author: JUSTICE WHITE

text:
    PETER TORRES, Plaintiff-Appellant, v. AMOCO CORPORATION, Defendant-Appellee.
    First District (3rd Division)
    No. 1—88—0617
    Opinion filed July 12, 1989.

      Steven J. Rosenberg, P.C., of Chicago, for appellant.
    Michael A. Weinbaum, of Chicago, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Peter Torres, appeals from an order of the circuit court of Cook County, Illinois, granting the motion of defendant, Amoco Corporation, to dismiss the complaint. Plaintiff maintains that the complaint states a cause of action for breach of an employment contract and that the circuit court erred in granting the motion to dismiss. We hold that the statements made by defendant were not specific enough to support the formation of a contract, and we affirm the dismissal of the complaint.

The facts alleged in the complaint follow.

Plaintiff was hired by defendant in April 1970. He progressed steadily up the career ladder, each year receiving either highly satisfactory or satisfactory performance reviews. Throughout the course of plaintiff’s employment, defendant made policy statements regarding the conditions of plaintiff’s employment. In addition, in 1985, Ed Cagswell, the manager of the data management department in which plaintiff worked, stated at a lunch meeting that politics would not play any part in personnel decisions.

In 1983, Somchay S. Hamack began working in the data management department. Mrs. Harnack is the wife of one of defendant’s high level managers. Although Mrs. Hamack was unable to perform certain critical tasks, she was offered job opportunities which were not offered to plaintiff. Plaintiff’s job performance was superior to that of Mrs. Harnack.

Beginning in 1986, plaintiff’s supervisor, Gregory Liedtke, began criticizing plaintiff’s job performance, despite the fact that plaintiff’s job performance had remained at the same high level throughout his employment. In February 1987, plaintiff was told that he would have to transfer out of the data management department, whereas Mrs. Hamack would be allowed to remain in the department. On April 6, 1987, plaintiff was transferred to a position as a micromations operator. Plaintiff’s new position is a dead-end position relative to the position he occupied in the data management department.

On June 5, 1987, plaintiff commenced this action for breach of employment contract. Plaintiff claimed that his transfer to the micromations department was in violation of the promises made by defendant that plaintiff’s professional growth and advancement would be determined by his job performance. Plaintiff also claimed that he has lost substantial career opportunities, including pay raises and opportunity for professional advancement.

Opinion

Prior to discussing the sufficiency of the complaint, it will be helpful to discuss the principles that apply to a motion to dismiss. Plaintiff’s complaint was dismissed pursuant to a motion filed under section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). Such a motion admits all well-pleaded facts in the complaint, and they must be taken as true. (Payne v. Mill Race Inn (1987), 152 Ill. App. 3d 269, 273, 504 N.E.2d 193.) Any reasonable inferences that can be drawn from those facts must also be taken as true. (Bolden v. General Accident, Fire & Life Assurance Corp., Ltd. (1983), 119 Ill. App. 3d 263, 266, 456 N.E.2d 306.) However, conclusions of law or conclusions of fact unsupported by allegations of specific fact are not admitted. (Payne, 152 Ill. App. 3d at 273; Yardley v. Yardley (1985), 137 Ill. App. 3d 747, 751, 484 N.E.2d 873.) A complaint is properly dismissed where it appears that no set of facts can be proved which will entitle the plaintiff to relief. (Levitt v. Gorris (1988), 167 Ill. App. 3d 88, 92, 520 N.E.2d 1169.) With these principles in mind, we turn to the merits of the case.

Plaintiff maintains that the statements made by defendant constituted promises that plaintiff’s professional growth and advancement would be determined by his job performance and not by politics. Plaintiff claims that he accepted these promises by continuing to work for defendant. Plaintiff contends that an employment contract was formed upon his acceptance of defendant’s promises, and that defendant breached the contract when plaintiff was transferred to the micromations department while Mrs. Harnack was allowed to remain in the data management department.

Plaintiff relies upon Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314, in support of his cause of action. In Duldulao, the Illinois Supreme Court held:

“[A]n employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.” (Duldulao, 115 Ill. 2d at 490.)

The supreme court was persuaded by the specific language in the policy statements made by the defendant to find a valid contract:

“The amended handbook states that ‘[a]t the end of 90 calendar days since employment the employee becomes a permanent employee and termination contemplated by the hospital cannot oc cur without proper notice and investigation.’ (Emphasis added.) It states that permanent employees ‘are never dismissed without prior written admonitions and/or an investigation that has been properly documented’ (emphasis added), and that ‘three warning notices within a twelve-month period are required before an employee is dismissed, except in the case of immediate dismissal.’ (Emphasis added.)” (Duldulao, 115 Ill. 2d at 490-91.)

The supreme court concluded that the statements created an enforceable right to the particular disciplinary procedures described therein and that the defendant’s failure to provide the plaintiff with the required process violated her contractual rights.

Applying the law as stated in Duldulao to the facts in the present case, we hold that the statements made by defendant did not contain promises “clear enough that an employee would reasonably believe that an offer has been made.” The statements did not detail specific procedures to be followed by defendant in certain situations. Nor did they outline various benefits that were to be conferred upon plaintiff under certain circumstances. The statements were nothing more than general statements of policy regarding the evaluation and advancement of defendant’s employees. As such, the statements did not meet the contractual requirements for an offer. See Kay v. United Technologies Corp. (6th Cir. 1985), 757 F.2d 100, 101 (statement that “maximum effort by each of us in the future is the surest way we can contribute to the company’s continued growth and our own job security” was not a sufficient basis for an employment contract); Ellis v. El Paso Natural Gas Co. (10th Cir. 1985), 754 F.2d 884, 886 (the following statement was too indefinite to constitute a contract: “[t]he Company will maintain a balanced compensation program applicable to all employees clearly relating to the skill, responsibility, experience and knowledge requirements of each position; performance of assigned duties; and competitive pay rates and salary ranges within the industry and operational area for comparable work. The objective of this policy is *** to remunerate all employees in return for the fulfillment of their responsibilities”); Hunt v. IBM Mid America Employees Federal Credit Union (Minn. 1986), 384 N.W.2d 853, 855 (the following language was not specific enough to constitute an offer: “you are the key to our success”; and “in terms of hiring and promotion, our aim is to attract the best people and to encourage their peak development by promoting within according to performance”); Pine River State Bank v. Mettille (Minn. 1983), 333 N.W.2d 622 (employee handbook section entitled “Job Security” was no more than a general statement of policy); Koch v. Illinois Power Co. (1988), 175 Ill. App. 3d 248, 529 N.E.2d 281 (general language of guidelines could not be taken as an offer); McCutcheon v. Chicago Principals Association (1987), 159 Ill. App. 3d 955, 513 N.E.2d 55 (the statement “legal representation from Association attorney” does not have the requisite certainty to impose a duty upon the association to provide the legal representation to which plaintiff alleges she is entitled).

Moreover, we note that one of the memoranda from which plaintiff has excerpted several of the statements which allegedly support his contract theory contains provisions for the transfer of employees from one department to another. The memorandum provides:

“It’s quite possible that, during your career with the company, you will be asked to accept a lateral reassignment, or movement between jobs evaluated at the same level. This may occur to reflect an organizational shift, to allow you to broaden your experience, or because you can best utilize your particular skills in another assignment. Often, a salary change does not occur at the time of a lateral move. A downward reassignment occurs when you are moved to a lower-level job for reasons other than job performance (e.g., reorganizations, reevaluations, etc.). In such a case, your salary won’t be reduced if it is in line with the salaries of other employees at your new level.”

The memorandum clearly provides that plaintiff could be transferred to another department for reasons other than plaintiff’s job performance. Although plaintiff received good evaluations from his employer, plaintiff could not reasonably believe that his employer had contracted not to transfer him to any other department. See Moore v. Illinois Bell Telephone Co. (1987), 155 Ill. App. 3d 781, 508 N.E.2d 519 (it would not be reasonable for an employee to believe that defendant had made an offer in the incentive plan, and so no enforceable contractual rights were created by the plan).

We conclude that the statements made by defendant were not specific enough to support the formation of a contract. We are also of the opinion that plaintiff could not reasonably believe that he would not be transferred to another department. Accordingly, plaintiff has failed to state a cause of action for breach of an employment contract, and plaintiff’s complaint was properly dismissed.

The order of the circuit court of Cook County is affirmed.

Affirmed.

FREEMAN, P.J., and CERDA, J., concur.

       Plaintiff cites the following statements made by defendant:
      "From the point of view of employees, professional growth and advancement are a reward for good performance and the motivation to achieve.”
      “The individual is ultimately responsible for his or her own career.”
      “The ‘Satisfactory’ rating has been redefined to reflect a good, solid employee who is performing at normally expected levels. Consistent with this new definition, solid performers are candidates for promotion.”
      “By evaluating most importantly what our employees have accomplished with regard to their objectives, and further, how they went about accomplishing them, we should be in a position to honestly rate each employee and offer appropriate rewards and continuous feedback and assistance in their development.”

        “Some Fundamental Principles — To reward employees on the basis of how well they perform their job.”
      “ Job Performance — How well you do your job is the final factor in determining how much you earn.”
      “So in sum, whether you are talking about job level or salary treatment, the most important factor affecting your earnings potential is your own job performance.”
      “In overall perspective, Standard Oil’s salary administration program *** treats each employee fairly.”


source: Caselaw Access Project

author: PRESIDING JUSTICE FREEMAN

license: Public Domain

text:
    EKCO GLACO CORPORATION, Petitioner-Appellant, v. THE ENVIRONMENTAL PROTECTION AGENCY et al., Respondents-Appellees.
    First District (3rd Division)
    No. 1—88—0803
    Opinion filed July 12, 1989.

      Gardner, Carton & Douglas, of Chicago (Mary Beth Cyze, Jeffrey C. Fort and James J. DeNapoli, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert Ruiz, Solicitor General, and Michelle D. Jordan, Matthew J. Dunn, and Gerald T. Karr, Assistant Attorneys General, of Chicago, of counsel), for respondents.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Petitioner, Ekco Glaco Corporation (Ekco Glaco), appeals from an order of the Illinois Pollution Control Board (Board) which denied its request for an extension of a previously granted variance from certain Board air pollution control regulations relating to petitioner’s commercial bakery pan coating operations. The Board also denied petitioner’s motion for rehearing. Ekco Glaco filed a petition, in this court, for direct review of the Board’s decision pursuant to section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1987, ch. 111½, par. 1041). Ekco Glaco contends that the following Board findings are contrary to the manifest weight of the evidence: (1) immediate compliance with the Board’s regulations would not impose an arbitrary and unreasonable hardship upon Ekco Glaco; and (2) Ekco Glaco did not have a firm compliance plan and was not committed to achieving compliance.

For the reasons stated below, we affirm the order entered by the Pollution Control Board.

The record indicates that Ekco Glaco manufactures and reconditions commercial bakery pans at a plant located at 1949 North Cicero Avenue in Chicago. The plant employs approximately 300 to 350 people and has an annual payroll of $5.4 million. Annual production of new pans is approximately 1.2 million pans, which comprises approximately 50% of the domestic commercial bakery pan market. Ekco Glaco also exports new bakery pans. Ekco Glaco reconditions approximately 440,000 used bakery pans annually for approximately 35 commercial bakeries located within a 150-mile radius of Chicago. Ekco Glaco’s used pan facility is the only such facility in the area. Used pan reconditioning involves the removal of heavy carbon and grease buildup and subsequent application of a silicone coating. The coating facilitates easy release of bakery products from the pans. Reconditioning can be completed in as few as 24 hours. Sales for the used pan reconditioning operation were $714,000 for 1986. Seventy-five percent of the new pans are coated at the plant, in addition to all of the used pans. The coating process involves the use of solvents which contain volatile organic material (VOM), as defined under 35 Ill. Adm. Code §211.122 (1985). VOM emissions are generated during the coating process and are vented through a stack to the atmosphere.

Board regulations required manufacturing plants to comply by December 31, 1983, with certain limitations on VOM emissions. (35 Ill. Adm. Code §215.211(a)(l) (1985).) Further, a compliance plan was required to be submitted to the Illinois Environmental Protection Agency (Agency) by August 19, 1983. (35 Ill. Adm. Code §215.212(a) (1985).) Section 215.204(jXl) of the Board regulations provides a limitation of 4.3 pounds per gallon of VOM emission for a plant such as petitioner’s. (35 Ill. Adm. Code §215.204(¡X1) (1985).) Alternatively, the plant may utilize one of the following systems in order to comply with Board regulations: (1) an afterburner system, provided that 75% of the emissions from the coating line and 90% of the nonmethane VOM which enter the afterburner are oxidized to carbon dioxide and water; or (2) a system shown to have a control efficiency equivalent to or greater than that provided under section 215.204. 35 Ill. Adm. Code §215.204 (1985).

In March 1983, the Agency initially notified Ekco Glaco’s corporate predecessor, Ekco Products, Inc., that it would be required to comply with relevant VOM limits. Since the original notification, the company has changed from Ekco Products, Inc., to Glaco Corporation to Ekco Glaco Corporation. The corporation initially argued that the Board regulations do not apply to its operations. The company then agreed that the rule limiting emissions does apply to its operations. The company hired consultants, prepared reports, and evaluated alternatives. In March 1985, the company filed its first petition for a variance and decided to install a thermal afterburner system on the bakery pan coating lines. The petition asserted that the company would achieve compliance with section 215.204(j)(l) within one year through a two-phase compliance program. In the first six months, the company would modify the existing process equipment and exhaust systems to provide for adequate capture of VOM emissions for incineration in thermal afterburners. Then the company would conduct a stack test. After the stack test, the second six-month phase, involving actual construction of the afterburners, would begin. The company estimated the total cost of the compliance program to be $250,000. In April 1985, the Agency recommended to the Board that the petition be granted, subject to certain conditions. After a hearing, the board granted a variance from sections 215.204(j)(l) and 215.205 from June 27, 1985, to June 27, 1986.

On June 23, 1986, Ekco Glaco filed a petition to extend the variance for its new pan operation. In its petition, Ekco Glaco asserted that effectuation of its compliance plan was delayed when two of the three contractors who received bid packages for the first phase of the project refused to bid. The third contractor would bid on only a portion of the project. Ekco Glaco then instructed its consultant to attempt to eliminate spray leakage from the spraying machine, one of the major tasks of the first phase of the proposal. In December 1985, after three months, the consultant determined that a total redesign of the machines was necessary, but that redesigning could not be accomplished within the variance compliance schedule. Ekco Glaco rejected a proposal to relocate the new pan spray machine. Two new consultants, SAIC and Richmond Tech-Air (Richmond), evaluated Ekco Glaco’s operations. Richmond visited Ekco Glaco’s plant, measured the exhaust air flow for solvent concentration, and on June 30, 1986, submitted its report to Ekco Glaco.

Ekco Glaco did not propose modifications for its used pan line in its extension petition, since the company decided to take the used pan line out of operation and relocate it by June 1987. In its recommendation, the Agency urged the Board to grant the variance extension, but only until January 1, 1987. The Agency reasoned that if the VOM control equipment on the new pan line could reduce overall VOM emissions by 75%, then plantwide compliance would be made under the Board’s internal offset rule. (35 Ill. Adm. Code §215.207 (1985).) This rule allows a facility to achieve compliance by overcontrolling emissions from one source while excess emissions are produced from another source. On November 20, 1986, the Board granted Ekco Glaco a variance extension to January 1,1987.

On December 19, 1986, Ekco Glaco filed a petition for rehearing of the Board’s November 20, 1986, ruling, and requested that the variance extension be given until February 15, 1987. Ekco Glaco asserted that unforeseen events, including delays in finalizing the purchase of the afterburner unit, precluded the company from complying with the January 1, 1987, deadline. On January 8, 1987, the Board granted Ekco Glaco’s request to extend the variance to February 15,1987.

On February 10, 1987, hydrocarbon testing was performed on the new pan line with the new afterburner system. The test results, compiled in a report of the Almega Corporation dated March 19, 1987, showed that the new control system was not capable of 75% overall VOM emission reduction as required by section 215.205. On April 1, 1987, Ekco Glaco filed another petition for variance extension, seeking until November 1, 1987, to allow it to repair the afterburner and achieve compliance. Ekco Glaco also requested that the variance granted in the original proceeding for the used pan line be extended to April 1, 1988, since the company was unable to achieve compliance regarding the used pan line under the internal offset rule until that time.

At a hearing on August 7, 1987, Wayne Beasley, Ekco Glaco’s manager of manufacturing services, testified that the company’s compliance efforts were directed toward improving the destruction efficiency of the afterburner on the new pan line. The company believed that increasing the destruction efficiency of the afterburner would allow for compliance of the new pan line. Ekco Glaco did not provide a timetable for afterburner improvements, but asserted that compliance would be shown by November 1, 1987. If the contemplated repairs and modifications to the existing afterburner on the new pan line were not successful, the company’s board of directors would then determine what steps should be taken. Beasley admitted that Ekco Glaco had experienced difficulties with the afterburner since 1986. Beasley stated that Ekco Glaco had no reason to believe that the repairs and modifications would not work.

Regarding used pan reglazing operations, Beasley stated that compliance efforts might include shutting down the new pan line, rescheduling production, relocating the used pan, or installing VOM control equipment on the used pan line. Beasley stated, however, that Ekco Glaco did not know why any of these compliance efforts would be completed. Further, calculations were not complete regarding whether the reduction in emissions resulting from operation of the afterburner would offset emissions from the used pan line.

David Powell, regional vice-president of Ekco Glaco, also testified and explained the glazing process operations. In addition, Powell stated that local bakeries benefit from the used pan reglazing facility, particularly from the convenient location and the short turn-around time the company provides for reglazing used pans. Shutting down the plant would result in increased costs for bakeries to obtain reglazing services from other companies and would affect customer prices.

Over Ekco Glaco’s objection, the Board admitted two documents submitted by the Agency which set forth results of 1987 air quality monitoring tests for ozone in Illinois. The Agency asserted that the documents were official Agency documents of which the Board could take official notice under section 103.204(a) of the Board regulations. That section provides that evidence is admissible “which is material, relevant and would be relied upon by reasonably prudent persons in the conduct of serious affairs.” (35 Ill. Adm. Code § 103.204(a) (1985).) The Board admitted the documents for the “sole purpose” of showing that “during 1987 the ambient air quality standard for ozone has been violated frequently, pervasively, and substantially in Northeastern Illinois.”

After the hearing, both parties submitted briefs and the Board then issued its order denying the petition for a further extension of the variance. The Board found that Ekco Glaco’s inability to achieve compliance arose from “the delay caused by decisions it has made in attempting to secure compliance and its failure to commit to a particular compliance option. The Board cannot find that those problems constitute an arbitrary or unreasonable hardship, especially when the potential for environmental harm and lack of a firm compliance plan are considered.” In addition, the Board stated that although Ekco Glaco asserted that its VOM emissions would not cause a significant adverse impact upon air quality, the number of hydrocarbon sources in northern Illinois that contribute to the ozone problem is large. The Board concluded that Ekco Glaco is a source of hydrocarbons which, “to an unquantified degree,” contributes to the violations of ambient air quality standards for ozone in northern Illinois.

The Board also found that Ekco Glaco lacked a firm compliance plan. With regard to the new pan line, Ekco Glaco showed no alternative plan if repairs and modifications to the afterburner were not suecessful. The compliance plan for the used pan line was “even more uncertain,” and might include the use of emission offsets, relocating the used pan line, or adding on additional controls. Further, Ekco Glaco could not provide a schedule by which the proposals for the used pan line would be implemented. In summary, the Board stated that Ekco Glaco lacked diligence in pursuing compliance. The Board found that any hardship in complying with the 1983 regulations was “largely self-imposed, in that it results from prior business decisions.” The Board noted the four-year delay in Ekco Glaco’s compliance with the regulations.

Initially, on appeal, Ekco Glaco contends that the Board’s finding that immediate compliance with Board regulations would not impose an arbitrary and unreasonable hardship upon Ekco Glaco is contrary to the manifest weight of the evidence. Section 35(a) of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1987, ch. 111½, par. 1035(a)) provides that, “[t]o the extent consistent with applicable provisions of the *** Clean Air Act,” the Board may grant individual variances where it is shown that “compliance with any rule or regulation, requirement or order of the Board would impose an arbitrary or unreasonable hardship.” The petitioner has the burden of proving arbitrary and unreasonable hardship. (Ill. Rev. Stat. 1987, ch. 111½, par. 1037; see Philipsborn Equities, Inc. v. Pollution Control Board (1981), 94 Ill. App. 3d 1055, 419 N.E.2d 470.) The Agency is required to investigate the petition, consider the views of persons who would be adversely affected by the grant of a variance, and recommend a disposition of the petition. (Ill. Rev. Stat. 1987, ch. 111½, par. 1037; see City of Mendota v. Pollution Control Board (1987), 161 Ill. App. 3d 203, 514 N.E.2d 218.) Ekco Glaco also cites section 36(b) of the Environmental Protection Act for the proposition that an extension may be granted where “satisfactory progress” toward compliance is shown. Ill. Rev. Stat. 1987, ch. 111½, par. 1036(b).

The Board’s findings on questions of fact are considered prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110; Philipsborn Equities, Inc., 94 Ill. App. 3d at 1057.) On appeal, this court is limited to a determination of whether there is sufficient evidence to support the Board’s decision, and that decision may not be reversed unless contrary to the manifest weight of the evidence. (Philipsborn Equities, Inc., 94 Ill. App. 3d at 1057.) A decision is against the manifest weight of the evidence only if opposite conclusions are “clearly evident.” (Ballin Drugs, Inc. v. Department of Registration & Education (1988), 166 Ill. App. 3d 520, 530, 519 N.E.2d 1151.) That a court of review might find an opposite conclusion reasonable is not sufficient to overturn a Board decision. Philipsborn Equities, Inc., 94 Ill. App. 3d at 1057.

Ekco Glaco asserts that denial of the extension petition would lead to a shutdown of its new pan and used pan facilities, which would adversely impact Ekco Glaco and its local customers, who rely on Ekco Glaco’s quality glazing product and short turn-around time. Ekco Glaco also asserts that its VOM emissions would not cause an adverse impact upon air quality. Ekco Glaco notes that in its opinion granting the original variance relief, the Board found that Ekco Glaco contributed less than .02% of Cook County’s total VOM levels, and that such contribution to VOM emissions was minor and would cause minimal environmental impact. Ekco Glaco also asserts that between 1984 and 1986, the ozone monitor closest to Ekco Glaco’s plant did not record any “exceedances.” Ekco Glaco asserts that ozone violations recorded in the two Agency documents often occurred on weekends, when Ekco Glaco’s plant was not in operation. Further, the Agency’s report concluded that it is not possible to distinguish adequately an individual VOM source impact on the regional air quality.

In granting or denying a petition for a variance, the Board must balance individual hardship against environmental impact. (Monsanto Co. v. Pollution Control Board (1977), 67 Ill. 2d 276, 367 N.E.2d 684; City of Mendota v. Pollution Control Board (1987), 161 Ill. App. 3d 203, 514 N.E.2d 218.) The Board concluded that any individual hardship upon Ekco Glaco was outweighed by the environmental impact, which had occurred over several years of noncompliance by Ekco Glaco. The Agency stated that it was not possible to measure with accuracy the impact of any single emissions source on the environment. However, the Board found that Ekco Glaco was a source of hydrocarbon emissions into the air, and as such, contributed to violations of the ambient air standards. This evidence supports the Board’s decision. Further, in view of the other considerations made by the Board, particularly regarding the delays resulting from the decisions made by Ekco Glaco and the company’s continued failure to achieve compliance, we cannot find that the Board’s conclusion was contrary to the weight of the evidence.

Ekco Glaco asserts that the two Agency documents were improperly admitted and considered by the Board. Ekco Glaco asserts that one document is a computer printout listing “exceedances” on certain dates in the Chicago area. The second document is an internal memorandum of the Agency recording certain ozone “exceedances.” Ekco Glaco contends that the Agency documents are unauthenticated, since they are not original documents, do not contain an official seal, and no witnesses were called to verify their authenticity. Ekco Glaco cites the Seventh Circuit case of Powers v. Dole (7th Cir. 1986), 782 F.2d 689, for the proposition that a court cannot take judicial notice of an unauthenticated government record.

Section 12(c) of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1987, ch. 127, par. 1012(c)) provides that in a proceeding before an administrative agency:

“Notice may be taken of matters of which the Circuit Courts of this State may take judicial notice. In addition, notice may be taken of generally recognized technical or scientific facts within the agency’s specialized knowledge.” (Ill. Rev. Stat. 1987, ch. 127, par. 1012(c).)

(See also Ill. Rev. Stat. 1987, ch. 127, par. 1003.01.) We find that the statute allows for the Board to take official notice of the documents submitted by the Agency, since the documents contain “generally recognized technical or scientific facts within the agency’s specialized knowledge.” Further, the Act permits an administrative agency to take official notice of facts which are properly disclosed and put upon the record, and where the other party has an opportunity to be heard regarding the propriety of taking notice of the facts. (Caterpillar Tractor Co. v. Illinois Pollution Control Board (1977), 48 Ill. App. 3d 655, 363 N.E.2d 419.) In the instant case, Ekco Glaco had an opportunity to rebut the facts contained in the documents submitted by the Agency. Ekco Glaco never contested the truth of the information contained in the documents. Further, the Board admitted the documents for the sole purpose of showing violations generally of ambient air quality standards in northeastern Illinois. Since we have found that the documents were properly admitted pursuant to the Administrative Procedure Act, we need not address Ekco Glaco’s further assertion that a proper foundation was not laid to admit the documents as business records.

Ekco Glaco also contends that the record fails to show that its hardship was self-imposed, and that, in any event, the question of whether a hardship is self-imposed is only one of many relevant factors in determining whether a variance should be granted. The record indicates, however, that the Board considered the required factors (see 35 Ill. Adm. Code §104.121 (1985)), including a description of the petitioner’s business operations, materials used and discharged, areas affected by the operations, and Ekco Glaco’s proposed methods of control in order to achieve compliance with regulations.

Further, Ekco Glaco asserts that the Board failed to criticize the compliance plan or individual decisions made by Ekco Glaco, but rather was critical of noncompliance within a certain time that the Board believed was acceptable. Ekco Glaco asserts that decisions to achieve compliance generally are “business decisions,” in that they involve the expenditure of corporate assets and directly impact the operation of the corporation. Ekco Glaco asserts that the legislature did not intend to give the Board authority to establish such broad policies, to allow the Board to deny variance relief where there have been “unforeseen circumstances” which cause delays in compliance.

We find, however, that the record supports the conclusion that Ekco Glaco failed to show “satisfactory progress” (Ill. Rev. Stat. 1987, ch. 111½, par. 1036(b)) toward achieving compliance. Ekco Glaco failed to allow for delays or to make alternative proposals when it determined to purchase a used afterburner for the new pan line and bring its used pan line into compliance by use of the internal offset rule. Between 1985 and 1987, the Board already had granted Ekco Glaco an original variance, and two extensions of the original variance, in order to allow the company to achieve compliance with the 1983 regulations. Even after the second extension, to bring the compliance date to February 15, 1987, Ekco Glaco still did not approach compliance with the Board requirements. We do not believe that the Board overextended its authority or that its decision is contrary to the weight of the evidence.

Ekco Glaco also contends that the Board’s finding that the company lacked a firm compliance plan is contrary to the manifest weight of the evidence. Ekco Glaco provided the Board with as much detailed information as possible regarding its compliance plan, and the record fails to show that the compliance plan will not be successful. Further, given the short time period of the requested variance and the time at which the hearing was conducted, Ekco Glaco could not provide the Board with a detailed schedule of compliance dates. Ekco Glaco also asserts that it acted prudently in hiring consultants and formulating a compliance plan, and that its efforts to achieve compliance were substantial and in good faith.

Ekco Glaco’s Wayne Beasley testified, however, that the company had problems with the afterburner since 1986, and could not provide a date by which the afterburner improvements for the new pan line would be completed. Further, while the company was considering a number of alternative plans for bringing the used pan operations into compliance, it could not give any dates by which such changes could be made. We find that the record supports the Board’s conclusion that Ekco Glaco lacked a definite compliance plan for its new and used pan operations.

We hold the Board’s decision to deny Ekco Glaco an extension of the previously granted variance was not contrary to the manifest weight of the evidence.

For the foregoing reasons, the order of the Pollution Control Board is affirmed.

Order affirmed.

RIZZI and CERDA, JJ., concur.


author: JUSTICE McMORROW

text:
    WILKIN INSULATION COMPANY, Plaintiff, v. BILL HOLTZ, Defendant and Third-Party Plaintiff-Appellee (Steven Edelson et al., Third-Party Defendants-Appellants).
    First District (4th Division)
    No. 1—88—0593
    Opinion filed July 13, 1989.

      Robert M. Knabe and Amy L. Gertler, both of Grund, Marcus & Mc-Nish, of Chicago, for appellants.
    Steven J. Roeder and Gregory A. Friedman, both of Coffield, Ungaretti, Harris & Slavin, of Chicago, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Third-party defendant Edelson (defendant) appeals from the trial court’s entry of a default judgment against him and in favor of third-party plaintiff Holtz (plaintiff) in the amount of $9,398.41.

The chronology of relevant events culminating in the trial court’s judgment are summarized for review as follows. On December 5, 1985, Wilkin Insulation Company (Wilkin), which is not party to this appeal, filed a breach of contract action against plaintiff to recover $675 for insulation materials Wilkin supplied to plaintiff for use at a building owned by defendant on West Schubert Avenue in Chicago. On January 21, 1986, plaintiff filed his answer and affirmative defenses to Wilkin’s complaint and a third-party complaint against defendant alleging that Edelson had failed to pay $5,234.56 for materials and labor provided by plaintiff in connection with the insulation of the building. Edelson was served with the complaint on February 10, 1986. On March 20, following defendant’s failure to answer within the required time, plaintiff filed a motion for default judgment against defendant. After a hearing on April 4, at which defendant appeared through counsel, the trial court denied plaintiff’s motion, granted defendant an additional 14 days to answer and set the matter for trial on May 30.

On May 28, defendant filed motions to transfer venue and compel discovery which were noticed for hearing on May 30, the scheduled trial date. In his motion defendant requested, inter alia, that plaintiff be ordered to submit to a deposition and that he (defendant) be given an additional 28 days thereafter to file his answer and a possible counterclaim. On May 30, the trial court denied defendant’s motions to transfer venue and compel discovery but granted him an additional 28 days to answer plaintiff’s complaint. On that same day, upon defendant’s settlement with Wilkin for the $675 sought in Wilkin’s complaint, Wilkin’s action against plaintiff was dismissed.

On June 30, the trial court sua sponte entered a default judgment against defendant for failure to answer or otherwise respond to plaintiff’s complaint, and set a proveup hearing for July 28, 1986. On that date, defendant filed a motion to strike and dismiss the complaint. This motion was continued to August 15, on which date the trial court vacated the default judgment entered on June 30 and dismissed plaintiff’s complaint without prejudice.

On October 31, plaintiff filed a verified, first-amended complaint against defendant on theories of breach of contract, unjust enrichment and fraud. Counts I and II sought recovery of $4,163.85 for work done on the Schubert Avenue property, and counts III and IV sought $5,234.56 for services rendered in connection with another parcel of property located on Ravenswood Avenue. On November 19, defendant filed a motion to strike the first-amended complaint, to which plaintiff responded on December 5. Following a hearing on December 12, the trial court denied defendant’s motion to strike, ordered him to answer the complaint by January 16, 1987, and set the matter for pretrial conference on January 30, 1987. On December 17, defendant filed a notice of deposition to depose plaintiff on December 24 and a set of interrogatories. On December 29, without notice to plaintiff, defendant filed an unsigned, unverified “answer” to the first-amended complaint. On January 28, 1987, plaintiff filed his second motion for default judgment against defendant. At the January 30 hearing thereon, the trial court, on defendant’s request, extended the time for defendant to answer or otherwise plead to March ,2, 1987.

In the course of the discovery proceedings over the next several weeks, the parties each filed motions for sanctions against the other. As a result of defendant’s failure to file an answer by March 2, as ordered by the trial court, plaintiff filed his third motion for default judgment. On March 6, without notice, defendant filed an “Answer to the Motion for Default and a Motion to Extend Time to File Answer and Countercomplaint.” The trial court denied defendant’s motion and, over his objection, granted plaintiff’s motion for default judgment for the full amount sought in the complaint.

On March 12, defendant filed a motion to vacate the default judgment and for leave to file an “amended answer and counterclaim” within 14 days. On April 22, the trial court vacated the default judgment and allowed defendant to substitute as an answer a signed, verified copy of the one filed on December 29, 1986, in which he denied the allegations in plaintiff’s complaint and stated as an affirmative defense that the contract alleged therein was between the owners of the Ravenswood Avenue property and All American Construction Company (All American), a corporation in which he was an officer and shareholder.

On May 6, 1987, an agreed order was entered allowing plaintiff to file a second-amended third-party complaint adding All American as a third-party defendant, giving defendant and All American 21 days to file their answer and any counterclaims and providing for the completion of depositions at the courthouse in Niles, Illinois, at 10 a.m. on June 17. On June 5, plaintiff filed a fourth motion for default judgment against defendant for failure to answer his second-amended complaint within the time prescribed by the agreed order. On June 8, defendant and All American filed their answer to the complaint and All American also filed a counterclaim against plaintiff. On June 9, the trial judge continued plaintiff’s June 5 motion for default judgment until the afternoon of June 17, following the completion of the scheduled depositions.

Defendant filed his counterclaim on June 12. He did not, however, appear for the deposition on June 17. At the hearing later that day, the trial court ordered defendant to pay plaintiff’s costs in connection with the deposition, granted plaintiff’s motion to strike All American’s counterclaim and granted plaintiff’s motion for default judgment against defendant in the amount of $9,398.41 plus costs. The trial court also scheduled a hearing on the parties’ earlier-filed motions for sanctions for August 12. On January 27, 1988, the parties entered into and filed an agreed order in which they withdrew their respective motions for sanctions and dismissed the action against All American. This appeal followed.

Opinion

Section 2 — 1301(d) of the Illinois Code of Civil Procedure provides that default judgments “may be entered for want of an appearance, or for failure to plead.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1301(d).) Entry of a default judgment is a matter within the discretion of the trial court. (Freeborn & Peters v. Professional Seminars Associates, Inc. (1988), 176 Ill. App. 3d 714, 532 N.E.2d 806.) In ruling on a motion for default judgment, the primary concern of the court should be to do substantial justice between the parties. (Widicus v. Southwestern Electric Cooperative, Inc. (1960), 26 Ill. App. 2d 102, 167 N.E.2d 799.) Substantial justice is a broad concept which does not lend itself to precise definition. (Matter v. Quesnell (1985), 133 Ill. App. 3d 388, 478 N.E.2d 880.) However, factors relevant to the determination of what constitutes substantial justice include whether the defendant acted with reasonable diligence, whether defendant has a meritorious defense, the severity of the penalty resulting from the entry of judgment, and the attendant hardship to the plaintiff of denying the motion for judgment. (Havana National Bank v. Satorius-Curry, Inc. (1988), 167 Ill. App. 3d 562, 521 N.E.2d 645.) As noted in Nixon v. Harris (1975), 31 Ill. App. 3d 204, 333 N.E.2d 667, the doing of substantial justice must also recognize the rights of the plaintiff and of other litigants whose cases merit the attention of the court. Although default judgment is a harsh remedy which courts traditionally have been liberal in setting aside, as noted more than two decades ago in Coleman v. Toohey (1964), 48 Ill. App. 2d 75, 198 N.E.2d 580, courts are becoming less liberal in setting aside such judgments as dockets increase to voluminous proportions; and relief is not automatic (Matter v. Quesnell (1985), 133 Ill. App. 3d 388, 478 N.E.2d 880; Plantaric v. Michaels (1981), 98 Ill. App. 3d 154, 424 N.E.2d 64; Central Telephone Co. v. Amedio Ritacca & Sons, Inc. (1974), 23 Ill. App. 3d 171, 318 N.E.2d 515). A defendant who has shown a pattern of deliberate delay or a lack of diligence and has ignored the court’s commands or treated them with indifference does not have the right to insist he be allowed to defend. (Central Telephone, 23 Ill. App. 3d 171, 318 N.E.2d 515.) Repeated violations of the court’s orders and a continuous disregard for the court’s authority are themselves sufficient to justify the exercise of the court’s discretion to enter judgment against defendant. (Matter v. Quesnell (1985), 133 Ill. App. 3d 388, 478 N.E.2d 880; Hub Airlines, Inc. v. Bouska (1975), 29 Ill. App. 3d 565, 331 N.E.2d 400; Central Telephone Co. v. Amedio Ritacca & Sons, Inc. (1974), 23 Ill. App. 3d 171, 318 N.E.2d 515; Stickler v. McCarthy (1965), 64 Ill. App. 2d 1, 212 N.E.2d 723.) A reviewing court should not interfere with the trial court’s discretionary control over trial delays absent a clear abuse of discretion in its determination of what action is most accordant with the furtherance of justice. Havana National Bank v. Satorius-Curry, Inc. (1988), 167 Ill. App. 3d 562, 521 N.E.2d 645.

In entering judgment in this case, the trial court noted the numerous delays and disregard of previous court orders by defendant. The court then stated, inter alia:

“Your disregard of my orders [is] getting to a point [of] being contumacious. *** This isn’t the first time you strained the patience of this Court. This Court feels and has always felt that a liberal interpretation of the [Code] was the thing to do. I always believed the framework of the [Code] had meant it to be applied and interpreted rather loosely and in a broad manner to entitle all parties to get their proper day in court. *** However, there is a point in time where there has to come to a screaming halt what the Court perceives is laches, vexatious delay and using the [Code] itself for delay and using the Court process itself *** to satisfy what the Court perceives as personal animosities. The Court feels that the time has come to rule according to the letter of the law. You [defendant] were given 21 days to answer. You didn’t do it. Therefore, this motion for default judgment is entered *** in the amount claimed for in the motion.”

Similarly, in dismissing the counterclaim and granting plaintiff costs, the court stated:

“I go right back to the [May 6] order again and I honestly feel you are trying the patience of the Court again. The matter has gone on far enough that somewhere in the law it states enough is enough is enough. This order was very plain. *** You violated my order that any counterclaim shall be filed within the same 21 days period. The counterclaim is dismissed for the same reason.”

Based upon our review of the record, we agree with the trial court that default judgment was appropriate in this case. As the events chronologized above reveal, defendant not only failed to answer plaintiff’s original complaint within the time prescribed by statute but also failed to comply with numerous court orders extending the time within which to answer or otherwise plead:

For example, defendant’s only response to plaintiff’s original complaint was by way of a motion to strike and dismiss on July 28, 1986. This motion was filed without notice or leave of court approximately eight months after the suit was brought, more than four months after plaintiff’s first motion for default judgment and nearly 30 days after the trial court had sua sponte entered default judgment against him for failing to comply with previous orders which granted his requests for additional time to answer, set specific dates by which he was obliged to do so and scheduled the cause for trial.

Following vacatur of that default judgment and the denial of his motion to dismiss plaintiff’s verified first-amended complaint, defendant, without notice to plaintiff, filed a document entitled “answer.” The document, however, was unsigned and unverified. Nevertheless, when the parties appeared at the next scheduled hearing, the trial court denied plaintiff’s second motion for default judgment and granted defendant another extension of time by which to plead.

When defendant once more failed to answer within the extended time granted by the trial court, plaintiff filed his third motion for default judgment. At the hearing thereon, defendant, without prior notice to plaintiff, filed another motion to extend the time to answer the complaint along with his response to the motion for default judgment. At the conclusion of the hearing, the trial court entered default judgment for plaintiff, but a few days later, defendant once again requested vacatur of the judgment. The trial court vacated the second default judgment and granted defendant leave to substitute a signed verified copy of the “answer” filed by him four months earlier.

On May 6, 1987, plaintiff filed his second-amended complaint and an agreed order was entered providing that defendant and All American were to answer and file any counterclaims within 21 days, i.e., by May 27, 1987, which was approximately V-k years after institution of this action. The order also provided that the parties would appear at the courthouse at 10 a.m. on June 17 to complete their depositions under the supervision of the court. Notwithstanding that this was an agreed order, defendant failed to file any responsive pleading to plaintiff’s second-amended complaint, which prompted plaintiff’s fourth motion for default judgment. Following defendant’s and All American’s subsequent filing of their answer and counterclaim, the court continued plaintiff’s motion for default judgment for a hearing following the completion of the depositions on June 17. In violation of the agreed order, defendant failed to appear for that scheduled deposition. It was later that afternoon when the trial court made the statements quoted above and entered default judgment against defendant for the third time.

We agree with the trial court that the events of this case constitute a pattern of deliberate delay and repeated disobedience of the trial court’s orders by defendant. We further believe that this delay and disregard of the court’s authority has resulted in substantial hardship and injustice to plaintiff. Defendant’s unreasonable protraction of this litigation compelled plaintiff to expend significant amounts of time and to incur considerable expense in pursuit of a relatively small claim. Repeated violations of court orders such as occurred in this case also work , a hardship on the trial court, other litigants and the court system as a whole by unnecessarily consuming time which would otherwise be allotted to other cases on an already voluminous circuit court docket. On the facts of this case, having considered all the circumstances, it is our view that the trial court did not abuse its discretion in determining that the interests of substantial justice warranted entry of default judgment against defendant.

Relying on Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 190 N.E.2d 348, defendant also contends that the trial court erred in assessing damages without affording him the opportunity to contest their basis or extent. In our opinion, defendant’s reliance on Elfman is misplaced. We note that in Elfman, the plaintiff failed to give defendant notice of the default judgment until the 30-day period staying execution of it had expired and that the damage award of $10,000 included expenses for medical treatment wholly unrelated to the injuries sustained in the incident giving rise to the suit, which, plaintiff had earlier advised defendant, resulted in special damages of $259. Upon learning of the default judgment, the defendant immediately filed a post-judgment petition to vacate the judgment, which was denied. The supreme court reversed the appellate court’s affirmance of the trial court’s order denying the post-judgment petition on the principle that “one may not enforce a default judgment attended by unfair, unjust or unconscionable circumstances.” The court stated that it appeared from the totality of circumstances of the case that plaintiff had knowingly and intentionally taken advantage of both defendant and the trial court and would gain an unconscionable advantage unless the default judgment were vacated. The court thus held that “fairness and justice” required the exercise of equitable powers to grant relief from a judgment so obtain and ruled that defendant be given an opportunity to appear and defend on the issue of damages.

Elfman is clearly distinguishable from the case at bar. Here, unlike Elfman, defendant was aware of both the entry and the amount of the default judgment, having been present at the hearing at which it was entered against him. However, the transcript of proceedings reveals that defendant did not request a hearing to defend on the issue of damages. Neither did he file a post-trial motion seeking either vacatur of the default judgment in its entirety or vacatur of that portion relating to the amount of the judgment on the grounds that he was not given the opportunity to defend on the issue of damages or that they were unconscionable. We therefore find that defendant has waived this issue for purposes of review and that facts before us do not warrant the invocation of equitable powers of the court as were appropriate in Elfman.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL WRIGHT, Defendant-Appellant.
    First District (1st Division)
    Nos. 1 — 86—1499,1—86—1741 cons.
    Opinion filed June 5, 1989.
    Rehearing denied August 3, 1989. — Modified opinion filed August 14, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Judy L. Groeneveld, and Pamela Hughes, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Paul Wright was charged with home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 11) and aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 16). Wright had a jury trial that ended in a mistrial when the jury could not reach a verdict. After a second trial, the jury found Wright guilty. Wright was convicted and sentenced to 50 years’ imprisonment. Wright appeals the verdict, arguing that the trial court admitted irrelevant and prejudicial evidence and that he was prejudiced by inflammatory remarks by the prosecution during closing arguments. For the reasons below, we affirm.

The victim lived with her two sons at 3724 S. Cottage Grove Avenue in Chicago. On July 21, 1985, the victim and her sons spent the day at a picnic and returned home between 9 and 9:30 p.m. The older son went to bed, and the victim and younger son, age four, fell asleep watching TV in the living room. The lights from the kitchen and living room were left on.

Some time later, the victim was awakened by an intruder who held a knife at her neck. The intruder told the victim to lie on the floor. After she did so, the intruder dropped his pants and forced his penis into her vagina. At that time, the son was awake and watching. The victim asked the intruder to let the boy go upstairs, but the intruder refused.

After about 10 or 12 minutes, the intruder told the victim to lie on her stomach. He then attempted to put his penis into her rectum, but could not. He put his fingers into her rectum. After a few minutes, the intruder told the victim to get up. These actions were witnessed by the boy, who was now crying. The victim told her son to go upstairs to his bedroom, and the intruder hit her in the eye. He then told her to bend over, and he again put his fingers into her rectum.

The victim asked the intruder to let her go to the bathroom and promised not to scream. He refused. The victim struggled and broke away from the intruder. She ran upstairs to the bathroom, closed the door, and screamed out the window for help. After about five minutes, she opened the door and walked down the hallway, but was afraid to go downstairs. She returned to the bathroom, where she saw the intruder running away.

The victim called her mother and the police. While waiting for them to arrive, she noticed that a small window in the living room, facing Cottage Grove, was open. She closed it. She also discovered $10 missing from her bedroom. The victim’s mother and the police arrived at about 2 a.m.

The victim told police officer Ballard that she had been raped. She described the offender as a black male with a dark complexion, large eyes, close-cut hair, light mustache, early to mid-twenties, about 5 feet 3 inches tall, about 130 to 135 pounds, wearing a light or white short-sleeved shirt, blue jeans, and sandals. After giving the description, the victim was taken to a hospital and examined. Her right eye and cheek were swollen, and she had a cut about an inch long on her neck. Samples were taken from her vagina with a Vitullo Kit. No rectal samples were taken because the victim complained of soreness.

On August 1, 1985, the victim went to the police station at 11th and State, where she worked with composite artist Leo Feldman to prepare a sketch of the offender. When the sketch was done to the victim’s satisfaction, Officer Walter Donald copied the sketch and distributed it to other officers. On August 2, the victim examined three photo albums of black male sex offenders in their twenties and recognized no one. The defendant’s photo was not in any of the albums.

Officer Donald had recognized Paul Wright from the composite sketch, although he did not know Wright’s name. On August 18, Donald showed the victim a photo of Wright with photos of four other men who lived in the victim’s neighborhood. The victim identified Paul Wright as the man who had raped her.

On August 19, Donald and three other officers arrested the defendant at his home at 3750 S. Ellis Avenue, about a block and a half from the victim’s residence. The next day, the victim picked the defendant out of a lineup, asserting that she had no doubts about her identification. Wright was charged with home invasion and aggravated criminal sexual assault and had a jury trial. The trial ended in a mistrial when the jury was unable to reach a verdict.

At Wright’s second trial, the victim and the police officers involved testified to the above facts. In addition, Officer Donald testified that the victim’s apartment was visible from the defendant’s apartment. Donald identified two photographs of the front of the victim’s apartment, taken from the fifth-floor front of the defendant’s apartment building. Donald also testified, over objection, that it was possible to reach the victim’s living room window by scaling the porch roof and that he had done so. The trial court allowed the testimony with the instruction that the testimony was allowed only for the limited purpose of showing that it was possible to enter the second-floor apartment from the front of the building.

An investigator for defense counsel, Colin Smith, testified that on January 7, 1986, he briefly interviewed the victim at her apartment. Smith testified that the victim had indicated doubt about selecting Wright out of the lineup, but the victim later testified that she had told Smith she had had no doubts about the lineup.

Ms. Pamela Fish, a serologist for the Chicago police department, testified that on January 10, 1986, she had examined the vaginal samples taken from the victim and saliva samples taken from the victim and Wright. Ms. Fish testified that the vaginal sample contained spermatozoa and that tests to determine the presence of any ABO blood group showed that the victim’s assailant exhibited the same characteristics as 40% to 60% of the black male population.

Paul Wright testified on his own behalf that he was at home with his girlfriend when the crime was committed. Wright also testified that until July 29 or 30, 1985, he had worn his hair in a seven- or eight-inch permanent. Wright’s barber testified that he cut Wright's hair sometime in the last week of July or first week of August and had cut it short except for a tuft of hair at the back of the neck.

Wright also testified that he had a scar on his forehead and had carried the scar since he was three years old. Wright identified pictures of himself taken before July 1985. The victim had not mentioned the scar in any of the descriptions she had given police.

On cross-examination, Wright was asked over objection about an interview with a paramedic after he was taken into custody, during which he had been asked whether he had any scars. Wright testified that he had told the paramedic about the scar on his forehead, but the paramedic’s report, which Wright signed, noted a scar on Wright’s arm, but noted no scar on his forehead. The prosecution asked Wright 17 questions concerning the conversation and report.

In a sidebar conference following cross-examination, the prosecution admitted that it had not tendered the paramedic’s report to defense counsel during discovery. The court granted defense counsel’s motion to strike the testimony concerning the paramedic’s interview and report and instructed the jury to disregard the testimony.

During closing arguments, the prosecution stated, “If you buy the defense, then it’s open season on women in Chicago. You can rape them and no one will ever be convicted of rape in this county if you buy that type of defense.” During rebuttal, the prosecution stated, “They’re asking you to let that rapist get out of that chair, out that door back on the streets of Chicago, because of what the police department didn’t do.” Defense counsel’s objections to each of these comments were sustained. With respect to Investigator Smith, the prosecutor stated that he was “paid to perform a task,” and he “came back to them with the information that they wanted to hear.” Defense counsel’s objection was sustained. In addition, the prosecutor addressed the burden of proof, endorsed the victim’s testimony as credible, and asserted that Ms. Fish’s testimony concerning the blood groups corroborated the victim’s testimony. Finally, the prosecution argued that the victim identified “the person that lives five flights up with a perfect position to look down at her ***. Just like a vulture sits.” The jury found Wright guilty, and he was sentenced to 50 years’ imprisonment. Wright appeals the verdict.

Wright first argues that the State attempted to impeach him with his interview with a paramedic and the paramedic’s report, evidence Wright contends was inadmissible because the State failed to tender the evidence to defense counsel during discovery, in violation of Supreme Court Rule 412(a)(ii) (107 Ill. 2d R. 412(a)(ii)), which states:

“Except as otherwise provided in these rules as to matters not subject to disclosure and protective orders, the State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:
*** (ii) any written or recorded statements and the substance of any oral statements made by the accused or by a co-defendant, and a list of witnesses to the making and acknowledgment of such statements.” (Emphasis added.) (107 Ill. 2d R. 412(a)(ii).)

The language of the rule plainly includes all statements, regardless of when or where they were made, and provides no exception for even innocent or inadvertent suppression of statements by the State. (People v. Caliendo (1980), 84 Ill. App. 3d 987, 405 N.E.2d 1133, appeal denied (1980), 81 Ill. 2d 594.) The trial court therefore properly ruled that the evidence was inadmissible, ordered it stricken, and instructed the jury to disregard it.

Wright also contends that allowing the jury to hear the evidence was an error too prejudicial to be cured, but the cases Wright cites to support his contention addressed statements that either implicated the defendant’s constitutional rights, or were highly inflammatory. (See Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (confrontation clause); People v. Meredith (1980), 84 Ill. App. 3d 1065, 405 N.E.2d 1306, appeal denied (1979), 79 Ill. 2d 616 (right to counsel); People v. McCray (1978), 60 Ill. App. 3d 487, 377 N.E.2d 46 (reference to defendant as a professional criminal).) Here, however, the interview and report implicated no constitutional rights, nor were they inflammatory. Further, the effect of the evidence would have been offset by the jury’s ability to see Wright and determine whether the scar was as noticeable as Wright maintained, without regard to Wright’s conversation with the paramedic or the paramedic’s report. Moreover, the failure to note the scar confused neither the victim nor police investigators in their identification of Wright. The victim gave a detailed description of her assailant, to which Wright closely corresponded in all respects apart from the scar. The victim also worked with the composite artist to produce a sketch that Officer Donald was able to recognize as Wright, although the sketch did not show a scar and Donald did not know who Wright was. Any error arising from the evidence was therefore harmless.

Wright next argues that he was denied a fair trial because the State used the serologist’s testimony and photos of the view from Wright’s apartment window, both of which Wright claims were irrelevant and prejudicial. Admission of evidence is within the discretion of the trial court, and its rulings will not be overturned absent an abuse of discretion. (People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696.) The record shows that the trial court rulings were proper.

The blood group tests testified to by the serologist showed that the victim’s assailant was part of a group that comprised 40% to 60% of the black male population, and that Wright, as part of that group, could not be ruled out. Wright contends that such an assertion was too broad to be probative, citing People v. Linscott (1987), 159 Ill. App. 3d 71, 511 N.E.2d 1303, appeal allowed (1987), 117 Ill. 2d 549, and People v. Schulz (1987), 154 Ill. App. 3d 358, 506 N.E.2d 1343, appeal denied (1987), 116 Ill. 2d 572. In Linscott and Schulz, however, blood group tests were used in murder trials to identify the defendant as the murderer. The instant case is more closely analogous to those discussed in Schulz, where blood group tests were used to single out the defendants by showing that the tests conclusively ruled out the others, but did not rule out the defendants. (Schulz, 154 Ill. App. 3d at 364-65. See also People v. Johnson (1976), 37 Ill. App. 3d 328, 345 N.E,2d 531, appeal denied (1976), 63 Ill. 2d 560; People v. Mann (1975), 30 Ill. App. 3d 508, 333 N.E.2d 467, appeal denied (1975), 61 Ill. 2d 599; People v. Gillespie (1974), 24 Ill. App. 3d 567, 321 N.E.2d 398.) Here, the victim’s identification of Wright as her assailant served to define the group of possible assailants (one), and the tests supported the identification by showing that he could not be ruled out. Thus the blood group tests were admissible.

Wright also contends that the photos from his apartment window, taken by Officer Donald shortly before trial, were irrelevant because they relied on the unsupported assumption that Wright had spied on the victim and planned his attack. But the State argues that, rather than relying on an unsupported assumption, the evidence may reasonably be viewed as supporting the inference that Wright had planned his attack of the victim. The trial court did not abuse its discretion in allowing either the photos or the blood group tests.

Finally, Wright argues that he was prejudiced by improper and prejudicial remarks made by the prosecution during closing arguments. Where improper remarks are made and defense counsel objects, the prejudice is cured when the trial court sustains the objections (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Sanchez (1987), 163 Ill. App. 3d 186, 516 N.E.2d 556) and instructs the jury to disregard the improper remarks (People v. Smith (1982), 111 Ill. App. 3d 895, 444 N.E.2d 801, appeal denied (1983), 93 Ill. 2d 547). Errors, however, not objected to at trial or raised in the post-trial motion are waived. (People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739; People v. Sadaka (1988), 174 Ill. App. 3d 260, 528 N.E.2d 283.) Assuming that the remarks were improper, the record shows that the trial court sustained objections to several remarks and instructed the jury to disregard the remarks. Where defense counsel did not object, the record shows that the issue was not preserved for appeal and therefore waived. The record further shows that Wright was not substantially prejudiced by the remarks.

The prosecution asserted, “[i]f you buy the defense, then it’s open season on women in Chicago,” that “[y]ou can rape them and no one will ever be convicted of rape in this county if you buy that type of defense,” and that “[tjhey’re asking you to let that rapist get out of that chair, out that door back on the streets of Chicago because of what the police department didn’t do.” The trial court sustained objections to each of these comments and instructed the jury to disregard them. The prosecution also addressed the work of defense investigator Smith, stating that he was “paid to perform a task,” and “he came back to them with the information that they wanted to hear.” The above remarks were made just once, defense counsel’s prompt objections were sustained, and the jury was instructed to disregard the remarks. Further, the jury was instructed that closing arguments were not evidence. No reversible error arose from the remarks.

The prosecution also addressed the burden of proof and the credibility of the victim’s testimony, which Wright argues amounted to a prosecutorial endorsement of the victim. Wright also argues that the prosecution overstated the value of the blood group tests and improperly argued inferences arising from the view from Wright’s apartment window, characterizing Wright as a vulture looking down at its prey. The record shows, however, that defense counsel made no objections to the above remarks and did not address them in the motion for new trial. The issues were waived.

In summary, Wright argues that he was denied a fair trial because he was improperly cross-examined with inadmissible evidence, irrelevant testimony was admitted, and the prosecution made improper and prejudicial remarks in closing argument. The record shows, however, that although the evidence used in cross-examination was inadmissible, it was properly stricken, and any prejudice was cured by both an instruction to the jury and other evidence. The blood group tests and the photos of the view from Wright’s window served to corroborate the victim’s identification by placing Wright in proximity to the crime and showing that he could not be ruled out after the victim identified him. Finally, objections to remarks by the prosecution were either properly sustained, or the right to challenge them was waived. The conviction and sentence of Paul Wright for aggravated criminal sexual assault is affirmed.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


author: JUSTICE REINHARD

text:
    MARRIOTT CORPORATION, Plaintiff-Appellee, v. THE DEPARTMENT OF TRANSPORTATION et al., Defendants-Appellants.
    Second District
    No. 2—88—0953
    Opinion filed July 17, 1989.

      Neil F. Hartigan, Attorney General, of Springfield, and Robert S. Hirschhorn, of Walsh, Case, Coale & Brown, of Chicago (Jeffrey E. Schiller and Richard A. Redmond, of counsel), for appellants.
    Daniel J. Voelker, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (Jeffrey Jahns, of counsel), for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendants, the Illinois Department of Transportation (Department) and James M. Graziano, a traffic permit engineer with the Department, appeal from the judgment of the circuit court of Lake County ordering defendants to issue a permanent permit to plaintiff, Marriott Corporation, allowing access from a parcel of land owned by plaintiff to Lake-Cook Road, and ordering $244,000 paid by plaintiff into the State’s protest fund returned to plaintiff.

The following issues are raised on appeal: (1) whether the circuit court had subject-matter jurisdiction over this cause; and (2) whether the circuit court erred in finding that a prior owner of plaintiff’s parcel had not transferred the right of access to Lake-Cook Road to the State pursuant to a deed dedicating the property for use as a freeway.

The record establishes the following pertinent facts. In 1950, Anna Palo executed a deed of dedication to the State, dedicating a parcel of property owned by her, lot 1, for use as a public highway. The deed of dedication contained the following provision:

“[T]he Grantor further as a part of this dedication, on behalf of himself, his heirs, executors, administrators and assigns, does hereby release, quit claim and extinguish any and all rights or easements of access, crossing, light, air and view under which the tract of land herein conveyed and dedicated might otherwise be servient to abutting lands of Grantor.”

Lot 1 is northwest of the intersection of Lake-Cook Road and the Edens Expressway. Following the dedication, an entrance ramp to the southbound Edens Expressway was constructed, part of which was on lot 1. The ramp was removed in 1982.

In 1985, the General Assembly enacted legislation releasing all of lot 1, except for the southernmost 90 feet running along Lake-Cook Road, from the dedication. (Pub. Act 84 — 974, eff. September 25, 1985.) The legislative release recited that “there is no existing right of access nor will access be permitted in the future *** [to the Edens Expressway and Lake-Cook Road].” Pub. Act 84 — 974, §6 — 2, eff. September 25,1985.

Plaintiff acquired the subject property in January 1987 for the purpose of constructing a hotel. Plaintiff retained an attorney to obtain approval from the Department for construction of a driveway entering onto Lake-Cook Road. In March 1987, plaintiff received a permit from the Department for construction of a right in/right out only driveway. Several months later, plaintiff’s attorney was told that the permit should have been conditioned upon payment by plaintiff of $244,000. By letter dated June 26, 1987, James M. Graziano informed plaintiff’s attorney that, because plaintiff had not paid $244,000 required by the Department, the previously issued permit has been can-celled.

On September 23, 1987, plaintiff filed its complaint in this cause in the circuit court of Lake County, alleging that defendants had denied plaintiff its right of reasonable means of ingress to and egress from its property, and seeking, inter alia, a writ of mandamus to compel defendants to validate the previously issued permit and to take all other action as would allow plaintiff to commence and complete construction of the driveway.

On October 22, 1987, an agreed order was entered by the circuit court which stated, inter alia, that the Department had offered to sell to plaintiff a “release of access control” to Lake-Cook Road for $244,000 and that plaintiff had paid that sum under protest. The agreed order provided that defendants would issue a temporary permit allowing construction of the driveway; that if plaintiff did not accept $244,000 as the price of the release of access control, the issue of fair market value of the release would be tried before the court; and that if the circuit court found that the Department was not entitled to receive compensation in connection with issuance of the permit, the $244,000 would be refunded by the Department.

Following trial, the parties filed post-trial briefs. Defendants contended that the deed of dedication executed in 1950 transferred to the State the dedicator’s right of access to Lake-Cook Road, and therefore the State was entitled to be compensated for plaintiff’s use of this right. Defendants further contended that pursuant to section 1 of “An Act in relation to immunity for the State of Illinois” (Immunity Act) (Ill. Rev. Stat. 1987, ch. 127, par. 801), the circuit court was without subject-matter jurisdiction over the cause, which should have been brought in the Court of Claims.

The circuit court found that, in view of the plaintiff’s payment of a sum of money under protest, the circuit court had jurisdiction over the case pursuant to section 2a of the State Officers and Employees Money Disposition Act (Ill. Rev. Stat. 1987, ch. 127, par. 172). The court further found that the Department was not entitled to receive compensation in connection with issuance of the permit. The court, therefore, ordered the return of the $244,000 payment and issuance of a permanent permit. The orders of the circuit court were stayed pending appeal.

Defendants initially contend that the circuit court was at all times without jurisdiction over this cause. Defendants maintain that this suit, as it involved the determination of the State’s interest in property, was an action against the State which could only be instituted in the Court of Claims. Defendants further maintain that the payment under protest did not serve to confer jurisdiction upon the circuit court. Plaintiff responds that jurisdiction was proper at the outset, but that in any event the payment of $244,000 into the State protest fund empowered the circuit court to determine the proper disposition of that money.

We first consider the question of the jurisdiction of the circuit court without regard to the payment under protest. Section 1 of the Immunity Act provides:

“Except as provided in the ‘Illinois Public Labor Relations Act’, enacted by the 83rd General Assembly, or except as provided in ‘AN ACT to create the Court of Claims, to prescribe its powers and duties, and to repeal AN ACT herein named’, filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court.” Ill. Rev. Stat. 1987, ch. 127, par. 801.

Plaintiff maintains that this provision has been strictly construed to apply only to actions where a party seeks a monetary judgment against the State for which there has been no appropriation by the General Assembly and which is payable out of the State’s general fund. While, indeed, such actions must be brought in the Court of Claims, plaintiff is incorrect in its assertion that the Immunity Act applies only to such suits. More generally, the question to be addressed is whether a given action is against the State. The determination of whether a suit is brought against the State and thus barred by the doctrine of sovereign immunity does not depend on the identity of the formal parties but rather on the issue raised and the relief sought. (Senn Park Nursing Center v. Miller (1984), 104 Ill. 2d 169, 186, 470 N.E.2d 1029.) When the State will be directly and adversely affected by the judgment, making the State the real party against whom relief is sought, the suit is against the State. (Herget National Bank v. Kenney (1985), 105 Ill. 2d 405, 408-09, 475 N.E.2d 863.) When the property of the State is involved, the State becomes directly and adversely affected by the suit, and the action must be held to be one against the State. Sass v. Kramer (1978), 72 Ill. 2d 485, 491, 381 N.E.2d 975; Aurora National Bank v. Simpson (1983), 118 Ill. App. 3d 392, 397, 454 N.E.2d 1132.

Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975, involved an action to quiet title to and for a writ of possession of land over which the State had acquired an easement for a public highway pursuant to a dedication executed by the plaintiff’s predecessors in title. The plaintiff claimed that the easement had been abandoned. Our supreme court held that such an action could not be maintained in any court except as provided in the Court of Claims Act. (Sass, 72 Ill. 2d at 490-91, 381 N.E.2d at 978.) We find this case controlling.

Plaintiff notes that its complaint in the instant case sought a writ of mandamus. Plaintiff contends that the circuit court has subject-matter jurisdiction to issue a writ of mandamus against a State official directing him to perform a duty imposed by law. However, the mere fact that a suit is brought in the form of an action for mandamus will not prevent the Immunity Act from barring its commencement in the circuit court where the case involves determination of ownership of property in which the State of Illinois claims an interest. (See Gordon v. Department of Transportation (1982), 109 Ill. App. 3d 1071, 1076, 441 N.E.2d 904, affd (1983), 99 Ill. 2d 44, 457 N.E.2d 403.) In Gordon, the State claimed ownership of the subject property by conveyance or common-law dedication, through a quitclaim deed. The plaintiff claimed ownership by adverse possession and sought a writ of mandamus compelling the State to commence condemnation proceedings when the State built a bridge on part of the property. The supreme court affirmed the decision of this court that such an action could not be brought in the circuit court. Gordon v. Department of Transportation (1983), 99 Ill. 2d 44, 457 N.E.2d 403.

In the instant case, defendants interposed as a defense in this action for mandamus that the State had a property interest for which it was entitled to receive compensation prior to issuance of a permit. Defendants cited no authority for the proposition that possession of a property interest necessarily authorized the Department to condition issuance of a permit on receipt of compensation. Nonetheless, plaintiff has not questioned the materiality of the issue of the State’s property rights, but rather has maintained that the State never acquired the asserted property right. As such, the existence of a property right in the State became the central issue in this case. As the property of the State is involved, the State is directly and adversely affected by the suit, and the action is one against the State. (See Sass, 72 Ill. 2d at 491, 381 N.E.2d at 977.) The circuit court was without subject-matter jurisdiction to resolve this issue.

In limited circumstances only, the circuit court has been allowed to resolve a claim by the State of an interest in property. (See, e.g., Herget National Bank v. Kenney (1985), 105 Ill. 2d 405, 475 N.E.2d 863; Flick v. Kramer (1987), 151 Ill. App. 3d 836, 503 N.E.2d 811.) Such circumstances are not present here.

In Herget National Bank v. Kenney (1985), 105 Ill. 2d 405, 475 N.E.2d 863, the interest asserted by the State, an irrevocable license to flood a portion of the plaintiff’s land, was not claimed pursuant to a written instrument of conveyance as was the case in Sass and Gordon and is the case here. Record title was continuously held by plaintiff and its predecessors. Further, the supreme court in Herget National Bank found there had been a physical invasion and taking of the property by the State which under article I, section 15, of the Illinois Constitution (Ill. Const. 1970, art. I, §15) required just compensation to be determined by a jury. Herget National Bank, 105 Ill. 2d at 410-11, 475 N.E.2d at 865.

Flick v. Kramer (1987), 151 Ill. App. 3d 836, 503 N.E.2d 811, is distinguishable as, in that case, while both the State and the plaintiff claimed record title to the property in question, the plaintiff had occupied the property for approximately 50 years. In any event, we find that the instant case is governed by Sass and Gordon and that the circuit court was without subject-matter jurisdiction over this cause.

We next consider whether, as the court below found, irrespective of whether the circuit court otherwise had jurisdiction, jurisdiction was obtained pursuant to the payment of money “under protest.” Plaintiff contends that following the payment, the circuit court obtained jurisdiction to determine the proper disposition of the money pursuant to section 2a of the State Officers and Employees Money Disposition Act (Ill. Rev. Stat. 1987, ch. 127, par. 172).

Section 2a provides:

“§2a. Every officer, board, commission, commissioner, department, institute, arm or agency to whom or to which this Act applies is to notify the State Treasurer as to money paid to him, her or it under protest as provided in Section 2a. 1 and the Treasurer is to place such money in a special fund to be known as the protest fund. At the expiration of 30 days from the date of payment the money is to be transferred from the protest fund to the appropriate fund in which it would have been placed had there been payment without protest unless the party making that payment under protest has filed a complaint and secured within that 30 days a temporary restraining order or a preliminary injunction, restraining the making of that transfer and unless, in addition, within that 30 days, a copy of the temporary restraining order or preliminary injunction has been served upon the State Treasurer and also upon the officer, board, commission, commissioner, department, institute, arm or agency to whom or to which the payment under protest was made, in which case such payment and such other payments as are subsequently made under notice of protest, as provided in Section 2a.l, by the same person, the transfer of which payments is restrained by such temporary restraining order or preliminary injunction, are to be held in the protest fund until the final order or judgment of the court. The judicial remedy herein provided, however, relates only to questions which must be decided by the court in determining the proper disposition of the moneys paid under protest.” Ill. Rev. Stat. 1987, ch. 127, par. 172.

Defendants contend that this provision is applicable only to tax payments or other charges the nonpayment of which would subject an individual to penalties. Plaintiff responds that the language of the provision is broad and applies to any payment of money to a State officer. There appear to be no reported cases addressing the issue.

Defendants additionally maintain that even if section 2a could apply to the type of payment involved in this case, the payment did not confer jurisdiction in the instant case because resort to section 2a was pursuant to agreed orders which the circuit court was without jurisdiction to enter. We agree.

Section 2a provides a limited procedure for determining rights to money paid under protest. The agreed order entered October 22, 1987, recites that it represents “an agreement concerning the conduct of certain affairs preliminary to a final resolution of all matters presented in this cause.” In fact, the agreed order goes beyond mere preliminary matters and is, in substance, a partial settlement of the case, reserving certain issues for adjudication. Pursuant to this settlement, the Department agreed to issue a temporary permit allowing construction of the driveway. The settlement thus eliminated the issue of whether defendants were under a clear duty to validate and allow work to commence under the previously issued permit. This issue was central to the complaint seeking a writ of mandamus and was not merely a preliminary matter.

Under this settlement, plaintiff paid $244,000, and the parties reserved for determination by the court the issue of whether the Department was entitled to retain all or any part of the $244,000 payment. We do not believe this payment made pursuant to a settlement can fairly be construed as a payment under protest pursuant to section 2a. Moreover, as defendants point out, jurisdiction could not arise from a payment made pursuant to a settlement which the circuit court had no jurisdiction to enter. Plaintiff maintains that the situation following entry, of the agreed order was no different than if the original action had been dismissed and an action was subsequently pursued under section 2a. We disagree. Outside of the agreed order, there was no occasion for the payment as the Department had can-celled the permit and had not renewed its demand for $244,000. We cannot speculate that the agreement embodied in the settlement, which arose in the context of pending litigation, would have been reached had the suit been dismissed.

Moreover, we do not believe that even if plaintiff had pursued this action at the outset in accordance with section 2a, the circuit court would have jurisdiction to adjudicate the issue of the State’s interest in the subject property. Section 2a creates a statutory remedy for the recovery of money paid to State officials. Nothing in this provision purports to supersede the Immunity Act’s limitation of the circuit court’s jurisdiction. While plaintiff notes that cases under this provision have been litigated in the circuit court, plaintiff fails to identify these as cases implicating the considerations of the Immunity Act. Clearly, the typical case involving tax payments under protest (see Getto v. City of Chicago (1981), 86 Ill. 2d 39, 49, 426 N.E.2d 844) will not involve determination of the State’s interest in property, as does the instant case.

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

Reversed.

McLAREN and NASH, JJ., concur.