text:
    DAVID R. SCOTT, Plaintiff-Appellant, v. THE ILLINOIS STATE POLICE MERIT BOARD et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—90—2840
    Opinion filed November 21,1991.

      Thomas E McGuire & Associates, Ltd., of Long Grove, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and John E. Morrissey, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff, Master Sergeant David Scott (Scott), a member of the Department of State Police (the Department), appeals from the order of the circuit court denying Scott’s petition for administrative review of the decision of the Illinois State Police Merit Board (the Board) which dismissed Scott’s petition for review of his three-day disciplinary suspension. Scott contends that (1) he was denied due process and equal protection by the Board’s dismissal of his petition for review of his suspension; (2) the Board erred in deciding that there was no substantial basis for a hearing on the suspension; and (3) the Board violated the Open Meetings Act (Ill. Rev. Stat. 1987, ch. 102, par. 41 et seq.) by the manner in which it reached its decision to deny Scott’s petition.

On August 31, 1989, the Deputy Director of the Department notified Scott of his decision to impose a three-day suspension without pay for certain violations by Scott of Department rules and regulations on January 31, 1989. On September 8, 1989, Scott petitioned the Board for review of the disciplinary action. On September 18, the Board posted a public notice at its Springfield office that it would conduct a meeting by teleconference call on September 20 to discuss Scott’s petition for review of his suspension.

On September 20, 1989, the teleconference was held, and, accord-, ing to the minutes, after discussion of the matter, the Board unanimously voted to deny Scott’s petition for review. Scott was notified, in a letter dated September 20, that the Board had unanimously decided to uphold the Deputy Director’s decision to suspend Scott for three days and dismiss his petition for further review.

Scott filed a complaint seeking administrative review of the Board’s decision and charged the Board with violating the Open Meetings Act. On September 14, 1990, after briefing and argument by the parties, the circuit court ruled that Scott’s constitutional rights were not violated by the Board’s actions or its decision to deny his petition for review. The court thus dismissed Scott’s complaint, and this appeal followed.

Opinion

Scott first contends that he was denied his constitutional rights to due process and equal protection by the Board’s refusal to grant him a hearing on his three-day suspension. Matters relating to discipline of State police officers are governed by sections 13 and 14 of the State Police Act (Ill. Rev. Stat. 1987, ch. 121, par. 307.13, 307.14) (the Act). Section 13 provides in pertinent part:

“Disciplinary measures prescribed by the Board *** may be taken by the Director *** for the punishment of infractions of the rules and regulations *** as promulgated by the Department. Such disciplinary measures may include suspension of any such officer for a reasonable period, not exceeding 30 days.
Any officer so suspended, within 10 days after suspension, may petition the Board in writing to review the suspension, and upon the filing of such petition with the Board, the Board shall within a reasonable amount of time, but no later than 30 days after the date of request for review set the written petition for hearing before the Board upon not less than 10 days’ notice at a place to be designated by the chairman [of the Board]. *** The Board may, by unanimous decision, dismiss the petition if it has determined that there is no substantial basis for its review of the suspension.” (Ill. Rev. Stat. 1987, ch. 121, par. 307.13.)

Section 14 governs discharges, demotions and suspensions in excess of 30 days.

Scott urges that we declare section 13 to be unconstitutional because it does not afford him his due process rights of notice and an opportunity to be heard. He also argues that section 13 denies him equal protection under the law because statutes governing county and municipal law enforcement officers contain the due process protections absent from section 13 of the Act.

We have examined the statutes referred to by Scott and find his assertion that they afford greater due process protections than section 13 provides to him to be incorrect. Section 10 — 1—18(a) of the Illinois Municipal Code, which applies in municipalities of 500,000 or more inhabitants, provides:

“Except as hereinafter provided *** no officer or employee in the classified civil service *** may be removed or discharged, or suspended for a period of more than 30 days, except for cause upon written charges and after an opportunity to be heard in his own defense. *** Nothing in this Division 1 limits the power of any officer to suspend a subordinate for a reasonable period, not exceeding 30 days except that any employee suspended for more than 5 days or suspended within 6 months after a previous suspension shall be entitled, upon request, to a hearing before the civil service commission concerning the propriety of such suspension.” (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 1—18(a).)

Section 10 — 1—18(b) of the Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 1—18(b)), applicable to cities of 500,000 or fewer inhabitants, contains nearly identical language concerning hearings for suspensions exceeding five days, as does section 10 — 2.1—17 (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—17), which applies in municipalities with fewer than 5,000 inhabitants and those between 5,000 and 250,000 population which are not subject to section 10 — 1—18(b).

Section 3 — 7011 of the Counties Code provides that Cook County sheriff’s officers may be suspended for a reasonable period up to 30 days without compliance with section 3 — 7012, which requires written charges and a hearing in cases of removal, demotion or suspensions exceeding 30 days. See Ill. Rev. Stat. 1989, ch. 34, pars. 3 — 7011, 3— 7012.

In Wagner v. Kramer (1985), 108 Ill. 2d 413, 484 N.E.2d 1073, the court, citing Kropel v. Conlisk (1975), 60 Ill. 2d 17, 322 N.E.2d 793, stated that the public policy of this State has generally required some form of review of suspensions, and that if a statutory provision authorizing summary suspension for a period of 30 days or less is to survive constitutional attack on due process and equal protection grounds, it must provide for some type of review of such suspensions. In holding that some method of review of suspensions was required to be provided by .the former Sheriff’s Merit System Act (Ill. Rev. Stat. 1983, ch. 125, par. 163), the court observed that the Illinois Municipal Code provisions quoted above and section 13 of the State Police Act, the provision at issue here, all provide for a right to a review of an order of suspension.

Neither Wagner nor Kropel held that an officer suspended for 30 days or less is entitled, either constitutionally or under the public policy of Illinois, to a hearing on the suspension. The supreme court has specifically held that all that is required is “some method of review” for disciplinary suspensions of 30 days or less which, as the Wagner court expressly noted, section 13 accords by way of a petition to the Board.

Moreover, none of the statutes governing Scott’s counterparts in county and municipal law enforcement provide for a hearing on a suspension of five days or less. Scott was suspended for three days. Thus, contrary to Scott’s argument, he would not have greater rights to a review of his suspension if he were a county or municipal officer than are afforded him under section 13. Consequently, Scott’s argument that the dismissal of his request for a trial-like hearing before the Merit Commission of the State Police deprived him of equal protection under the law must fail.

Under the same reasoning and on the same authority, we reject Scott’s argument that the absence of requirements in section 13 for notice and an opportunity to be heard at a hearing violates his due process rights. Once again, we note that in Wagner, the court stated that “some method of review” must be provided to satisfy due process requirements, and that the court observed that section 13 does provide for a right of review.

Additionally, however, section 13 was specifically found not to be violative of due process rights in Clark v. Morris (1968), 99 Ill. App. 2d 24, 240 N.E.2d 515. In Clark, the plaintiff, a member of the Illinois State Highway Police, was suspended for 30 days. He appealed from the dismissal of his complaint for a declaration that section 13 was unconstitutional on the ground that the absence of any requirement of notice and a hearing on the charges underlying the suspension constituted a deprivation of due process.

The Clark court initially noted that due process is not an inflexible, technical concept with a fixed content unrelated to time, place and circumstances, and that in cases of disciplinary suspensions, the “procedures required to provide due process follow determination of the governmental function, as well as the private interest that is affected.” (99 Ill. App. 2d at 27.) Citing numerous statutes governing various public employees, the court observed that the legislature has consistently authorized suspensions for limited periods as appropriate disciplinary measures and has determined that a suspension of up to 30 days without written charges and a hearing is reasonable. The Clark court stated this legislative decision has a rational basis in internal administration and discipline in public employment. Thus, the court ruled that the absence of any requirement for notice and a hearing on suspensions of 30 days or less did not violate State or Federal requirements of due process.

In People ex rel. Blanks v. Ruddell (1971), 1 Ill. App. 3d 662, 274 N.E.2d 835, a municipal jail guard suspended for six days challenged the constitutionality of a former version of section 10 — 1—18(a), quoted earlier, of the Illinois Municipal Code which provided for notice and hearing only when the suspension exceeded seven days (now five). The defendants argued that the power of department heads to suspend employees for short periods of time for minor infractions without notice and a formal hearing is necessary for the efficient and effective functioning and administration of governmental departments. The Blanks court agreed, citing Clark and other authorities, and held that the absence of any provision in the statute for review by a hearing of suspensions under seven days did not violate the plaintiff’s due process rights.

In this case, Scott was suspended for three days. He filed with the Board a timely petition for review, as permitted by section 13. And, in accordance with the procedures set out in section 13, the five-member Board considered the petition in which Scott presented a brief explanation of his version of the events relative to the alleged infractions and his denial of any wrongdoing. After discussion of the matter, the Board unanimously decided to uphold the suspension and dismiss Scott’s petition for further review. Thus, Scott was accorded the opportunity for review of his suspension as is required under constitutional principles and the public policy of Illinois. Wagner v. Kramer (1985), 108 Ill. 2d 413, 484 N.E.2d 1073; Kropel v. Conlisk (1975), 60 Ill. 2d 17, 322 N.E.2d 793; Clark v. Morris (1968), 99 Ill. App. 2d 24, 240 N.E.2d 515.

Scott alternatively contends that the Board erred in ruling that there was no “substantial basis” for review of his suspension. He argues that without a hearing, which he requests we grant him, the Board did not have sufficient reliable data to reach that conclusion.

It is well settled that findings of an administrative agency on questions of fact are considered prima facie true and correct (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110) and will not be disturbed on judicial review unless they are contrary to the manifest weight of evidence. (Piotrowski v. State Police Merit Board (1980), 85 Ill. App. 3d 369, 406 N.E.2d 863.) A decision is against the manifest weight of the evidence if an opposite conclusion is clearly evident from the record. Sheehan v. Board of Police & Fire Commissioners (1987), 158 Ill. App. 3d 275, 509 N.E.2d 467.

Although there was no hearing in this case, the record contains the written notice to Scott of his three-day suspension in which Scott was advised by the Deputy Director, William O’Sullivan, that O’Sullivan had reviewed the reports and statements concerning Scott’s conduct on the day in question, and had conferred with Scott’s commanding officers regarding their evaluation of that conduct. O’Sullivan also noted that in July 1989, Scott had appeared before and made statements to the Disciplinary Review Commission concerning the matter, and that he, O’Sullivan, had thoroughly reviewed those statements. O’Sullivan then advised Scott which rules had been violated and by what misconduct on Scott’s part. The record does not contain any memorialization of what transpired during Scott’s meeting with the Disciplinary Review Commission. In light of his arguments, however, it must be presumed that the statements he made were in his own defense. Further, his petition to the Board for review of the suspension contained, as noted earlier, a brief statement of his version of the events on which the suspension was based and his denial of any wrongdoing.

Based on the above, it does not appear that Scott’s suspension was either summarily imposed by the Deputy Director or arbitrarily upheld by the Board without any opportunity for Scott to be heard. Thus, we cannot say that the Board’s decision was contrary to the manifest weight of the evidence, i.e., that an opposite conclusion was clearly evident from the record.

Neither do we agree with Scott’s conjecture that our affirmance of the Board’s decision will serve as encouragement for the Board to dismiss any petition for review with the conclusory statement that the Board finds no substantial basis for review of the suspension. As was recognized in People ex rel. Blanks v. Ruddell (1971), 1 Ill. App. 3d 662, 274 N.E.2d 835, courts cannot intrude into every discretionary imposition of disciplinary penalties for minor infractions of agencies’ rules; however, repeated abuses of discretion in the imposition and upholding of unwarranted suspensions would serve as the basis for the removal of persons in charge from their positions of authority.

Finally, Scott contends that the Board violated the Open Meetings Act (Ill. Rev. Stat. 1989, ch. 102, par. 41 et seq.) by ruling on his petition for review by way of a teleconference call. He argues that the teleconference meeting contravened public policy, as expressed in section 1 of the Open Meetings Act, that such deliberations should be conducted openly. We disagree.

First, nothing in section 13 requires that the Board conduct an open meeting. It simply requires that the Board “shall *** no later than 30 days after the date of request for review set the written petition for hearing before the Board upon not less than 10 days’ notice at a place to be designated by the chairman.” (Ill. Rev. Stat. 1987, ch. 121, par. 307.13.) Here, the petition was filed September 8, 1989, and notice was posted on September 18, at the Board’s office, that it would conduct “a special meeting via telecommunication conference on Wednesday, September 20, 1989, at 9 a.m. [at the Board’s office in Springfield] to discuss disciplinary action for Master Sergeant David Scott.” The Board’s actions were in compliance with the requirements of section 13.

Further, section 2 of the Open Meetings Act does not prohibit:

“any body covered by this Act from holding closed meetings to consider information regarding appointment, employment or dismissal of an employee or officer or to hear testimony on a complaint lodged against an employee or officer to determine its validity.” (Ill. Rev. Stat. 1989, ch. 102, par. 42.)

Here, the Board met to discuss the evidence relating to Scott’s suspension for conduct alleged by Scott’s superiors and found by the Deputy Director to have constituted violations of Department Rules warranting discipline. The meeting therefore fell within the above exception to the Open Meetings Act. See, e.g., Ealey v. Board of Fire & Police Commissioners (1989), 188 Ill. App. 3d 111, 544 N.E.2d 12.

For the reasons stated, the order of the circuit court denying plaintiff’s petition for review of the Board’s decision is affirmed.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: JUSTICE McNULTY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS DEFYN, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—0308
    Opinion filed November 22,1991.

      Rita A. Fry, Public Defender, of Chicago (Konrad Rayford and Kyle Wesendorf, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William Pistorius, and Gigi Ann Gilbert, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

After a jury trial, defendant Thomas Defyn was found guilty of criminal sexual assault and unlawful restraint and sentenced to 14 years in the Illinois Department of Corrections. We consider: (1) whether the prosecutor made improper comments in closing and rebuttal arguments; (2) whether the trial court erred in preventing the defendant’s cross-examination of the victim about her refusal to talk to a defense investigator; (3) whether the trial court coerced a guilty verdict by permitting the jurors to deliberate after they were informed that they would be sequestered; and (4) whether defendant was properly convicted of both criminal sexual assault and unlawful restraint.

At trial, the victim, J.M., testified that on April 7, 1987, while in Chicago on a business trip, she went to Bootleggers, a bar in the Rush Street area. It was there that she met the defendant. After conversing with defendant for approximately 45 minutes, defendant invited J.M. to come back to his apartment. While J.M. hesitated at first, after “making sure that there wasn’t anything else defendant was looking for” she accompanied defendant to his apartment.

J.M. testified that once inside defendant’s apartment, she took a seat on a small couch, while defendant sat on a larger couch and made some telephone calls. While still on the telephone, defendant motioned for J.M. to come over by him so that he could show her how his calculator worked. Defendant then asked J.M. to give him a kiss, she refused and told him “we already discussed this. You’re making me uncomfortable. I’m going to get up and leave.” As J.M. attempted to get up from the couch, defendant jumped her, pulled her hair and pushed her back on the couch. Defendant slapped J.M. across the face with his open hand and got on top of her. Defendant then grabbed J.M.’s hand and placed it on his penis. J.M. tried to push defendant off of her but defendant told her to “go ahead keep on fighting.” Defendant then looked at J.M. and said, “Yeah, that’s right. This is rape.” J.M. testified that she continued to fight the defendant, telling him “no.”

The defendant then grabbed hold of J.M.’s hair, unzipped his pants, took out his penis and demanded that she perform oral sex. J.M. continued to fight against him as defendant forced her down on his penis. Defendant told her if she did not cooperate, he would strike her. Defendant then put his penis in J.M.’s mouth and shook her head up and down until he ejaculated.

J.M. testified that defendant then demanded that J.M. pull up her skirt and take off her nylons. As she began removing her nylons, defendant pulled them off, and inserted his penis in her vagina from behind. J.M. told defendant again that she wanted to leave but defendant again forced her to perform oral sex. When J.M. resisted, defendant threatened, “I’m going to cold cock you if you don’t do this.” J.M. complied and defendant then instructed her to insert her fingers into his anus. J.M. complied after again being threatened by defendant.

Defendant paused for a moment and then threw J.M. back on the couch and laid on top of her. J.M. again told defendant that she wanted to leave to which he replied, “No, your [sic] either going to satisfy me during the next two hours or your [sic] going to be here for two more days.” Defendant again inserted his penis into J.M.’s vagina while yelling at her to “tell me you know your [sic] being raped. Tell me what it feels like to have your body mean nothing.” Defendant then got off of J.M. and insisted that she once again insert her fingers into his anus. Defendant then put his mouth on J.M.’s vagina.

J.M. told defendant that she had to go because she had a meeting in the morning. She attempted to get off the couch but defendant forced her to face the wall and he again inserted his penis into her vagina from behind. Defendant then pinned J.M. to the couch. J.M. told defendant that she had a meeting and people were expecting her. Defendant finally let J.M. stand up, put her nylons on and walk to the door.

Defendant followed J.M. out into the hallway and then into the elevator and out the front door onto the street. J.M. yelled for a cab, and when one stopped, defendant followed J.M. to the cab. J.M. told defendant not to do this to another person. Defendant offered J.M. money for the cab, and when she refused, he took the money out of his pocket and threw it at the cab driver. Once the door was shut, J.M. instructed the cab driver to go around the block so that she could get the address of where she came from because she had just been raped. She then went looking for her cousin, David. After leaving a message for David, she went to her hotel and telephoned the police. The police brought J.M. to Resurrection Hospital around midnight where she was examined by Dr. Meyers. The next day, J.M. identified defendant from a lineup.

On cross-examination, J.M. denied that she had used cocaine that evening or had any substance with her. She denied that she was affectionate with defendant in the bar or that they left arm in arm. She denied that she was reading an issue of Playboy magazine while defendant was on the telephone. J.M. conceded that she never screamed for help or looked for a weapon in the apartment. She denied threatening to cry rape because she had been cheated out of cocaine.

Juan Jimenez, the cab driver who picked up J.M. after the incident, testified that on April 7, 1987, he stopped at 1300 North Dearborn, where a man instructed him to take a woman to the airport and handed him $13. Jimenez testified that as he began to drive away, the woman told him to go around the block and get the address of where she came from because she had just been raped. He described J.M. as “very upset” and “in an emotional state.” During cross-examination, Jimenez admitted that J.M. never asked to be taken to a police station or hospital.

Detective Catherine Fitzgibbon testified that on April 8, 1987, she took defendant into custody. While at the police station, defendant stated that he did not understand why J.M. would say he raped her. Fitzgibbon further testified that while interviewing defendant, he never mentioned that J.M. came over to his apartment to get cocaine.

Assistant State’s Attorney Woloshin testified that on April 8, 1987, she spoke with defendant at his request. She testified that defendant told her that he met J.M. in a bar and after about 30 minutes they went back to his apartment. After making some phone calls he began kissing J.M. Defendant admitted to Woloshin that he could tell J.M. was not interested in fooling around and that he told the victim that he wanted her to be his sex slave for a week. Defendant stated that he told the victim “this is date rape, I’ll tell you what I want you to do.” The defendant told her to take her clothes off and she told him that she had just tested positive for AIDS. Defendant told Woloshin that although he now realized that J.M. was saying “do not touch me” at the time he told J.M. that “like the cowboys, I’ll die with my boots on.” Defendant admitted that he put his penis inside J.M.’s mouth although he could tell that she was not interested in having oral sex with him. Defendant then told Woloshin that J.M. told him that he was terrorizing her. He then took her outside and put her in a cab and she told him not to do this to another girl. Woloshin further testified that defendant never mentioned anything about cocaine during their conversation.

Dr. Meyers testified that he examined J.M. in the emergency room of Resurrection Hospital in the early morning of April 8, 1987. The doctor testified that he observed a bruise on the victim’s right forearm and some abrasions on the upper insides of her thighs, close to the opening of her vagina. On cross-examination, Dr. Meyers admitted that he did not observe any cuts, scratches or bruises on the victim’s face but on redirect stated that it was not uncommon for a bruise to appear sometime after the injury had occurred. It was stipulated that the vaginal swab taken from J.M. tested positive for the presence of spermatozoa, while the oral swab tested negative.

The defendant testified on his own behalf. He admitted that he had previously pled guilty to an arson charge. He testified that on April 7, 1987, he went to Bootleggers and ordered a drink. As he was blowing his nose, J.M. said to him from across the bar “that is what cut does to you.” Defendant testified that they began a conversation which turned into flirting. He ordered two rounds of shots and then kissed J.M. According to defendant, he told J.M. that he could get her some cocaine and asked her to come back to his apartment and get a hit. As J.M. and the defendant left the bar, defendant testified that he noticed a woman he knew named Susan Grossman. He invited Grossman to do some cocaine with them but she declined. During the walk home, defendant testified that he stopped once and kissed J.M.

Defendant testified that once in his apartment, J.M. took out the last of her cocaine and snorted it on the glass coffee table. She asked defendant if he wanted a line and he joined in. Defendant testified that after snorting the cocaine, he made some telephone calls regarding the purchase of SVs grams of cocaine. Meanwhile, defendant testified that J.M. was thumbing through his recent issue of Playboy magazine and asked him what pictures he liked. According to defendant, they then began kissing and J.M.’s attitude was “hot and cold.” J.M. was aloof and a moment later she was receptive. He did not know “what the heck was going on.” Defendant testified that after kissing for about 10 minutes, they engaged in sexual intercourse and oral sex. Defendant testified that he never struck or grabbed J.M. and that he never ordered her to do anything. Defendant testified that she never cried out for help and as far as he was concerned they were having consensual sex.

Defendant testified that J.M. then went back to the table and finished the rest of the cocaine. When the cocaine was gone, J.M. grabbed her clothes and went into the bathroom. Defendant testified that she seemed upset and started to cry. According to defendant, when J.M. came out of the bathroom she called him “Tim.” Defendant testified that J.M. then became insistent regarding when the cocaine was going to arrive. He told her he wanted her to leave and she called him an “asshole.” J.M. then stormed out of the apartment and defendant followed her because he did not want her to make a scene. J.M. tried to hit defendant and he shoved her into the elevator. He rode down on the elevator with her and she was crying and calling him an asshole as she waved down a cab.

Early the next morning, defendant received a call from the building manager informing him that the police were looking for him. Defendant testified that he knew that J.M. had “weirded out” and had probably said something about the cocaine so he called his attorney. Defendant was taken into custody at his attorney’s office.

Defendant denied telling a police officer that he told J.M. that she was going to be his sex slave. Defendant further testified that he had told Assistant State’s Attorney Woloshin that the telephone calls at his apartment were for the purpose of obtaining cocaine. Defendant admitted that he lied when he told Woloshin that he did not have vaginal intercourse with J.M. Defendant denied telling J.M. that “this is rape” and her body “means nothing” but he admitted that J.M. was upset and cried during sex.

Susan Grossman next testified on behalf of the defense that while she was at Bootleggers she saw defendant walk over to the bar and buy a drink for a woman sitting at the bar. She testified that she saw defendant and the woman kissing at the bar. As defendant and the woman were leaving the bar, defendant asked Grossman if she wanted to come with them and do drugs, but she declined. She testified that the woman was hanging on defendant’s arm and they looked as though they had had a couple of drinks. On cross-examination, Grossman testified that she could not remember what day of the the week this took place but that it was sometime between April 1 and April 10,1987.

The State then called Officer Stevens as a rebuttal witness. He testified that on April 7, 1987, at approximately 11 p.m. he interviewed J.M. and in his opinion she did not appear to be under the influence of drugs or alcohol. Officer Stevens testified that in the course of his duties as a police officer, he observed thousands of people under the influence of alcohol and drugs and could determine when someone was under the influence.

Following the close of evidence, defendant was found guilty of criminal sexual assault and unlawful restraint. During the sentencing hearing, defendant admitted, “I lied on the stand and committed the act of perjury also. She [referring to J.M.] did no cocaine with me that evening.” Defendant was sentenced to 14 years in the Illinois Department of Corrections on the criminal sexual assault charge and three years concurrently for the unlawful restraint offense. Defendant appeals from both his conviction and sentence.

Opinion

We first address defendant’s contention that he is entitled to a new trial because of improper comments made by the prosecutor in his closing and rebuttal arguments. Although defendant failed to object to all but one of these allegedly improper comments by the prosecutor and failed to raise the issues in his written motion for a new trial, we will review the comments in order to determine whether there exists plain error. (People v. Eddington (1984), 129 Ill. App. 3d 745, 473 N.E.2d 103.) Defendant first alleges that the prosecutor improperly argued to the jury that he tried to elude police. Specifically, the prosecutor stated in closing argument:

“[H]e [referring to defendant] is a person who after this all happened while the victim is doing the things that a person [sic] was raped was doing, he is doing the things that a rapist would do. What is that; the police are going to be looking for me, I’m not going to be home when they come around.
* * *
You heard the testimony that the police went on a number of occasions to his house. He admitted himself that the first thing that he did when he heard that the police were looking for him was leave home. Why [sic] because home is going to be the first place that the police come looking for him and he wasn’t there. He acts like someone who is guilty and that tells you something about him.”

Defendant cites People v. Rogers (1988), 172 Ill. App. 3d 471, 526 N.E.2d 655, in support of his contention that it was improper for the prosecutor to argue that defendant fled from the scene. In Rogers, the court held that the prosecutor’s comment on defendant’s flight was improper since it was not a reasonable inference supported by the evidence. In the instant case, there is nothing improper about the prosecutor’s remark that defendant attempted to elude police by leaving home when he learned that the police were looking for him. Defendant testified that when he heard the police were looking for him, he left his home and went to see his attorney because he “knew J.M. had weirded out and said something about coke.” The prosecutor’s comments on flight were therefore a reasonable inference based on the evidence presented at trial.

Defendant also contends that the prosecutor’s comment that defendant left home when he heard that the police were looking for him infringed upon defendant’s sixth amendment right to counsel by equating the exercise of a constitutional privilege with an admission of guilt. The defendant in People v. Meredith (1980), 84 Ill. App. 3d 1065, 405 N.E.2d 1306, also argued that the prosecutor’s closing argument questioned defendant’s innocence because he sought assistance of counsel, thereby penalizing defendant for exercising his sixth amendment right to counsel. The prosecutor in Meredith stated in closing argument that “he says he talked to these people *** he called his lawyer *** I submit he knew he had shot those people that is why he went to call his lawyer in the morning.” The court concluded that the prosecutor’s comment on defendant’s telephone call to his attorney the morning after the shooting incident was prejudicial error which intended to raise an inference of defendant’s guilt from his conduct. The comment equated the exercise of a constitutional privilege with an admission of guilt, thereby penalizing defendant for the exercise of his right to counsel. (Meredith, 84 Ill. App. 3d at 1073, 405 N.E.2d at 1311.) The prosecutor’s comments in the instant case, however, merely commented on the fact that defendant acted like a guilty person when he left home after learning that the police were looking for him. While the prosecutor did not state that defendant acted like a guilty person by leaving home to consult with his attorney, we do know from the evidence that after defendant left his home, he spent at least some of this time at his attorney’s office. As such, we do not find that the prosecutor’s comment rises to the level of infringing on defendant’s sixth amendment right to counsel, but we do caution prosecutors against injecting such potentially prejudicial comments into their closing arguments.

Defendant next maintains that the prosecutor improperly accused him of fabricating a defense. Specifically, defendant complains of the following remarks in the prosecutor’s closing argument:

“Not only do you know that what he said was false, you know it because of what all of the policemen said, and the assistant state’s attorney said, things that are totally different, totally different things that were said to them the day he was arrested than what he tried to make up when he got here in court.
* * *
It’s this defendant, and not J.M., who lied to the police, who came in with this cocaine story right up there, ladies and gentleman. Nothing about it to the police, because he just made it up there.”

A prosecutor may suggest to a jury that the defendant is a liar provided that the suggestion is based on the evidence or on a reasonable inference drawn from that evidence. (People v. Jones (1987), 155 Ill. App. 3d 641, 508 N.E.2d 357.) Here, the prosecutor’s statements that defendant lied were supported by ample evidence. Defendant admitted at trial that he had lied to Assistant State’s Attorney Woloshin about not having sexual intercourse with J.M. Specifically, defendant admitted that he “didn’t tell the truth about being inside her vagina.” Furthermore, while defendant testified at trial that he had told Woloshin that the telephone calls he made from his apartment were for the purpose of obtaining cocaine, Woloshin testified that defendant did not mention anything about cocaine. Accordingly, the record reveals that the prosecutor’s comments that defendant lied and made up the cocaine story at trial were based on reasonable inferences from the evidence.

Defendant next contends that the prosecutor improperly aligned himself with the jury by stating:

“We are not at 1446 Dearborn anymore. We are not on this man’s turf under his control or at his mercy *** we are in a court of law.”

In support of his argument, defendant cites People v. Johnson (1986), 149 Ill. App. 3d 465, 500 N.E.2d 728, where the court found that the prosecutor unfairly aligned himself with the jury by referring to “our job” to find the facts. The Johnson court did not, however, assess the prejudicial effect of this particular comment, instead finding that the cumulative impact of the numerous improper prosecutorial comments warranted a reversal. Here, if there was any impropriety in the prosecutor’s use of the word “we,” this reference was by no means as serious as the prosecutor’s improper comment in either Johnson or in People v. Vasquez (1972), 8 Ill. App. 3d 679, 291 N.E.2d 5, where the prosecutor referred to himself as a thirteenth juror. Accordingly, we find that the prosecutor’s isolated comment does not constitute reversible error.

Defendant next contends that the prosecutor improperly bolstered the credibility of the police and the assistant State’s Attorney who testified at trial. In closing argument, the prosecutor stated:

“They [the police officers and Assistant State’s attorney] can get up there and say oh yes, everything the victim had told us, he told us that. But, they are not going to do that, ladies and gentlemen. They took an oath. If they wanted to lie they could do a better job than that.”

A police officer’s testimony is to be evaluated in the same manner as that of any other witness, and there is no presumption that such testimony is more credible than that of any other witness. (People v. Ford (1983), 113 Ill. App. 3d 659, 447 N.E.2d 564.) The cases conflict as to whether it is proper for a prosecutor to comment that police officers would not jeopardize their careers by testifying falsely against the defendant. (See People v. Hunter (1984), 124 Ill. App. 3d 516, 464 N.E.2d 659, comparing People v. Parker (1979), 72 Ill. App. 3d 679, 391 N.E.2d 89 (improper); People v. Mayfield (1979), 72 Ill. App. 3d 669, 390 N.E.2d 1315 (proper).) Here, we need not resolve this conflict since even if the prosecutor’s comment was improper, defendant has not demonstrated that the statement constituted a material factor in defendant’s conviction or that the verdict would have been different if the remarks had not been made. People v. Carter (1988), 168 Ill. App. 3d 237, 522 N.E.2d 653.

The next contention advanced by defendant is that he was denied a fair trial when the trial court prevented him from cross-examining the victim about her reluctance to talk with' defense investigators. Specifically, defendant raises issue with the following line of questioning:

“[DEFENSE COUNSEL]: He [the defense investigator] introduced himself to you and asked if you knew who J.M. was didn’t he?
J.M.: No. No.
[DEFENSE COUNSEL]: You said you didn’t know-
[PROSECUTOR]: Objection.
* * *
[DEFENSE COUNSEL]: Where J.M. was?
[PROSECUTOR]: This is irrelevant.
THE COURT: I’m going to sustain the objection, at this point.-
* * *
[DEFENSE COUNSEL]: Did you ever discuss this case with any defense investigators.
[PROSECUTOR]: Objection.
THE COURT: Sustained.”

Defendant contends that the prejudicial effect of the court’s error was compounded when the trial court allowed the prosecutor to cross-examine Susan Grossman, a defense witness, regarding her reluctance to talk to prosecutors.

The trial court is allowed wide latitude in the cross-examination of witnesses, and a reviewing court may only reverse where there has been a clear abuse of discretion. (People v. Peter (1973), 55 Ill. 2d 443, 451, 303 N.E.2d 398.) Prosecution witnesses are not obligated to talk to defense counsel prior to trial, and it is not an abuse of discretion to exclude cross-examination regarding a witness’ refusal to talk to defense counsel. (But see People v. Williams (1985), 131 Ill. App. 3d 597, 475 N.E.2d 1082 (although a witness has a right to refuse to be interviewed or cooperate with the other side, that refusal can be cross-examined by opposing counsel in order to show bias, hostility, prejudice or interest); People v. VanZile (1977), 48 Ill. App. 3d 972, 977-78, 363 N.E.2d 429 (the credibility of a witness is always in issue; therefore, when one is asked to be interviewed on what his testimony will be, he declines at the risk that he may be asked later on at trial about such facts and his reasons therefor).) Accordingly, we find no abuse of discretion on the part of the trial court in refusing to permit the cross-examination of J.M. on her refusal to speak with the defense investigators prior to trial.

Defendant next maintains that the trial court coerced a guilty verdict from the jurors by permitting them to deliberate after they had been informed that they were going to be sequestered for the night. After the jury had deliberated for some time, the judge instructed the jurors:

“THE COURT: Ladies and gentleman, because of the hour and because we are under certain constraints, because of our system here, we are going to have to recess at this time for the evening. We have made arrangements for overnight accommodations. I believe transportation is present too. We will take you to a hotel-motel, whatever. I believe it’s out in the Western suburbs and they will return you here tomorrow morning at 9:00 o’clock or so and you will be allowed to continue your deliberations, okay. So thank you very, very much. You may retire, at this time.”

The jury was allowed, over defense counsel’s objections, to continue to deliberate until the bus arrived. In overruling defendant’s objection, the court stated:

“They can deliberate until the bus comes to get them. They are all together in one room, all alone. It would be silly to tell them no, you can’t talk to each other. It may take 10 or 15 minutes.”

The record does not reveal the actual time the jury deliberated before reaching its verdict or the actual time the bus took to arrive.

Simply informing the jury that it will be sequestered is not necessarily coercive in nature. (People v. Baggett (1983), 115 Ill. App. 3d 924, 450 N.E.2d 913.) Extremely brief deliberations after a reference to sequestration may, however, invite an inference that the reference to sequestration coerced the jury into rendering a verdict. (People v. Hanks (1991), 210 Ill. App. 3d 817, 569 N.E.2d 205; People v. Branch (1984), 123 Ill. App. 3d 245, 462 N.E.2d 868.) In determining the propriety of the trial court’s comments, the test is whether under the totality of the circumstances the language used actually interfered with the jury’s deliberations and coerced a guilty verdict. Branch, 123 Ill. App. 3d at 251, 462 N.E.2d at 873.

The cases cited by defendant are easily distinguishable. In People v. Friedman (1986), 144 Ill. App. 3d 895, 494 N.E.2d 760, the court concluded that the reference to sequestration influenced the verdict since the verdict was returned five minutes after the trial court indicated that the jury would be sequestered. In Branch, after finding that the jury was deadlocked, the court singled out, in the presence of the entire jury, the one juror who refused to vote guilty. In addition, the judge gave an incomplete deadlock instruction. A guilty verdict was returned 10 minutes later. The court in Branch found that the unique circumstances of that case warranted a reversal. See also People v. Ferro (1990), 195 Ill. App. 3d 282, 286, 551 N.E.2d 698 (trial court’s statement that, “[i]f you .are not going to be able to reach a verdict, I am going to house you in a local motel somewhere until this jury does reach a verdict,” was coercive in that it conveyed to the jurors that they must arrive at a verdict and did not leave the option of returning no verdict if the jurors were unable to arrive at a verdict).

Here, we are unable to ascertain from the record exactly how much time after the sequestration comment the jury deliberated before reaching a verdict. Although the trial court stated that “it may take 10 or 15 minutes,” it appears that the trial court was referring to approximately how much time it would take for the bus to arrive, and not how much time the jury actually deliberated. In fact, the record does not reveal how long the bus did take to arrive. Therefore, because the record is unclear, we will not presume that the deliberation time was so brief as to raise the inference that the sequestration coerced the verdict. In addition, the language used by the trial court was not coercive and rather than pressuring the jurors into reaching a verdict merely informed them that they did not have to reach a verdict that night. See People v. Hanks (1991), 210 Ill. App. 3d 823, 569 N.E.2d 205 (trial court’s reference to sequestration was simple, neutral and not coercive). People v. Baggett (1983), 115 Ill. App. 3d 924, 930, 450 N.E.2d 913 (informing the jury that, “in about half an hour we’ll have to make overnight arrangements for you” removed rather than created any pressure on the jury to reach a verdict since they were not being pressured to reach an immediate decision).

The last contention raised by defendant is that his unlawful restraint conviction must be vacated because it arose out of the same act that formed the basis of his criminal sexual assault. Because defendant did not raise the issue in his post-trial motion and the alleged error neither affected defendant’s substantial rights nor denied him a fair trial, this issue has been waived. (People v. Jackson (1990), 203 Ill. App. 3d 1, 560 N.E.2d 1019.) Furthermore, even if defendant had properly preserved this issue for review, he could not have prevailed on the point. While People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, established that a defendant may not be convicted for more than one offense arising out of the same physical act, King is inapplicable here, since defendant’s convictions for criminal sexual assault and unlawful restraint arose from separate acts. In People v. Jackson (1990), 203 Ill. App. 3d 1, 560 N.E.2d 1019, defendant took the victim into his bedroom and sexually assaulted her. When the victim’s mother came looking for her, the defendant laid on top of the victim, kept his hand over her mouth and pushed her against the wall so that she would not escape. The court concluded that defendant’s convictions for aggravated criminal sexual assault and unlawful restraint were based on separate acts: the aggravated criminal sexual assault conviction arose from his sexual penetration of the victim and the unlawful restraint conviction arose from his detention of her. Jackson, 203 Ill. App. 3d at 10, 560 N.E.2d at 1025.

Likewise, the record here reveals that defendant’s convictions for criminal sexual assault and unlawful restraint were based on separate acts. The sexual assault arising from his penetration and his unlawful restraint from detaining the victim as she struggled to get away and pleaded with defendant to let her leave his apartment. The victim testified that when she attempted to leave defendant’s apartment, he pulled her hair, pushed her onto the couch and got on top of her. After the first act of penetration, she again tried to get up and defendant pulled her back down on the couch and again forced her to have sexual intercourse as he pinned her to the couch. In fact, J.M. testified that every time she attempted to get off the couch, defendant pulled her back down. For these reasons, defendant’s convictions for both criminal sexual assault and unlawful restraint are affirmed. See People v. Key (1984), 122 Ill. App. 3d 491, 461 N.E.2d 517.

Affirmed.

LORENZ, P.J., and GORDON, J., concur.


author: JUSTICE LaPORTA

text:
    VICORP RESTAURANTS, Plaintiff, v. CORINCO INSULATING COMPANY, Defendant and Third-Party Plaintiff-Appellant (G. William Walker Construction Company, Inc., Third-Party Plaintiff-Appellee).
    First District (6th Division)
    No. 1—90—2309
    Opinion filed November 22,1991.

      Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Nancy Jo Arnold and David T. Nani, of counsel), for appellant.
    Condon & Cook, of Chicago (Francis J. Leyhane III, of counsel), for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff, Vicorp Restaurants (Vicorp), brought an action against Corinco Insulating Co. (Corinco) and against G. William Walker Construction Co., Inc. (Walker), seeking recovery for damages allegedly caused by the improper construction of a freezer addition to the plaintiff’s warehouse. Specifically, Vicorp asserted faulty workmanship in the installation of the concrete floor of the freezer addition. Corinco, the general contractor for the project, filed counterclaims against Vi-corp and cross-claims against Walker, the subcontractor who performed all of the work pn the concrete floor of the freezer addition. Walker was thereafter dismissed from the action brought by plaintiff.

Corinco alleged in its cross-claim that any liability on its part was due to Walker’s breach of the subcontract with Corinco and to Walker’s breach of its guarantee of workmanship and materials. Corinco sought indemnification for any judgment entered against it in favor of Vicorp and the sum of $11,303, the amount withheld by Vicorp under its contract with Corinco. As additional grounds for its cross-claim, Corinco asserted that Walker acted negligently in its installation of the concrete floor and requested contribution in an amount commensurate with Walker’s relative culpability for any judgment entered against Corinco and in favor of Vicorp.

The trial court granted summary judgment in favor of Walker and against Corinco as to all of Corinco’s claims against Walker, finding that Corinco had failed to state valid causes of action. Corinco appeals only the dismissal of its breach of contract and breach of implied warranty claims. Corinco has waived its right to appeal the judgment entered against it as to the negligence claim against Walker.

The issue before this court is whether the trial court erred in granting summary judgment in favor of Walker on Corinco’s breach of contract and breach of implied warranty claims.

Plaintiff’s complaint asserted that on March 15, 1984, Vicorp and Corinco executed a contract by which Corinco agreed to construct a freezer addition to a warehouse owned by Vicorp and located in Oak Forest, Illinois. The complaint asserted further that the construction work on the concrete floor of the addition was faulty, resulting in an uneven surface and extraordinary deterioration of that surface. The complaint alleged that as a result of being used on the uneven and deteriorated surface of the floor, certain of its warehouse equipment suffered damage.

Corinco filed a responsive pleading which included an answer, affirmative defense, and counterclaims to Vicorp’s complaint. In its answer, Corinco denied the substantive allegations in the complaint. As an affirmative defense, Corinco asserted its right to a setoff in the amount of $11,303 which was due under the construction contract but had been withheld by Vicorp. In counts I and II, Corinco’s counterclaims sought judgment against Vicorp for the $11,303 which remained due and owing under the construction contract.

Corinco’s responsive pleading also included counts III and IV, which asserted cross-claims against Walker, the subcontractor who performed the work on the concrete floor of the freezer addition. In its cross-claims, Corinco alleged that any liability on its part was due to Walker’s failure to perform the work in accordance with the subcontract. The cross-claims asserted further that Walker had breached its guarantee of the workmanship and materials used on the freezer addition project. Corinco sought indemnity for any liability imposed upon it and requested a judgment against Walker in the full amount of any judgment entered against Corinco in favor of Vicorp, plus the sum of $11,303.

Thereafter, Walker filed a motion to dismiss Vicorp’s complaint pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615). Walker’s motion alleged that the plaintiff’s complaint sought contract damages from Walker despite the fact that it failed to allege the existence of a contract between Vi-corp and Walker and asserted that the complaint failed to state a valid cause of action against Walker.

Vicorp filed a reply to the affirmative defense and an answer to the counterclaims brought by Corinco.

Pursuant to sections 2 — 612 and 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2 — 612, 2 — 615), Walker then filed a motion to strike and dismiss the cross-claims brought by Corinco. In this motion, Walker requested that certain portions of count III, which alleged a breach of the subcontract by Walker, be stricken and that it be made more definite and certain. The motion requested further that count IV, which alleged a breach of the guarantee of workmanship and materials, be dismissed because it failed to state a valid cause of action.

On December 1, 1986, the trial court granted Walker’s previously filed motion and dismissed with prejudice Vicorp’s claims against Walker. Thereafter, the court ordered that counts III and IV of the counterclaim, asserting Corinco’s cross-claims against Walker, be stricken and granted Corinco leave to file amended cross-claims.

Vicorp subsequently obtained leave to file an amended complaint against Corinco which added a count premised upon negligence.

Thereafter, Corinco obtained leave to file an amendment to its cross-claims against Walker, adding count V, which alleged that Walker was negligent in its installation of the concrete floor of the freezer addition. Corinco sought contribution from Walker in an amount commensurate with Walker’s relative culpability for any judgment entered against Corinco and in favor of Vicorp.

Walker filed an answer to count V of Corinco’s amended cross-claims, denying the substantive allegations raised by Corinco. Walker also asserted as an affirmative defense that Corinco, as general contractor, and W. E. Green, as architect of the project, approved and accepted Walker’s work and that Walker had received payment for its work performed under the subcontract.

Vicorp obtained leave to file a second amended complaint against Corinco which alleged that the floor of the cooling area outside the freezer was also defective and damaged as a result of the conduct of Corinco. Corinco filed an answer to the second amended complaint which denied the substantive allegations made against it. Corinco again asserted as an affirmative defense its right to a setoff in the amount of $11,303 which remained due and owing under the contract.

After the parties engaged in substantial discovery, Walker filed a motion for summary judgment as to counts III and IV of Corinco’s cross-claims. Walker also filed a separate motion for summary judgment as to count V of Corinco’s amended cross-claims. Walker’s motions for summary judgment asserted that (1) the subcontract between Corinco and Walker did not include any express indemnification or guarantee provisions, (2) Corinco was precluded from seeking indemnity by virtue of the Construction Contract Indemnification for Negligence Act (Ill. Rev. Stat. 1985, ch. 29, par. 61 et seq.), (3) Corinco’s claims did not fall within the specific implied indemnity exceptions recognized by the supreme court, and (4) Vicorp and Corinco could not recover in tort for a purely economic loss.

Corinco responded to Walker’s motions for summary judgment, arguing that Walker was liable to Corinco for breach of contract and for breach of implied warranty. Corinco argued further that the Construction Contract Indemnification for Negligence Act (Ill. Rev. Stat. 1985, ch. 29, par. 61 et seq.) did not preclude Corinco’s claims where they were predicated upon breach of contract and upon breach of implied warranty as well as upon negligence.

Walker filed replies to Corinco’s responses, and upon hearing arguments of counsel, the trial court granted summary judgment in favor of Walker as to all three counts in the cross-claim and dismissed Walker as a party to the action. The court’s order also held that there was no just cause to delay enforcement of or appeal from the order.

Corinco has appealed only the trial court’s grant of summary judgment in favor of Walker as to Corinco’s breach of contract and breach of implied warranty claims.

Initially, we note that section 2 — 608 of the Illinois Code of Civil Procedure provides that “[a]ny claim by one or more defendants *** against one or more codefendants, whether in the nature of *** cross claim or otherwise, and whether in tort or contract, *** may be pleaded as a cross claim in any action, and when so pleaded shall be called a counterclaim.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 608(a).) Corinco’s cross-claims against Walker were set forth in its pleading which incorporated its answer to the plaintiff’s complaint, affirmative defense, and counterclaims against both Vicorp and Walker. At the time this pleading was filed, Walker was a named defendant in the litigation. Consequently, Corinco’s claims against Walker were properly brought before the trial court.

Although Vicorp’s complaint against Walker was subsequently dismissed, Corinco’s cross-claims against Walker remained. Thus, Corinco’s pleading against Walker could easily have been retitled and treated as a third-party complaint. On review, Corinco’s claims will be examined as if they had been raised by way of a third-party complaint.

Section 2 — 406(b) of the Code of Civil Procedure provides that a defendant may assert a claim against a person not a party to the action who is or may be liable to the defendant for all or part of the plaintiff’s claim against the defendant. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 406(b).) A defendant may maintain an action against a third-party defendant only where the third-party’s liability is in some way derivative of the outcome of the main claim or where the third-party defendant is or may be liable to the original defendant for all or part of the plaintiff’s claims against him. (Kiest v. Esmond (1989), 179 Ill. App. 3d 1055, 1058, 535 N.E.2d 490, 492; Filipponio v. Bailitz (1979), 73 Ill. App. 3d 389, 392, 392 N.E.2d 23, 26.) The third-party practice established by this section is substantially the same as the Federal practice under Federal Rule 14. Ill. Ann. Stat., ch. 110, par. 2 — 406, Joint Committee Comments, at 414 (Smith-Hurd 1983).

Here, Walker’s liability is derivative of or dependent upon the outcome of Vicorp’s claim against Corinco. Therefore, Corinco could properly pursue a third-party action against Walker. Kiest, 179 Ill. App. 3d at 1058, 535 N.E.2d at 492; Filipponio, 73 Ill. App. 3d at 392, 392 N.E.2d at 26.

Corinco asserted that Walker was liable to Corinco for the loss sustained by Vicorp due to Walker’s breach of the terms of the subcontract and due to its breach of the implied warranty that the concrete floor would be installed in a workmanlike manner.

A claim for breach of contract is properly presented to the trial court where a general contractor asserts a breach of the terms of its agreement with a subcontractor and seeks recovery for any loss incurred by the plaintiff. Northrop Corp. v. Crouch-Walker, Inc. (1988), 175 Ill. App. 3d 203, 206, 529 N.E.2d 784, 787-88; Brownell v. Quinn (1964), 47 Ill. App. 2d 206, 209, 197 N.E.2d 721, 723; Jeffers v. Brua (1963), 40 Ill. App. 2d 156,161, 189 N.E.2d 374, 377.

In the instant case, Corinco alleged in its cross-claims that Walker agreed to furnish and install a concrete slab floor for the subject freezer addition pursuant to the specifications and construction plans of the architect on the project as set forth in the subcontract. Corinco asserted further that Walker failed to install the concrete floor in accordance with the terms of the subcontract. The allegations in Corinco’s cross-claims were sufficient to set forth a legally recognized claim of breach of contract upon which relief could be granted. Northrop Corp., 175 Ill. App. 3d at 206, 529 N.E.2d at 787-88.

Whether a breach of contract has occurred is a question of fact. (Levan v. Richter (1987), 152 Ill. App. 3d 1082, 1090, 504 N.E.2d 1373, 1379.) No evidence was presented which would establish that the concrete floor installed by Walker was in accordance with the terms of the subcontract. We hold, therefore, that the trial court erred in finding as a matter of law that Corinco could not present a valid claim for breach of contract and should not have granted summary judgment on this basis.

Corinco also sought recovery for Walker’s alleged breach of implied warranty.

One who contracts to perform construction work impliedly warrants to do the work in a reasonably workmanlike manner, and the failure to do so constitutes a breach of contract. Harmon v. Dawson (1988), 175 Ill. App. 3d 846, 849, 530 N.E.2d 564, 567; Downes Swimming Pool, Inc. v. North Shore National Bank (1984), 124 Ill. App. 3d 457, 465, 464 N.E.2d 761, 766; Mayfield v. Swafford (1982), 106 Ill. App. 3d 610, 612, 435 N.E.2d 953, 954; Dean v. Rutherford (1977), 49 Ill. App. 3d 768, 770, 364 N.E.2d 625, 626-27.

Corinco asserted in its cross-claims that Walker breached its warranty of the workmanship and materials used for the installation of the concrete floor for Vicorp. If, as Corinco alleged, Walker failed to install the concrete floor in a good workmanlike manner, Corinco would be entitled to recover for Walker’s breach of implied warranty. (Leaseway Warehouses, Inc. v. Carlton (N.D. Ill. 1983), 568 F. Supp. 1041, 1043; Harmon, 175 Ill. App. 3d at 849, 530 N.E.2d at 567; Downes Swimming Pool, Inc., 124 Ill. App. 3d at 465, 464 N.E.2d at 766; Dean, 49 Ill. App. 3d at 770, 364 N.E.2d at 626-27.) The court heard no evidence establishing that Walker installed the concrete floor in a workmanlike fashion. Consequently, the trial court erred in finding as a matter of law that Corinco could not present a valid claim for breach of implied warranty.

Walker has contended that Corinco’s claims are barred by the Construction Contract Indemnification for Negligence Act (Ill. Rev. Stat. 1985, ch. 29, par. 61 et seq.) and relies upon the decision in Playskool, Inc. v. Elsa Benson, Inc. (1986), 147 Ill. App. 3d 292, 497 N.E.2d 1199. We find, however, that the case before us does not involve any allegations of negligence by Walker. Thus, contrary to Walker’s assertions, the Construction Contract Indemnification for Negligence Act is inapplicable to the issues presented by this appeal, and the decision in Playskool is not controlling here. Consequently, we hold that the trial court erred in determining that Corinco sought recovery against Walker for an invalid indemnification claim.

Summary judgment is proper only where the pleadings, depositions, admissions, and affidavits demonstrate that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005.) Summary judgment is a drastic remedy to be granted only where the movant’s right to it is clear and free from doubt. (Sutton v. Washington Rubber Parts & Supply Co. (1988), 176 Ill. App. 3d 85, 88, 530 N.E.2d 1055, 1057.) If the facts will allow more than one conclusion or inference, summary judgment should be denied. (Sutton, 176 Ill. App. 3d at 88, 530 N.E.2d at 1057.) The respondent need not prove his case at the summary judgment stage, but he may be required to present evidence which demonstrates the existence of a triable issue of fact. (Kramer v. Weedhopper of Utah, Inc. (1986), 141 Ill. App. 3d 217, 221, 490 N.E.2d 104, 107.) Inferences which may reasonably be drawn from the evidence are to be resolved in favor of the party responding to the motion. Kramer, 141 Ill. App. 3d at 221, 490 N.E.2d at 107.

In the instant case, the pleadings and evidence before the court clearly indicated that there was a genuine issue of material fact as to whether Walker’s installation of the concrete floor constituted a breach of the terms of the subcontract or a breach of the implied warranty that the work was to be performed in a workmanlike manner. Because this genuine issue of material fact remained, summary judgment should not have been entered in favor of Walker. Amin v. Knape & Vogt Co. (1986), 148 Ill. App. 3d 1075,1078, 500 N.E.2d 454, 456.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and the cause is remanded for a trial on the merits of Corinco’s breach of contract and breach of implied warranty claims against Walker.

Reversed and remanded.

RAKOWSKI, P.J., and EGAN, J., concur.


author: PRESIDING JUSTICE CERDA

text:
    JOHN LEE RUMMEL, Plaintiff, v. YAZOO MANUFACTURING COMPANY, Defendant and Third-Party Plaintiff-Appellant (Grayslake Community High School District No. 127, Third-Party Defendant-Appellee).
    First District (3rd Division)
    No. 1—90—2632
    Opinion filed October 23,1991.

      French, Kezelis & Kominiarek, P.C., of Chicago (Michael J. Ross and Russell P. Veldenz, of counsel), for appellant.
    Timothy D. McMahon and Thomas W. Weber, both of Weidner & McAuliffe, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, John Lee Rummel, filed a products liability action against defendant, Yazoo Manufacturing Company, a corporation, in connection with injuries allegedly received from a lawn mower. Defendant appeals from dismissal of its third.-party complaint for contribution against plaintiff’s employer, Grayslake Community High School District No. 127. Defendant argues that: (1) the statute of limitations for actions against municipalities did not bar its contribution action against third-party defendant; and (2) third-party defendant waived the statute of limitations by intervening in the underlying action.

Plaintiff filed a complaint on October 12, 1988, and alleged the following facts. Defendant designed, manufactured, and sold lawn mowing equipment. On or about September 15, 1987, plaintiff used a lawn mower sold by defendant in cutting grass on the premises of Grayslake Community High School. Plaintiff was injured when his foot became trapped in the lawn mower. The lawn mower was at the time of its design, manufacture, and sale, defective and unreasonably dangerous.

On November 28, 1988, Grayslake High School District No. 127 was given leave to intervene as subrogee of plaintiff, and it was ordered that judgment in favor of plaintiff was to be impressed with a lien in favor of Grayslake for the amount paid to plaintiff under Grayslake’s insurance policy.

On February 15, 1990, defendant filed a third-party complaint against Grayslake that alleged that if liability were assessed against defendant, then defendant would be entitled to judgment against third-party defendant.

Third-party defendant filed a motion to dismiss the third-party complaint pursuant to section 2 — 619(a)(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(5)). It argued that the one-year statute of limitations in section 8 — 101 of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (Ill. Rev. Stat. 1989, ch. 85, par. 8 — 101) barred the third-party complaint.

The motion to dismiss was granted, and the third-party complaint was dismissed with prejudice. The trial court found that there was no just reason for delaying enforcement or appeal of the dismissal order. Defendant filed a timely appeal from the dismissal.

Defendant argues on appeal that: (1) the statute of limitations of one year for actions against municipalities (Ill. Rev. Stat. 1989, ch. 85, par. 8 — 101) does not apply to third-party contribution actions filed against municipalities because there is a specific statute of limitations of two years for contribution actions (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 204); (2) if the Act controlled, the loss of protection to third-party defendant would be insignificant compared to defendant’s loss of the right to contribution; (3) the legislative comments about “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1989, ch. 70, pars. 301 through 305) (the Contribution Act) indicated that statutory immunity should not prevail over the right to contribution; (4) permitting defendant to maintain its contribution action would be consistent with the policy of equitable distribution of loss among those responsible parties; (5) because the Act does not contain a statute of repose, distinguishable are the cases which hold that a contribution action not filed within the repose period is barred; (6) the right to contribution arises at the time of injury and does not accrue upon plaintiff’s filing of the complaint but accrues when defendant pays or becomes obligated to pay more than its pro rata share; and (7) third-party defendant waived the statute of limitations by filing an intervening petition within the one-year period and by attending depositions so that third-party defendant received notice of all matters relating to the lawsuit.

Section 8 — 101 of the Act provides a one-year statute of limitations for civil actions against local governmental entities. (Ill. Rev. Stat. 1989, ch. 85, par. 8 — 101.) Civil action is defined as “any action, whether based upon the common law or statutes or Constitution of this State.” (Ill. Rev. Stat. 1989, ch. 85, par. 8 — 101.) Section 13 — 204 of the Illinois Code of Civil Procedure provides that an action for contribution among joint tortfeasors for payment made in excess of a party’s pro rata share must be commenced within two years after the party seeking contribution has made such payment towards discharge of his or her liability. (Ill. Rev. Stat. 1989, ch. 110, par. 13— 204.) Where there is no pending suit initiated by the injured party, section 5 of the Contribution Act (Ill. Rev. Stat. 1989, ch. 70, par. 305) permits the assertion of a cause of action for contribution among joint tortfeasors in a separate action before or after payment. (Laue v. Leifheit (1984), 105 Ill. 2d 191, 196, 473 N.E.2d 939, 941.) But when there is a pending action, the contribution claim must be asserted in that action either by counterclaim or by third-party claim (Laue, 105 Ill. 2d at 196, 473 N.E.2d at 941) and then section 13 — 204 does not apply (Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 459, 557 N.E.2d 873, 877).

The fourth district has held that section 8 — 101 applies to third-party contribution actions. (Highland v. Bracken (1990), 202 Ill. App. 3d 625, 630, 560 N.E.2d 406, 409-10.) The court held that the right of a contribution action exists in an inchoate form at the time of the injury but accrues when either payment is made or obligated or when an action is brought against defendant. (Highland, 202 Ill. App. 3d at 629, 560 N.E.2d at 411; see also Bonfield v. Jordan (1990), 202 Ill. App. 3d 638, 642, 560 N.E.2d 412, 415 (contribution claim accrued when lawsuit filed against defendant).) The court stated, “Since an action for contribution is subject to applicable statutes of limitations [citations], and this contribution action was filed within the pending litigation and within a year of the filing of the original complaint, this action was timely under Laue and the Immunity Act.” Highland, 202 Ill. App. 3d at 630, 560 N.E.2d at 409-10.

Other statutes of limitations or statutes of repose have been applied to third-party contribution actions. Hayes, 136 Ill. 2d at 457, 557 N.E.2d at 876 (medical malpractice, Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212); Roberson v. Belleville Anesthesia Associates, Ltd. (1991), 213 Ill. App. 3d 47 (medical malpractice, Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212); Thompson v. Walters (1991), 207 Ill. App. 3d 531, 532, 565 N.E.2d 1385, 1388 (products liability, Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213); Pederson v. West (1990), 205 Ill. App. 3d 200, 203-05, 562 N.E.2d 578, 580-81 (medical malpractice, Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212); Rittenhouse v. Tabor Grain Co. (1990), 203 Ill. App. 3d 639, 653, 561 N.E.2d 264, 274 (construction, Ill. Rev. Stat. 1983, ch. 110, par. 13 — 214); Heneghan v. Sekula (1989), 181 Ill. App. 3d 238, 242, 536 N.E.2d 963, 966 (medical malpractice, Ill. Rev. Stat. 1983, ch. 110, par. 13 — 212); La Salle National Bank v. Edward M. Cohon & Associates, Ltd. (1988), 177 Ill. App. 3d 464, 471, 532 N.E.2d 314, 319 (construction, Ill. Rev. Stat. 1989, ch. 110, par. 13— 214); Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill. App. 3d 515, 518, 511 N.E.2d 706, 710 (construction, Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214).

Defendant cites Rakowski v. Lucente (1984), 104 Ill. 2d 317, 472 N.E.2d 791, Stephens v. McBride (1983), 97 Ill. 2d 515, 455 N.E.2d 54, Verson Allsteel Press Co. v. Major Spring & Manufacturing Co. (1982), 105 Ill. App. 3d 419, 434 N.E.2d 456, and Comment, Comparative Contribution: The Legislative Enactment of the Skinner Doctrine, 14 J. Marshall L. Rev. 173 (Fall 1980). These cases did not address the issue of when a contribution claim arises for purposes of a statute of limitations. The law review article quoted legislative history that stated that the right of contribution is not barred by any common law or statutory immunity which would preclude the “prime claimant” from pursuing an action directly against the third-party defendant (14 J. Marshall L. Rev. at 193), but the numerous cases cited earlier have found that the legislature intended that a statute of limitations could bar a third-party contribution claim.

The statute of limitations in the Act was reduced to one year in order to accomplish the announced policy and purpose of bringing claims against municipalities promptly. The broad language of the statute together with the pronounced legislative concern with governmental immunity are indicative that the legislature intended the limitation provisions of the Act to apply to a third-party plaintiff’s right to contribution. We hold that the language of section 8 — 101 covering civil actions is inclusive and applies to a contribution action. In addition, section 8 — 101 controls here rather than section 13 — 204 because the former is more specific. See, e.g., Heneghan, 181 Ill. App. 3d at 241-42, 536 N.E.2d at 967 (medical malpractice statute of limitations is more specific than contribution statute of limitations).

In this case the date of injury was September 15, 1987, but the cause of action for contribution did not accrue on that date. On or about October 12, 1988, when plaintiff filed a complaint against defendant, the cause of action for contribution against third-party defendant accrued. Because defendant did not file a third-party complaint for contribution against third-party defendant until February 15, 1990, which was beyond the one-year statute of limitation, its cause of action expired against third-party defendant.

In its waiver argument, defendant relies on cases which involved a former requirement of the Act that local public entities receive notice within six months of the cause of action arising. (Dunbar v. Reiser (1976), 64 Ill. 2d 230, 356 N.E.2d 89; Helle v. Brush (1973), 53 Ill. 2d 405, 292 N.E.2d 372.) In Helle (53 Ill. 2d at 410, 292 N.E.2d at 375), in which defendant attempted to file a counterclaim against the plaintiff public entity without the required notice, the court held that the filing of the lawsuit by the public entity was a waiver of the Act’s notice requirement. Dunbar (64 Ill. 2d at 237, 356 N.E.2d at 91-92), held that the filing of the complaint within the six-month period satisfied the Act’s notice requirement. Neither case concerned the waiver of a statute of limitations.

Although a statute of limitations can be waived, waiver is the purposeful relinquishment of a known right that can arise either expressly or by conduct inconsistent with an intent to enforce the right. (Bailey v. Petroff (1988), 170 Ill. App. 3d 791, 798-99, 525 N.E.2d 278, 283.) In People ex rel. Foreman v. Village of Round Lake Park (1988), 171 Ill. App. 3d 443, 449-50, 525 N.E.2d 868, 872, it was held that there was no waiver in raising the statute of limitations defense 41/2 years after the action was filed where defendants sought and were granted leave to amend their answers. In Morris v. City of Chicago (1985), 130 Ill. App. 3d 740, 745, 474 N.E.2d 1274, 1279, the court held that a defense of statutory governmental immunity not raised until trial was not waived.

There is no indication that third-party defendant intended to waive the statute of limitations defense by intervening, and the defense did not become relevant until the third-party complaint was filed later. Section 8 — 101 provides that a civil action cannot be commenced against a local entity after one year’s time (Ill. Rev. Stat. 1989, ch. 85, par. 8 — 101) and provides no exception for defendants who are on notice of the allegations. That third-party defendant was on notice of the matters relating to the lawsuit once it intervened therefore did not deprive it of the right to assert the statute of limitations defense.

The judgment of the circuit court is affirmed.

Affirmed.

RIZZI and GREIMAN, JJ., concur.