text:
    CHICAGO TITLE AND TRUST COMPANY as Trustee, Plaintiffs-Appellees and Cross-Appellants, v. BROOKLYN BAGEL BOYS, INC., et al., Defendants-Appellants and Cross-Appellees.
    First District (1st Division)
    No. 1—89—3419
    Opinion filed September 16,1991.

      Lawrence I. Serlin, of Highland Park, and Gerald Eisen, of Rosemont, for appellants.
    Rosenthal & Schanfield, of Chicago (Robert R. Tepper and Alisa B. Arnoff, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendants Highland Park Bagel Corporation (HPBC) and Luis Gorbena appeal a judgment of the circuit court of Cook County entered against them in an action concerning the breach of a commercial lease with plaintiff Chicago Title & Trust Company as trustee for the benefit of plaintiffs Bertha Abel and Arnold Roberts. Gorbena also appeals an order entering sanctions against him. Plaintiffs cross-appeal the judgment of the circuit court and the dismissal of Brooklyn Bagel Boys, Inc. (Bagel Boys), Morris Goldman and Gerald Geffen as defendants.

The record on appeal discloses the following. On December 13, 1980, plaintiffs signed a lease for commercial space located at 1866 First Street, Highland Park, Illinois, for the period from April 1, 1981, to March 31, 1986. The lease was also signed by Gorbena and Goldman for Bagel Boys as the tenant. Under the lease, Bagel Boys was responsible for paying monthly rent, a share of assessed real estate taxes and common area maintenance (CAM) expenses.

In February 1983, Goldman and Gorbena were the president and secretary-treasurer, respectively, of HPBC. On or about May 1, 1985, HPBC was dissolved by the Secretary of State for failure to file its annual report for 1984. After the dissolution, Geffen continued to file tax returns and wrote rent checks to plaintiffs from the account of “Brooklyn Bagel Boys-Highland Park Bagel Corp.”

In a letter dated July 17, 1985, plaintiffs’ agent wrote to Gorbena, Geffen and HPBC at the address identified in the lease. The letter stated that the lease was about to expire and indicated plaintiffs’ terms for renewal. On a line marked “Accepted,” Geffen and Gorbena signed as president and secretary, respectively, of HPBC. The signatures of plaintiffs Abel and Roberts also appear on the letter.

On October 10, 1988, plaintiffs’ agent wrote to Gorbena, Geffen and HPBC, stating that rent for October had not been received and that plaintiffs would resort to their remedies under the lease if payment was not made by October 18,1988.

On December 16, 1988, plaintiffs filed suit against Bagel Boys, HPBC, Gorbena, Geffen and Goldman to recover amounts due under the lease, including, but not limited to: rent, taxes, CAM expenses and interest. Four days later, plaintiffs leased the space at issue to Over the Top, Ltd. On February 15, 1989, HPBC was reinstated by the Secretary of State.

On April 24, 1989, defendants moved to dismiss the claims against them pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), with the exception of HPBC. Following a hearing on the motion held that day, the trial court dismissed Bagel Boys with prejudice. The court also dismissed the complaints against Gorbena, Geffen and Goldman in their capacities as corporate officers. However, the trial court denied the motion to dismiss claims against Gorbena and Goldman in their capacities as corporate directors.

The remaining claims were set for trial on May 17, 1989, but were continued to July 10, 1989. Gorbena was not present in court on July 10; the trial court continued the case to July 26, 1989. The trial court was notified on July 25 that Gorbena could not be in court on July 26. The court entered orders directing Gorbena to pay plaintiffs’ attorney fees and costs incurred in preparing for the July 10 date; directing plaintiffs to submit an affidavit of fees and costs; and continuing plaintiffs’ oral motion for further sanctions against Gorbena.

The trial was held on August 2, 1989. No court reporter was present. The trial court entered judgment in favor of defendants Goldman and Geffen. The court also entered judgment against defendants HPBC and Gorbena as follows:

Unpaid Rent (4V2 @ $l,400/mo.) $6,300.00
Repairs 1,808.19
Property Protection 327.23
Parking lot maintenance (4V2 @ $30/mo.) 135.00
Taxes (41/2 @ $100/mo.) 450.00
Interest per lease agreement 675,73
TOTAL $9,696.15
Less security deposit (3,000.00)
$6,696.15

The court further ordered HPBC and Gorbena to pay $5,000 in attorney fees. In addition, the court levied sanctions against Gorbena in the amount of $864.23.

Plaintiffs and defendants filed post-trial motions, which were denied on November 18, 1989. Defendants and plaintiffs seek review in this court. Plaintiffs have moved to compel defendants to submit a report of proceedings to this court and defendants have moved to dismiss plaintiffs’ cross-appeal; both motions have been taken with the case.

On appeal, defendants contend that: (1) the trial court erred in excluding evidence relating to plaintiffs’ mitigation of damages; (2) the trial court erred in holding Gorbena personally liable on the lease and in assessing sanctions against him; and (3) this court lacks jurisdiction to hear plaintiffs’ cross-appeal. Plaintiffs contend that: (1) the trial court should have awarded rent and CAM expenses for six months, rather than 41/2 months; (2) the trial court’s calculation of taxes was inconsistent with the terms of the lease; (3) plaintiffs are entitled to post-judgment attorney fees and costs; (4) the trial court erred in entering judgment in favor of Goldman and Geffen; and (5) the trial court erred in dismissing Bagel Boys because the court relied on a purported assignment of the lease from Bagel Boys to HPBC which was alleged in defendant’s motion to dismiss, but not in plaintiffs’ complaint.

Initially, it must be noted that neither side properly filed a report of proceedings in this case. No verbatim transcript was taken at trial and neither side filed a report pursuant to Rule 323(c) (134 Ill. 2d R. 323(c)) or an agreed statement of facts pursuant to Rule 323(d) (134 Ill. 2d R. 323(d)). Plaintiffs’ motion to compel defendants to submit a report pursuant to Rule 323 is denied, as the provisions of the rule are not mandatory.

Plaintiffs did attach an “Agreed Report of Proceedings” to their brief. Attachments to briefs not otherwise before the court cannot be used to supplement the record. (Regal Package Liquor, Inc. v. J.R.D., Inc. (1984), 125 Ill. App. 3d 689, 691, 466 N.E.2d 409, 411.) This “report” does not appear in the record; moreover, it is signed only by plaintiffs’ counsel.

The parties, however, stipulated to the “Agreed Report” during oral argument before this court. Supreme Court Rule 329 permits material omissions from and improper authentication of the record on appeal to be remedied by stipulation of the parties after the transmission of the record to this court or by the reviewing court. (134 Ill. 2d R. 329.) Thus, we accept the agreed report of proceedings and turn to the merits of the case.

First, defendants contend that they should not have been prevented from eliciting testimony relating to plaintiffs’ mitigation of damages. Generally, the decision to allow or exclude testimony is within the discretion of the trial court (e.g., Peterson Welding Supply Co. v. Cryogas Products, Inc. (1984), 126 Ill. App. 3d 759, 766, 467 N.E.2d 1068, 1073), as is the decision to allow or deny an amendment to a complaint (Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 390, 385 N.E.2d 664, 669). To preserve an error regarding an evidentiary or amendatory ruling, a party typically must make an offer of proof to the trial court. (See Yassin v. Certified Grocers of Illinois, Inc. (1986), 150 Ill. App. 3d 1052, 1066, 502 N.E.2d 315, 326.) The formality required of an offer of proof, however, depends on the individual facts of the case. (Daehler v. Oggoian (1979), 72 Ill. App. 3d 360, 369, 390 N.E.2d 417, 424.) Indeed, an offer of proof is unnecessary when the nature of the testimony is obvious. In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 640, 494 N.E.2d 541, 550.

In this case, the record indicates that defendants sought to elicit testimony from Mr. Loeb, plaintiffs’ agent responsible for managing the subject property, both on cross-examination and when called as an adverse witness, concerning plaintiffs’ efforts to secure a new tenant. Objections to such testimony were sustained under the general rule that failure to mitigate damages is an affirmative defense which must be pleaded and proved. (E.g., Rozny v. Marnul (1969), 43 Ill. 2d 54, 73, 250 N.E.2d 656, 666.) The record also indicates, however, that the trial court permitted Mr. Loeb to testify on direct examination that he was able to rent the space to another tenant from March 15, 1989, onward. The trial court also permitted Mr. Loeb to testify that the new tenant gained possession of the premises at issue in mid-February 1989.

Before discussing whether excluding testimony on mitigation was proper, we must first discuss the damages awarded under the lease. The primary task of a court interpreting a written lease is to discern and give effect to the intention of the parties as expressed in the language of the document as a whole. (E.g., Michigan Avenue National Bank v. Evans, Inc. (1988), 176 Ill. App. 3d 1047, 531 N.E.2d 872.) The general rule of contracts that a plaintiff may recover damages only to the extent of its injury applies to leases. Stride v. 120 West Madison Building Corp. (1985), 132 Ill. App. 3d 601, 477 N.E.2d 1318.

Here, section 14.02 of the lease specifies two courses of action the landlord may take. First, the landlord may terminate the lease, which would obligate the defaulting tenant to pay “the cost of recovering the Premises, reasonable attorney’s fees and rental due for the balance of the term, less the fair rental value of the Premises for the balance of the term.” Second, the landlord may terminate the defaulting tenant’s right of possession without terminating the lease and re-let the premises, which would obligate the tenant to pay the costs of performing any of the tenant’s covenants, “the costs of recovering the premises, reletting and the rental provided for herein, and reasonable attorney’s fees, less any sums received by Landlord upon reletting of the Premises.”

Though the record shows that defendants did not pay rent from October 1988 through March 1989 and the record is unclear as to the amount of real estate taxes owed by defendants, the trial court based its award of damages on monthly expenses multiplied by 4V2 months. The selection of 4P-k months as the multiplier is supported by the agreed report of proceedings, which states that the trial court found that the new tenants were able to take possession in mid-February. Thus, we infer that the trial court factored mitigation into its calculations. We conclude that it was proper to do so in light of the rule limiting damages under the lease to those actually suffered. Stride, 132 Ill. App. 3d 601, 477 N.E.2d 1318.

We further conclude in this case that having decided to take mitigation into account, the trial court could not arbitrarily exclude evidence on the issue. Here, plaintiffs “opened the door” to such testimony during their direct examination of Mr. Loeb. The record does not show that defendants made an offer of proof but given this record, we believe that one was unnecessary, for it was obvious that Mr. Loeb was competent to testify further and the nature of the testimony was equally obvious. (Passiales, 144 Ill. App. 3d at 640, 494 N.E.2d at 550.) Moreover, the record shows that the defense was implicit in defendants’ written interrogatories, lending support to the conclusion that no unfair prejudice to plaintiffs would have resulted from the excluded testimony. We therefore reverse and remand to permit defendants to plead and present evidence concerning mitigation of damages.

Next, Gorbena argues that the trial court erred in finding him personally liable on the lease. The judgment order appealed from in this case indicates that the trial court

“base[d] its decision with regard to Luis Gorbena on §8.65(3) of the Illinois Business Corporation Act and finds that §12.45(4)(d) of the Illinois Business Corporation Act is not controlling.”

Section 8.65(a)(3) of the Illinois Business Corporation Act (BCA) provides in relevant part:

“The directors of a corporation that carries on its business after the filing by the Secretary of State of articles of dissolution, *** shall be jointly and severally liable to the creditors of such corporation for all debts and liabilities of the corporation incurred in so carrying on its business.” (Ill. Rev. Stat. 1987, ch. 32, par. 8.65(a)(3).)

Section 12.45(d) of the EGA provides:

“Upon the issuance of the certificate of reinstatement, the corporate existence shall be deemed to have continued without interruption from the date of the issuance of the certificate of dissolution, and the corporation shall stand revived with such powers, duties and obligations as if it had not been dissolved; and all acts and proceedings of its officers, directors and shareholders, acting or purporting to act as such, which would have been legal and valid but for such dissolution, shall stand ratified and confirmed.” (Ill. Rev. Stat. 1987, ch. 32, par. 12.45(d).)

Gorbena contends that once HPBC was reinstated by the Secretary of State on February 15, 1989, section 12.45(d) of the EGA shifted any liability on the lease from himself to HPBC.

Section 12.45(d) of the EGA codifies the doctrine of “relation back,” which permits a reinstated corporation to ratify actions taken on its behalf while it was dissolved, giving those actions legal effect from the time they were taken. (Department of Revenue v. Semenek (1990), 194 Ill. App. 3d 616, 618, 551 N.E.2d 314, 315.) However, section 12.45(d) does not transform individual liability into corporate liability or create a legal fiction contrary to the true nature of events. (See Semenek, 194 Ill. App. 3d at 618, 551 N.E.2d at 315; In re Estate of Plepel (1983), 115 Ill. App. 3d 803, 450 N.E.2d 1244.) In past cases involving potential personal liability for an obligation purportedly undertaken for a dissolved corporation, our courts have looked at the knowledge of the parties. Cf. Steve’s Equipment Service, Inc. v. Riebrandt (1984), 121 Ill. App. 3d 66, 70, 459 N.E.2d 21, 24 (limiting personal liability to cases where the debtor knew or should have known of the dissolution); Plepel, 115 Ill. App. 3d at 807-08, 450 N.E.2d at 1247 (individual’s estate held liable where creditors did not know they were dealing with a corporation).

In this case, we believe that the trial court reached a proper result, though we do not see the issue as one of which section of the EGA is controlling. Rather, we believe that sections 8.65 and 12.45 can be read together. Holding HPBC and Gorbena jointly and severally liable, as the trial court did, not only harmonizes these two sections of the EGA, but also comports with the rule established in Plepel and Semenek that personal liability cannot be transformed into possibly worthless corporate liability. HPBC may ratify the lease pursuant to section 12.45(d), but if it cannot pay debts so ratified, plaintiffs may recover from Gorbena pursuant to section 8.65(a)(3).

Gorbena also contests the sanctions levied against him for delaying the trial. In Illinois, a party may not recover attorney fees or the costs of litigation absent a contract or statute providing for their recovery. (Bank of Waukegan v. Epilepsy Foundation of America (1987), 163 Ill. App. 3d 901, 909, 516 N.E.2d 1337, 1341-42 (and cases cited therein).) Although Illinois Supreme Court Rule 231(g) (134 Ill. 2d R. 231(g)) permits a court to condition a continuance on the movant’s agreement to pay the opposing party’s costs, it does not extend to the payment of attorney fees. Hallmark Personnel, Inc. v. Pickens-Kane Moving & Storage Co. (1980), 82 Ill. App. 3d 18, 24-25, 401 N.E.2d 1049, 1054; see also Epilepsy Foundation of America, 163 Ill. App. 3d at 909-10, 516 N.E.2d at 1342 (rejecting dicta in Hallmark which suggested fees might be awarded in some future case).

In this case, the judgment order refers to payment of “certain fees and costs” other than the attorney fees Gorbena and HPBC were ordered to pay pursuant to the lease. An earlier order refers to assessing attorney fees and costs regarding plaintiffs’ preparation for the July 10, 1989, trial date. While the trial court could properly order Gorbena to pay the costs of delaying the trial, it could not award attorney fees. Thus, we reverse and remand for a determination of the costs alone.

Defendants’ final argument is that this court lacks jurisdiction to hear plaintiffs’ cross-appeal. This argument was also presented in a motion before this court which was taken with the case. The question of jurisdiction of the appellate court must be determined prior to deciding the merits of an appeal. E.g., Mar Cement, Inc. v. Diorio Builders, Inc. (1987), 153 Ill. App. 3d 798, 800, 506 N.E.2d 381, 383.

In this case, the record contains no notice of cross-appeal as required by Supreme Court Rule 303 (134 Ill. 2d R. 303), which may result in dismissal. (Sweasy v. Snyder (1989), 192 Ill. App. 3d 749, 752, 549 N.E.2d 613, 614.) A “Notice of Cross-Appeal” is attached to plaintiffs’ brief, but it bears no markings indicating that it was filed. An attachment to a brief is no substitute for compliance with supreme court rules. (Regal Package Liquor, Inc., 125 Ill. App. 3d at 691, 466 N.E.2d at 411.) Hence, we grant defendants motion to dismiss the cross-appeal. Sweasy, 192 Ill. App. 3d at 752, 549 N.E.2d at 614.

For the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. Plaintiffs’ cross-appeal is dismissed for want of jurisdiction.

Affirmed in part; reversed in part and remanded; cross-appeal dismissed.

BUCKLEY and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    WESKO PLATING, INC., n/k/a Gatto Industrial Platers, Inc., Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    First District (1st Division)
    No. 1—90—2265
    Opinion filed November 18,1991.

      Roland W. Burris, Attorney General, of Springfield (Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Stone, Pogrund, Korey & Spagat, of Chicago (Bertram A. Stone and Lawrence J. Stark, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

The Illinois Department of Revenue appeals from a determination by the circuit court that use of chemicals by Wesko Plating, Incorporated, in a system for eliminating pollutants was exempt from taxation under the Use Tax Act (Ill. Rev. Stat. 1985, ch. 120, par. 439.1 et seq.).

We affirm.

Following administrative hearings in November and December 1986, the Illinois Department of Revenue (Department) rendered a determination of tax liability under the Use Tax Act (Act) (Ill. Rev. Stat. 1985, ch. 120, par. 439.1 et seq.) against Wesko Plating, Incorporated (Wesko), an Illinois corporation now known as Gatto Industrial Platers, Incorporated. The tax liability was assessed for the period from July 1981 through January 1985 and was based on Wesko’s use of chemicals in its electroplating process as well as in a system for eliminating resulting pollutants.

Wesko sought administrative review in the circuit court (Ill. Rev. Stat. 1985, ch. 120, pars. 439.12, 451) from the Department’s determination as to both aspects of tax liability. Regarding the determination of tax liability for chemicals used in its system for eliminating pollutants, Wesko asserted it was exempt under section 2a of the Act, pertaining to pollution control facilities as defined therein. (Ill. Rev. Stat. 1985, ch. 120, par. 439.2a.) Section 2a exempts from use taxation the purchase or employment of “any system, method, construction, device or appliance appurtenant thereto” which is primarily intended to eliminate, prevent, or reduce air or water pollution. Ill. Rev. Stat. 1985, ch. 120, par. 439.2a.

The circuit court affirmed the Department’s decision to tax Wesko’s use of chemicals in its electroplating process but reversed the determination to tax Wesko’s use of chemicals in its system for reducing pollutants. Wesko then tendered, and the Department accepted, payment of $9,416.50 in satisfaction of that part of the circuit court’s decision which affirmed the taxation of chemicals used by Wesko in its electroplating process.

The Department filed a timely notice of appeal seeking review of that portion of the circuit court’s order reversing the taxation of chemicals used by Wesko in its system for eliminating pollutants.

In turn, Wesko moved to dismiss the Department’s appeal. Wesko asserted that, by accepting payment of the tax liability pertaining to its use of chemicals in its electroplating process, the Department accepted a benefit of the judgment precluding challenge to that part of the order unfavorable to it. We took that motion with the case and now deny it.

The Department did not deprive itself of the opportunity to challenge the reversal of the tax liability determination pertaining to Wesko’s use of chemicals in its system for eliminating pollutants by appealing only from that determination after accepting payment for the tax liability arising from Wesko’s use of chemicals in its electroplating process. Supreme Court Rule 303(c)(2) permits appeal from portions of judgments or orders, when such portions are severable, on the basis that independent matters are the subject of consideration. (134 Ill. 2d R. 303(c)(2); see In re Marriage of Betts (1989), 190 Ill. App. 3d 961, 547 N.E.2d 686.) As the circuit court specifically recognized in its lengthy memorandum judgment, the Department resolved two separate and independent issues of use tax liability and both determinations were before the court in the administrative review proceeding. The determination regarding whether use of chemicals in the electroplating process was subject to use taxation was entirely different from whether use of chemicals in the system for eliminating pollutants was exempt from taxation under section 2a of the Act. Indicative of the severability of the issues, the Department’s determination of use tax liability specifically identified, through invoices, which chemicals were used in the electroplating process and which were used in Wesko’s pollution control system. The determinations as to the two uses of chemicals were therefore capable of separate challenge on appeal.

It was the Department’s contention in the circuit court, and is its position here, that the exemption for pollution control facilities is unavailable to Wesko under Rule 130.335 of the Illinois Administrative Code (86 Ill. Adm. Code §130.335 (1985) (Rule 130.335)), which the Department promulgated as a guide to interpreting section 2a. (See Columbia Quarry Co. v. Department of Revenue (1987), 154 Ill. App. 3d 129, 506 N.E.2d 795, appeal denied (1987), 116 Ill. 2d 549, 515 N.E.2d 104; see also Du-Mont Ventilation Co. v. Department of Revenue (1978), 73 Ill. 2d 243, 383 N.E.2d 197; see also Ill. Rev. Stat. 1985, ch. 120, pars. 439.12, 451.) Rule 130.335 provides, in pertinent part:

“[The exemption contained in section 2a of the Act] includes not only the pollution control equipment itself, but also replacement parts therefor, but does not extend to chemicals used in any such equipment, to fuel used in operating any such equipment nor to any other tangible personal property which may be used in some way in connection with such equipment, but which is not made a physical component part of the equipment itself.” (86 Ill. Adm. Code §130.335(a) (1985).)

(See Ill. Rev. Stat. 1985, ch. 120, pars. 439.12, 451.)

The circuit court found Rule 130.335 to be inconsistent with the language of section 2a of the Act, concluding, correctly, that elimination of the exemption because chemicals were employed in Wesko’s system effectively precluded the system from being considered as a pollution control facility by the very means by which the system operated.

Generally, an administrative agency may develop guidelines to aid in statutory interpretation by promulgating rules of construction so long as they are not clearly erroneous, arbitrary, or unreasonable. (Illinois Federation of Teachers v. Board of Trustees (1989), 191 Ill. App. 3d 769, 548 N.E.2d 64, appeal denied (1990), 131 Ill. 2d 559, 553 N.E.2d 396.) Specifically, however, an administrative agency cannot thereby extend its authority (Du-Mont Ventilation Co. v. Department of Revenue (1978), 73 Ill. 2d 243, 383 N.E.2d 197) or impose a limitation on a statute that the legislature did not prescribe (Grey Panthers v. Department of Insurance (1982), 110 Ill. App. 3d 971, 443 N.E.2d 615).

Rule 130.335 imposes a limitation on the statute not intended by the General Assembly as evidenced by the language of section 2a of the Act. The intended scope of section 2a must be assessed in light of the ordinary meaning of the terms contained therein. (See Edward Don & Co. v. Zagel (1981), 95 Ill. App. 3d 589, 420 N.E.2d 501.) The exemption provided is applicable to any “method” or “system.” (Ill. Rev. Stat. 1985, ch. 120, par 439.2a.) The term “method” is synonymous with the term “system.” (Webster’s Third New International Dictionary 1422-23 (1986).) The common dictionary definitions of both terms incorporate the concept of an integrated process, a whole created by the interrelationship of component parts. (Webster’s Third New International Dictionary 2322 (1986).) The inclusion of those broad terms precludes a construction of section 2a limiting its application based on the type or nature of the component part.

Wesko’s system was described by its president as a “series of tanks and pumps and pH control meters” used to stem the discharge of pollutants into Chicago’s sewer system. The system operated to eliminate pollutants only through chemical reactions caused by the introduction of chemicals into tanks containing pollutant substances. Those chemicals included sodium hypochlorite, sodium hydroxide, hydrochloric acid, and nitric acid. By precluding application of the exemption to systems, such as Wesko’s, where chemicals are the integral components for eliminating pollutants, the rule imposes an improper limitation on the terms “method” and “system.” That constraint is contrary to the purpose of section 2a to encourage efforts to control pollution by providing a tax exemption for the employment of pollution control facilities. See Illinois Cereal Mills, Inc. v. Department of Revenue (1976), 37 Ill. App. 3d 379, 346 N.E.2d 69.

Both Wesko and the Department have directed attention to Columbia Quarry Co. v. Department of Revenue (1987), 154 Ill. App. 3d 129, 506 N.E.2d 795, appeal denied (1987), 116 Ill. 2d 549, 515 N.E.2d 104, the only case, to date, involving the particular provision of Rule 130.335 implicated here. In Columbia Quarry, the appellate court considered whether limestone used by Central Illinois Light Company (CILCO) in a system intended to reduce air pollution constituted the use of a chemical under Rule 130.335. Ground to a fine powder, the limestone was mixed with water. The mixture was introduced into a chamber where it reacted with flue gas to remove sulfur dioxide. In the process, calcium sulfate, a waste product, was formed. The clean flue gas was then released into the atmosphere.

In concluding that the exemption provided by section 2a was available to CILCO and was not precluded because of Rule 130.335, the court focused on whether the limestone was utilized as a chemical additive. (Columbia Quarry, 154 Ill. App. 3d at 131-32, 506 N.E.2d at 54.) The court determined that the limestone was not merely a chemical additive but was an integral part of CILCO’s system, functioning as a filter to absorb pollutants. (Columbia Quarry, 154 Ill. App. 3d at 132-33, 506 N.E.2d at 54-55.) Acknowledging the limestone chemically reacted, initially, with water and, later, in the form of the resulting mixture, with sulfur dioxide, the court nevertheless determined those properties did not render the limestone merely a chemical additive as was contemplated by Rule 130.335. Columbia Quarry, 154 Ill. App. 3d at 131-32, 506 N.E.2d at 54.

We agree with the result of Columbia Quarry but do not find any reason to conclude Rule 130.335 may be consistent in scope with section 2a depending on whether a substance is employed in a pollution control fácility as a chemical additive or in the nature of a mechanical component. There is no material difference between the use of the limestone mixture in Columbia Quarry and the use of any chemical for its particular properties by which that chemical directly acts to reduce or eliminate air or water pollution in a method or system, such as Wesko’s, intended primarily for that purpose. For that reason, and because Rule 130.335 imposes an improper limitation on the scope of the exemption contained in section 2a of the Act, we conclude that the court’s careful reconciliation of those provisions in Columbia Quarry was not essential to its determination.

Based on the above reasons, we affirm the circuit court’s determination that Wesko is exempt from use tax liability for the use of chemicals in its pollution control facility, finding that that determination was not against the manifest weight of the evidence. See Central Illinois Public Service Co. v. Department of Revenue (1987), 158 Ill. App. 3d 763, 51 N.E.2d 222, appeal denied (1987), 116 Ill. 2d 549, 515 N.E.2d 102.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES D. LOVE et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 1—89—1815, 1—89—1920 cons.
    Opinion filed November 19, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Cheryl K. Lipton and Karen E. Tietz, Assistant Public Defenders, of counsel), for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kathleen F. Howlett, and Laura L. Morrison, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendants, James D. Love and Percy Jenkins, were each convicted by a jury of two counts of possession of a controlled substance with intent to deliver. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401.) They appeal, arguing that (1) they were denied a fair trial due to alleged errors in jury selection; (2) the “one-act-one-crime” rule requires vacature of their lesser convictions and sentences; and (3) the cumulative effect of alleged trial errors denied them a fair trial. We affirm in part, and vacate defendants’ lesser convictions and sentences, for reasons which follow.

Defendants were arrested with Doris Atkins (Doris) and Ivory Atkins (Ivory) on September 29, 1988, in connection with a narcotics investigation. Ivory obtained a severance; defendants and Doris were tried together.

The four officers involved in the investigation, David Lemieux, Rendella Taylor, Quadir Dawan, and Daniel Willis, all testified about the events leading to defendants’ arrests. Lemieux, Taylor, and Dawan entered an apartment building at 1027-29 E. 62nd Street, and Willis went around to the rear entrance. Lemieux and Dawan stationed themselves in the stairwells adjacent to the second floor, and Taylor knocked on the front door of the apartment in question. Someone inside said “what do you want,” and Taylor responded “give me a bag of caine.” Doris opened the door and Taylor gave her a premarked $10 bill. Doris handed Taylor a small bag of cocaine, and Taylor signalled her fellow officers. The three officers ran into the apartment. Lemieux saw defendants and Ivory seated at a round glass table, on which was a large bag of cocaine, 387 small bags of cocaine, and a quantity of phencyclidine (PCP). Lemieux also saw drug paraphernalia on the table, including a scale, sifter, grinder, small spoon, small empty packages, a sealing machine, and a bottle of manitol, which is used to extend the volume of cocaine. The apartment smelled of PCP. In a bedroom closet, Lemieux found empty plastic bags and another sealing machine; he also discovered five sifters and three measuring spoons, all of which were covered with white powder. Taylor searched Doris and found $840 in cash on her person, including the premarked $10 bill. None of the officers saw either defendant handle the recovered items, nor was any evidence found in their actual possession.

The recovered narcotics consisted of 11.23 grams of PCP and 101.01 grams of cocaine.

Both defendants rested without offering any evidence. Doris testified and denied involvement in a drug transaction. She claimed that the recovered narcotics were from a suitcase which was found in her son Ivory’s bedroom closet.

The jury found both defendants guilty of the two counts of possession of narcotics with intent to deliver. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401.) Jenkins was sentenced to concurrent terms of 16 and 12 years in custody of the Department of Corrections, and Love was sentenced to concurrent terms of 12 and 10 years in custody of that same institution.

I

Defendants first claim that they were denied a fair and impartial jury due to the remarks of a prospective juror. During voir dire, one panel member, who was identified as a Chicago police sergeant, stated that he “couldn’t be fair and impartial in any trial.” When the judge sought the basis of that statement, the panel member replied:

“Do you want me to answer that? All right. When the trial reaches the stage of prosecution I believe that 99 of a hundred percent — .”

Defense counsel immediately objected. The circuit court excused the prospective juror for cause but refused to strike the entire panel.

This case is similar to People v. Frantz (1986), 150 Ill. App. 3d 296, 501 N.E.2d 966, in which a venireperson said that he could not be fair and impartial due to his prior employment as a police officer and his association with testifying officers and defense counsel. When asked if he would favor an officer’s testimony, the panel member responded:

“Having worked with the guys here and knowing what they have to go through to get a case through the State’s Attorney’s Office, I would have to go along with them.” (Frantz, 150 Ill. App. 3d at 303.)

It was held that that response did not taint the panel; the circuit court’s thorough voir dire and the speculative nature of any prejudice did not require reversal of the lower court’s refusal to strike the entire panel. Frantz, 150 Ill. App. 3d at 303-04.

Similarly, there is no abuse of discretion in this case. The purpose of voir dire is to select a fair and impartial jury. (People v. Teague (1982), 108 Ill. App. 3d 891, 894, 439 N.E.2d 1066.) The circuit court’s examination of potential jurors was thorough, and no other venireperson indicated any prejudice due to the officer’s statement. The court asked panel members both before and after the contested remark whether a policeman’s testimony would affect their ability to be fair and impartial, and each person responded negatively. Defendants’ contention that the entire panel was tainted is purely speculative. See People v. Newbury (1972), 53 Ill. 2d 228, 241, 290 N.E.2d 592.

Defendants also contend that they were denied a fair trial based on the State’s use of information in a prospective juror’s rap sheet. In response to the State’s question about his criminal history, one prospective juror stated that he was on probation for eluding a police officer and had committed several “moving violations,” including driving without a license. He indicated that he served time for a “couple weeks” as a result of his violation of probation. Later, the State sought to strike this venireperson for cause because his rap sheet showed that he had been convicted of attempted auto theft. The court excused him for cause based upon his untruthfulness in responding to the court’s inquiry.

Defendants have waived this issue for failure to include it in their post-trial motions. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) Were we to consider their arguments, however, they would fail on their merits.

In People v. Franklin (1990), 135 Ill. 2d 78, 95, 552 N.E.2d 743, our supreme court held that the State’s failure to tender police records of venirepersons did not deny defendant his right to an impartial jury. In fact, the court noted that the use of rap sheets helps to ensure that both defendant and the State receive a trial by a fair and impartial jury, in that those who demonstrate a lack of truthfulness and veracity will not be selected for service. Franklin, 135 Ill. 2d at 95-96.

In this case, the circuit court did not abuse its discretion in concluding that the panel member’s lack of veracity was cause sufficient to excuse him from the jury.

II

Defendants argue that their lesser convictions and sentences must be vacated under the “one-act-one-crime” rule.

A defendant may not be convicted of multiple offenses which arise from a single act or course of conduct; multiple convictions and concurrent sentences, however, are permitted where a defendant has committed several acts, despite the interrelationship of those acts. (People v. King (1977), 66 Ill. 2d 551, 565-66, 363 N.E.2d 838.) In People v. Manning (1978), 71 Ill. 2d 132, 374 N.E.2d 200, the court considered defendant’s conviction of two counts of possession of a controlled substance. (Ill. Rev. Stat. 1973, ch. 56½, par. 1402(a).) There, when arrested, defendant was found to be in possession of both amphetamines and barbiturates. The court held that “the simultaneous possession of more than one type of controlled substance, under the circumstances shown on this record, constituted a single offense, and only one sentence should have been imposed.” (Manning, 71 Ill. 2d at 137.) This court has reiterated that same holding in cases where defendant is found with more than one type of controlled substance. See People v. Vazquez (1990), 194 Ill. App. 3d 516, 520, 551 N.E.2d 656, appeal denied (1990), 132 Ill. 2d 553; People v. Branch (1986), 143 Ill. App. 3d 679, 681, 493 N.E.2d 417; People v. Whitfield (1986), 140 Ill. App. 3d 433, 442, 488 N.E.2d 1087; People v. Knight (1985), 133 Ill. App. 3d 248, 257, 478 N.E.2d 1082, appeal denied (1985), 108 Ill. 2d 580; People v. Hunter (1984), 124 Ill. App. 3d 516, 549, 464 N.E.2d 659, appeal denied (1985), 106 Ill. 2d 557; People v. Tonaldi (1981), 98 Ill. App. 3d 528, 533, 424 N.E.2d 1200, appeal denied (1981), 85 Ill. 2d 581.

In People v. Segara (1988), 126 Ill. 2d 70, 533 N.E.2d 802, which is cited by the State, the supreme court slightly relaxed the “one-act-one-crime” rule. In that case, defendant forcibly entered the victim’s apartment, severely beat her, and committed vaginal and oral intercourse. The court held that conviction was proper for each act of criminal sexual assault because each rape was “ ‘readily divisible and intensely personal; each offense is an offense against a person.’ ” (Emphasis in original.) (Segara, 126 Ill. 2d at 77, quoting Pruitt v. State (1978), 269 Ind. 559, 565, 382 N.E.2d 150, 154.) The court stressed that rape is unlike other offenses in that the victim’s psychological constitution and most intimate part of her being are violently invaded. Segara, 126 Ill. 2d at 78.

The State also relies upon People v. Morrison (1988), 178 Ill. App. 3d 76, 532 N.E.2d 1077, appeal denied (1989), 126 Ill. 2d 564, in which defendant was convicted of possession of both cocaine and cannabis, but sentenced only on the more serious conviction of possession of cocaine. The appellate court held that under King, a concurrent sentence for his cannabis conviction would be proper. The court, relying upon Segara, further held that the case involved “two distinct physical acts stemming from the same ‘episode[ ]’ [because] [possession of cannabis and possession of cocaine necessarily involve separate physical acts.” (Morrison, 178 Ill. App. 3d at 96.) The cause, therefore, was remanded for sentencing on defendant’s cannabis conviction.

The Fourth District Appellate Court in Morrison, however, neither distinguished nor mentioned Manning, which is directly on point. Further, possession of cannabis (see Ill. Rev. Stat. 1987, ch. 56½, par. 701 et seq. (Cannabis Control Act)) and possession of cocaine (see Ill. Rev. Stat. 1987, ch. 56½, par. 1100 et seq. (Illinois Controlled Substances Act)) have been held to constitute separate offenses because they are based on separate statutes. (See People v. Tovar (1988), 169 Ill. App. 3d 986, 995-96, 523 N.E.2d 1178.) Morrison, therefore, is distinguishable on that basis. Also, the “one-act-one-crime” rule need not be relaxed as it was in Segara-, multiple possession of narcotics, unlike multiple rape, is not so intensely personal as to require separate convictions and sentences.

Here, defendants were convicted of possession with intent to deliver more than 100 but less than 400 grams of cocaine (Ill. Rev. Stat., 1988 Supp., ch. 56½, pars. 1401(a)(2), 1401.2(1)), and possession with intent to deliver more than 10 but less than 30 grams of PCP (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b)(10)). Based on Manning and its progeny, defendants’ convictions and sentences for possession with intent to deliver PCP must be vacated.

Ill

Defendants argue that they were denied a fair trial due to the cumulative effect of three trial errors. First, they assert that the circuit court erred in giving an Illinois Pattern Jury Instruction which defined constructive and joint possession (Illinois Pattern Jury Instructions, Criminal, No. 4.16 (2d ed. 1981) (hereinafter IPI Criminal 2d No. 4.16)) because it confused the jury. That instruction states:

“Possession may be actual or constructive. A person has actual possession when he or she has immediate and exclusive control over a thing. A person has constructive possession when he or she lacks actual possession of a thing but he or she has both the power and the intention to exercise control over a thing [either directly or through another person].
If two or more persons share the immediate and exclusive control or share the intention and the power to exercise control over a thing, then each person has possession.”

IPI Criminal 2d No. 4.16 has been held to accurately state the law regarding the definition of possession. (See People v. Rentsch (1988), 167 Ill. App. 3d 368, 375, 521 N.E.2d 213.) Unless the circuit court determines that a pattern instruction does not accurately state the law, that instruction should be given. (People v. Glass (1984), 128 Ill. App. 3d 869, 873, 471 N.E.2d 597.) Contrary to defendants’ assertions, an issue existed as to whether they were in actual or constructive possession of the narcotics. The State maintained in its closing and rebuttal arguments that defendants constructively possessed the drugs. Although defendants may have had immediate and exclusive control of the drugs, and, therefore, actual possession, that fact was not conclusively established by the evidence. Constructive possession also could have been proved. Generally, very slight evidence regarding a given theory will justify the giving of an instruction on that theory. (People v. Arnold (1985), 139 Ill. App. 3d 429, 434, 487 N.E.2d 997.) The circuit court gave IPI Criminal 2d No. 4.16 in spite of defense counsel’s argument that it was confusing, and that decision was not an abuse of discretion.

Defendants rely on People v. Clark (1988), 173 Ill. App. 3d 443, 526 N.E.2d 356, in which the reviewing court found error in the giving of IPI Criminal 2d No. 4.16. There, no issue of constructive possession was raised because defendant did not have the power to maintain control of the premises where the narcotics were located; defendant was arrested in a motel room which was rented by the police to create a setting for his capture. The only issue, therefore, was whether defendant had actual possession of the drugs. Clark, 173 Ill. App. 3d at 450-52.

Further, Clark held that the error in giving IPI Criminal 2d No. 4.16 was harmless. Where the evidence of a defendant’s guilt is so clear and convincing that a jury could not reasonably have found defendant not guilty, an improper instruction will not warrant reversal. (Clark, 173 Ill. App. 3d at 452.) In this case, there is no reasonable probability that the jury could have found defendants not guilty where the jury heard testimony from the four police officers regarding the arrest. Even if it was improper to give IPI Criminal 2d No. 4.16, reversal is not required as any error was harmless.

Second, defendants claim that the court erred in allowing cross-examination of Doris as to her prior address. Prior to trial, the court allowed a defense motion in limine to bar the use of data from the board of election commissioners which showed that Jenkins, Love, and Ivory all previously lived at the same address; the motion in limine was denied as to Doris because of the existence of other evidence of her prior address. In its case in chief, the State introduced into evidence a voter registration form which was recovered from the site of the arrest. The form bore Doris’ name and listed a previous address. During cross-examination, the State elicited from Doris that she and the other three participants in the crime had lived at that prior address simultaneously.

The circuit court has the discretion to determine whether evidence is relevant, and, therefore, admissible, and its decision will not be reversed if the record indicates a sufficient basis for the decision. (People v. Jackson (1990), 195 Ill. App. 3d 104, 111, 551 N.E.2d 1025.) Here, the court indicated that the State would be allowed latitude on cross-examination and that the evidence went toward Doris’ credibility. Each defendant was given an opportunity to cross-examine Doris, and counsel for Jenkins did, in fact, take advantage of that opportunity. The admission of this testimony, therefore, did not constitute error.

Third, defendants argue that the assistant State’s Attorney distorted the burden of proof in her closing argument. The prosecutor, in pitting the veracity of Doris against that of the police officers, argued that only she had a motive to lie.

Defendants have waived consideration of this issue; no objection was made at trial, and the argument was not raised in their post-trial motion. (See People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) Further, the evidence is not so closely balanced as to merit consideration of this issue under the plain error doctrine. Enoch, 122 Ill. 2d at 198-99.

Were we to consider defendants’ argument, it would fail. It is improper for a prosecutor to distort the burden of proof by arguing that the jury must find that the State witnesses were lying in order to acquit defendant. (People v. Ridley (1990), 199 Ill. App. 3d 487, 493, 557 N.E.2d 378.) In this case, the prosecutor did not make such an argument. Doris’ testimony directly contradicted that of the four police officers, and the State argued that either Doris or the officers were lying. (See People v. Pegram (1987), 152 Ill. App. 3d 656, 664-65, 504 N.E.2d 958, aff'd (1988), 124 Ill. 2d 166, 529 N.E.2d 506.) Further, the prosecutor did not dwell at length on the issue or inject her personal opinion as to any witness’ credibility. (See People v. Roman (1981), 98 Ill. App. 3d 703, 708, 424 N.E.2d 794.) Even if defendants’ argument is not waived, therefore, the prosecutor’s statements did not constitute reversible error.

Because none of the points relied upon by defendants constituted error, there is no possibility for cumulative error. See People v. Albanese (1984), 104 Ill. 2d 504, 524, 473 N.E.2d 1246.

Affirmed in part; vacated in part.

DiVITO and McCORMICK, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FLYNT J. LEE, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—2803
    Opinion filed November 19,1991.

      Randolph N. Stone, Public Defender, of Chicago (Mark Floyd Pasterski, Assistant Public Defender, of counsel), for appellant.

      Jack O’Malley, State’s 'Attorney, of Chicago (Renee Goldfarb, David Stabrawa, and Patrick Sheehan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant was convicted by a jury of attempted murder, armed robbery, attempted aggravated criminal sexual assault, and aggravated battery. He was sentenced to 30 years on the attempted murder conviction, 15 years on the sexual assault conviction, and 30 years on the armed robbery conviction, all to be served concurrently. The aggravated battery conviction was “deemed merged with the concurrent [sic].” On appeal he challenges the attempted murder and armed robbery convictions, raising issues concerning jury instructions; whether the corpus delicti was proved for armed robbery; and whether there was sufficient evidence that something of value was taken from the victim’s presence as required for an armed robbery conviction.

The State’s evidence adduced at trial was as follows. Jaclynn Webb, the victim, testified that she first met defendant, Flynt J. Lee, in mid-November of 1987 at a Matteson, Illinois, real estate development office, where she was selling model homes. Defendant inquired about decorating and tiles, and then left. On December 2, 1987, defendant reentered Webb’s office and inquired as to the decorating in one of the model homes. The models were not open for exhibition; however, Webb needed to take pictures and replace light bulbs in the models. Before proceeding to the other models, Webb locked her purse in a drawer and hung her camera around her neck. Defendant followed, carrying the light bulbs. Inside the first model, Webb took pictures, and defendant replaced light bulbs throughout.

Webb testified that defendant attacked her when she entered the bedroom. No one else was present. He grabbed her from behind, told her to climb on the bed, pushed her onto the bed, and instructed her to stop screaming or he would kill her. As Webb attempted to escape, defendant struck her face with his fist; jumped on her back, rebreaking her recently fractured collar bone; picked up the camera cord, which Webb had thrown on the floor, and wrapped and twisted the cord around her neck; repeatedly yelled “I am going to kill you”; and continuously banged Webb’s head on the floor. Thereafter she felt two additional “bangs” when something hit her head. She was in great pain. She lost her presence of mind.

Defendant demanded her keys, which she gave him. After he left, she started to get up, at which point she discovered her panty hose were down around her knees and blood covered her and the room. She tried to scream, but had no voice. Webb walked and crawled back to the office and called the police. When the police arrived, she described the events in detail.

Doctor John Heyer saw Webb in the Olympia Fields Osteopathic Hospital emergency room and testified for the State. Webb was lucid and able to respond to questions. Her blood pressure dropped due to the loss of blood; she sustained eight lacerations on her head; a portion of her skull was fractured and depressed; and there was no brain damage.

Matteson police detective Frederick Newstat testified that he interviewed Webb in the hospital the evening of December 2, 1987. She and her garments were blood soaked. She lost and regained consciousness intermittently during the interview. Essentially, she recounted the same facts set forth above. Webb informed him that during the attack she lost consciousness. When she awoke, defendant demanded to know the whereabouts of her purse; she told him it was in the office drawer. Subsequent investigation revealed that the purse was missing from the drawer. On December 9, 1987, a photographic array was presented to Webb at the hospital, from which she identified defendant immediately as her assailant.

Defendant was arrested. After being read his Miranda rights, defendant gave Detective Newstat and his partner, Sergeant Lawrence P. Miller, an oral statement, which implicated him as the offender. The statement was reduced to writing, which defendant signed on December 15, 1987. Newstat read the statement to the jury, in which defendant confessed to being on cocaine during the incident, planned to take Webb’s purse or camera, entered the model home, changed the light bulbs, choked her, intended to knock her out by striking her with a lamp, pulled her pants down to fulfill a sexual fantasy of rape, but stopped when he saw she had her period, took her keys, and removed Webb’s purse from the drawer in the office.

On December 16, 1987, defendant was identified by Webb at a police lineup. Inspector Dexter J. Bartlett, a crime scene specialist, testified as to analysis of finger prints and bloodstains found at the crime scene. Lauren Wicevic, latent print examiner for the Chicago police department, attested to the processing of fingerprints.

Assistant State’s Attorney Scott Cassidy related that during an interview, defendant informed him that as he attacked Webb, he told her he was going to kill her. This was not noted in defendant’s original confession of December 15, 1987; Cassidy instructed another detective to type a new statement, which added this information to the statement previously signed by defendant. He gave this to defendant, who signed it. The State rested.

Defendant’s motion for directed finding was denied on all counts.

Defendant testified on his own behalf. He stated that the only time he touched Webb’s camera was to check the film. Defendant claimed that he left Webb and began changing light bulbs throughout the model; the next time he saw Webb, a third person was on Webb’s back. Defendant knocked a lamp out of the third person’s hand and told him to stop until defendant could leave the building. Defendant denied attacking Webb or touching her purse, and denied threatening to kill her. Defendant further testified that, upon advice of an attorney, he wrote letters to the circuit judge; parts of the letters were false. He ended the letter of July 10, 1988, with “I never tried to kill anyone.” Defendant denied ever meeting Assistant State’s Attorney Cassidy or making the intent to kill remark.

The jury found defendant guilty, and he was sentenced as first noted.

I

Defendant initially claims it was plain error for the circuit court to instruct the jury that it could find him guilty of attempted murder based upon either an intent to kill or an intent to commit great bodily harm. The State claims defendant waived this issue by failing to offer alternative instructions, and the instruction amounted to harmless error in any event.

The issue of improper jury instruction is waived if appellant fails to object at trial and does not raise the issue at post-trial motion, unless the interests of justice require otherwise. (People v. Thurman (1984), 104 Ill. 2d 326, 329, 472 N.E.2d 414.) Here, defendant properly objected to the instruction when proposed, and further raised this as an issue in his motion for a new trial. Accordingly, there was no waiver.

As to the substance of the instruction, defendant argues that permitting a jury to return a verdict against a defendant of attempted murder, without a finding of intent to kill, when mental state is in issue, is reversible error, relying on People v. McDaniel (1984), 125 Ill. App. 3d 694, 701, 466 N.E.2d 662. The State responds with People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343, and People v. Solis (1991), 216 Ill. App. 3d 11, 576 N.E.2d 120, which posit harmless error when mental state is not at issue. (See also People v. Stewart (1987), 161 Ill. App. 3d 99, 111, 514 N.E.2d 51; People v. Cloyd (1987), 152 Ill. App. 3d 50, 55, 504 N.E.2d 126.) Here, however, whether or not defendant intended to kill Webb was a major issue.

Webb testified that defendant instructed her to stop screaming or he would kill her. Defendant first confessed that he only wanted to knock her out. In a second confession, however, defendant admitted telling her he was going to kill her. Defendant testified that he did not threaten to kill Webb and he denied ever meeting the State’s Attorney who prepared the second confession. The conflicting evidence created an issue of defendant’s intent to kill Webb. At closing argument, the State recognized this issue in asserting: “[Tjhey want you to believe *** he did not have the right intent.”

Under the circumstances of this case, with defendant’s intent to kill in issue, the jury was improperly allowed to return a verdict against him of attempted murder if he intended to cause great bodily harm. (People v. Harris (1978), 72 Ill. 2d 16, 26-27, 377 N.E.2d 28; see also People v. Jaffe (1986), 145 Ill. App. 3d 840, 493 N.E.2d 600.) Accordingly, the conviction and sentence as to attempted murder must be reversed and the cause remanded for a new trial with proper instructions.

II

Defendant next asserts that the corpus delicti of armed robbery was not proved. Armed robbery requires that a perpetrator take property from the person or presence of another by use of force with a deadly weapon. (Ill. Rev. Stat. 1987, ch. 38, pars. 18 — 1(a), 18 — 2(a).) Defendant was charged with taking “a purse,” and contends there was no evidence demonstrating that a purse was taken. Defendant insists that Detective Newstat’s inability to find the purse does not corroborate his admission of obtaining the purse.

The corpus delicti rule requires only that evidence apart from defendant’s confession tends to show the commission of a crime; such evidence need not prove the crime beyond a reasonable doubt. (People v. Furby (1990), 138 Ill. 2d 434, 450, 563 N.E.2d 421.) Defendant maintains that Detective Newstat’s testimony is insufficient to corroborate his confession as to taking the purse because he would not know the purse if he saw it. This argument ignores the fact that no purse was found in the drawer.

The corpus delicti may be proved by circumstantial evidence. (People v. Lueder (1954), 3 Ill. 2d 487, 488, 121 N.E.2d 743; Campbell v. People (1895), 159 Ill. 9, 22, 42 N.E. 123; People v. Webb (1987), 153 Ill. App. 3d 1055, 1058, 506 N.E .2d 801.) Detective Newstat’s account of his interview with Webb revealed that she told him of defendant’s demand to know the whereabouts of her purse, and she informed him of its location. Defendant demanded and took Webb’s keys to the desk drawer in which the purse was located. Detective Newstat discovered that the purse was missing from the drawer. The foregoing evidence corroborated defendant’s confession as to his taking of Webb’s purse.

Defendant relies on People v. Lee (1986), 151 Ill. App. 3d 510, 531-32, 502 N.E.2d 399;. however, unlike the present case, there was no evidence, circumstantial or otherwise, in Lee, as to an attempted robbery. See People v. Morando (1988), 169 Ill. App. 3d 716, 725, 523 N.E.2d 1061 (which distinguishes Lee on similar grounds).

There was sufficient evidence in the case sub judice to corroborate defendant’s confession as to the taking of the corpus delicti, the purse; the armed robbery conviction and sentence must stand.

Ill

Defendant lastly urges there was insufficient evidence that an object of value was taken from Webb’s presence. Statutory armed robbery requires the taking of property from the person or presence of another by the use of force or by threatening the imminent use of force while armed with a deadly weapon. (Ill. Rev. Stat. 1987, ch. 38, pars. 18 — 1(a), 18 — 2(a).) Since Webb’s purse was removed from a separate room and the only thing taken from Webb’s immediate presence was her keys, defendant concludes that the purse was not taken from Webb’s presence as required by statute; therefore, the evidence was insufficient to prove beyond a reasonable doubt that a robbery took place. People v. Was (1974), 22 Ill. App. 3d 859, 318 N.E.2d 309.

Statutory presence is not limited to immediate presence. The taking from a person or that person’s presence is met when property is in the possession or control of the victim, and the robber uses force or fear of violence as the means to take it. (People v. Smith (1980), 78 Ill. 2d 298, 302-03, 399 N.E.2d 1289; People v. Harris (1990), 195 Ill. App. 3d 421, 423, 552 N.E.2d 392.) The test for statutory presence is satisfied where the taken property was sufficiently within the victim’s possession or control, and violence or the threat of violence was the means by which the taking was accomplished; the element of presence can be proved even where the taken property was not on the victim’s person or within the latter’s immediate control. People v. Blake (1991), 144 Ill. 2d 314, 320; People v. Carpenter (1981), 95 Ill. App. 3d 722, 726, 420 N.E.2d 640, 644.

The evidence before us demonstrates that Webb had control over her purse: she locked it in a drawer; she carried the keys to the drawer; and she was within walking distance of her purse. By locking the drawer, Webb prevented defendant from taking the purse absent his taking of her keys in order to obtain the purse. The fact that property is in a different location at the time of a taking is not dispositive of presence. Dlinois and other courts have repeatedly sustained convictions where the victim was at a different location than the property taken. People v. Smith (1980), 78 Ill. 2d 298, 399 N.E.2d 1289 (victim left money at drop sites due to bomb threat); Carpenter, 95 Ill. App. 3d 722 (victim locked in another room when cash box was taken); State v. Edwards (1985), 109 Idaho 501, 708 P.2d 906 (keys to a van taken at gunpoint in a motel room implicated defendant in the theft of the vehicle); Lancaster v. State (Okla. Crim. App. 1976), 554 P.2d 32 (similar facts); Fields v. State (Okla. Crim. App. 1961), 364 P.2d 723 (money taken from an automobile after its location disclosed by the victim while locked in a vault).

Accordingly, the armed robbery conviction and sentence must be affirmed on this basis as well.

For the reasons stated, we reverse defendant’s conviction and sentence for attempted murder and remand for a new trial. We affirm defendant’s conviction and sentence for armed robbery.

Reversed and remanded in part; affirmed in part.

SCARIANO, P.J., and DiVITO, J., concur.


author: JUSTICE McCORMICK

text:
    KELVIN ROBINSON, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Intervener under Bernard Lerner, Defendant-Appellee.
    First District (2nd Division)
    No. 1—89—3470
    Opinion filed November 19,1991.

      Gordon & Gordon, Ltd., of Chicago (Robert E. Gordon, of counsel), for appellant.
    Keevers & Hittle, of Chicago (Joseph P. Postel, of counsel), for appellee.
   JUSTICE McCORMICK

delivered the opinion of the court:

Plaintiff, Kelvin Robinson, appeals from an order of the circuit court granting intervenor, Liberty Mutual Insurance Company (Liberty), a lien on the proceeds of plaintiff’s medical malpractice settlement. Plaintiff argues on appeal that the trial court erred in granting Liberty a lien for the full amount of the benefits it paid to plaintiff.

On February 27, 1981, plaintiff suffered an on-the-job injury to his back while employed at International Business Machines (IBM). In July 1982, the Illinois Industrial Commission (the Commission) determined that plaintiff was entitled to $6,067.47 in temporary total disability (TTD) benefits under the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138 et seq.). This amount was paid by Liberty, IBM’s insurer.

In October 1983, Dr. Bernard Lerner performed a laminectomy on plaintiff’s back. Plaintiff’s condition worsened following the surgery, and in January 1985, plaintiff filed a petition with the Commission seeking additional TTD benefits. In his petition, plaintiff alleged that the surgery was the result of the February 1981 accident. Plaintiff’s petition also alleged that IBM had not made any TTD payments since June of 1981 and requested an order requiring IBM to make TTD payments from June 1, 1981, until further order of the Commission. Subsequently, plaintiff was awarded an additional $73,899 in TTD benefits.

In April 1985, plaintiff filed a medical malpractice action against Dr. Lerner alleging that Lerner negligently performed the surgery and that as a result plaintiff became permanently disabled. This action was settled in 1989 for $350,000. Liberty intervened and filed a motion in which it argued that any settlement in plaintiff’s favor should be “impressed” with a lien in Liberty’s behalf in the amount of $79,966.47.

Liberty argued that it was entitled to a lien for the full amount of the TTD payments it made to plaintiff, if any part of the settlement was attributable to an on-the-job injury. Liberty also argued that having claimed before the Industrial Commission that he was entitled to TTD benefits because his condition following the surgery was a result of his compensable accident, plaintiff was estopped from asserting in court that Liberty’s lien did not attach to the settlement proceeds.

In his response to Liberty’s motion and on appeal, plaintiff alleged that the first payment of $6,067.47 was made before the alleged malpractice occurred. Plaintiff also alleged that Liberty should not be granted a lien for the full amount of the $73,899 payment because a portion of that payment related to the 21/2-year period before the surgery during which plaintiff was unable to work. Plaintiff argued that the lien should not apply to that portion of the payment because Liberty would have been obligated to pay that amount even if plaintiff had never been treated by Dr. Lerner. Further, plaintiff contended that Liberty had failed to establish that there was any relationship between the care and treatment by Dr. Lerner and the monies paid out by Liberty.

Following arguments, the trial court ruled that a lien would not attach for the first payment of $6,067.47, but that Liberty was entitled to a lien in the amount of $73,899. Plaintiff appeals.

In his appeal, plaintiff argues that the trial court erred in awarding Liberty a lien for the entire $73,899 payment. In response, Liberty repeats its argument that plaintiff is estopped from denying that Liberty is entitled to a lien on the settlement proceeds because of his claim before the Commission that the surgery was a result of the original accident.

Liberty is correct in arguing that plaintiff may not adopt a position before this court that is contrary to the position he took before the Commission. (See Mijatov v. Graves (1989), 188 Ill. App. 3d 792, 544 N.E.2d 809.) It does not appear, however, that this is what plaintiff is attempting to do.

Plaintiff does not argue in this appeal that Liberty is not entitled to a lien on the settlement proceeds; rather, plaintiff asserts that Liberty’s lien should not include benefits paid to plaintiff for the period prior to the surgery. Plaintiff argues that the trial court should have examined the $73,899 payment made by Liberty to determine which portion applied to TTD benefits that accrued in connection with the original injury, and which portion applied to benefits that accrued after plaintiff’s injury was aggravated as a result of the medical malpractice. Plaintiff contends that Liberty’s lien should include only the latter payments.

Liberty claims that this argument has been waived because it was not raised in the trial court. Liberty also claims that if it had known that plaintiff would contest the amount of the lien, it would have taken discovery on the issue.

Liberty’s claim that it did not know that plaintiff was contesting the amount of the lien is belied by both the common law record and the transcript from the hearing on Liberty’s motion. These clearly show that in the response to Liberty’s petition to intervene and in arguments before the trial court, plaintiff contended that there should not be a lien for the amount of the TTD benefits attributable to the 21/2-year period before plaintiff was treated by Dr. Lerner. Thus, there is no support to Liberty’s claim that the issue has been waived.

We now turn to the merits of plaintiff’s claim that Liberty is not entitled to a lien for the entire $73,899 payment.

Section 5(b) of the Workers’ Compensation Act provides:

“Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or. liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act.
* * *
If the injured employee or his personal representative agrees to receive compensation from the employer or accept from the employer any payment on account of such compensation, or to institute proceedings to recover the same, the employer may have or claim a lien upon any award, judgment or fund out of which such employee might be compensated from such party.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b).)

Under section 19(h) of the Act, an award to an employee may be reviewed by the Commission at the request of the employer or the employee on the ground that the disability of the employee has recurred, increased, diminished, or ended. Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b).)

We find, based on the language used in the statute, that Liberty’s lien should not apply to payments that accrued before plaintiff’s surgery. Although there is no Illinois case that deals with this issue, our finding is in line with the position taken in a number of other jurisdictions where employers have lien rights against judgments or settlements between employees and third parties. (See Dodds v. Stellar (1947), 30 Cal. 2d 496, 183 P.2d 658; Heaton v. Kerlan (1946), 27 Cal. 2d 716, 166 P.2d 857; Unruh v. Truck Insurance Exchange (1972), 7 Cal. 3d 616, 102 Cal. Rptr. 815, 498 P.2d 1063; Industrial Comm’n v. Standard Insurance Co. (1962), 149 Colo. 587, 370 P.2d 156; Breen v. Caesars Palace (1986), 102 Nev. 79, 715 P.2d 1070; Drypolcher v. New York Telephone Co. (1981), 85 A.D.2d 895, 446 N.Y.S.2d 728.) In these cases, the courts have ruled that the employer’s lien should extend to only those expenses attributable to the medical aggravation of the injury, i.e., that the amount of the lien should be limited to the amount that the employer is required to pay because of the malpractice. See also 2A A. Larson, Workmen’s Compensation §72.65(b) (1952).

As noted above, section 5(b) of the Workers’ Compensation Act states that an employer may have or may claim a lien upon any award an injured employee receives from a third party where the employee’s injury is “caused under circumstances creating a legal liability for damages” on the part of the third party.

Here, plaintiff’s original injury was not caused under circumstances creating legal liability on the part of a third party. Accordingly, we hold Liberty was not entitled to a lien in connection with any portion of the payment that accrued during the 21/2-year period between plaintiff’s original injury and the surgery that aggravated the injury. (See 37 Ill. L. & Prac. Workers’ Compensation §23 (1987); 101 C.J.S. Workmen’s Compensation §1044 (1958).) As the Nevada Appellate Court pointed out in Breen, to hold otherwise would result in the employee receiving no compensation for premalpractice injuries. See Breen, 102 Nev. at 83, 715 P.2d at 1073.

For the foregoing reasons, we reverse the order of the trial court granting Liberty a lien in the amount of $73,899, and we remand this cause for a determination of what portion of the payment related to the period before plaintiff’s surgery.

Reversed and remanded with directions.

HARTMAN and DiVITO, JJ., concur.


author: PRESIDING JUSTICE SCARIANO

text:
    M.S. KIND ASSOCIATES, INC., Plaintiff-Appellant, v. MARK EVAN PRODUCTS, INC., Defendant-Appellee.
    First District (2nd Division)
    No. 1—90—0365
    Opinion filed November 19, 1991.

      James P. Moran, of Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Andrew G. Witik, of counsel), for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff M.S. Kind Associates, Inc. (Kind), filed a complaint in circuit court based on the Sales Representative Act (Ill. Rev. Stat. 1987, ch. 48, pars. 2252 et seq.) (the Act), charging that defendant Mark Evan Products, Inc. (Evan), violated the Act and their contract by failing to pay it certain commissions. The court held that a corporate sales representative is not a “person” under the Act and dismissed the complaint. Kind appeals.

The disputed provision of the Act reads as follows:

“§1. As used in this Act:
* * *
(3) ‘Principal’ means a sole proprietorship, partnership, corporation or other business entity whether or not it has a permanent or fixed place of business in this State and which:
(A) Manufactures, produces, imports, or distributes a product for wholesale;
(B) Contracts with a sales representative to solicit orders for the product; and
(C) Compensates the sales representative, in whole or in part, by commission.
(4) ‘Sales representative’ means a person who contracts with a principal to solicit wholesale orders within this State and who is compensated, in whole or in part, by commission, but shall not include one who places orders or purchases for his own account for resale, one who qualifies as an employee of the principal pursuant to the Illinois Wage Payment and Collection Act [(Ill. Rev. Stat. 1987, ch. 48, par. 39m — 1 et seq.)] or one who sells products to the ultimate consumer.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 48, par. 2251.)

Kind asserts that even though the Illinois legislature failed to include corporations within the definition of “sales representative,” the term “person” nevertheless includes corporate entities. We agree.

“When the terms of a statute are not specifically defined, the words must be given their ordinary and popularly understood meanings [citations], but the words must also be construed with reference to the purposes and objectives of the statute.” (Niven v. Siqueira (1985), 109 Ill. 2d 357, 366.) It is now commonplace for our courts to hold that a corporation is embraced within the term “person.” For example, a corporation is a “person” within the meaning of the fourteenth amendment. (Metropolitan Life Insurance Co. v. Ward (1985), 470 U.S. 869, 875, 84 L. Ed. 2d 751, 757, 105 S. Ct. 1676, 1680.) Indeed, 80 years before Ward, the Illinois Supreme Court recognized that “[a] corporation is a ‘person’ within the meaning of the concluding clause of the first section of the fourteenth amendment.” (In re Estate of Speed (1905), 216 Ill. 23, 29.) Accordingly, if a corporation can be deemed to be a person for due process and equal protection purposes, we fail to apprehend why it should not be regarded as a person entitled to invoke the provisions of a simple State legislative enactment such as the Sales Representative Act.

Moreover, in construing the meaning of “person” as used in the Act, it is important to do so “with reference to the purposes and objectives of the statute.” (Niven, 109 Ill. 2d at 366.) The General Assembly has patently found it desirable to promulgate the statute at issue here in order to protect commissioned sales representatives who solicit wholesale orders only, who do not sell to the ultimate consumer, and who, by definition, do not qualify as employees entitled to the protections of the Illinois Wage Payment and Collection Act. (Ill. Rev. Stat. 1987, ch. 48, par. 39m — 1 et seq., Ill. Rev. Stat. 1987, ch. 48, par. 2251.) Since “[o]ne or more incorporators may organize a corporation under” the Business Corporation Act of 1983 (Ill. Rev. Stat. 1989, ch. 32, par. 2.05), it would be logical for the General Assembly to assume that sales representatives incorporate, as others do, in order to avail themselves of the advantages that incorporation allows.

Thus, the “purposes and objectives of the statute” (Niven, 109 Ill. 2d at 366) become clear, for it would make little if any sense to enact legislation benefitting the sales representative as an individual, but deny him coverage if he chooses to do business in accordance with an exceedingly common form of enterprise: the corporation. In sum, we decline to nullify the benefits which the legislature has so manifestly conferred on sales representatives merely because they perform an act so undeniably benign as taking on corporate status. It would be an absurd result, indeed, if our courts were to hold that a sales representative could recover commissions wrongfully withheld from him if he engages in trade as an individual, but deny him that compensation and allow the manufacturer a windfall in cases where, fortuitously, the representative chooses the corporate form under which to do business, an election the legislature unconditionally makes available to him. Surely, the General Assembly never intended such a result.

Therefore, we hold that the word “person,” as used in the Sales Representative Act, includes a corporation; and for all of the foregoing reasons, the judgment of the circuit court is reversed and remanded for further proceedings not inconsistent with the views expressed in this opinion.

Reversed and remanded.

DiVITO and McCORMICK, JJ., concur.


text:
    HOWARD SAMUELSON, Plaintiff-Appellant, v. KIMBALL WYMAN, Defendant-Appellee and Third-Party Plaintiff and Cross-Appellee (The City of Chicago, Third-Party Defendant and Cross-Appellant).
    First District (2nd Division)
    No. 1—90—0466
    Opinion filed November 19, 1991.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal and Brian Trubitt, Assistant Corporation Counsel, of counsel), for appellant City of Chicago.

      Patrick E. Dwyer & Associates, Ltd., of Chicago, for appellant Howard Samuelson.
    Robert L. Bartolone and Sandra Young, both of Purcell & Wardrope, Chartered, of Chicago, for appellee.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff Howard Samuelson appeals from the circuit court’s judgment, following a jury verdict, which failed to award him any damages for the value of past and future earnings lost as the result of the negligence of defendant Kimball Wyman. Samuelson claims that the jury’s verdict on that issue was against the manifest weight of the evidence and seeks a reversal of the judgment and a remand for a new trial on the issue. The City of Chicago (City) cross-appeals from that part of the same judgment entered on the jury’s verdict that the City was liable for contribution to Wyman for part of the judgment against him. The City contends that section 2 — 109 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 2 — 109) immunized it from liability for its negligence in training and equipping Samuelson, a City employee, and that even if the Tort Immunity Act did not apply, its negligence was not a proximate cause of Samuelson’s injuries. The City seeks reversal of the judgment, or reversal with a remand for a new trial.

Samuelson’s second amended complaint charged that on February 21, 1979, Wyman negligently drove his automobile so as to collide with another car, and that the impact of the accident caused one of the cars to run into and injure Samuelson. Wyman’s case against the City was based on the City’s alleged negligence in failing “to provide safety training to Samuelson in the use of safety equipment” and in failing to provide him with a “Mars” light (a rotating orange light which is placed on top of a car), and that such failures entitled Wyman to contribution from the City.

Samuelson testified that at the time of the accident he was a traffic signal repairman for the bureau of electricity of the City’s Department of Streets and Sanitation, and “was in excellent health.” On the evening of February 21, 1979, he responded to a call to repair an “all out” at the intersection of 43rd Street and Cicero Avenue, in Chicago. When he arrived there in his car, he observed that the signals on 43rd (an east-west street) were functioning normally, and that the yellow and green signals on Cicero (a north-south street) were also in proper working order; however, the “north and south red [on Cicero] would flick on momentarily and then go out entirely.” The intersection was lighted by streetlights and by the lights from a filling station on the corner.

Samuelson kept the tools he needed to control and repair the traffic signals in the trunk of his car. After parking the car at the southwest corner of the intersection, under a streetlight, he exited the car, walked to the back and opened the trunk. As he attempted to retrieve a unit which would “interrupt the signal circuit and provide a flashing action for [the] *** red lights,” he “heard a crash[,] *** looked and * * * saw a glint of chrome just a split second before [he was] *** impaled against [his] *** bumper.”

At the time of the injury, Samuelson was receiving a wage of “around $12 an hour.” He had not, at the time of trial, “ever returned to work at the City.” On cross-examination, Samuelson stated that during his recuperation, the City sent him to “Dr. MacNabola,” who “sent [him] back to work after two years.” In addition, he noted that his “hands were in perfect condition the day of the accident. And three weeks after I noticed my fingers were starting to curl and that’s the way they have done to now.”

Kimball Wyman testified that as he approached the intersection of 43rd and Cicero, he did not see any traffic signals; that he entered the intersection without slowing down or using his horn, and that he collided with another car, the force of the impact causing his car to slam into Samuelson’s car.

Dale Vachout, a surgeon who treated Samuelson during the months following the accident, testified that Samuelson’s legs had sustained

“a crush injury *** below the knees, with on the right side a convoluted [sic], that means frature [sic] with multiple pieces, of the tibia, that’s the large bone, and of the upper end of the fibula, that’s the small bone. And also there was an open fracture. There was a small wound on the upper part of the leg. *** The left side, he had a fracture in the shaft of the tibia *** approximately eight or ten inches down below the knee with multiple fragments of fracture lines going up towards the knee and also a fracture of the upper end of the small bone or fibula.”

Samuelson, he stated, had not yet returned to work by the time he was examined on January 10, 1980, and in his opinion, could not yet “return to his regular work” by October 16, 1980, the date on which another examination took place. Vachout also felt that by the time of his November 14, 1985, examination, Samuelson was not employable in any capacity other than “some sort of light non-arduous or sedentary type of employment.” This inability to work, he believed, was a result of “the multiple injuries he sustained [in the accident], added to this was a combination of *** rheumatoid arthritis in the hands.” He wrote in his report that Samuelson had informed him that the arthritis “was present before the accident to a minimal degree, however, since the accident, has progressed to the point at the present time where he is able to do only a minimal amount of activity as far as the hands are concerned and is also restricted as to his ambulating activity.” Samuelson later stipulated that the rheumatoid arthritis in his hands did not result from the accident; aggravation of the arthritic condition, however, was an issue at trial. Vachout believed that the condition of Samuelson’s legs could worsen.

Robert Eilers, a physician who first examined Samuelson on June 5, 1984, was called in his behalf and on cross-examination was asked the following question and gave the following answer:

“Q. How fast does it take to go from absolutely no symptoms of rheumatoid arthritis to knarled hands?
A. Well, the process is going to take several years to progress to start altering the MCP joints and cause the physical deformity.”

Dr. Eilers also testified that Samuelson could do only sedentary work.

Charles Mercier testified that he was an orthopedic surgeon who examined Samuelson in behalf of the defense in January 1984 and that at the time, the rheumatoid arthritis in Samuelson’s hands had caused only “mild deformities.” When asked on direct examination “whether he was capable of being employed,” Dr. Mercier answered that he found Samuelson unable to “do any type of heavy work, *** heavy manual labor, on his feet for a long time, climbing, crawling, any of that type of thing. At the same time, because of his rheumatoid arthritis, again, which I don’t think is related to this accident, I think that he cannot do precision work. But, as I say, I think he is far from being disabled.”

There was evidence introduced at trial concerning the City’s policies and practices regarding the safety training of traffic signal repairmen and whether repairmen were equipped with Mars lights, but in view of the disposition we make of this case, we need not consider it.

The jury awarded Samuelson damages of $575,000, apportioning the award among several items: disability, disfigurement, and pain and suffering, as well as for medical care, treatment and services. No damages, however, were awarded for “[t]he value of earnings lost and the present cash value of earnings reasonably certain to be lost in the future.” On Wyman’s third-party claim against the City, the jury found the City liable for 40% of the total award of damages.

Judgment was entered on the verdict on August 12, 1987. In orders filed on September 8 and 11, 1987, the trial court extended the deadline for Wyman, the City and Samuelson to file their post-trial motions to November 10, 1987. On November 10, 1987, the court extended the deadline for Samuelson and Wyman to file the motions to December 1, 1987. On December 1, 1987, the trial court extended the deadline for Wyman and Samuelson to December 30, 1987. On December 8, 1987, the court extended the deadline for the City, Samuelson and Wyman to January 21,1988, and the City met that deadline.

Samuelson claims that the jury’s failure to' award him any damages for loss of earnings was against the manifest weight of the evidence. Wyman responds that the verdict was amply supported by evidence that Samuelson’s inability to work resulted not from the accident, but from rheumatoid arthritis which predated the accident, was not aggravated by it, and which made him unable to use his hands.

“[A] reviewing court may order a new trial if the damages are manifestly inadequate or if it is clear that proved elements of damages have been ignored or if the amount awarded bears no reasonable relationship to the loss suffered by the plaintiff.” (Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 407.) In Hollis, the court held that:

“the uncontroverted evidence was that the plaintiff was unemployed for 18 months following his accident and that *** he incurred a total wage loss of $24,000 *** not includpng] the earnings lost in the period he reentered the work force *** at sharply reduced wages. Only *** $6,000 of the $30,000 award was available to compensate the plaintiff for these lost wages [for the period when he reentered the work force], and as well the permanent disability and disfigurement caused by the injuries, the pain and suffering experienced, and the loss of future earnings attributable to the permanency of the injuries. *** [T]he damages awarded were inadequate.” 108 Ill. 2d at 407-08.

In the instant case, the evidence is uncontroverted that Samuelson, until the time of the accident, had been working steadily and earning about $12 an hour and that rheumatoid arthritis did not begin to affect his hands until three weeks after the accident; there is no evidence, however, that the arthritis affected his ability to earn a living at that time. In fact, Doctor Vachout’s unrebutted testimony indicated that the injuries he sustained in the accident prevented Samuelson from working for more than two years after it occurred. The evidence is also unrebutted, in fact, brought out by Wyman’s counsel, that Dr. MacNabola, a doctor to whom the City had sent him to be examined, did not find Samuelson fit to send “back to work” until “after two years.”

Although Doctor Mercier, the defense’s expert, testified that by January 1984 the rheumatoid arthritis in Samuelson’s hands had caused “mild deformities” which kept him from “do[ing] precision work,” he also stated, as noted above, that Samuelson was “far from being disabled,” and that the rheumatoid arthritis would have taken “several years to progress *** to cause the physical deformity.” The uncontested evidence, then, is that at an absolute minimum, Samuelson was unable to work as a result of the injuries he sustained in the accident for somewhat over two years thereafter. Accordingly, we hold that the jury’s failure to award damages for “[t]he value of earnings lost” as a result of the accident was against the manifest weight of the evidence, and we reverse the trial court’s judgment upholding that part of the verdict and remand this cause for a new trial on that issue.

In its cross-appeal, the City makes two claims: (1) that any failure to properly train and equip Samuelson involved a policy decision by its employees which would, pursuant to section 2 — 201 of the Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 2 — 201), have immunized it from liability, and thus, under section 2 — 109 of the Act, have insulated it from liability for Samuelson’s injuries; and (2) that its negligence in training and equipping Samuelson did not proximately cause his injuries. Wyman responds, however, that because the City failed to file its post-trial motion by November 10, 1987, and was not granted an extension by that date, it has waived its right to have these issues reviewed on appeal.

According to section 2 — 1202(c) of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2-1202(c)):

“Post-trial motions must be filed within 30 days after the entry of judgment *** or within any further time the court may allow within the 30 days or any extensions thereof.”

“It is essential, in jury cases, to file a post-trial motion in order to preserve an issue for review.” (American National Bank & Trust Co. v. J & G Restaurant, Inc. (1981), 94 Ill. App. 3d 318, 319.) All three parties received timely extensions to file their post-trial motions by November 10, 1987; the City, however, neither met that deadline nor sought an extension thereof on or before that date; in fact, it did not do so until December 8,1987.

In Putz v. Schulte (1982), 104 Ill. App. 3d 128, the plaintiff filed his post-trial motion 29 days after the entry of judgment. While his motion was pending, and 43 days after the judgment was entered, the defendants filed their post-trial motion, although they had not received an extension of the 30-day deadline. The trial court denied the plaintiff’s motion, but granted the defendants’. The decision was reversed on the ground that “the trial court had lost jurisdiction to consider defendants’ late-filed post-trial motion.” 104 Ill. App. 3d at 129.

The City, however, relying on Welch v. Ro-Mark, Inc. (1979), 79 Ill. App. 3d 652, argues that by extending Samuelson’s and Wyman’s deadlines for filing their post-trial motions, the court retained “jurisdiction over the case when the extension of time [for the City] was granted.” We disagree. The court in Welch held:

“If a post-trial motion is filed by one or both of the parties within 30 days of the judgment, the trial court retains jurisdiction over the matter until the disposition of any pending post-trial motion [citation] to act on those points specifically raised in the post-trial motion. Moreover, the trial court also has the jurisdiction, under this circumstance, to act on any error which the court perceives must be remedied in order to do justice between the parties.” (79 Ill. App. 3d at 657.)

The holding in Welch affords the City no assistance, as it does not recognize a trial court’s power to extend, after the deadline set in a prior extension has passed, the time by which a party must file its post-trial motion; nor can it be read to allow a court to consider an untimely filed motion merely because other post-trial motions are pending. We hold that the trial court erred in granting the City an extension in its December 8, 1987, order, and that, accordingly, because the City failed to file a timely post-trial motion, it has waived review of the issues it presents to this court.

For the foregoing reasons, the judgment of the trial court against Wyman is affirmed in part, reversed in part and remanded; its judgment against the City is affirmed.

Affirmed in part; reversed in part and remanded.

HARTMAN and DiVITO, JJ., concur.