d 894.

As we have indicated, we affirm for the reasons stated.

Affirmed.

LUND and SPITZ, JJ., concur.