text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CLIFFORD W. ALLCORN, Defendant-Appellee.
    Second District
    No. 2—88—0529
    Opinion filed May 25, 1989.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Brian D. St. Hilaire, of Glen Ellyn, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The State appeals from a judgment of the circuit court of Du Page County which granted the defendant’s petition for rescission of the statutory summary suspension of his driving privileges, pursuant to section 2 — 118.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1). The State contends that the trial court impermissibly considered the defendant’s state of mind in finding no reasonable grounds for the arrest and that the trial court improperly based its order for rescission on its determination that the arresting officer should have attended to an existing medical emergency prior to processing the defendant’s arrest. We do not believe the trial court’s findings regarding reasonable grounds were against the manifest weight of the evidence and therefore affirm its judgment.

The defendant has not filed a brief in this matter; however, where the record is simple and the issues capable of easy resolution, a reviewing court may decide the merits of such an appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 131-33.

The defendant was arrested at 5:42 a.m., March 26, 1988, by an Elmhurst police officer and charged with driving under the influence of alcohol in violation of section 11 — 501(a)(1) of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(a)(1)). He refused to submit to a breathalyzer test at the police station, and, on the basis of his refusal, the arresting officer prepared a law enforcement sworn report and served notice upon the defendant of the summary suspension of his driving privileges pursuant to section 11 — 501.1 of the Code. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1.) The defendant timely requested a summary suspension hearing at which he presented his own testimony and that of the arresting officer. The following facts were adduced at the hearing.

The defendant was transporting his fiancee, who had injured her mouth and teeth, to the dentist and was traveling eastbound on North Avenue in Elmhurst when he observed two police squad cars leaving a parking lot. He pulled over into the right-hand eastbound lane and signaled to one of the police cars to stop. Officer Steven Weatherford of the Elmhurst police pulled in front of the defendant’s automobile and met the defendant between the cars. The defendant was extremely agitated and reported to Officer Weatherford that he had a medical emergency. The officer observed the defendant to have red, bloodshot eyes and a strong odor of alcoholic beverage about his person and so proceeded to require the defendant to submit to field sobriety tests. The defendant performed them rapidly, not waiting for complete instructions on each test, and was unable to perform the one-leg balancing test. Officer Weatherford arrested the defendant for driving under the influence of alcohol and transported him to the Elmhurst police station, while another police officer escorted the defendant’s fiancee to the dentist’s office.

The defendant testified that he had had two wine spritzers with dinner at approximately 8 p.m. the preceding evening and one-half to three-fourths of a scotch and water sometime shortly before the incident. He stated that he and his fiancee were preparing to get into a hot tub in the early morning hours when she tripped and fell, injuring her teeth. The defendant said he attempted to assist his fiancee, then contacted the dentist and proceeded to take his fiancee to the dentist’s office for emergency medical attention. He testified that he was travelling approximately 35 miles per hour when he saw the two squad cars and signaled them to stop. He stated that he explained to the police officer that there was a medical emergency and the police officer asked him if he was a doctor. The defendant testified that when he said he was not a doctor, the police officer allegedly told him that he would decide who had a medical emergency. The defendant stated he was extremely agitated and became more and more upset as the police officer administered the field sobriety tests. He stated that he told the police officer he could not stand on his left leg due to prior injuries and continuously insisted that his fiancee be taken care of first. When asked by the State’s Attorney whether he had indicated to the officer that he had four or five scotches that evening, the defendant replied, “No. That is only half of what I told him. I said, ‘Whether it’s four or five scotches or fifty or sixty scotches, I don’t have time for this.’ ” While the exchange between the defendant and Officer Weatherford continued, the defendant’s fiancee remained seated in the car. The defendant testified that she continued to bleed from the mouth, while Officer Weatherford stated he observed blood on the woman’s pant leg but did not see her actually bleeding at the time.

Officer Weatherford testified that he observed the defendant’s car proceeding eastbound on North Avenue at a high rate of speed. Although he did not have a radar device, he estimated the speed to be approximately 60 miles per hour. The officer stated that defendant’s car passed him as he was exiting a parking lot. He said the defendant then pulled over in a lane of traffic and signaled for him to stop. Upon exiting the vehicle, Officer Weatherford met the defendant and noticed a strong odor of alcoholic beverage on the defendant’s breath. He also observed that the defendant’s eyes were glassy and bloodshot and that he had blurred speech. Weatherford further reported that the defendant had difficulty in removing his driver’s license from his wallet. The officer testified that the defendant told him there was a medical emergency but did not recall what he said to the defendant in response. He further stated that he spoke to the woman in the defendant’s car to ask if she was alright and received a positive response. Officer Weatherford then proceeded to administer field sobriety tests and asked the defendant whether he had had anything to drink. He reported that the defendant was unable to perform the heel-to-toe test and swayed while attempting to perform the one-leg stand. He further stated that the defendant told him he had had four or five scotches. Officer Weatherford testified that he was of the opinion at that time that the defendant was intoxicated based upon his observations, including the rate of speed at which the defendant’s vehicle had been traveling.

On cross-examination, Officer Weatherford admitted that during emergencies he had operated a vehicle in excess of the speed limit; he further admitted that, under such circumstances, his speeding did not indicate that he was under the influence of alcohol at that time. The officer could not recall whether the defendant had told him about previous injuries to his left leg. He also admitted that the defendant was able to understand all of his instructions with regard to the field sobriety tests.

During further cross-examination, Officer Weatherford admitted that the defendant continued to insist there was a medical emergency he was attending to and that the emergency appeared to be the defendant’s primary consideration. The officer failed to ask the defendant whether he wore contacts, how much sleep he had and whether he had had eye defects or injuries recently and admitted that there were many reasons for glassy and bloodshot eyes other than alcohol consumption.

The court briefly questioned the officer, stating:

“Wouldn’t it appear that someone looking for dental services at 5:40 in the morning is in a bit of an emergency?
THE WITNESS: Yes.”

The court then found for the defendant “on the basis that *** the officer should have attended to the emergency first and then to the defendant second.” The court’s written order indicated the court’s finding in favor of the defendant based upon the lack of reasonable grounds and upon the fact that the field sobriety tests and results “were tainted by [the defendant’s] anxiety which developed when [the arresting] officer did not first attend to a 5:40 AM Dental Emergency prior to the Field’s Sobriety Tests.” The Stated timely appeal ensued.

On appeal, the State contends that the trial court improperly considered the defendant’s state of mind at the time of the arrest. Further, the State argues that the arresting officer’s exercise of judgment in handling the situation, i.e., whether to attend to defendant or the defendant’s fiancee first, is not an issue in a summary suspension rescission hearing. Thus, the State contends that the trial court’s consideration of these factors exceeded the statutory scope of the summary suspension rescission hearing as provided in section 2 — 118.1(b) of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1(b)).

As a general proposition, a motorist challenging the summary suspension of his driving privileges bears the burden of establishing a prima facie case for rescission. (People v. Orth (1988), 124 Ill. 2d 326, 340.) The trial court’s finding regarding the burden of proof and whether it has been satisfied will be overturned only if the finding is against the manifest weight of the evidence. Orth, 124 Ill. 2d at 341; People v. Sanders (1988), 176 Ill. App. 3d 467, 469; People v. Torres (1987), 160 Ill. App. 3d 643, 646.

At the hearing, the defendant testified that he was attending to a medical emergency at the time of his arrest and admitted that he was extremely agitated throughout his exchange with Officer Weatherford. Officer Weatherford testified to his observations of the defendant’s demeanor, appearance and actions upon which he based his opinion that the defendant was under the influence of alcohol; he admitted, however, that he knew the defendant was very concerned about an ongoing medical emergency which appeared to be his primary consideration at that time. In short, the defendant offered a reasonable alternative explanation for many of Officer Weatherford’s observations which tended to rebut the conclusion that the defendant was under the influence of alcohol at the time.

In People v. Griffith (1987), 153 Ill. App. 3d 856, the defendant motorist refused to take a breathalyzer test after submitting to field sobriety tests. His driving privileges were suspended, and he requested a rescission hearing. He offered his own testimony and that of four witnesses who indicated that the defendant did not appear intoxicated to them at or near the time of the arrest. The State presented the testimony of the arresting officer. The trial court denied defendant’s rescission petition and we affirmed. We held that the trial court’s placement of the burden of proof on the defendant was proper, and we determined that whether the defendant has met his burden of proof is solely within the province of the trial court and its finding will not be overturned absent an abuse of discretion. Griffith, 153 Ill. App. 3d at 861.

In Griffith, it was clear that the trial court chose to disbelieve the defendant’s witnesses and believe the arresting police officer. In the case at bar, the trial court accepted as credible the defendant’s testimony regarding his agitation and emotional turmoil resulting from the ongoing medical emergency and concluded that the arresting officer failed to take these factors into account when summing up his observations of the defendant’s demeanor at the time of arrest. We note that reasonable grounds to arrest an individual for driving under the influence exist

“where the facts and circumstances known to the arresting officer are sufficient to warrant a [person] of reasonable caution to believe an offense has been committed. [Citation.] This standard requires more than mere suspicion, but does not require the officer to have in hand evidence sufficient to convict. [Citation.] This determination is to be based upon all the facts and circumstances of each case and made in a manner which is not unduly technical.” Sanders, 176 Ill. App. 3d at 470.

The State contends that the trial court focused solely upon the defendant’s state of mind and failed to make any findings as to the arresting officer’s knowledge of the existence of that state of mind or as to the officer’s knowledge that the poor test results might be caused by such anxiety. The record establishes that Officer Weatherford knew of the existence of a medical emergency, that he noted that the emergency appeared to be the defendant’s primary consideration at the time, and that he observed blood on the passenger in the defendant’s car. Thus, we believe that the State’s conclusion that the trial court made no finding regarding the facts and circumstances known to the officer is unwarranted. The State’s insistence that the defendant’s state of mind had no bearing on Officer Weatherford’s knowledge in assessing probable cause misses the point. It is true that an arresting officer’s finding for reasonable grounds for arrest is to be based upon the facts and circumstances known to him at the time of the arrest. (See Sanders, 176 Ill. App. 3d at 470.) However, in this case, the police officer knew of the existence of an ongoing medical emergency and had reason to know of the defendant’s agitation and anxiety concerning the emergency. In view of the defendant’s testimony, the trial court could have found that the defendant’s agitation caused him to try to complete the field sobriety tests too quickly and attempt each one prior to Officer Weatherford’s completed instructions. Further, the officer claimed that the defendant informed him he had had “four or five scotches,” and this testimony was directly rebutted. The defendant’s evidence at a summary suspension rescission hearing may include his own credible testimony that he was not under the influence of alcohol at the time of the arrest. Orth, 124 Ill. 2d at 341.

As we stated above, we will not reverse a trial court’s judgment in a rescission hearing unless the judgment is against the manifest weight of the evidence. “For a judgment to be against the manifest weight of the evidence, it must appear that a conclusion opposite to that reached by the trier of fact is clearly evident.” (Central Production Credit Association v. Kruse (1987), 156 Ill. App. 3d 526, 532.) As the trial court’s judgment is adequately supported by the evidence adduced at the hearing and is not arbitrary or unreasonable, we decline to reverse. See Sloan v. O’Dell (1987), 159 Ill. App. 3d 268, 272-73.

Accordingly, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS and NASH, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE WOMBACHER

license: Public Domain

text:
    STEPHEN WYLIE, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION, Respondent (Iowa-Illinois Gas and Electric Company, Respondent-Appellee).
    Third District
    No. 3—88—0162
    Opinion filed May 24, 1989.

      David W. Adelman and Linda S. Kagan, both of Chicago, for appellant.
    Calif, Harper, Fox, Dailey & Slover, of Moline (Dennis R. Fox, of counsel), for appellee.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The petitioner appeals an order and decision of the Human Rights Commission. The petitioner charged respondents with employment discrimination. An administrative law judge ruled that no discrimination occurred. The Human Rights Commission affirmed and this appeal follows.

During November 1982, the petitioner, Wylie, applied for a position as equipment operator with the respondent, Iowa-Illinois Gas and Electric Company (Iowa-Illinois). Wylie passed the preliminary written exam. The job requirements entailed being located in a control room monitoring gauges and starting and stopping generating equipment. Wylie was never informed that any heavy lifting was required. He was to receive this position if he could pass the mandatory physical exam. The physical exam revealed that Wylie was afflicted with spondylolysis and scoliosis, conditions of the back. The examining physician placed a 40-pound weight restriction on Wylie and so informed Iowa-Illinois. Wylie denied that he was bothered or inconvenienced by this condition. Thereafter, Iowa-Illinois informed Wylie that they did not hire people with his medical condition. There were no other positions at Iowa-Illinois available for Wylie due to his preexisting condition.

Iowa-Illinois abided by their doctor’s diagnosis and opinion as opposed to other doctors’ diagnoses and opinions. Wylie obtained additional medical opinions at his own expense. One doctor imposed similar weight-lifting restrictions. Another doctor suggested a weight-lifting restriction with more reasonable limitations. In any event, the additional restrictions were such as to prevent Wylie from obtaining this position with Iowa-Illinois.

Wylie admitted he had prior problems, injuries, and absences due to his back conditions. He also stated that he worked successfully without interruption as an assembler with John Deere in 1980 and 1981. He also worked without difficulty in construction and maintenance for Seneca Corporation in 1981 and 1982. He routinely worked with 300-pound power tools and lifted 70-pound pipes. Both Wylie and his supervisors stated that Wylie had no problems in performing his required duties, which included heavy lifting.

Dr. Greene, a physician with John Deere, testified. While Wylie worked at Deere, he reported some back pain in 1978. At that time, it was discovered that Wylie had scoliosis and spondylolysis. When those particular symptoms cleared, Wylie returned to his normal duties without any restrictions. Dr. Greene was aware that Wylie’s duties included bending, twisting, pulling, and pushing heavy weights. Dr. Greene stated that Wylie missed two months of work in 1980.

Dr. Russo testified on behalf of Wylie. Dr. Russo treated Wylie in 1978 for his back problems. Following treatment, he did not place any restrictions on Wylie. Dr. Russo’s opinion was that Wylie could perform any physical task provided that he limited his lifting to under 80 pounds.

Dr. Lee, an orthopedic surgeon, stated that if Wylie limited his lifting to from 50 to 70 pounds, he should not have any further back problems. Dr. Lee also stated that by following his recommended restriction, no further problems should develop even though Wylie would be on his feet for eight hours a day.

The retired director of employee relations from Iowa-Illinois, Robert Carton, described the duties for the position Wylie sought. Handling wrenches, pumps, and equipment that weighed in excess of 85 pounds were among the tasks that Wylie would be expected to perform. Sometimes hoists and other lifting devices are utilized in lifting; however, there are times when they are not accessible to a tight or inconvenient location. Carton stated that Wylie was not hired by Iowa-Illinois in reliance on the company doctor’s diagnosis, report, and opinion. Wylie’s lifting restriction was viewed as an obstacle to his ability to perform the full function of his job. Carton denied that Iowa-Illinois was afraid that if they hired Wylie, he could be injured.

Dr. Fesenmeyer, Iowa-Illinois’ physician, testified. He stated that his diagnosis revealed that Wylie was afflicted with spondylolysis and scoliosis. Due to Wylie’s condition, Dr. Fesenmeyer expressed the belief that Wylie was not lifting heavy objects. Dr. Fesenmeyer did not realize that Wylie was lifting heavy objects and working physical construction without any problems, injuries, or difficulties prior to applying for the position with Iowa-Illinois.

Gordon Fordyce, operations supervisor of the Iowa-Illinois power plants, recommended hiring Wylie because the main part of the position for which he applied was not lifting. Rather, it involved monitoring gauges and starting and stopping generators. Wylie’s lifting tasks would be with the aid of motors, hoists, and other lifting equipment. Fordyce admitted that Wylie was not hired by Iowa-HIinois because they feared he was prone to injury. The superintendent of the Quad-Cities production divisions indicated that the position for which Wylie applied did not require that much exertion or physical stress. He stated, however, that a person with a weight restriction of 50 pounds could not adequately perform the job which Wylie sought.

Finally, Wylie physically demonstrated that he could lift heavy objects. He carried several items, one weighing in excess of 100 pounds, from his car to the courtroom. After the demonstration, he returned the items to his vehicle without any difficulty.

An administrative law judge ruled there was no discrimination by Iowa-Illinois. An administrative appeal was affirmed by the Human Rights Commission. We affirm.

The standard of judicial review in reviewing this appeal is very limited due to the nature of this type of action. “In any proceeding brought for judicial review, the Commission’s findings of fact shall be sustained unless the court determines that such findings are contrary to the manifest weight of the evidence.” (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 111(A)(2).) The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct. Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.

After reviewing the record and the administrative judge’s order, we find the decision reached by the judge and the affirmance by the Commission are not against the manifest weight of the evidence. One’s physical attributes in a labor-related position are as critical and valuable as one’s mental abilities in a professional job.

There was no question that Wylie had a propensity for injury due to a diagnosed weakness in his back. We cannot state from an appellate perspective that the Commission’s decision was “clearly wrong.” (Wanless v. Rothballer (1985), 136 Ill. App. 3d 321, 483 N.E.2d 899.) There was sufficient evidence in the record to support the administrative judge’s order and the Commission’s decision affirming same.

Based on the foregoing, the decision of the Human Rights Commission is affirmed.

Affirmed.

BARRY and STOUDER, JJ., concur.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVE MARTIN, Defendant-Appellant.
    Third District
    No. 3—88—0287
    Opinion filed May 26, 1989.

      Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Masters, State’s Attorney, of Joliet (Vicki L. Seidl, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

A jury found the defendant, Steve Martin, guilty of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(1)). The trial court then sentenced him to 35 years in prison. The defendant appeals. We affirm.

Initially, the defendant contends that his murder conviction must be reversed because the State violated his statutory right to a speedy trial. The defendant was arrested on September 5, 1986, and charged with unlawful possession of a weapon by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1). He was released on September 6, 1986, after posting bond, but failed to appear in court on September 10, 1986. On September 12, the police questioned Bernice Jasurda, who implicated the defendant in the September 8, 1986, murder of James Cox. The defendant was later arrested in Nebraska and returned to Will County on October 7, 1986. The State charged him with murdering Cox.

On October 28, 1986, the defendant filed a written demand for a speedy trial on the murder charge. Indictments were returned November 5, 1986, on both the murder and weapon charges. On January 20, 1987, the date set for trial on the murder charge, the State moved for a continuance because it could not locate Jasurda. The cause was continued until March 23, 1987. On January 27, 1987, the defendant pled guilty to the unlawful possession of a weapon charge and sentencing was set for March 23,1987.

On March 23, the trial court granted the State’s motion to nolpros the pending murder charge. The State was still unable to locate Jasurda and believed it could not carry its burden of proof without her testimony. At that time, final judgment was entered on the weapon charge and the defendant was sentenced to two years in prison.

In October of 1987, Jasurda was located and arrested in Georgia. The State filed a criminal complaint for murder against the defendant on October 26, 1987, and he was arrested on the murder charge on October 28. At the time, he was still incarcerated for the weapon conviction.

On November 23, 1987, the State filed an information charging the defendant with murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(1)) and felony murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(3), 18— 2(a)). The defendant’s trial commenced on March 2, 1988. At the close of the State’s case, the trial court granted the defendant’s motion for a directed verdict of acquittal on the felony murder charge. The jury subsequently found the defendant guilty of the remaining murder charge.

When a person is in custody with more than one charge pending against him in the same county, he must be tried or adjudicated guilty upon one of the charges within 120 days and tried on the remaining charges within 160 days from the date on which judgment on the first charge was entered. (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5.) Normally, a motion by the State to nol-pros a case will toll the statutory speedy trial period, as the nolle prosequi procedure terminates the pending charge against the defendant and requires the institution by the State of a new proceeding in order to prosecute the dismissed offense. (People v. Dace (1988), 171 Ill. App. 3d 271; People v. Stinnett (1988), 166 Ill. App. 3d 1027, 520 N.E.2d 1204.) Since the speedy trial period runs only when a charge is pending against the defendant, the time period between the granting of a motion to nolpros and the reinstitution of charges does not count toward the statutory term. People v. Sanders (1980), 86 Ill. App. 3d 457, 407 N.E.2d 951.

In the instant case, the State moved to nol-pros the murder charge on the day final judgment was entered on the defendant’s weapon charge. The defendant was charged by a new criminal complaint on October 26, 1987, and his trial commenced on March 2, 1988. Since no charge was pending against the defendant from March 23, 1987, to October 26, 1987, this period did not count toward the statutory term. The 160-day term did not begin running until October 26, 1987. The defendant’s trial commenced within 160 days of that date, so his statutory right to a speedy trial was not violated.

We find no merit to the defendant’s claim that the State used the nolle prosequi procedure to evade the requirements of the speedy trial statute. The State’s reason for filing its motion was the unavailability of Bernice Jasurda, its key witness. There is no evidence that the State was attempting to evade the requirements of the statute. See People v. Stinnett (1988), 166 Ill. App. 3d 1027, 520 N.E .2d 1204.

The defendant cites People v. Newell (1980), 83 Ill. App. 3d 133, 403 N.E.2d 775, in support of his contention that his statutory right to a speedy trial was violated. We find Newell distinguishable on its facts and not applicable to the present case. In Newell, a criminal complaint filed against the defendant was dismissed on the State’s motion. Later the State moved to reinstate the complaint. The trial court crossed out the original dismissal order on the docket sheet and reset the case for trial. The defendant then filed a motion to dismiss the complaint on the ground of double jeopardy. The trial court granted the defendant’s motion. The State took no appeal from this dismissal order, but rather indicted the defendant based on the same act alleged in the complaint. This court affirmed the trial court’s dismissal of the indictment. The basis for this court’s decision was the State’s failure to appeal the denial of its motion to reinstate the original complaint. The subsequent indictment was in effect barred by the doctrine of res judicata. (See People v. Creek (1983), 94 Ill. 2d 526, 447 N.E.2d 330.) The facts of the instant case present no issue of double jeopardy or res judicata; therefore, Newell is not applicable.

The defendant next contends that he was not proven guilty beyond a reasonable doubt, because his conviction was based on the uncorroborated testimony of his accomplice, Bernice Jasurda.

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.) The relevant question when presented with a challenge to the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) The credibility of the witnesses and the weight to be given to their testimony are exclusively within the province of the jury. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) The uncorroborated testimony of an accomplice is sufficient to sustain a conviction if such testimony convinces the jury of the defendant’s guilt beyond a reasonable doubt. People v. Newell (1984), 103 Ill. 2d 465, 469 N.E.2d 1375.

Jasurda testified at trial that in the early morning hours of September 8, 1986, she was driving a car with the defendant seated in the front passenger seat and the victim, James Cox, seated in the back. While she was driving, the defendant and Cox got into an argument concerning license plates. The defendant called Cox a snitch and a troublemaker.

During the ensuing argument, the defendant shot Cox twice. Upon hearing the shots, Jasurda nearly went off the road. The defendant slapped Jasurda’s leg and told her to keep driving. Jasurda heard Cox moaning and asking to be lifted. The defendant hit Cox a couple of times and told him to be quiet.

Eventually, they entered Pilture Park in Joliet. The defendant directed Jasurda to a side road in the park. At one point, he told her to stop the car and he got out. He then opened the back door and removed Cox from the car. Cox was still alive at the time. She then heard a third shot and the defendant got back into the car saying, “Let’s go.” They later showered at the defendant’s residence, burned articles of clothing at another park, and spent the remainder of the night at a motel in Morris.

The State also produced a note with the defendant’s fingerprints on it. The note was intercepted while both the defendant and Jasurda were being held before the trial. It asked Jasurda to keep quiet.

The defendant brought out numerous weaknesses and inconsistencies in Jasurda’s testimony and the other evidence presented. The jury was fully cognizant of the infirmities in Jasurda’s testimony. The trial court instructed the jurors to view her testimony with suspicion and to carefully examine it in light of the other evidence presented. The jury chose to believe Jasurda. After reviewing the record and viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

Lastly, the defendant contends that remarks by the prosecutor during closing arguments denied him a fair trial. During arguments, the defendant objected to statements by the prosecutor that stab wounds in Cox’s throat were a message to stoolies and snitches. Since the defendant failed to raise this issue in his motion for a new trial, he has waived the issue on appeal. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

For the reasons stated, the judgment of the circuit court of Will County is affirmed.

Affirmed.

WOMBACHER, P.J., and STOUDER, J., concur.


author: JUSTICE HEIPLE JUSTICE BARRY,

text:
    DONALD FLEMING BROCK, JR., et al., Plaintiffs-Appellants, v. ROCKRIDGE COMMUNITY UNIT DISTRICT NO. 300, COUNTY OF ROCK ISLAND, et al., Defendants-Appellees (Craig Frederick, Defendant).
    Third District
    No. 3—88—0281
    Opinion filed May 24, 1989.

      BARRY, J., specially concurring.
    G. Trent Marquis, of Klockau, McCarthy, Ellison & Marquis, P.C., of Rock Island, for appellants.
    Robert T. Park, of Rock Island, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

Donald E Brock III (Donald) sustained injuries while participating in a game of touch football during a supervised physical education class. Donald was injured when a fellow student, who was also participating in the game of touch football, stepped into an uneven portion of the school playing field, lost his balance, and fell into him. Donald, along with his parents, brought suit against the Rockridge Community District and the Rock Island Community Board of Education for the injuries sustained.

The original complaint alleged three specific instances of negligence on the part of the defendants: (1) failure to keep the playing field in a reasonably safe condition; (2) negligently requiring students to use an unreasonably dangerous playing field; and (3) failure to warn of the dangerous contours of the playing field. The original complaint was dismissed by the trial court based on section 24 — 24 of the Illinois School Code (Ill. Rev. Stat. 1985, ch. 122, par. 24 — 24). The trial court, however, granted the plaintiffs leave to amend. The plaintiffs then filed a first amended complaint which reduced the allegations of negligence to a failure to keep the premises in a reasonably safe condition and a failure to warn of the dangerous conditions. The trial court then dismissed with prejudice the first amended complaint for failure to state a cause of action and pursuant to section 24 — 24 (Ill. Rev. Stat. 1985, ch. 122, par. 24 — 24). The plaintiffs appeal both the dismissal of the original complaint and the dismissal of the first amended complaint.

On appeal the plaintiffs contend that the original complaint successfully stated a negligence cause of action based on the theory of defective equipment. We find such theory to be inapplicable to the facts of this case. The plaintiffs further argue that the first amended complaint successfully stated a negligence cause of action under the theory of premises liability. We find that the Illinois Supreme Court’s decision in Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705, is authority for not applying a premises liability analysis to the facts of this case. Accordingly, we affirm.

The Illinois School Code, section 24 — 24, provides:

“Teachers and other certified educational employees shall maintain discipline in the schools ***. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.” (Ill. Rev. Stat. 1985, ch. 122, par. 24 — 24.)

The supreme court in Kobylanski held that this statute conferred immunity on teachers and school districts from negligence in the supervision of all activities connected with school programs. (Kobylanski, 63 Ill. 2d at 172.) The Kobylanski court went on to find that the statute provides that teachers stand in loco parentis to students. (Kobylanski, 63 Ill. 2d at 173.) Hence, teachers should not be subjected to any greater liability than parents, who are liable to their children only for wilful and wanton misconduct but not for negligence.

The plaintiffs, in their original complaint, attempt to rely on a narrow exception carved out of the teacher immunity rule set forth in Kobylanski. The plaintiffs assert that their original complaint sets forth a negligence claim based on the theory of defective equipment in accordance with Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323. In Gerrity, the court concluded that the act of furnishing a student a defective football helmet was a function separate and distinct from “the teacher-student relationship in matters relating to the teacher’s personal supervision and control of the conduct or physical movement of a student.” (Gerrity, 71 Ill. 2d at 52.) Thus, the Gerrity court determined that the public policy considerations granting teachers broad latitude and supervision did not apply as forcefully to the furnishing of equipment.

The plaintiffs’ reliance on Gerrity is misplaced. The only cases in which the supreme court has limited the immunity of Kobylanski have concerned the furnishing of proper football helmets and face masks. No cases have concerned allegations of inadequate or unsafe playing fields. In the instant case, it was the physical education teacher’s decision to play touch football on the school field. This kind of supervision of classroom activities is not a separate and distinct function from the teacher-student relationship as stated in Gerrity. Thus, playing touch football on a school field during physical education class falls under the purview of the immunity granted in section 24 — 24 of the School Code. Moreover, the plaintiffs’ original complaint alleges nothing about defective equipment. Consequently, the Gerrity exception does not apply and the trial court correctly dismissed the plaintiffs’ original complaint.

The plaintiffs next allege that their first amended complaint stated a negligence cause of action under the theory of premises liability. The plaintiffs rely heavily on the recent case of Prest v. Sparta Community Unit School District No. 140 (1987), 157 Ill. App. 3d 569, to support its position. In Prest, the appellate court reversed the dismissal of a personal injury action against a school district where the plaintiff fell against a concrete riser in the boys’ gymnasium. The plaintiff in Prest alleged that the defendant was negligent in maintaining the unprotected concrete riser in the front row of the bleachers, near gym participants, and failing to pad or otherwise protect it. The court found that the complaint was based on landowner’s premises liability and that the statutory immunity of the School Code did not apply.

The trial court below expressly refused to apply Prest to the case at hand. Since the supreme court’s decision in Kobylanski is authority for nonliability in situations like the instant case, we also decline to follow Prest. In Kobylanski, a student was injured in a supervised gymnasium activity when she fell while trying to perform an exercise on steel rings. The court found that both the steel rings and the gymnasium floor to which the plaintiff fell were part of the school premises. Nevertheless, the court dismissed the suit because the alleged negligence related to instructional activities which were part of the regular school program. (Kobylanski, 63 Ill. 2d at 172.) Thus, the Kobylanski court found that section 24 — 24 of the School Code provided immunity to the school board.

Similarly, in the case at bar, Donald was injured while playing touch football on a school playing field dining a supervised physical education class. The factual situations presented by Kobylanski and the instant case are indistinguishable. Both activities were being supervised by teachers and both activities were being performed on school premises. Consequently, section 24 — 24 of the School Code, as interpreted by the supreme court in KobylansM, provides immunity to the defendants in the instant case. For the reasons stated, we affirm the trial court’s dismissal of both the plaintiffs’ original complaint and the first amended complaint.

Affirmed.

STOUDER, J., concurs.

JUSTICE BARRY,

specially concurring:

I agree that the dismissal orders of the trial court should be affirmed, but I do not agree that Prest v. Sparta Community Unit School District No. 140 (1987), 157 Ill. App. 3d 569, 510 N.E.2d 595, should be repudiated in the process.

I would hold the decision in Prest to be controlling as to whether a cause of action grounded on premises liability should be recognized here. In Prest, a student was seriously injured when he fell against a concrete riser adjacent to the gymnasium floor where he was participating in a physical education class. Section 24 — 24 of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 24 — 24) grants teachers immunity from liability as to those “matters relating to the discipline in and conduct of the schools and the school children.” The court in Prest quite properly held that the duty of providing reasonably safe premises for school programs and activities was a separate and different function from the functions concerning discipline, supervision, and instruction where statutory immunity has been held to attach.

Further, the supreme court of Illinois in Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323, held that section 24 — 24 is limited to negligence arising out of the teacher-student relationship in matters relating to the teacher’s personal supervision and control of students. Gerrity involved allegations that defendant had furnished an inadequate, ill-fitting, and defective football helmet to a student who, as a result, suffered a serious injury during a varsity football game. The court ruled that immunity did not attach and stated:

“[Pjublic policy considerations argue rather strongly against any interpretation which would relax a school district’s obligation to insure that equipment provided for students in connection with activities of this type is fit for the purpose. To hold school districts to the duty of ordinary care in such matters would not be unduly burdensome, nor does it appear to us to be inconsistent with the intended purposes of sections 24 — 24 and 34 — 84a of the School Code.” (71 Ill. 2d at 52-53, 373 N.E.2d at 1326.)

The majority in the case at bar would distinguish the furnishing of sports equipment from the furnishing of sports premises, but like the court in Prest, I would not do so.

I also cannot agree that Kobylanski v. Chicago Board of Education (1976), 62 Ill. 2d 165, 347 N.E.2d 705, is authority for not recognizing premises liability in the case before us. There were no allegations of unsafe premises or equipment in Kobylanski, but rather the cause of action was predicated upon negligent failure to instruct and supervise physical education students in gymnastic exercises to be performed upon the trampoline and rings. Thus, Kobylanski involved allegations of negligence arising out the teacher-student relationship, and, as held in Gerrity, section 24 — 24 clearly applies to such situations.

Although I am persuaded that a cause of action for premises liability does exist in school injury cases, I would hold that neither the complaint nor the amended complaint alleged a valid cause of action in this case. The negligence alleged was the failure to keep the field used by physical education classes “in a reasonably safe condition, free from dangerous conditions due to dangerous contours.” Such conclusory allegations are insufficient to state a cause of action. Therefore, I agree that this cause should have been dismissed.


author: JUSTICE BARRY

text:
      In re BLANCH (BEA) WALTERS, Asserted to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Blanch (Bea) Walters, Respondent-Appellant).
    Third District
    No. 3—88—0609
    Opinion filed May 24, 1989.

      Cynthia Z. Tracy, of Guardianship & Advocacy Commission, of Peoria, for appellant.
    John A. Barra, State’s Attorney, of Peoria (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Respondent Blanch (Bea) Walters appeals from an order of the circuit court of Peoria County for her involuntary admission and hospitalization in the Department of Mental Health and Developmental Disabilities for a period not to exceed 60 days. Respondent cites several procedural deficiencies in the petition for involuntary admission and supporting certificates, and contends that she was deprived of her right to counsel, that the trial court failed to consider treatment alternatives, and that the evidence admitted at her hearing failed to support an involuntary admission.

The State responds to respondent’s arguments and urges that the appeal be dismissed as moot because the period of this commitment, which began in September 1988, expired in November and respondent had previously been committed on an involuntary basis. We reject the State’s position.

The mootness doctrine is not applicable to mental health cases as a general rule (In re Wathan (1982), 104 Ill. App. 3d 64, 65, 432 N.E.2d 670, 671, citing In re Garcia (1978), 59 Ill. App. 3d 500, 375 N.E.2d 557), but has been applied where a subsequent voluntary admission “eliminate[s] any possibility of future adverse collateral legal consequences.” (In re Wathan, 104 Ill. App. 3d at 66, 432 N.E.2d at 672.) In oral argument, counsel for respondent admitted that respondent had been readmitted subsequent to her discharge for the hospitalization here on appeal; however, it does not appear that the latter admission was voluntary. Consequently, for reasons set forth in In re Riviere (1989), 183 Ill. App. 3d 456 (decided this date), we decline to dispose of this appeal on the ground of mootness.

On the merits, we find several instances of procedural abuses, but we are particularly disturbed by the trampling of respondent’s statutory right to counsel. The record discloses that respondent was removed from her residence at Moon Towers and taken by police to the Spoon River Mental Health Center on August 30, 1988. That same day, she was examined by qualified examiner Paul Amstitz, who diagnosed her as “a person who is mentally ill and who because of her illness is unable to provide for her basic physical needs so as to guard herself from serious harm.” Amstitz failed to indicate the time and place of his examination and did not certify that he explained to respondent that she did not have to speak to him and that her statements might be related in court at a subsequent hearing. Respondent was admitted to Zeller Zone Mental Health Center (Zeller). On August 31, a court order was entered setting respondent’s hearing for September 7. At 4:15 that afternoon, Zeller staff physician Marie Aranas examined respondent and determined that she was “a person who is mentally ill and because of her illness is reasonably expected to inflict serious physical harm upon herself or another in the near future.” Aranas certified that she explained respondent’s right not to speak to her. The record shows that respondent was served with notice of the September 7 hearing on September 1. Respondent was advised to telephone Assistant State’s Attorney David Kenny if she had additional information to present at her hearing.

At the onset of the hearing, respondent complained that she had telephoned the number provided on her notice and asked to speak with Mr. Kenny, but was told to call the public defender instead. Later, she was told to call the Guardianship Advocacy Commission. Respondent complied and next spoke with staff attorney Cynthia Tracy, who again referred her to the public defender’s office. According to respondent, she reached assistant public defender John Riddle by telephone the day before the hearing, but he refused to discuss her case because he had not been appointed to represent her. At the conclusion of respondent’s discourse, the court appointed Riddle to represent respondent, and the matter was heard.

Section 3 — 805 of the Mental Health and Developmental Disabilities Code (Code) provides:

“Every respondent alleged to be subject to involuntary admission shall be represented by counsel. If the respondent is indigent or an appearance has not been entered on his behalf at the time the matter is set for hearing, the court shall appoint counsel for him. A hearing shall not proceed when a respondent is not represented by counsel unless, after conferring with counsel, the respondent requests to represent himself and the court is satisfied that the respondent has the capacity to make an informed waiver of his right to counsel. Counsel shall be allowed time for adequate preparation and shall not be prevented from conferring with the respondent at reasonable times nor from making an investigation of the matters in issue and presenting such relevant evidence as he believes is necessary.” (Ill. Rev. Stat. 1987, ch. 911/2, par. 3 — 805.)

Clearly, the legislature intended that, if an attorney is to be appointed, the appointment be made at the time the hearing is set, and not merely at the hearing itself. (In re Elkow (1988), 167 Ill. App. 3d 187, 521 N.E.2d 290.) The procedure followed here provides no meaningful opportunity to afford the respondent competent legal representation. As indicated in Elkow, such procedure breeds claims of ineffective assistance of counsel.

It is readily apparent from the record and the circumstances before us that attorney Riddle was unprepared to explore numerous prehearing procedural deficiencies brought to our attention in this appeal or to suggest alternative placement for his client. Where, as here, respondent affirmatively establishes that she desired to confer with counsel, but was denied that opportunity, we will not find that the failure to comply with section 3 — 805 is harmless error. Because we hold that the court’s untimely appointment of counsel for respondent is reversible error, we do not reach respondent’s other claims of error.

Unfortunately, a reversal of the court’s order in this case may prove a hollow victory for the respondent. As earlier indicated, respondent has been released and readmitted to Zeller. Remandment under the circumstances would be pointless. (See In re Williams (1986), 140 Ill. App. 3d 708, 489 N.E.2d 347; In re Riviere (1989), 183 Ill. App. 3d 456 (decided this date).) Until the legislature chooses to fashion appropriate sanctions for statutory abuses in this area, we can only hope to send a message of our disapproval to the legal and legislative communities.

Reversed.

SCOTT and STOUDER, JJ., concur.


text:
      In re BETTY V. RIVIERE, Asserted to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Betty V. Riviere, Respondent-Appellant).
    Third District
    No. 3—88—0550
    Opinion filed May 24, 1989.

      Guardianship & Advocacy Commission, of Peoria, and Jeff Plesko, of Legal Advocacy Service, of Carbondale (Cynthia Z. Tracy, of counsel), for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Terry Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Respondent Betty Riviere appeals from an order of the circuit court of Peoria County directing her involuntary admission and hospitalization in the Department of Mental Health and Developmental Disabilities.

On August 3, 1988, respondent caused a disturbance in the Peoria County courthouse when she attempted to see the chief judge about her need for an attorney. She was arrested and taken to the county jail, where emergency medical personnel were called, and it was determined that she appeared to be mentally ill. She was admitted on an emergency basis at the Zeller Mental Health Center, and a petition for involuntary admission was prepared and dated August 3. Certificates of two staff physicians at Zeller accompanied the petition, both indicating that respondent was examined on August 3 and that she was mentally ill and because of her illness was reasonably expected to inflict serious physical harm upon herself or another in the near future.

The petition and the two certificates were not filed in the circuit court until August 5, and on that same date the matter was set for hearing on August 10. Service of petition is not shown in the record, but the record indicates that a notice of hearing was served upon the respondent at Zeller on August 8.

Respondent appeared at the hearing on August 10. She requested an attorney, and the assistant public defender was appointed and given time to confer with her.

Dr. Athena Guzman, the treating physician, was called to testify to respondent’s condition. She diagnosed respondent as bipolar disorder, manic, with some psychotic features. Dr. Guzman testified that, on the basis of respondent’s behavior at the time of her arrest and admission, she believed respondent would resort to the same kind of conduct if released and that she was likely to inflict serious physical harm upon others.

During the hearing respondent frequently interrupted the proceedings, prompting numerous warnings. She took the witness stand and was permitted to describe her efforts to secure patents on certain toys, her inability to support herself, her encounters with various governmental agencies, and other irrelevant matters. She repeatedly asserted that she was not mentally ill and would not take any medicine given to her at Zeller. At the conclusion of the hearing, the court ordered respondent hospitalized for up to 60 days. She then began shouting and swearing and walked out of the courtroom.

Before oral arguments, the State filed a motion to take judicial notice and to dismiss the appeal, requesting that this court take judicial notice of certain documents filed in another cause pending in this court involving respondent. Cause No. 3 — 88—0732 involved an appeal by Betty Riviere from a subsequent involuntary commitment. The attorney representing respondent had filed a motion to withdraw and to dismiss that appeal on the ground that no reversible error occurred in that proceeding. The State contends that the instant appeal is moot since respondent is now hospitalized under a subsequent order of commitment which she admits is valid.

Prior to oral argument, we denied the State’s motion. During the course of oral argument, counsel for respondent admitted in open court that respondent was subsequently hospitalized pursuant to a valid commitment order. We believe that the State’s motion was improvidently denied and should have been taken with the case. We therefore vacate our order of denial and consider here the merits of that motion.

The State relies upon In re Wathan (1982), 104 Ill. App. 3d 64, 432 N.E.2d 670, where, pending appeal from an involuntary commitment, the respondent applied for a voluntary admission to the mental health center to which he had previously been involuntarily committed. The reviewing court held that the appeal from the involuntary commitment order was moot since respondent’s voluntary admission merely confirmed the trial court’s finding that he was in need of treatment for mental illness.

In the instant cause, the second commitment is involuntary, not voluntary as in In re Wathan, so we do not have an admission by respondent that she is in need of treatment for mental illness. At most, we have appellate counsel admitting that the State was able to prove that respondent was in need of treatment at a later date. Furthermore, since this is the first of two consecutive commitments, the possibility of collateral legal consequences would bar the application of the mootness doctrine. (In re Meek (1985), 131 Ill. App. 3d 742, 476 N.E.2d 65.) We, therefore, deny the motion to dismiss this appeal on the ground of mootness.

As to the other part of the State’s motion, we grant the motion to take judicial notice of the subsequent commitment order and the dismissal of the appeal from that order. This court has previously commented upon the problems associated with “overlapping” commitment proceedings. (In re Williams (1986), 140 Ill. App. 3d 708, 489 N.E.2d 347.) To ignore the subsequent proceedings in such cases would be to try to resolve important questions involving personal liberty issues in a sort of factual vacuum. We prefer to know where we are insofar as possible.

Respondent first contends that error occurred when the petition for involuntary commitment was filed 48 hours after her admission to Zeller rather than the statutorily mandated 24 hours and when the record failed to indicate that she was served with a copy of the petition within 12 hours of admission as required by the Mental Health and Developmental Disabilities Code (Mental Health Code) (Ill. Rev. Stat. 1987, ch. 911/2, pars. 3 — 609, 3 — 611). She is correct. The petition recites that she was admitted on August 3, but it was not filed until August 5. Failure to file the petition in a timely manner is reversible error. (In re Elkow (1988), 167 Ill. App. 3d 187, 521 N.E.2d 290.) Similarly, the absence of proof of service of the petition within 12 hours of admission is error. In re Elkow (1988), 167 Ill. App. 3d 187, 521 N.E.2d 290.

The State responds that respondent waived these errors by not raising them in the trial court. She appeared at the hearing, was represented by counsel, and participated in the proceedings without objecting to the jurisdiction of the trial court. In most cases, the courts would consider any error as to filing and service procedures to be waived by such activity. (E.g., In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501.) However, in cases involving involuntary commitment, Illinois courts have recognized “a doctrine analogous to the plain error doctrine,” and have considered on appeal issues that are readily apparent in the record though not brought to the attention of the trial court. (E.g., In re Stone (1989), 178 Ill. App. 3d 1084; In re Plank (1988), 169 Ill. App. 3d 411, 523 N.E.2d 614.) Following our decision in In re Stone, we hold that the procedural errors here concerning the late filing and failure to record service of the petition may be considered upon appeal. The commitment order must be reversed.

Having reversed the order on those grounds, we need not consider the other issues raised by respondent.

As indicated above, respondent was subsequently committed involuntarily to Zeller for treatment pursuant to a separate petition alleging different grounds. Consequently, to remand this cause for additional proceedings would be meaningless. See In re Williams (1986), 140 Ill. App. 3d 708, 498 N.E.2d 347.

We want to make clear, however, that we do not condone disregard for the statutory requirements which protect the rights of persons subjected to the involuntary admission process. Illinois courts have said that compliance with the procedural safeguards of the Mental Health Code is essential since liberty interests are involved. (E.g., In re Satterlee (1986), 148 Ill. App. 3d 84, 499 N.E.2d 101.) Nonetheless, until such time as the legislature sees fit to provide a meaningful remedy in cases such as this one, a reviewing court can only reverse.

Reversed.

WOMBACHER, P.J., and STOUDER, J., concur.


author: JUSTICE JOHNSON

text:
    CHARLES LIKENS, Indiv. and on behalf of a class of persons similarly situated, Plaintiff-Appellee, v. INLAND REAL ESTATE CORPORATION, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—3220
    Opinion filed March 9, 1989.
    Rehearing denied June 19, 1989.

      Richard J. Brennan and John M. O’Malley, both of Winston & Strawn, of Chicago, for appellant.
    Hall Triplett, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

This is an appeal from that portion of the summary judgment order of the circuit court of Cook County holding that a provision in a lease that allowed defendant, Inland Real Estate Corporation, to retain money deposited by plaintiff, Charles Likens, is unenforceable as a penalty. The sole issue presented for review is whether an agreement between the parties that provided defendant the right to retain plaintiff’s deposit in certain circumstances is enforceable as liquidated damages or is unenforceable because it is a penalty.

We reverse.

On August 11, 1984, plaintiff gave defendant $359 along with his application to lease the apartment in question. The lease was to run slightly less than one year for the first year. Only one year prior to his submittal of this application, plaintiff had completed the same application form to rent another apartment from defendant. The following provision was contained in both applications:

“I also agree that if I am accepted and fail to complete this transaction by signing your lease, my entire deposit will be for-felted to you. I understand that this application is subject to your approval, and if my application is not accepted, my deposit will be returned in full.”

After plaintiff’s first application was approved, he entered into a one-year lease with defendant which started October 1, 1983, and ran through September 30, 1984. Plaintiff’s second application was approved August 14, 1984. He was scheduled to move into the new apartment on October 13, 1984.

On October 18, 1984, defendant learned that plaintiff did not intend to rent the new apartment. After plaintiff’s refusal to execute the lease or take possession of the apartment, defendant retained the $359 as liquidated damages pursuant to their agreement.

On May 5, 1986, plaintiff filed a five-count complaint against defendant to recover the $359. Plaintiff alleged conversion, breach of implied contract, willful and wanton conduct, and breach of fiduciary duty. In the fifth count, plaintiff requested leave to proceed as a class action.

Defendant then filed a motion for summary judgment on October 15, 1986. On October 16, 1986, plaintiff filed a motion for declaratory judgment or partial summary judgment. Partial summary judgments were granted to both parties. The court held, pursuant to Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, that the parties’ agreement was valid and enforceable. The court also found that defendant was not entitled to retain the $359 as the damages provision was an unenforceable penalty. There was no determination made with respect to the class action issue.

Defendant appeals on the basis that the agreement contained a valid liquidated damages provision which the court should have found enforceable.

As a threshold matter, the trial court found that the application to lease was valid. The court noted that, although these application agreements are standard within the residential leasing field, there is virtually no case law dealing with the enforceability of the damages provisions contained in such agreements.

In finding defendant’s application to be valid, the court cited to Steinberg, which found an application to medical school to be enforceable under basic contract principles. (Steinberg, 69 Ill. 2d at 329-34.) Plaintiff, in the case at bar, reasons that the application in this case is unenforceable since there was no manifestation of mutual assent which would allow the defendant to retain the $359. Plaintiff interprets their agreement as only covering his assent to have defendant appraise plaintiff’s application.

Plaintiff reasons that there can be no contract if there was no mutual assent to defendant’s retention of the $359. If there is no contract there can be no breach and therefore no damages, actual or liquidated. Hence, defendant’s liquidated damages provision is unenforceable.

We are not persuaded that plaintiff only assented to having his application appraised by defendant. A subjective understanding of the parties cannot be interpreted as a lack of mutuality. The conduct of the parties will suffice to show agreement to the terms of the contract. Joseph v. Lake Michigan Mortgage Co. (1982), 106 Ill. App. 3d 988, 992.

Plaintiff’s conduct may be interpreted as a manifestation of his agreement to the terms of the damages provision. He was familiar with defendant’s application process as evidenced by his acceptance and completion of the same application with the same provision the previous year. Further, the record reveals that plaintiff was aware and accepted the fact that his $359 would be retained should he fail to execute the lease and take possession of the apartment. We, therefore, find that there was mutual assent to the provision in question.

Plaintiff next contends that the agreement was invalid since there was no mutuality of obligation. Plaintiff argues that he unilaterally agreed to forfeit his entire $359 should he fail to complete the transaction in question, whereas defendant promised nothing other than to hold plaintiff’s $359. According to plaintiff, defendant was not bound to perform. Defendant’s promises were, in other words, illusory.

Defendant responds to this allegation by pointing out that it is defendant’s policy to reserve a specific apartment for a prospective tenant exclusively while the application is being processed. It argues that it was obliged to and did appraise plaintiff’s application and took the apartment off the market during this appraisal period. Defendant further argues that if plaintiff’s application was declined defendant would be obligated to return plaintiff’s money.

Plaintiff argues that this policy or promise must be express. The fact that defendant’s policy or an express promise to hold a specific apartment is not contained in the agreement is not a prerequisite for a finding of mutuality of obligation. As defendant correctly points out, mutuality of obligation may be either implied or express. Borys v. Josada Builders, Inc. (1982), 110 Ill. App. 3d 29, 32.

Simply because the application did not contain a provision that the lessor will hold a residential space for a prospective lessee does not mean that the lessor is free to act in bad faith by refusing to lease the space should the application be approved. Good-faith dealing is implied in every contract. (Borys, 110 Ill. App. 3d at 33.) Contracts when read as a whole and interpreted in accordance with this good-faith requirement establish mutuality of obligation. Borys, 110 Ill. App. 3d at 33.

Similarly, defendant’s policy of reserving a specific apartment for prospective tenants, although not expressed in the agreement, is sufficient to establish mutuality of obligation.

We will now address the issue of whether the provision in the application is void as a penalty or enforceable as liquidated damages. It has been held that a deposit by a party pursuant to a provision in a contract and a stipulation that the amount deposited shall be retained in the event of default shows an intent to liquidate the damages and will be so enforced unless the provision is in the nature of a penalty. See Joseph v. Lake Michigan Mortgage Co. (1982), 106 Ill. App. 3d 988.

The test for determining whether a liquidated damages provision is valid or void as a penalty is found in section 356 of the Restatement (Second) of Contracts. (Pav-Saver Corp. v. Vasso Corp. (1986), 143 Ill. App. 3d 1013, 1018.) The section provides:

“ ‘Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty.’ [Citation.]” Pav-Saver, 143 Ill. App. 3d at 1018-19, quoting Restatement (Second) of Contracts §356 (1981).

Plaintiff argues that there is a strict bar against retaining security deposits as liquidated damages in residential lease agreements. We disagree.

First, as a matter of clarification, we are not convinced that the money retained is in fact a security deposit. Defendant asserts that it was to be converted into a security deposit after the lease was signed. At oral argument, counsel for defendant stated that it was defendant’s policy not to convert the money retained into a security deposit until after the lease is signed. Counsel also stated that he believed that this was also the policy and practice within the industry.

Second, even assuming, arguendo, that the money is a security deposit, we believe that the enforceability of the provision must still be evaluated. It is well settled that there is no fixed rule pertaining to all agreements — each must be evaluated, to a great extent, by its own particular set of facts and circumstances. Gobble v. Linder (1875), 76 Ill. 157, 159.

As the trial court aptly pointed out, there are literally no cases dealing with the enforceability of damages provisions such as defendant’s, even though these application agreements are used almost universally. The numerous cases plaintiff uses to support his theory that liquidated damages provisions are as a rule not enforceable in these types of agreements are all factually distinguishable from the case at bar. Further, none of plaintiff’s cases states that there is a strict rule barring enforceability of liquidated damages provisions in such agreements.

We are also not persuaded, as defendant suggests, that we should adopt a rule that has been used in real estate sales contracts where earnest money is retained by the seller in the event of default by the buyer. (First National Bank v. Oldenburg (1981), 101 Ill. App. 3d 283, 292.) The better approach is to evaluate the provision under the test established in the Restatement (Second) of Contracts. Pav-Saver, 143 Ill. App. 3d at 1018-19.

Under the test, the agreed-upon amount must be reasonable in light of the anticipated loss and actual damages must be difficult to ascertain. We find that $359, or what would be the equivalent of 8% of one year’s rent, is not unreasonable. Rent was set at $359 per month. The lease was to run for less than one year in plaintiff’s case. Defendant alleges that he kept the apartment off the market for slightly more than two months. Damages in the amount of one month’s rent is certainly not excessive in this case.

We also agree with defendant that at the time the agreement was entered into it would have been difficult to ascertain the length of time it would take to find another suitable tenant in the event plaintiff failed to rent the apartment. We find, therefore, that the liquidated damages provision was enforceable and not void as a penalty.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed.

Reversed.

LINN and McMORROW, JJ., concur.


text:
    BAIRD & WARNER, INC., Plaintiff-Appellee, v. AL-PAR, INC., Defendant-Appellant.
    First District (4th Division)
    No. 1—88—1107
    Opinion filed March 16, 1989.
    Rehearing denied June 19, 1989.

      Gary A. Weintraub, P.C., of Chicago, for appellant.
    Richard F. O’Malley, Jr., and James A. Huttenhower, both of Sidley & Austin, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

This is an appeal by defendant, Al-Par, Inc., from an order of possession entered by the circuit court of Cook County in favor of plaintiff, Baird & Warner, Inc., for the premises located at 5301 South Hyde Park Boulevard in Chicago, Illinois. The sole issue presented for review is whether the trial court erred in finding that plaintiff’s letter demanding strict compliance with the parties’ lease cured any prior waivers with respect to use of the premises.

We affirm.

On November 16, 1982, defendant executed a five-year lease with plaintiff for the premises located at 5301 South Hyde Park Boulevard. Defendant was to use the premises as a “Health and Beauty Aid store.” The lease provided, in pertinent part, the following:

“1. Lessee shall pay Lessor or Lessor’s agent as rent for the Premises the sum stated above, monthly in advance, until termination of this lease, at Lessor’s address stated above or such other address as Lessor may designate in writing.
* * *
4. *** Lessee will not allow the Premises to be used for *** any purpose other than that hereinbefore specified. ***
***
6. Lessee shall keep the Premises and appurtenances thereto in a clean, sightly and healthy condition, and in good repair, all according to the statutes and ordinances in such cases made and provided, and the directions of public officers thereunto duly authorized, all at his own expense ***.
* * *
9. Lessee shall not attach, affix or exhibit or permit to be attached, affixed or exhibited, except by Lessor or his agent, any articles of permanent character or any sign, attached or detached, with any writing or printing thereon, to any window, floor, ceiling, door or wall in any place in or about the Premises, or upon any of the appurtenances thereto, without in each case the written consent of Lessor first had and obtained ***.
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13. *** The acceptance of rent, whether in a single instance or repeatedly, after it falls due, or after knowledge of any breach hereof by lessee, or the giving or making of any demand, whether according to any statutory provision or not, of any act or series of acts except an express written waiver, shall not be construed as a waiver of lessor’s right to act without notice or demand or of any other right hereby given Lessor, or as an election not to proceed under the provisions of this lease.
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19. *** The Lessor may collect and receive any rent due from Lessee, and payment or receipt thereof shall not waive or affect any such notice, demand, suit or judgment, or in any manner whatsoever waive, affect, change, modify or alter any rights or remedies which Lessor may have by virtue hereof.
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21. *** (d) The rights and remedies hereby created are cumulative and the use of one remedy shall not be taken to exclude or waive the right to use another.”

Plaintiff alleges that over the course of almost five years defendant breached the lease by failing to send rent in advance to a specified address in violation of paragraph 1; using the store to sell a myriad of items outside of health and beauty aid products in violation of the use provision in paragraph 4; allowing the premises to deteriorate to the extent that members of the community complained about its unsightly appearance in violation of paragraph 6; and displaying various signs without the prior written consent of plaintiff in violation of paragraph 9.

Gregory McGovern, plaintiff’s property manager, sent a letter to defendant on September 30, 1987, demanding strict compliance with the lease, specifically paragraphs 1, 4, 6, and 9, by November 1, 1987.

On October 14, 1987, in response to McGovern’s letter, defendant’s attorneys sent a letter stating that it would send rent payments to the specified address and that the window signs would be removed. Defendant also stated that it was understood that ancillary items could be sold. Defendant denied that the premises were unsightly. Defendant also refused to remove the exterior window signs, claiming that prior approval had been given. Defendant further asserted that plaintiff waived any objections by virtue of the length of time that it had engaged in the complained of activities without notice of disapproval from plaintiff.

Defendant had not complied with plaintiff’s demands by November 1. Although late and not sent to the specified address in the letter of compliance, McGovern received a check on November 4. On November 6, McGovern visited the premises to determine whether the violations set forth in the compliance letter had been remedied. After finding that defendant had not taken any steps towards compliance, the November rent check was returned and a 10-day notice to quit was served on defendant.

On November 17, McGovern reported that defendant had not vacated the premises. At that time, a videotape was taken of the exterior of the store which showed that some of the signs were still in place. Further, various items of merchandise were visible in the store’s window, giving it a cluttered appearance.

McGovern further reported that both the interior and exterior of the premises remained in the same unsightly condition. Items, he noted, that were not health and beauty aid related, e.g., motor oil, lottery tickets, charcoal, groceries, household cleaners, electronic equipment, were still being sold.

Plaintiff filed a complaint for possession of the premises on November 18, alleging that defendant was in breach of paragraphs 1, 4, 6, and 9 of the lease.

Trial was held February 3, 1988. On February 9, final arguments were heard. The trial court found for defendant with respect to violation of the rent provision in paragraph 1. On March 25, the trial court entered an order in favor of plaintiff for possession of the premises. On July 12, the trial court issued a memorandum of findings nunc pro tunc. There were no written findings with respect to the unapproved signs.

The trial court found that although there appeared to be tacit waiver, for almost five years, of the use provision, plaintiff’s letter demanding strict compliance negated the waiver. The court noted that there was no real attempt at compliance with the use provision. The court pointed out that paragraphs 13, 19, and 21(d) in the lease provided that waivers by the lessor were not continuous and may be negated by a demand for strict compliance, such as the letter plaintiff sent defendant.

Based on videotapes and witness testimony presented by both parties, the trial court also found that defendant failed to comply with the lease requirement that the premises be maintained in a clean, sightly and healthy condition. There was no compliance even after the demand for strict compliance had been made. This factual issue was, therefore, resolved in plaintiff’s favor.

An appellate court takes a deferential approach to findings made in the trial court on disputed factual issues, but the scope of review on questions of law is independent, not deferential. (Havens v. Miller (1981), 102 Ill. App. 3d 558, 567.) The trial court is in a better position to determine the credibility of witnesses. (Nemeth v. Banhalmi (1984), 125 Ill. App. 3d 938, 962.) The reviewing court will not substitute its judgment for that of the trial court unless an opposite conclusion is against the manifest weight of evidence. S & D Service, Inc. v. 915-925 W. Schubert Condominium Association (1985), 132 Ill. App. 3d 1019, 1021.

We do not find that the court’s decision was against the manifest weight of evidence. The trial court looked at each party’s videotapes and heard testimony of witnesses presented by both parties. We find that there was sufficient evidence to support the trial court’s decision with respect to the cleanliness issue.

The question of law presented for review by this court is whether the trial court erred in finding that plaintiff’s letter demanding strict compliance with the lease cured any prior waivers with respect to use of the premises.

The purpose of the lease was limited to a health and beauty aid store. Paragraph 4 provides that the lessee will not allow the premises to be used for any other purpose. Defendant contends that there was no breach since health and beauty aid stores would sell the various miscellaneous items sold on its premises. Defendant asserts that, from the outset of the lease, these various and sundry items have been sold.

The evidence reveals that defendant sold such items as radios, motor oil, circuit testers, paint brushes, cigarette papers, magazines, lottery tickets, pliers, frozen and canned foods, and radial tire repair kits.

The issue for a reviewing court to decide is not what is the common definition of a health and beauty aid store but whether the trial court’s construction of the term in the lease was reasonable based on a consideration of its provision and language. Belvidere South Towne Center, Inc. v. One Stop Pacemaker, Inc. (1977), 54 Ill. App. 3d 958, 961.

We do not find that the trial court gave an unreasonable interpretation to the provision by finding that these items sold by defendant were beyond the use restrictions in the lease. We do, however, find that plaintiff waived enforcement of the use provision prior to the time that plaintiff sent the letter demanding strict compliance.

A lessor may demand strict compliance at a future date even though it did not do so in the past. (La Salle National Bank v. Helry Corp. (1985), 136 Ill. App. 3d 897, 904.) A landlord may “simply notify the tenant that his actions are not consistent with the lease terms and that further deviations will not be tolerated and will be followed by termination of the lease. [Citations.]” Steven W. Barrick & Associates v. Witz (1986), 147 Ill. App. 3d 615, 620.

In the instant case, a letter of compliance was sent to defendant on September 30, 1987. The letter demanded that defendant cease in selling items that were outside of the use provision by November 1, 1987. The trial court found that the evidence presented was clear that there was no compliance or even attempted compliance by November 1. Termination of the lease, therefore, was appropriate under the circumstances. Barrick & Associates, 147 Ill. App. 3d at 620.

Defendant argues that letters demanding strict compliance are of no legal significance in cases involving violation of use provisions. This is simply wrong. Plaintiff correctly cites to cases where a demand for strict compliance was effective in nullifying previous waivers of use violations in residential leases. See 222 East Chestnut Corp. v. Murphy (1950), 341 Ill. App. 430 (abstract of opinion); Burch v. Hickman (1947), 330 Ill. App. 155 (abstract of opinion).

Next, defendant argues that the test to determine the effectiveness of the waiver is whether the lessor had full knowledge of the lessee’s breach. Okey, Inc. v. American National Bank & Trust Co. (1981), 96 Ill. App. 3d 987, 992-93, is cited by defendant for this proposition. Okey is distinguishable in that there a demand for strict compliance was not made upon the lessee.

Finally, defendant argues that it would be inequitable and create an unfair advantage to allow plaintiff to take possession after 4V2 years into the five-year lease term after it has exercised its option to renew for a second five-year term. We do not agree. The most glaring inequity would be to allow a tenant to sell virtually anything in violation of his' lease. According to defendant, a landlord would have no recourse since demands for compliance would be ineffective with respect to the use provisions.

In appropriate circumstances equity will enjoin forfeiture. (Kanter & Eisenberg v. Madison Associates (1987), 116 Ill. 2d 506.) However, where a tenant’s wilful acts defy compliance, equity will not interpose to grant relief from forfeiture. Justine Realty Co. v. American Can Co. (1983), 119 Ill. App. 3d 582, 589-90; Soltwisch v. Blum (1973), 9 Ill. App. 3d 760, 763-64; Barnard v. Hollingsworth (1948), 336 Ill. App. 228, 232.

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

Affirmed.

LINN and McMORROW, JJ., concur.