text:
    RIBLET PRODUCTS CORPORATION, Plaintiff-Appellee, v. STARR NATIONAL, Defendant and Third-Party Plaintiff-Appellant (Inca Plastics, Inc., et al., Third-Party Defendants-Appellees; Agri-Plastics, Inc., et al., Third-Party Defendants-Appellees).
    Third District
    No. 3—92—0422
    Opinion filed March 30, 1993.

      Hartzell, Glidden, Tucker & Hartzell, of Carthage (Stanley L. Tucker, of counsel), for appellant.
    Kavanagh, Scully, Sudow, White & Frederick, of Peoria (Charles G. Roth, of counsel), for appellees Inca Plastics, Inc., and Jean G. Petersburg.
    A. Anthony Ashenhurst, of Flack, McRaven & Stephens, of Macomb (Bruce J. Biagini, of counsel), for other appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal arises from a final judgment of the circuit court granting summary judgment in favor of counterdefendants Inca Plastics, Inc. (Inca), and Jean Petersburg, executor of the estate of Richard Petersburg, and denying the motion for summary judgment on major issues filed by the counterplaintiff, Dolly Enterprises, Inc., d/b/a Starr National (Dolly). The final judgment order also expressly affirmed all other orders and decisions issued by the court during the proceedings. These other orders included an order granting Inca leave to file an amended complaint substituting Riblet Products Corporation (Riblet) as plaintiff, an order denying Dolly’s motion to realign the parties, an order granting summary judgment in favor of counter-defendants Agri-Plastics, Inc. (Agri-Plastics), and Rae Johnston, and an order granting Riblet’s motion to voluntarily dismiss and striking the counterclaim of Dolly against Riblet. Dolly raises the following issues on appeal: (1) whether it was error for the circuit court to award summary judgment in favor of Inca and Petersburg on the theory that they could only be third-party defendants; (2) whether it was error for the circuit court to deny Dolly’s motion for realignment of the parties; (3) whether the circuit court erred in granting Riblet’s motion for voluntary dismissal; (4) whether the circuit court erred in denying Dolly’s motion for summary judgment on major issues; and (5) whether it was error for the circuit court to grant summary judgment in favor of Johnston and Agri-Plastics and against Dolly.

On October 20, 1986, Inca filed a complaint against Dolly to collect an account receivable for specially manufactured goods. The complaint alleged that on various dates in 1984 and 1985 Dolly ordered plastic flush pan tops from Inca. The flush pans were trays used by livestock producers for the disposal of animal waste. The complaint alleged that with respect to each of these orders, Inca manufactured and delivered the flush pan tops to Dolly and that Dolly accepted them. Inca alleged that Dolly agreed to pay the amount due for each order within 30 days after the receipt of the merchandise, but had so far refused to pay. Inca requested judgment in the amount of $17,830.90, the amount alleged to be due for the products delivered but not paid for.

Dolly’s answer admitted that Inca manufactured the flush pan tops on the various dates, but denied that they were made to Dolly’s specifications. Dolly also denied that it had promised to pay the amount due for each order within 30 days after the receipt of the merchandise and denied that it owed Inca the amount alleged in the complaint.

Dolly further filed a three-count counterclaim. Count I was directed at Inca and alleged that Inca breached the implied warranties of merchantability and fitness for a particular purpose. Count I alleged that prior to November 14, 1984, the flush trays manufactured by Inca and delivered to Dolly met Dolly’s special requirements that the trays not be subject to cracking or leaking when placed in service. However, after November 14, 1984, the trays manufactured by Inca for Dolly began cracking when installed in swine breeding operations by Dolly’s customers. Dolly alleged that they did not become aware of the defective condition of the trays until April of 1985. Dolly further alleged in count I that it had been required to replace flush trays sold to its customers at a cost of $30,000 to Dolly and that in the future it would have to replace an additional 681 trays at a cost of about $128,500. Count I requested judgment against Inca in the amount of $158,000.

Count II of the counterclaim was a complaint for interference with business and was directed against Inca and its president, Richard Petersburg. Count II alleged that Dolly is a manufacturer of plastic flush trays and typically contracts out the plastic molding portion of the production to outside plastic molders, and that, beginning in 1983, Inca was engaged in the molding of the trays for Dolly. It was further alleged that Inca had designed and manufactured the molds to be used in the production of the trays and that Dolly had paid Inca for the design and construction of the molds. Dolly alleged that it owned the molds after they were constructed and paid for, that they had demanded their return after the defective trays were produced, and that Petersburg had refused to return them. Count II alleged that the conduct of Inca and Petersburg was an intentional interference with Dolly’s ownership and possession of the molds and was done intentionally, willfully, and maliciously. Dolly claimed that the conduct of Petersburg and Inca in withholding the molds had caused it damages in the following amounts: $9,302 incurred by Dolly in remanufacturing the molds; $13,500 for additional molds that still need to be replaced; and $326,332.28 in lost gross sales during the period when the molds were being remanufactured. Count II prayed for judgment against Petersburg and Inca in the sum of $349,134.28 and costs of suit, and also requested punitive damages in an appropriate amount.

Count III of the counterclaim was a complaint for intentional interference with business and was directed against Inca, Agri-Plastics, and Rae Johnston. Count III alleged that Agri-Plastics is a business started by Rae Johnston in about 1984, and that prior to starting that business, Rae Johnston was Agri-Products manager of Inca. Dolly alleged that, in or about November of 1984, Inca and Johnston caused the plastic being used for the manufacture of Dolly’s flush trays to be changed, and that the trays manufactured after the change have been defective. Apparently forgetting that it had already alleged that Rae Johnston started Agri-Plastics in 1984, Dolly alleged that Johnston formed a company known as Agri-Plastics in 1985. Dolly further alleged that soon after the change in plastic, Johnston left Inca and entered into business as Agri-Plastics, engaging in the manufacture of flush trays in direct competition with Dolly. Dolly alleged that Inca, Agri-Plastics, and Johnston were under a duty to refrain from wrongful interference with Dolly’s right to operate its business, business relationships, business expectancies, good will, and existing and anticipated economic advantage. Dolly alleged that Inca, Agri-Plastics, and Johnston violated that duty intentionally, maliciously, and in bad faith by committing one or more of the following acts: (1) knowingly and intentionally changing the plastic without notice to Dolly; (2) knowingly and intentionally changing the plastic knowing that it would cause Dolly’s products to be defective; (3) knowingly and intentionally changing the plastic at a time when one or more of them was planning to go into business in direct competition with Dolly; and (4) knowingly and intentionally engaging in the manufacture and sale of flush trays in order to capture and appropriate Dolly’s good will, business expectancies, business relationships and customers. In count III, Dolly prayed for judgment in the amount of $566,301.68 and costs of suit and asked that punitive damages be assessed in an appropriate amount.

Inca moved to dismiss all three counts of the counterclaim on the grounds that each of the counts stated more than one cause of action, in violation of section 2 — 603(b) of the Code of Civil Procedure (the Code) (735 ILCS 5/2 — 603(b) (West 1992)). On December 3, 1987, the court entered an order granting the motion to dismiss the counterclaim for failing to segregate the causes of action.

On May 30, 1988, Dolly filed its amended counterclaim. Count 1(a) was directed against Inca for breach of the implied warranty of merchantability, and count 1(b) was directed against Inca for breach of the implied warranty of fitness for a particular purpose. Count II of the counterclaim was a complaint for interference with business and was divided into two parts. Count 11(a) was against Inca, and count 11(b) was against Petersburg. Count III of the counterclaim was for intentional interference of business (changing plastic) and was divided into three parts. Count 111(a) was against Inca, count 111(b) was against Agri-Plastics, and count III(c) was against Johnston.

Inca and Petersburg filed a joint answer to the counterclaim on April 19, 1988, and also asked for a setoff in the amount alleged to be owed by Dolly to Inca in the original complaint. Johnston and Agri-Plastics filed their answers to the amended counterclaim on April 29, 1988.

On June 29, 1989, Inca and Petersburg filed a motion for judgment on the pleadings with respect to counts 11(a), 11(b), and 111(a) of Dolly’s amended counterclaim. Inca and Petersburg claimed that the relevant counts of the counterclaim failed to sufficiently allege either interference with contractual relationships or interference with prospective economic advantage. Dolly filed a response to the motion, claiming that its cause of action was not one for interference with contractual relations or interference with prospective economic advantage, but rather was for interference with business relationships. Dolly cited O’Brien v. State Street Bank & Trust Co. (1980), 82 Ill. App. 3d 83, 401 N.E.2d 1356, as authority for the proposition that Illinois recognizes such a cause of action. Inca responded with a motion to add additional authority, and cited the case King v. Levin (1989), 184 Ill. App. 3d 557, 540 N.E.2d 492, for the proposition that a plaintiff, when proceeding on a tortious interference theory, needs to plead and prove the absence of privilege and must allege facts from which actual malice may be inferred. Inca claimed that counts II and III failed to allege facts constituting actual malice. On November 8, 1989, the circuit court entered an order granting the motion for judgment on the pleadings with respect to counts 11(a) and 11(b), but denied the motion with respect to count III.

On November 22, 1989, Inca filed a motion for leave to file an amended complaint substituting Riblet for Inca. Inca claimed that on or about October 9, 1985, it had sold its assets and assigned certain of its accounts receivable to Riblet. Further, Inca had dissolved as a corporation on or about May 5, 1986. Inca claimed that, because the complaint in this matter was filed on October 20, 1986, Riblet was the proper party plaintiff. Inca attached to the motion an amended complaint that substituted Riblet for Inca, and also a copy of the assignment and bill of sale between Riblet and Inca. On January 8, 1990, the court entered an order directing Inca to file an amended complaint naming Riblet as plaintiff. The order was silent as to Inca’s status as counterdefendant. The court expressly retained jurisdiction over Inca and granted Dolly leave to file any appropriate pleadings against Inca. On January 8, Inca filed the amended complaint naming Riblet as plaintiff.

Further, on January 8, Dolly filed an amendment to the amended counterclaim. The amendment retained counts 11(a) and (b) of the amended counterclaim against Inca and Petersburg, respectively, for interference with business, but added additional facts.

On January 16, 1990, Dolly filed a motion to realign the parties. Dolly claimed that there was no need for it to file additional pleadings because of the counterclaim already pending. Dolly asked the court to redesignate Inca as a codefendant. Inca responded to the motion by claiming that, after the substitution of Riblet as plaintiff, the only appropriate pleadings against Inca were third-party claims pursuant to section 2-406 of the Code (735 ILCS 5/2-406 (West 1992)).

On January 29, 1990, Dolly filed a motion to strike the amended complaint. The motion was based on section 2 — 403 of the Code (735 ILCS 5/2 — 403 (West 1992)) and alleged that, pursuant to that section, Riblet was required to state in the complaint how and when it acquired ownership of the cause of action.

On February 22, 1990, Inca and Petersburg filed a motion to dismiss Dolly’s amendment to the amended counterclaim. Inca and Pe-tersburg claimed that a counterclaim was not permissible against either of them, and also that Dolly was confusing the torts of interference with contractual relations and interference with prospective economic advantage. The motion further claimed that Dolly was attempting to change a contract action into a tort action.

On May 9, 1990, Dolly filed a motion for summary judgment on major issues. Dolly asked the court to enter summary judgment finding that Inca knew of Dolly’s special requirements regarding the flush trays, yet changed the plastic being used to manufacture them without notice to Dolly, and that Inca was aware of the problems with the changed plastic in January and February of 1985.

On May 15, 1990, Dolly filed its response to Inca’s motion to dismiss the amendment to the amended counterclaim. Dolly claimed in its response that a counterclaim was a proper action for it to bring against Inca and Petersburg and that counts 11(a) and (b) of the counterclaim properly stated a cause of action for interference with business.

The court entered an order on May 16 granting Dolly’s motion to strike the amended complaint and directing Riblet to file a verified complaint within 21 days.

On June 1, 1990, Riblet filed its amended complaint. The complaint was changed only in the respect that Riblet now included facts as to how and when it acquired the right of action against Dolly.

On June 4, 1990, the attorneys for Richard Petersburg filed a suggestion of death. The suggestion of death indicated that Petersburg had died on May 16, 1990. Pursuant to a motion by Dolly, the court entered an order substituting Jean Petersburg, executor of Peters-burg’s estate, for Petersburg as a party defendant on September 26, 1990.

On July 5, 1990, Riblet filed a motion to voluntarily dismiss the action pursuant to section 2 — 1009 of the Code (735 ILCS 5/2 — 1009 (West 1992)). Riblet asked the court to dismiss the action without prejudice.

Dolly, on July 20, 1990, filed an answer to Riblet’s amended complaint and also filed a counterclaim against Riblet. The counterclaim was for replevin of Dolly’s molds. Dolly claimed that Riblet was wrongfully withholding the molds and asked for damages in the amount of $570,722.42.

On July 25, Dolly filed a motion to add Rowe Industries, Inc., as a party defendant. Dolly stated in the motion that Inca had filed an affidavit wherein it claimed that the stock of Inca was owned by Croman Corporation, and that Croman Corporation had changed its name to Rowe Industries, Inc. Dolly claimed that Rowe had a substantial interest in the litigation because it would be ultimately liable for any judgment in favor of Dolly and against Inca.

The court entered an order on August 8, 1990, granting Dolly leave to add Rowe Industries as a defendant by service of summons. The court further ruled that Dolly’s amendment to the amended counterclaim properly stated a cause of action, but that any claims against Inca and Petersburg needed to be brought as third-party actions pursuant to section 2 — 406 of the Code.

Agri-Plastics and Johnston filed motions for summary judgment (735 ILCS 5/2 — 1005 (West 1992)) against Dolly on August 17, 1990. Agri-Plastics stated in support of its motion that it was not yet incorporated at the time of the alleged change in plastic. Johnston stated in support of his motion that the various depositions of himself, Pe-tersburg, Bruce Galbreath, and Rodney Juday indicated that he had no knowledge or authority concerning the type of plastic used in the production of Dolly’s flush trays.

On September 12, 1990, Inca and Petersburg filed motions for summary judgment against Dolly. Their motion was based on the court’s ruling that any claims against Inca and Petersburg needed to be in the form of third-party complaints. Inca and Petersburg point out that a third-party complaint can only be for indemnity or contribution for all or part of the plaintiff’s claim. Dolly’s counterclaim sought recovery for its own losses and, therefore, Inca and Petersburg point out that it cannot be the basis for a third-party claim. Inca and Pe-tersburg filed a memorandum in support of their position. Inca and Petersburg further filed a response to Dolly’s motion for summary judgment, wherein they claimed that Dolly’s motion was not supported by competent evidence because it was primarily based on the discovery deposition of Petersburg, which would no longer be admissible because of Petersburg’s death.

On October 12, 1990, Dolly filed its response to Agri-Plastics’ motion for summary judgment. Dolly listed the facts from the various depositions that it believed would support an inference that Johnston was aware of the problems with the plastic.

On October 29, 1990, the court entered an order granting Riblet’s motion to voluntarily dismiss. The court stated that the litigation between Riblet and Dolly was terminated on July 5, 1990, and also struck Dolly’s counterclaim against Riblet because the litigation had been terminated. Dolly subsequently filed a motion asking the court to reconsider its finding that any claims by Dolly against Inca and Pe-tersburg needed to be in the nature of third-party actions rather than counterclaims.

Dolly filed a post-trial motion on November 16, 1990, claiming that it was error for Riblet to be allowed to voluntarily dismiss because of the pending counterclaim against Riblet. Dolly cited section 2 — 1009 of the Code for the proposition that a defendant’s permission is needed to allow a plaintiff to voluntarily dismiss when there is a counterclaim pending.

On February 4, 1991, the court entered an order granting summary judgment in favor of Agri-Plastics and Rae Johnston. The court stated in its order that there was no issue of material fact. Dolly filed a post-trial motion in response claiming that there were genuine issues of material fact as to every point raised in the motion for summary judgment.

On May 4, 1992, the court entered an order granting summary judgment in favor of Inca and Petersburg and against Dolly as to all counts of what the court called the “third-party complaint.” The court also denied Dolly’s motion for summary judgment on major issues. Further, the court denied all of Dolly’s motions for reconsideration and stated that all other orders and decisions of the court were expressly affirmed in all respects. This appeal followed.

Dolly first argues on appeal that it was error for the circuit court to grant summary judgment in favor of Inca and Petersburg on the theory that they could only be third-party defendants and that it was also error for the court to deny Dolly’s motion to realign the parties. Dolly argues that the substitution of Riblet as plaintiff for Inca did not affect the counts of Dolly’s amended counterclaim that remained pending against Inca. Inca and Jean Petersburg respond that, following the substitution of Riblet for Inca, Inca and Petersburg were no longer parties and needed to be brought in by third-party complaints pursuant to section 2 — 406. Inca and Jean Petersburg point out that counterclaims are governed by section 2 — 608 of the Code (735 ILCS 5/2 — 608 (West (1992)) and are brought against plaintiffs or codefendants. They argue that summary judgment was appropriate because a third-party complaint is limited to recovery by a defendant for all or part of a third-party’s claim against the defendant. Inca and Jean Petersburg rely on the recent decision of the supreme court in People v. Fiorini (1991), 143 Ill. 2d 318, 574 N.E.2d 612, in support of their position. In that case, the supreme court, in discussing the difference between counterclaims and third-party complaints, stated the following:

“A counterclaim is an action brought by a named party against another existing party to the action, and is governed by section 2 — 608 of the Illinois Code of Civil Procedure (HI. Rev. Stat. 1985, ch. 110, par. 2 — 608). By contrast, a third-party complaint is an action brought by an existing party against one or more new parties, none of whom were parties to the original suit. (111. Rev. Stat. 1985, ch. 110, par. 2 — 406.) In the instant case, none of the parties named in defendants’ responsive pleading was a party to plaintiffs’ original action. Summons was necessary and was issued on each of the parties named in the responsive pleading. In accord with section 2 — 406 of the Code (111. Rev. Stat. 1985, ch. 110, par. 2 — 406), defendants’ pleading thus must be considered as a third-party complaint, rather than a counterclaim.” Fiorini, 143 Ill. 2d at 329-30, 574 N.E.2d at 615.

Interestingly enough, the very authority relied on by Inca shows why Inca is incorrect. The supreme court specifically states in Fiorini that third-party complaints are necessary against those who were not parties to the original action. Considering that Inca filed the original complaint in this matter and litigated it for over three years before Riblet was substituted as plaintiff, we believe that it would be ludicrous for Inca to argue that they were not parties to the original action following the substitution. The court specifically retained jurisdiction over Inca and authorized Dolly to file any appropriate pleadings against Inca. Because Inca was an original party to the action, a counterclaim was an appropriate pleading to file against it. Dolly is correct in asserting that it was not necessary for it to file any additional pleadings against Inca because there was already a valid counterclaim pending. Further, at the time of the court’s order substituting Riblet for Inca, Inca was in the case both as a plaintiff and as a counterdefendant. The order substituted Riblet as plaintiff in the matter, but was silent as to Inca’s status as counterdefendant. Inca remained a counterdefendant following the substitution, and the relevant counts of the counterclaim were still pending against it. The summary judgment in favor of Inca is reversed.

Petersburg’s status in the case is slightly different than that of Inca. Petersburg was not a party to the original complaint but was first mentioned in Dolly’s counterclaim. Inca and Jean Petersburg argue that, therefore, any complaint against Petersburg must be in the nature of a third-party complaint and not a counterclaim. Once again, they are incorrect. The counterclaim was valid against Petersburg through a combination of sections 2 — 401(d) and 2 — 405(a) of the Code (735 ILCS 5/2 — 401(d), 2-405(a) (West 1992)). Section 2-401(d) provides as follows:

“Unless a contrary meaning is indicated, wherever used in this Act and in rules adopted pursuant hereto *** the term ‘defendant’ includes third-party defendants and parties against whom relief is sought by counterclaim.” (735 ILCS 5/2 — 401(d) (West 1992).)

Section 2 — 405(a) allows for the joinder of defendants who are alleged to have an interest in the controversy or “in the transaction or series of transactions out of which the controversy arose.” (735 ILCS 5/2— 405(a) (West 1992).) The claim against Petersburg arose out of the same transactions involved in the claim against Inca, and therefore Petersburg was properly joined as a counterdefendant. Nothing in section 2 — 405(a) indicates that it was not meant to apply to parties against whom relief is sought by a counterclaim. The summary judgment in favor of Jean Petersburg is reversed.

As a corollary to this issue, Dolly alleges that it was error for the court to deny its motion to realign the parties. Dolly relies on section 2 — 1008(a) of the Code (735 ILCS 5/2-1008(a) (West 1992)), which pertains to the procedure for substitution of parties, in support of this motion. This section does not mention anything about “realignment.” It appears from Dolly’s motion that all it is requesting is a change in the title of the case. Section 2 — 1008(a) provides in part that, after a substitution, the cause carries on “with or without a change in the title of the cause.” (735 ILCS 5/2 — 1008(a) (West 1992).) This appears to give the trial judge discretion whether or not to change the title of the cause. Although it would make sense to retitle the case in such a way as to reflect the status of the parties as we have determined them to be, the court appears to have discretion whether or not to make that change. In this case, the court’s denial of Dolly’s motion to realign the parties appears to have been based on the faulty premise that Dolly did not have a valid counterclaim pending. Therefore, we will vacate the court’s denial of that motion, and the court can, on remand, reconsider its ruling in light of this opinion. The judgment of the court with respect to the denial of Dolly’s motion to realign the parties is vacated.

The next argument raised by Dolly is that it was error for the court to award voluntary dismissal to Riblet and to strike Dolly’s counterclaim against Riblet. We agree. Section 2 — 1009 of the Code generally permits a party to voluntarily dismiss its cause at any time before a trial or hearing begins. However, that section also provides an exception to the general rule: “After a counterclaim has been pleaded by a defendant no dismissal may be had as to the defendant except by the defendant’s consent.” (735 ILCS 5/2 — 1009(a) (West 1992).) If the only counterclaim at issue in this case was the one filed against Riblet, then Riblet should have been allowed to voluntarily dismiss. The counterclaim against Riblet was not filed until after the motion to dismiss was filed, and in that situation, the counterclaim would be too late to prevent dismissal. (See In re Marriage of Wright (1980), 92 Ill. App. 3d 708, 711-12, 415 N.E.2d 1196, 1200, vacated on other grounds (1982), 89 Ill. 2d 498, 434 N.E.2d 293.) However, we have already determined in the instant case that there was a valid counterclaim pending against Inca. Riblet claims that, even if that was a valid counterclaim, it would not prevent dismissal because the counterclaim referred to in the statute means a counterclaim against the party seeking to dismiss. Dolly argues that the statute is not claim specific and that a counterclaim against other parties can prevent a plaintiff from voluntarily dismissing. The supreme court’s recent decision in Heck v. Central Illinois Light Co. (1992), 152 Ill. 2d 401, 604 N.E.2d 939, indicates that Dolly is correct. The court in that case held that a defendant’s counterclaim against a codefendant was sufficient to bar the plaintiff’s right to voluntarily dismiss. The court concluded that the use of the term “counterclaim” in the voluntary dismissal section was not limited to counterclaims against the party seeking to dismiss. In reaching that conclusion, the court stated the following:

“Had the legislature intended to limit the applicability of section 2 — 1009 to counterclaims asserted against a plaintiff it could have easily done so. The legislature could merely have inserted the phrase ‘against the plaintiff’ into that section. Instead, the legislature placed no qualifications on the term ‘counterclaim’ when it enacted section 2 — 1009.” (Heck, 152 Ill. 2d at 406, 604 N.E.2d at 942.)

As the supreme court has specifically held that the counterclaim referred to in the voluntary dismissal section does not have to be against the plaintiff, we conclude that the counterclaim pending against Inca, Jean Petersburg, Rae Johnston, and Agri-Plastics was sufficient to bar the right of Riblet to seek a voluntary dismissal without Dolly’s consent. The judgment of the court with respect to the granting of Riblet’s motion to voluntarily dismiss and the striking of Dolly’s counterclaim is reversed.

Dolly next argues that the circuit court erred in denying its motion for summary judgment on major issues. We have reviewed Dolly’s motion and have concluded that it is entirely based on the discovery deposition of Richard Petersburg. Petersburg had died by the time the court ruled on Dolly’s motion for summary judgment on major issues. It was held in Abel v. General Motors Corp. (1987), 155 111. App. 3d 208, 221, 507 N.E.2d 1369, 1378, that after the death of a deponent, the deponent’s discovery deposition could not be considered by the court in ruling on a defendant’s motion for summary judgment. The court reasoned that, since only evidentiary facts could be considered in ruling on a motion for summary judgment, a discovery deposition could not be used after the death of the deponent because only evidence depositions could be used in place of live testimony under such circumstances. Therefore, we conclude that the trial court properly denied Dolly’s motion for summary judgment on major issues.

Dolly’s final argument is that it was error for the court to grant summary judgment in favor of Rae Johnston and Agri-Plastics. The purpose of summary judgment proceedings is to ascertain whether there is an issue of fact to try and not to try the fact issue. (Fitt v. City of Mattoon (1991), 215 Ill. App. 3d 472, 574 N.E.2d 1275.) By statute, summary judgment is to be granted when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (735 ILCS 5/2 — 1005(c) (West 1992).) The trial court must construe the pleadings, affidavits, and depositions in the light most favorable to the nonmoving party. (Wilmere v. Stibolt (1987), 152 111. App. 3d 642, 504 N.E.2d 916.) The appropriate standard of review regarding summary judgment is to determine if the trial court properly decided there were no material issues of fact and that the judgment was correct as a matter of law. Johnston v. Tri-City Blacktop, Inc. (1991), 217 111. App. 3d 388, 577 N.E.2d 529.

With regard to Agri-Plastics, we find that the court correctly determined that there were no genuine issues of material fact. AgriPlastics was not incorporated until after the problems with the flush pans manufactured for Dolly had already occurred. The relevant alle- | gations in count III of the amended counterclaim concern whether or not Rae Johnston, Inca, and Agri-Plastics knowingly caused a change in the plastic being used in the manufacture of Dolly’s products knowing that the change would cause cracking and leaking. Agri-Plastics was not in existence at the time and therefore could not have caused that change. All that can be said for Agri-Plastics is that it engaged in direct competition with Dolly in the production and sale of flush . trays. The summary judgment in favor of Agri-Plastics is affirmed. Í Rae Johnston’s situation is different than that of Agri-Plastics. Construing the pleadings and supporting documents in the light most favorable to Dolly, we find that the circuit court was incorrect in determining that there was no genuine issue of material fact with respect to Johnston. For the reasons stated above in discussing Dolly’s motion for summary judgment on major issues, the discovery deposition of Petersburg should not have been used in ruling on this motion for summary judgment. Considering the pleadings and the depositions other than Petersburg’s, different inferences could be drawn concerning Johnston’s involvement in the change in plastic in Dolly’s products. Johnston had formulated the idea for going into a new business prior to the time that the plastic was changed in Dolly’s product. Johnston stated that he had made suggestions involving changes in plastic formulas. Johnston was involved in dealing with problems involving plastic and participated in meetings regarding the problems with Dolly’s products. Further, Johnston later used pictures of Dolly’s molds in sales literature for Agri-Plastics. These factual allegations, construed in the light most favorable to Dolly, could support an inference that Johnston engaged in the conduct alleged by Dolly-in the counterclaim. The circuit court was premature in dispensing Johnston from the suit, as there were clearly genuine issues of material fact to be decided. The circuit court’s granting of summary judgment in favor of Johnston is reversed.

For the reasons indicated above, the judgment of the circuit court of McDonough County is affirmed with respect to the denial of Dolly’s motion for summary judgment on major issues and the granting of summary judgment in favor of Agri-Plastics. The judgment is reversed with respect to the granting of summary judgment in favor of Inca and Jean Petersburg, the granting of Riblet’s motion to voluntarily dismiss, and the granting of summary judgment in favor of Johnston. The judgment is vacated with respect to the denial of Dolly’s motion to realign the parties. The cause is remanded for further proceedings consistent with this opinion.

This decision should not be read as expressing any opinion as to the method by which Riblet was substituted for Inca.

Affirmed in part; reversed in part; vacated in part and remanded.

LYTTON and BRESLIN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER PRESIDING JUSTICE McCUSKEY,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE RAY PRINCE, Defendant-Appellant.
    Third District
    No. 3 — 92—0187
    Opinion filed April 1, 1993.
    McCUSKEY, P.J., dissenting.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a bench trial, the defendant, George Ray Prince, was convicted of rape (111. Rev. Stat. 1979, ch. 38, par. 11 — 1(a)). He was subsequently sentenced to 40 years’ imprisonment. The defendant appeals.

The record shows that on August 16, 1979, the defendant was charged by information with rape. Before he could be arrested in Illinois, he was charged with aggravated sexual abuse in Texas. On July 29, 1983, the defendant was convicted in Texas and was sentenced to 50 years in the Texas Department of Corrections. The State of Illinois filed a detainer against the defendant on August 25, 1983. On April 16, 1991, the defendant filed a written speedy trial demand in Illinois. On May 21, 1991, the State of Illinois filed a motion to temporarily transfer the defendant from the Texas Department of Corrections to the Peoria County jail for purposes of trying him on the rape charge.

On June 25, 1991, an indictment was filed which was substantially similar to the information filed on August 16, 1979. On September 6, 1991, the defendant filed a motion to dismiss the indictment because the three-year statute of limitations expired in August of 1982, and because the defendant’s speedy-trial rights had been violated. The motion also noted that physical evidence which was collected shortly after the charged offense had occurred was destroyed on January 11, 1983.

On September 9, 1991, the defendant filed a second motion to dismiss based on his July 29, 1983, Texas plea agreement. According to the transcript of the agreement, which was appended as an exhibit to the motion, one element of the negotiated plea in Texas was that the State of Illinois would not prosecute the pending rape charge.

The defendant’s motions to dismiss were heard on October 31, 1991. The defendant testified that his appointed counsel in Texas told him that he would not be prosecuted on the rape charge in Illinois or on a pending charge in Oregon if he pled guilty to the Texas charge and received a sentence of 50 years’ imprisonment. Some months after pleading guilty and being sentenced, he learned that charges were still pending in Illinois. However, he did not do anything about it because he thought that it had been taken care of by the Texas plea agreement. When he checked again in 1991, he found that the Illinois charge was still pending, so he had a fellow inmate draft a speedy-trial demand.

Following the testimony of the defendant, the parties stipulated that neither John Barra, the State’s Attorney of Peoria County in 1983, nor Robert Gaubas, the first assistant State’s Attorney of Peoria County in 1983, nor Donald Toohill, the chief of the warrant division of the Peoria County State’s Attorney’s office in 1983, had any independent recollection concerning any Texas plea agreement involving the rape charge in Illinois. The parties further stipulated that Patricia Maxwell, the property clerk for the Peoria police department in 1983, had been ordered to destroy physical evidence in the case because the case had been pending for over three years. Maxwell therefore destroyed the rape kit, the victim’s clothes, hair and Coke bottles found at the scene, and fingerprints lifted from the bottles.

Also presented to the court at the hearing were the following exhibits: (1) the transcript of the 1983 Texas plea hearing which included testimony by the defendant and statements by the prosecutor and defense attorney that neither Illinois nor Oregon would be prosecuting the defendant on pending charges; (2) the defendant’s 1991 written speedy-trial demand; (3) a teletype from the Peoria County sheriff’s department on August 3, 1983, stating that George Prince was incarcerated in the Texas Department of Corrections to serve a 50-year sentence for aggravated sexual abuse and that a detainer should be placed on him; and (4) a memorandum written by Peoria County Assistant State’s Attorney Jim Miller in August of 1983 indicating that Prince was sentenced to 50 years’ imprisonment in Texas and that the Illinois warrant was placed as a detainer. Following arguments by both sides, the court took the matter under advisement.

On November 14, 1991, the trial court issued a written order denying the defendant’s motions to dismiss. The order concluded that: (1) the filing of the information on August 16, 1979, tolled the running of the statute of limitations; (2) the Texas plea agreement did not bind the Peoria County State’s Attorney absent further evidence to the contrary; (3) the defendant’s speedy-trial rights were not violated because he did not promptly assert his rights under the Interstate De-tainer Act; (4) the defendant did not establish that he was prejudiced by the destruction of evidence; and (5) the defendant did not establish bad faith by the authorities in destroying the evidence.

The defendant proceeded to trial before a jury on December 5 and 6, 1991. Following the presentation of evidence and closing arguments, the jury was unable to reach a unanimous verdict. Consequently, the court declared a mistrial.

On January 29, 1992, the defendant waived his right to a jury trial, and the cause proceeded to a bench trial. As a preliminary matter, the defendant’s motions to dismiss were renewed and denied. The parties then stipulated that Moline police officer Gillis Reed would testify that at 8:49 a.m. on August 15, 1979, a 1969 white or gold four-door Cadillac with Illinois license plate SW8011 was found abandoned behind the Greyhound Bus Station on 14th Street. He would further testify that the car was towed to the police station and kept there until August 18, but that it was not analyzed for fingerprints.

Lisa Spears testified that she was 16 years old in August of 1979. She lived on Bourland Street in Peoria with her father and sister. During the summer of 1979, George Prince, a friend of her father, came to live with the family. He was supposed to watch over the house and the children while her father travelled on business. Lisa identified the defendant as George Prince.

In August of 1979, Lisa, her sister, her father, her father’s girlfriend, and the defendant went to the horse races in Moline. They drove in two cars, the defendant driving her father’s Cadillac, a 1969 model with Hlinois license plate SW8011. After spending the day and night in Moline, the witness was anxious to get home because she had a job at Steak & Shake and was expecting a letter from her boyfriend. Since her father planned to remain in Rockford for a while, he arranged for the defendant to drive her home in his Cadillac. Lisa’s father told her that there was $500 in the car which she should use to pay the bills once she got home.

According to Lisa, she and the defendant left Rockford at about 7 or 7:30 p.m. On the way back to Peoria, the defendant stopped to buy beer. He drank some of the beer in the car while driving and told Lisa that she was good-looking. They arrived home between 11:30 p.m. and 1 a.m., and the defendant continued drinking. Sometime after she went to bed, she was awakened when the defendant jumped on her, choked her, and threatened to kill her unless she had sex with him. He subsequently performed oral sex on her in the living room and had sexual intercourse with her on the floor of the kitchen. Throughout the incident, she told him she would not tell anyone if he would take the car and the money and leave. He eventually drove away in her father’s Cadillac. Lisa testified that she did not consent to have sex with the defendant and that there was no relationship between them beyond her living at the house and his being a houseguest.

After the defendant left, Lisa went to the home of her landlord, Betty Anderson, and pounded on the back door. Anderson let her in, and Lisa was subsequently taken to St. Francis Hospital, where she was examined and evidence was collected.

Debra Schmidt testified that she was a registered nurse working in the emergency room at St. Francis Hospital in 1979. On August 13, 1979, a young woman came in, saying that she had been raped. According to the emergency room report, the patient complained of being choked and raped by a man who had been living with her family. Red marks were apparent on the patient’s neck and left shoulder, but there was no other evidence of trauma. Evidence was collected from the patient and given to Officer Ganda.

Peoria police officer Craig Ganda testified that he photographed Lisa Spears at St. Francis Hospital and collected her clothing and the rape kit. Lisa told him that she had been raped on the kitchen floor and her hair had been pulled out, and that hair and Coke bottles which her assailant had touched should be in the kitchen. Officer Ganda then went to the house on Bourland Street. There, he found clumps of hair on the kitchen floor which appeared to be similar in length and color to the victim’s. He also found several Coke bottles. The hairs, bottles, clothes, and rape kit were all prepared for transmittal to the Morton Crime Lab. Ganda subsequently lifted fingerprints from one of the Coke bottles. On January 20, 1992, he took prints from the defendant at the Peoria County jail. Those prints matched the prints found on the bottle.

Following closing arguments by both sides, the trial court found the defendant guilty of rape and continued the cause for sentencing.

A sentencing hearing was held on February 28, 1992. At the commencement of the hearing, defense counsel argued a previously filed motion for new trial which claimed, inter alia, that the court should have granted the pretrial motions to dismiss on speedy-trial grounds. The motion was denied.

The defendant took the stand and testified that when he entered prison, he was illiterate. However, he can now read and write at about a sixth-grade level.

At the conclusion of the hearing, the court sentenced the defendant to an extended term of 40 years’ imprisonment to be served consecutively to his Texas sentence. The court also certified the defendant as a habitual child sexual offender.

On appeal, the defendant first argues that his sixth amendment right to a speedy trial was violated because there was nearly a 12-year delay between the time he was originally charged with the offense and the time his trial was held.

We begin by noting that in Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182, four factors were set forth to determine whether a defendant has been denied the right to a speedy trial. Those factors are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) the prejudice to the defendant.

The threshold question in a Barker analysis is whether the delay is presumptively prejudicial. If a delay is presumptively prejudicial, then the court should go on to balance the remaining three factors. People v. Belcher (1989), 186 Ill. App. 3d 202, 542 N.E.2d 419.

The United States Supreme Court has recently provided some guidance on the issue of presumptive prejudice stemming from the length of the delay. In Doggett v. United States (1992), 505 U.S._, 120 L. Ed. 2d 520, 112 S. Ct. 2686, the Supreme Court recognized that pretrial delay is often both inevitable and justifiable. Specifically, the Court noted that great weight should be accorded to the government’s need to collect witnesses, oppose pretrial motions, and track down defendants. Nevertheless, in Doggett, the Court reversed the defendant’s conviction, noting that the S^-year delay between the defendant’s indictment and his trial was extraordinary. The Court went on to state that official negligence in bringing an accused to trial is not tolerable simply because the defendant is unable to show how the delay prejudiced him. Further, the toleration of such negligence varies inversely with its protractedness.

The instant case involves a delay of over 12 years between the time charges were initially filed against the defendant and his eventual trial. While some of that delay may be attributable to the government’s need to track down the defendant, it is clear from the filing of the detainer in Texas that the State was aware of the defendant’s location at least as far back as 1983. Since the defendant was not tried until 1991, the delay attributable to the State in the instant case was at least an extraordinary eight years. This delay is approximately the same length as was involved in Doggett and is presumptively prejudicial.

Having concluded that the delay involved is presumptively prejudicial, we turn our attention to the second Barker factor, the reason for the delay. The responsibility for providing a justifiable reason for the delay rests with the State. (People v. Belcher (1989), 186 Ill. App. 3d 202, 542 N.E.2d 419.) A defendant need only show that the delay was not attributable to his actions. People v. Belcher (1989), 186 Ill. App. 3d 202, 542 N.E.2d 419.

The State contends that the delay was justified because it was awaiting the completion of the defendant’s sentence in Texas. However, this argument has been consistently rejected as a justification for such delays. (See People v. Harflinger (1977), 49 Ill. App. 3d 31, 363 N.E.2d 875; People v. Belcher (1989), 186 Ill. App. 3d 202, 542 N.E.2d 419; People v. Howell (1983), 119 Ill. App. 3d 1, 456 N.E.2d 236; People v. Mclnery (1980), 91 Ill. App. 3d 68, 413 N.E.2d 876.) Thus, while no evidence has been presented to show that the eight-year delay was the result of an intentional effort by the State to gain a tactical advantage, the State is unable to offer any explanation which would justify the inordinate delay and lessen the presumption of prejudice.

Turning to the third Barker factor, the defendant’s assertion of his right, we note that the State emphasizes that it filed a detainer shortly after the defendant’s Texas conviction. The State seems to suggest that this excused it from pursuing the expeditious prosecution of the defendant until he actually filed a speedy trial demand. We disagree.

The detainer statute expressly provides:

“Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints.” (Emphasis added.) (111. Rev. Stat. 1983, ch. 38, par. 1003 — 8—9.)

Therefore, we cannot say that the filing of a detainer excuses the inordinate delay involved here.

We recognize that under ordinary circumstances, the failure to request a speedy trial is weighed heavily against the defendant. {People v. Howell (1983), 119 111. App. 3d 1, 456 N.E.2d 236.) However, where the defendant is justifiably under the impression that charges are no longer pending against him, his failure to demand trial will not constitute waiver of his right to a speedy trial. See People v. Bryarly (1961), 23 111. 2d 313, 178 N.E.2d 326.

Here, the illiterate defendant was notified in writing that a detainer had been placed against him. However, when he pled guilty to the Texas charges he was orally informed that the State of Illinois would not prosecute him. It was not until years later, after the defendant had learned to read, that he discovered that the Illinois charge was still pending. In light of these unique circumstances, we find that the defendant’s failure to assert his right in a more timely manner did not constitute a waiver of that right and should not be held against the defendant.

We now turn our attention to the final Barker factor, the prejudice suffered by the defendant. In so doing, we note:

“[impairment of one’s defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony ‘can rarely be shown.’ *** Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter identify.” (Doggett v. United States (1992), 505 U.S____, 120 L. Ed. 2d 520, 530-31, 112 S. Ct. 2686, 2692-93.)

Accordingly, the protracted delay involved here made it unnecessary for the defendant to show actual prejudice. (Doggett v. United States (1992), 505 U.S___ 120 L. Ed. 2d 520, 112 S. Ct. 2686; see also People v. Belcher (1989), 186 Ill. App. 3d 202, 542 N.E.2d 419.) We further note that it is undisputed that virtually all the physical evidence gathered in the instant case had been destroyed several years prior to the defendant’s trial. While the defendant is unable to show that the destruction of the evidence prejudiced him, the State is likewise unable to show that it did not.

Viewing the factors in their totality, we find that the defendant’s right to a speedy trial was violated. While there was no evidence that the delay was intended to prejudice or oppress the defendant, the State has failed to overcome the presumption of prejudice by offering either a justification for the protracted delay or adequate evidence that the delay did not prejudice the defendant.

The judgment of the circuit court of Peoria County is reversed.

Reversed.

SLATER, J., concurs.

PRESIDING JUSTICE McCUSKEY,

dissenting:

I respectfully dissent from the majority’s opinion that the defendant’s rape conviction must be reversed. I conclude from the record that the defendant did not establish a violation of his right to a speedy trial.

I agree with the majority that the first two factors set out in Barker v. Wingo (1972), 407 U.S. 514, 530, 33 L. Ed. 2d 101, 117, 92 S. Ct. 2182, 2192, favor the defendant. I agree that the eight-year delay in this case must be considered extraordinary. Further, I agree that the State has not provided an adequate justification for the delay.

However, I strongly disagree with the majority opinion regarding the third factor, the defendant’s assertion of his right to a speedy trial. There is no dispute that, on August 25, 1983, the State of Illinois filed a detainer against the defendant pursuant to the interstate agreement on detainers (the Agreement) (111. Rev. Stat. 1983, ch. 38, par. 1003 — 8—9). The majority concludes that the fact the defendant was notified of the detainer in writing should not be weighed against the defendant because he was illiterate. The facts of this case do not support this conclusion. The defendant acknowledged that the de-tainer was lodged against him in 1983. Further, the facts presented in the majority opinion show that, several months after the defendant was sentenced in Texas, “he learned that charges were still pending in Illinois.” Obviously, despite his illiteracy, the defendant was aware of the Illinois detainer. Yet he did nothing.

Also, a “detainer” has been described by this court as:

“ ‘ “a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.” [Citations.] The detainer must be a formal notice initiated by a prosecuting or law enforcement agency within the member State where criminal charges are pending that the prisoner is wanted to face criminal charges and the notice must be filed with the institution in which the prisoner is serving a sentence.’ ” {People v. Hood (1991), 223 Ill. App. 3d 157, 160, 583 N.E.2d 1173, 1175, quoting People v. Befeld (1980), 90 Ill. App. 3d 772, 774, 413 N.E.2d 550, 552.)

The provisions of the Agreement apply when a detainer has been lodged against a prisoner who has entered a term of imprisonment in a party State. (Hood, 223 Ill. App. 3d at 159, 583 N.E.2d at 1175.) Article III(c) of the Agreement specifically provides:

“The warden, commissioner of corrections or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.” (111. Rev. Stat. 1983, ch. 38, par. 1003-8-9.)

Not once has the defendant ever contended that these requirements were not carried out. {Cf People v. Uplinger (1977), 69 Ill. 2d 181, 188, 370 N.E.2d 1054, 1057.) Therefore, I conclude that the defendant was properly informed of the contents of the detainer lodged against him and was also informed of his right to make a request for a final disposition. Accordingly, the defendant’s illiteracy cannot excuse his inaction from 1983 to 1991.

Additionally, the majority’s reliance on the defendant’s illiteracy excuse is erroneous because that contention has been waived. The defendant did not present any evidence concerning his illiteracy until his sentencing hearing. This was after his motions to dismiss had already been denied. Also, the defendant did not argue in his appellate brief that his illiteracy excused his inaction after the detainer was filed. The defendant argues for the first time in his reply brief that the delay was excusable because he was unable to read when he was notified of the detainer. It is well established that an argument not raised in the trial court is considered waived on appeal. (People v. Adams (1989), 131 Ill. 2d 387, 395, 546 N.E.2d 561, 564-65.) Also, a point not argued in an appellant’s brief may not be raised in the reply brief. 134 111. 2d Rules 341(eX7), (g); People v. Thomas (1987), 116 Ill. 2d 290, 304, 507 N.E.2d 843, 849.

The defendant did argue in the trial court and in his brief that his delay “should be excused in light of the circumstances surrounding his Texas plea agreement.” This argument is not persuasive. The record clearly shows that the defendant could not have reasonably believed that the Illinois charge against him was dismissed pursuant to the plea agreement. The majority opinion admits that the defendant learned several months after being sentenced in Texas that the Illinois charge was still pending against him. Therefore, the defendant knew that the Illinois charge was pending and did nothing following his conviction in Texas.

Regarding the fourth Barker factor, the majority acknowledges that the defendant is unable to show that the delay caused the defendant actual prejudice. The majority relies on Doggett v. United States (1992), 505 U.S__, 120 L. Ed. 2d 520, 112 S. Ct. 2686, and People v. Belcher (1989), 186 Ill. App. 3d 202, 542 N.E.2d 419, in concluding that the protracted delay made it unnecessary for the defendant to show actual prejudice. However, I believe Doggett and Belcher are distinguishable. In both Doggett and Belcher, the defendant was not aware of the charges against him and therefore could not have asserted his right to a speedy trial. Here, in contrast to Doggett and Belcher, the defendant did not assert his right to a speedy trial for almost eight years after the detainer was lodged against him. Further, the defendant in the instant appeal has not shown that he was prejudiced by the delay in prosecuting the charge against him.

I conclude that the trial court properly denied the defendant’s motion to dismiss. Therefore, I would affirm the defendant’s conviction and sentence.


author: JUSTICE CERDA JUSTICE TULLY,

text:
    DIANA ABERNATHY, Petitioner-Appellee, v. BOARD OF EDUCATION OF COMMUNITY HIGH SCHOOL DISTRICT No. 218, COOK COUNTY, Respondent-Appellant.
    First District (3rd Division)
    No. 1 — 91—1629
    Opinion filed December 2, 1992.
    Rehearing denied April 22, 1993.

      TULLY, J., dissenting.
    Arthur C. Thorpe and James P. Bartley, both of Klein, Thorpe & Jenkins, of Chicago, for appellant.
    Allen J. Oehlert, of Deffenbaugh, Loewenstein, Hagen, Gehlert & Smith, P.C., of Springfield, for appellee.
   JUSTICE CERDA

delivered the opinion of the court:

Respondent, Board of Education of Community High School District No. 218, Cook County, Illinois, appeals from the entry of summary judgment in favor of petitioner, Diana Abernathy, who filed a petition for writ of mandamus alleging that she was a tenured teacher when her teaching contract was not renewed. Respondent argues on appeal that: (1) petitioner did not hold a position that required its holder to be certified and therefore she was not a tenured teacher; (2) tenure cannot be achieved through estop-pel, and the elements of estoppel were not present in this case; (3) the trial court’s back pay award was excessive; and (4) petitioner was not entitled to reinstatement because there was no available position to which she was entitled. We reverse and remand.

Petitioner’s petition for writ of mandamus alleged the following. She was a teacher with a teaching certificate issued by the State of Illinois. Petitioner was first employed by respondent for the school year 1979-80 as a full-time certificated teacher on contractual continued service status; her position was vocational adjustment counsellor (VAC). According to one job description, the following were a VAC’s responsibilities:

“1. D.V.R. [Department of Rehabilitation Services] Caseload Management
2. Procure DVR applications and interview client and parents with Prevocational Coordinator.
3. Liaison and public relations with all levels of DVR, school personnel, community employers, trade schools, etc.
4. Knowledge of vocational fields and training facilities and counseling and consultation regarding this area to students, parents, teachers, coordinators, etc.
5. Collate DVR services to students in the various work experience programs — glasses, hearing aids, psychotherapy, operations, etc., and vocational training.
6. Attendance at and participation in student stuffings referred for DVR services and DVR clients.
7. Visitation of student job sites with prevocational coordinator.
8. Attend in service meetings for Prevocational Services Staff.
9. Be accountable to Supervisor of Prevocational Services.”

The petition further alleged that respondent selected petitioner for tenure in a May 27, 1981, letter from the superintendent of schools stating: “It is my pleasure to inform you that you have been selected for tenure according to The School Code of Illinois, Section 24.11.” But, as a result of improper pressure, petitioner executed a contract for employment as a nontenured teacher of typing and shorthand for the school year 1985-86. She was employed as a teacher for the school year 1985-86. Petitioner was notified in March 1986 that she would not be reemployed for the 1986-87 school year. Petitioner demanded a full-time position, and respondent replied that its action granting petitioner tenure was void.

The petition prayed for a writ of mandamus to be issued commanding respondent to reassign petitioner to a full-time teacher position.

Petitioner testified to the following relevant facts in her deposition. She held a bachelor’s degree in business education and had some graduate credits in guidance and counseling of the handicapped. She had a teaching certificate in business education for grades 6 through 12. The VAC job description given to her through the Illinois Department of Rehabilitation Services (DORS) stated that the VAC was responsible for the following duties:

“1.) Act on referrals, through the staffing process.
2. ) Arrange appointments with client and parents to make applications for services and explain referral and consent process.
3. ) Prepare and submit to DORS, forms and materials necessary to carry on the program.
4. ) Secure sufficient diagnostic information to determine eligibility for services: make appointments for medical exams; make appointments for psychological testing; and, make appointments for any other examinations which would assist in determining client’s condition.
5. ) Gather all data to determine substantial vocational handicap.
6. ) Confer with client, parents and teacher to develop a complete diagnostic service plan which will help determine a suitable vocational goal.
7. ) Develop individual work rehabilitation plans for each client.
8. ) Keep updated, detailed chrono [sic] notes on the rehabilitation progress or status of each client.
9. ) Prepare reports to be submitted by regional office to Division of Vocational Rehabilitation for: reimbursement, authorization; and services.
10. ) Complete annual reviews on each client to update vocational plans.
11. ) Visitations to workshops, schools, job stations, training centers, to keep in touch with vocational development of each client, and other rehabilitative facilities to keep abreast of client’s rehabilitative progress.
12. ) Provide job placement services to post-graduates.
13. ) Provide additional training and other rehabilitative services to post-graduates not ready for competitive employment.”

Respondent filed a motion for summary judgment in which it argued that petitioner could not as a matter of law be tenured because she was not employed as a teacher until 1985-86 and because her prior VAC position was not a teaching position requiring certification.

Margaret Niederer, manager of the internal operations section of the Illinois State Board of Education (ISBE), swore to the following in a supporting affidavit. She was familiar with the certification requirements, and for the years 1979 to 1986, ISBE did not require a teacher’s certificate or other formal State board certification for the VAC position.

Bonnie Gladden, program administrator for DORS, swore to the following in a supporting affidavit. At the time that petitioner was hired as a VAC for the 1979-80 school year, ISBE was strongly urging school districts to hire individuals who held teaching certificates and special education certificates. There were several VACs who were granted tenure by other school districts.

Petitioner filed a motion for summary judgment in which she argued the following. She was a tenured teacher while employed by respondent, and respondent improperly terminated her employment. Respondent regularly and continuously identified her and treated her as a tenured teacher. Among the factors that indicated her tenured status as a regular faculty member were: (1) her job description; (2) the superintendent's letter about her selection for continued probationary employment, which leads to tenure; (3) the superintendent’s letter advising her that she had been selected for tenure; (4) a 1984 notice to remedy issued to her by respondent regarding her performance (because a notice of remedy was required only when a teacher was tenured); (5) respondent’s preparation of a membership information record for petitioner for the Illinois Teachers’ Retirement System; (6) respondent’s requirement that petitioner execute a loyalty oath that was required of teachers; (7) respondent’s furnishing to petitioner of a memorandum to all faculty members who taught, stating her salary for the 1979-80 school year; (8) respondent’s description in a 1979 memorandum of petitioner as having a district teacher number; (9) respondent’s seeking of a copy of petitioner’s teaching certificate; and (10) respondent’s evaluation of petitioner on teacher evaluation forms.

Filed in support of petitioner’s motion for summary judgment was the affidavit of Cindy DeHart, supervisor for monitoring for ISBE, who swore to the following. ISBE strongly encouraged school district administrators to hire VACs with teaching certificates because development of revised personnel regulations included an anticipated change to require VACs to hold teaching certificates. As part of the process of reviewing and revising credential requirements that was begun in 1979, it was recommended that VACs hold teaching certificates.

The trial court entered summary judgment in favor of petitioner, denied respondent’s motion for summary judgment, and continued the case for discovery and for a hearing on damages. After hearing evidence on damages, the trial court entered judgment in favor of petitioner on the basis that she achieved tenure after being employed full-time for two school years and that respondent failed eithfer to issue to her a notice of honorable dismissal or to dismiss her for cause. Petitioner was ordered reinstated, and she was awarded damages.

Respondent argues the following on appeal. In order to become a tenured teacher, one must hold a position that requires its holder to be certified, and petitioner did not hold a position that was required to be certified. At the time that petitioner was hired as a VAC, ISBE was only urging the hiring of VACs with teaching certificates. Petitioner was not a teacher but was responsible for finding job placements, getting students certified in DORS, and finding work sites. According to the DORS contract with respondent, a VAC was to “function as a rehabilitation counselor vs. prevocational personnel, teacher or school administrator.” The VAC’s educational and work experience qualifications were to meet minimal requirements established by DORS and respondent. A VAC was subject to joint termination by respondent and DORS upon documentation of the inability to perform required duties. Therefore, the contract was inconsistent with the control required by a school board over a teacher on a tenure track.

Petitioner argues that she was tenured because: (1) she was required to be certified because she taught and supervised students; (2) she was advised that she had to be certified; (3) she was employed under respondent’s own contract; (4) she was reemployed by respondent at its board meetings; (5) she was supervised and evaluated as respondent’s employee; (6) she was disciplined by respondent; (7) respondent paid her a salary and gave her benefits; and (8) she was paid with school funds. Petitioner refers to the statement on the requirements form that credentials criteria were in the process of being developed for her VAC position, and she argues that she was listed under a category entitled “other necessary professional” as opposed to noncertified personnel.

The School Code provides that any teacher who has been employed as a full-time teacher for a probationary period of two consecutive school terms shall “enter upon contractual continued service” unless given written notice of dismissal. (111. Rev. Stat. 1991, ch. 122, par. 24 — 11.) Such tenured teachers may be removed or dismissed as a result of a decision to decrease the number of teachers upon written notice given by certified mail at least 60 days before the end of the school term. (111. Rev. Stat. 1991, ch. 122, par. 24 — 12.) The statute also provides for a procedure to dismiss tenured teachers for cause. (111. Rev. Stat. 1991, ch. 122, par. 24— 12.) No one may “teach or supervise in the public schools nor receive for teaching or supervising any part of any public school fund, who does not hold a certificate of qualification” granted by ISBE or by the State Teacher Certification Board and a regional school superintendent. (111. Rev. Stat. 1991, ch. 122, par. 21 — 1.) “Teacher” is defined as “any or all school district employees regularly required to be certified under laws relating to the certification of teachers.” 111. Rev. Stat. 1991, ch. 122, par. 24 — 11.

In McNely v. Board of Education of Community Unit School District No. 7 (1956), 9 Ill. 2d 143, 137 N.E.2d 63, cited by respondent, it was alleged that plaintiff’s decedent entered into contractual continued service within the meaning of section 24 — 2 of the School Code (111. Rev. Stat. 1949, ch. 122, par. 24 — 2). Defendant board of education argued that the teacher tenure law did not apply to nonteaching superintendents. The court stated that the statutory definition of teacher as “any or all school district employees regularly required to be certified under laws relating to the certification of teachers” (111. Rev. Stat. 1949, ch. 122, par. 24 — 2) stated the legislature’s policy to include within the teacher tenure law only those employees required to be certified. (McNely, 9 Ill. 2d at 148, 137 N.E.2d at 66.) The court held that, therefore, the only proper inquiry was whether superintendents were required to be certified. (McNely, 9 Ill. 2d at 148, 137 N.E.2d at 66.) Superintendents were held to be teachers within the meaning of the teacher tenure law because they were required to be certified. McNely, 9 Ill. 2d at 151,137 N.E.2d at 68.

The following cases were relied upon by petitioner. In Lane v. Board of Education of F air bury-Cropsey Community Unit School District No. 3 (1976), 38 Ill. App. 3d 742, 744, 348 N.E.2d 470, 473, a principal who had had no regular teaching duties, but who was reassigned to teaching duties, was held not to have a statutory claim to a property right (tenure) in continued employment as a principal because section 24 — 11 (111. Rev. Stat. 1971, ch. 122, par. 24 — 11) provided that a certified employee could be so reassigned. In discussing the principal’s argument that defendant school district had not acted in good faith in its reassignment procedure, the court stated that “[differing treatment regarding duties, salary schedules, and certification may be relevant to employment, but they are not relevant to entitlement to continued employment.” (Lane, 38 Ill. App. 3d at 746, 348 N.E.2d at 474.) Petitioner relies on this statement in her argument that one’s duties are not dispositive of entitlement to tenure, but we do not interpret the statement to mean that duties are not relevant to whether one is eligible for tenure. The court further stated:

“The character and extent of plaintiff’s property interest in continued employment as a principal was created and defined by the terms of his employment contract.” Lane, 38 111. App. 3d at 746, 348 N.E.2d at 474.

Petitioner argues that very similar is James v. Board of Education of School District No. 189 (1990), 193 Ill. App. 3d 406, 413-14, 549 N.E.2d 1001, 1005-06, in which registered nurses, who had taught in a practical nursing program and who were required to hold a provisional vocational certificate to teach, met the requirement of section 24 — 11 (111. Rev. Stat. 1983, ch. 122, par. 24 — 11) for entering tenured service. But, in contrast to petitioner in the instant case, the James plaintiffs taught classes.

In Falato v. Teachers’ Retirement Systems (1991), 209 Ill. App. 3d 419, 568 N.E.2d 233, a teacher appealed from a decision denying him pension service credit for years when he was employed by a private corporation. Plaintiff argued that the definition of teacher included any certified teacher who taught in Illinois public common schools, whether or not the teacher was actually employed by an Illinois school district. The court rejected plaintiff’s interpretation of the definition of teacher that was contained in the Illinois Pension Code (111. Rev. Stat. 1963, ch. lOSVa, par. 16 — 106(a)), which was a statute that is not at issue in the instant case. Falato, 209 Ill. App. 3d at 424, 568 N.E.2d at 236-37.

We reverse the trial court’s entry of summary judgment in favor of petitioner on the basis that petitioner was not a teacher eligible for tenure when she worked as a VAC. The tenure statute clearly defines teacher to include only those school district employees who are required to be certified under laws relating to the certification of teachers (111. Rev. Stat. 1991, ch. 122, par. 24 — 11), and the teacher certification statute requires only those who teach or supervise to hold a certificate (111. Rev. Stat. 1991, ch. 122, par. 21 — 1). The record does not establish that petitioner’s VAC position was either a teaching or a supervising position. Rather, petitioner was a counselor who assisted students and graduates in vocational rehabilitation and job placement. The trial court should have entered summary judgment in favor of respondent.

Petitioner argues that she does not seek tenure by estoppel because she had tenure by statute. But petitioner does argue, apparently as an alternative argument for affirmance, that respondent was estopped from denying that she had statutory tenure on the basis that there were “elements of fraud” in respondent’s conduct in compelling petitioner to sign the nontenure contract. The alleged misrepresentation made to petitioner was that a tenured counselor who became a teacher in the same school district would have to start over to earn tenure.

But, even assuming arguendo that respondent could be estopped from denying a status that is only achieved in accordance with State law, the entry of summary judgment cannot be affirmed on the basis of respondent’s allegedly fraudulent conduct because there was a question of fact whether respondent knew that the alleged misrepresentation was untrue, which is one of the elements of equitable estoppel (Willowbrook Development Corp. v. Pollution Control Board (1981), 92 Ill. App. 3d 1074, 1079, 416 N.E.2d 385, 389-90). In addition, there is no allegation in petitioner’s petition for mandamus that respondent knowingly made any false representations or that petitioner relied to her detriment on such false representations.

The judgment of the trial court entering summary judgment in favor of petitioner is reversed, the judgment of the trial court denying respondent’s motion for summary judgment is reversed, and the cause is remanded with directions to enter summary judgment in favor of respondent.

Reversed and remanded with directions.

RIZZI, J., concurs.

JUSTICE TULLY,

dissenting:

I respectfully dissent from the majority’s view that petitioner was not a tenured teacher. In this case I feel that the petitioner, Diana Abernathy, was a teacher at the time of her termination. Petitioner testified in her deposition that she held a business degree in business education. In her summary judgment motion, she further stated that she was regularly and continuously identified as and treated as a teacher by respondent. Moreover, several factors were presented which raised a genuine issue of material fact as to petitioner’s status as a teacher, including: (1) a letter from the superintendent, informing her that she was selected for continued probationary employment, which leads to tenure; (2) the superintendent’s letter advising her that she had been selected for tenure; (3) a notice of remedy, only sent to tenured teachers, was issued to her regarding her performance; (4) the requirement that petitioner execute a loyalty oath that was required of teachers; and (5) respondent’s evaluation of petitioner on a teacher evaluation form.

For all of the foregoing reasons, I would hold that petitioner was a teacher at the time of her termination and the decision of the circuit court should be affirmed.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MALCOLM CEMOND, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 88—1692
    Opinion filed December 30, 1992.
    Rehearing denied April 2, 1993.

      Maria Harrigan, of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Elizabeth Sklarsky, and Anne C. Scrivner, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Malcolm Cemond, was convicted of aggravated criminal sexual abuse (111. Rev. Stat. 1985, ch. 38, par. 12 — 16) in a jury trial and sentenced to seven years’ imprisonment. On appeal, defendant contends that (1) the trial court erred when it admitted evidence of defendant’s alleged other criminal conduct; (2) the trial court erred when it refused to question prospective jurors whether they would find children to be more believable and sympathetic witnesses than adults; and (3) the trial court erred when it instructed the jury using Illinois Pattern Jury Instructions, Criminal, No. 3.06 — 3.07 (2d ed. 1981) (hereinafter IPI Criminal 2d). We affirm.

On June 29, 1986, nine-year-old N.J., her 13-year-old sister K.W., and their 13-year-old cousin R.M. stopped at defendant’s apartment on their way home from church. When they arrived, defendant was with EN., a six-year-old boy whom he was tutoring. Defendant offered to take the three girls and F.N. to lunch to celebrate F.N.’s birthday. Defendant telephoned N.J. and K.W.’s mother to ask for permission to take the children to lunch. After receiving her consent, defendant, his friend David, N.J., K.W., R.M. and F.N. drove to McDonald’s and ate lunch. After lunch, the group went to the beach. On the way home from the beach, defendant’s automobile broke down. David, K.W. and R.M. took a Chicago Transit Authority bus to defendant’s home to get David’s automobile while defendant, N.J. and F.N. remained with the disabled vehicle. After David, K.W. and R.M. had left, N.J. testified that the following events occurred:

“Q. What happened next?
A. And then [defendant], he gave me some Kool-Aid. And I was eating it. And then he grabbed my wrist, and pulled me— at first, he — he unzipped his pants. And he covered up his— his—
Q. He uncovered what?
A. He covered up his penis.
Q. Did you see his penis?
A. Yes.
Q. You say he grabbed you by the wrist? What did he do?
A. He pulled me on top of his penis.
Q. Which direction were you facing?
A. Face to face.
Q. And what happened next?
A. And then he went under my shirt and felt on my chest and my back.
Q. He was using his hands to do that?
A. Yes.
Q. And after he did that, what did he do next?
A. And then he started — he was smiling and making moans.
Q. Did you feel his penis?
A. Yes.
Q. Where was it?
A. Between my legs.
Q. Did you still have your short pants on?
A. Yes.
Q. And did he do anything else?
A. And then he squeezed me — he squeezed me. And then his hands was on my butt when he was squeezing me.
Q. When his hands were on your butt, did he do anything with his hands?
A. He was moving me up and down.
Q. And when he was doing that, you said he was making a noise. What noise was he making?
A. Moan noise.
* * *
Q. After — as [defendant] was doing the things to you, what happened next?
A. And then the — my sister (K.W.) and them drove up. And they blowed the horn.
* * *
Q. And you said they hit the horn. What happened next?
A. And then [defendant] pushed me off of him. And then I ran out and told [K.W.].
Q. Before you got away from [defendant], were you trying to get away from him.
A. Yes.
Q. And what happened?
A. I was pushed — I was pushing him away from me, but he had me too tight.
Q. How was he holding you?
A. He was holding me like real tight. He was squeezing me with his hands.
* * *
Q. And what did you do when you got away from [defendant]?
A. I went to tell [K.W.].
* * *
Q. And did you tell [K.W.]?
A. I told her that [defendant] was feelin’ all over me.”

N.J.’s testimony was substantially corroborated by F.N. and K.W. Upon returning home, N.J. and K.W. told their mother that defendant had tried to rape N.J. Defendant was arrested and charged with aggravated criminal sexual abuse (111. Rev. Stat. 1985, ch. 38, par. 12— 16) and unlawful restraint (111. Rev. Stat. 1985, ch. 38, par. 10 — 3). Following a jury trial, defendant was convicted of aggravated criminal sexual abuse and sentenced to seven years’ imprisonment. This appeal followed.

Defendant first contends that the trial court erred when it admitted evidence of defendant’s alleged other criminal conduct. At trial, N.J. and K.W. each testified over defense counsel’s objections that defendant told them that the police asked him to find some young girls to go to the prison and have sex "with inmates for money. While N.J. and K.W.’s testimony about defendant’s solicitation of the girls was irrelevant to the crime charged, we find that any error made by the trial court with respect to this testimony is harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant’s guilt.

Defendant next contends that the trial court erred when it refused to question prospective jurors whether they would find children to be more believable and sympathetic witnesses than adults. The scope and extent of voir dire examination of prospective jurors, including permitting a party to supplement the examination "with its own questions, rests within the discretion of the trial court. (134 111. 2d R. 234.) A reviewing court will find that the trial court abused its discretion while conducting voir dire only when the questions and procedures employed by the trial court fail to create reasonable assurances that any prejudice or bias of potential jurors will be discovered. (People v. Williams (1991), 147 111. 2d 173, 218, 588 N.E.2d 983, 999.) After reviewing the record in its entirety, we find that the trial court did not abuse its discretion when it refused to question prospective jurors about their attitudes toward the credibility of children witnesses.

Defendant next argues that the trial court erred when it instructed the jury using IPI Criminal 2d No. 3.06 — 3.07. IPI Criminal 2d No. 3.06 — 3.07, which was submitted to the jury over defendant’s objection, states:

“You have before you evidence that the defendant made statements relating to the offense charged in the information. It is for you to determine what weight should be given to the statements. In determining the weight to be given to a statement, you should consider all of the circumstances under which it was made.”

Defendant’s statements to the girls here about having sex with inmates for money do not relate to the charge of aggravated criminal sexual abuse. We find, however, that any error caused by submitting this instruction to the jury was harmless beyond a reasonable doubt due to the lack of prejudice caused to defendant and the overwhelming evidence of defendant’s guilt. Defendant further argues that IPI Criminal 2d No. 3.14, rather than IPI Criminal 2d No. 3.06 — 3.07, should have been submitted to the jury to instruct them about the context in which defendant’s statements may be considered. Defense counsel, however, failed to tender IPI Criminal 2d No. 3.14 to the trial court at the instruction conference. Moreover, we fail to see how the outcome of this trial would have been different had this instruction been submitted to the jury. We, therefore, conclude that any error made by the trial court with respect to jury instructions is harmless beyond a reasonable doubt.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

TULLY and CERDA, JJ., concur.


author: JUSTICE SLATER

text:
    RALPH T. MORGAN, Plaintiff-Appellant, v. C U N A MUTUAL INSURANCE SOCIETY, Defendant-Appellee.
    Third District
    No. 3 — 92—0358
    Opinion filed April 2, 1993.
    John B. Castelli, of Ottawa, for appellant.
    Paul V. Martin, of Hupp, Lanuti, Irion & Martin, P.C., of Ottawa (Raymond P. Fabricius, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiff, Ralph Morgan, filed an action for declaratory judgment seeking benefits under a total disability insurance policy issued by defendant, CUNA Mutual Insurance Society. The trial court granted defendant’s motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (111. Rev. Stat. 1991, ch. 110, par. 2 — 619). Plaintiff appeals and we affirm.

Plaintiff was employed at a manufacturing plant in Streator, Illinois. His employment entitled him to membership in the Streator Onized Federal Credit Union. Defendant issued a group insurance policy to the credit union which provided death and disability benefits to members who borrowed money. Plaintiff borrowed $40,000 from the credit union entitling him to coverage under defendant’s group policy.

Plaintiff suffers from osteoarthritis of the ankles, the symptoms of which include severe ankle joint pain and an inability to walk due to joint instability. His condition has gradually deteriorated since 1987.

Plaintiff turned 60 years old on September 16, 1990. On September 28, plaintiff was examined by two doctors. Plaintiff continued to work until October 5 when his two examining physicians advised his employer that he was totally and permanently disabled.

Plaintiff filed a claim for total disability benefits which was denied by defendant. Plaintiff filed his amended complaint for declaratory judgment on December 17, 1991, asking the court to find that he was entitled to disability benefits as provided in the insurance contract. In his complaint, plaintiff alleged that he was entitled to benefits under the provisions of a certificate of insurance issued to plaintiff by defendant. A certificate of insurance is a summary of the important policy provisions. A copy of the certificate was attached to plaintiff’s complaint. The relevant provisions of the certificate provide as follows:

“Total and Permanent Disability Insurance stops at your 60th birthday. ***
* * *
If You Become Totally and Permanently Disabled prior to your sixtieth birthday and while you are insured under the Group Policy, we will pay off the insured balance of your loan on the same basis as if we were paying a death claim, unless otherwise specified. By Total and Permanent Disability, we mean that because of a medically determined illness or injury you will never again be able to work at your own job or at any other paying job for which you are suited by education, training or experience for the rest of your life.”

Defendant filed a motion to dismiss the complaint. The trial court granted the motion, finding that because plaintiff continued to work past his sixtieth birthday he had not suffered a “total and permanent disability” as that term is defined in the policy prior to age 60.

On appeal plaintiff contends that the fact that he continued to work past his sixtieth birthday does not, as a matter of law, mean that he did not suffer a total and permanent disability prior to age 60. In light of the particular policy provisions involved in this case, we are compelled to reject plaintiff’s argument.

Insurance policies are subject to the same rules of construction applicable to other types of contracts. (International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co. (1988), 168 111. App. 3d 361, 522 N.E.2d 758.) If a provision in an insurance policy is clear and unambiguous there is no need for construction (Becker v. Country Mutual Insurance Co. (1987), 158 111. App. 3d 63, 510 N.E.2d 1316), and the provision should be applied as written (Murphy v. Peterson (1984), 129 111. App. 3d 952, 473 N.E.2d 480). Words of a policy should be given their ordinary meanings, and courts should not strain to find ambiguity so as to reach a desired result when no ambiguity in fact exists. Northbrook National Insurance Co. v. Nehoc Advertising Service, Inc. (1989), 196 111. App. 3d 448, 554 N.E.2d 251.

The provision of the certificate upon which plaintiff relies in this case is unambiguous. It clearly states that an insured must suffer a total and permanent disability prior to age 60 in order to be entitled to benefits. The policy definition of total and permanent disability is an illness or injury which prevents the insured from working at his job or any job for which he is qualified. Prior to his sixtieth birthday plaintiff clearly did not suffer from an illness or injury which prevented him from working at his job since he continued to work until after he turned 60. Giving the language of the relevant provision its plain and ordinary meaning, it is clear that regardless of any illness or injury, an insured who continues to work until he is 60 cannot collect disability benefits because he has not suffered a “total and permanent disability” as that term is defined in the policy.

Plaintiff cites a number of cases where courts have found an insured to be disabled even though the insured continued to work. In order to reach that conclusion in this case, however, we would be forced to ignore the clear policy definition of total and permanent disability. This we cannot do. Scudella v. Illinois Farmers Insurance Co. (1988), 174 111. App. 3d 245, 528 N.E.2d 218 (court cannot distort language to create ambiguity supporting insured’s theory).

Plaintiff also argues that the trial court erred in ruling on defendant’s motion to dismiss without examining the language of the master policy itself. Plaintiff never made this argument before the trial court. It is well established that a party may not argue one theory to the trial court and another to the appellate court. (Beverly Bank v. Alsip Bank (1982), 106 111. App. 3d 1012, 436 N.E.2d 598.) “Issues concerning alleged error not raised in the trial court are waived and, therefore, cannot be raised for the first time on appeal.” Lemke v. Kenil-worth Insurance Co. (1985), 109 111. 2d 350, 355, 487 N.E.2d 943, 945.

At the hearing on defendant’s motion to dismiss, plaintiff’s only argument was that his disability fell within the terms of the policy. In support of his argument, plaintiff relied on the language of the insurance certificate. Plaintiff did not argue that defendant’s motion should be denied because the master policy was not before the court. On the contrary, plaintiff argued that the language of the insurance certificate was controlling. Counsel for plaintiff informed the court that the parties were in agreement “as to the terms of the policy that controls this cause of action.” Because plaintiff failed to bring to the attention of the trial court any alleged error concerning the propriety of ruling on the motion based on the language of the certificate, he has waived this issue for purposes of appeal. Moreover, we note that the existence of coverage is an essential element of an insured’s case, and the insured has the burden of proving that his loss falls within the terms of his policy. (St. Michael’s Orthodox Catholic Church v. Preferred Risk Mutual Insurance Co. (1986), 146 111. App. 3d 107, 496 N.E.2d 1176.) It was plaintiff’s responsibility to bring before the trial court the contract under which he sought coverage and the provisions upon which he relied.

For the reasons stated above, the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

McCUSKEY, P.J., and BRESLIN, J., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN W. WINDSOR, Defendant-Appellant.
    Third District
    No. 3 — 92—0613
    Opinion filed April 7, 1993.

      Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Joan Scott, State’s Attorney, of Lewistown (John X. Breslin and Jay Paul Hoffman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, John W. Windsor, was charged with unlawful commercialization of fish (515 ILCS 5/5 — 25 (West 1992)). Following a bench trial, he was found guilty and sentenced to a one-year term of probation. The defendant appeals.

The record shows that Terry Holbrook, an agent for the Law Enforcement Division of the Illinois Department of Conservation, testified that on February 11, 1991, he drove to Sportsman’s Tavern. There, he met with Troy Swan. Following a conversation, they walked to the passenger side of Swan’s truck. Swan took fish out of the back of the truck and showed them to Holbrook. Holbrook described the fish as dressed bluegill and bass which were filleted and ready for frying.

During this time, the defendant remained in the truck on the driver’s side. Near the end of the conversation, the defendant left the truck and approached Swan and Holbrook. However, he did not speak to Holbrook. A price of $1.50 a pound for bluegill and $2.50 for each of the bass was agreed upon. The total price was $60 for approximately 40 pounds of fish.

The defendant also testified. He denied hearing any price being discussed for the fish or seeing any money being paid. He did, however, admit to picking up Swan and taking him to the meeting place to sell fish. He also admitted to knowing that the cooler Swan placed in his truck was full of fish.

On appeal, the defendant first argues that the Fish and Aquatic Life Code (Fish Code) (515 ILCS 5/1 — 1 et seq. (West 1992)) is unconstitutional because it violates his due process rights under the United States Constitution and the Illinois Constitution. Specifically, the defendant contends that the statutory values set for fish are arbitrary and unreasonable. He submits that the only reasonable value for the fish is the market value, and therefore the value of his fish did not meet the statutory level of $300. We disagree.

There is a presumption that all statutes are constitutional, and the party challenging the statute has the burden of clearly establishing the alleged constitutional violation. Because the statute in question does not involve a fundamental right, the test to be used in a due process analysis is the rational basis test. (People v. Hamm (1992), 149 Ill. 2d 201, 595 N.E.2d 540.) In applying the rational basis test, a court will identify the public interest that a statute is intended to protect, examine whether the statute bears a reasonable relationship to that interest, and determine whether the method used to protect or further that interest is reasonable. (People v. Lindner (1989), 127 Ill. 2d 174, 535 N.E.2d 829.) If there is any conceivable basis for finding a rational relationship, the law will be upheld. People v. Hamm (1992), 149 Ill. 2d 201, 595 N.E.2d 540.

The purpose of the Fish Code is to preserve the natural resources of Illinois by preventing the widespread poaching of wildlife. (People v. Hamm (1992), 149 111. 2d 201, 595 N.E.2d 540.) Therefore, the purpose of the valuation subparagraphs is not to limit the amount of profit a party can make in selling protected fish, but to determine when the improper depletion of Illinois resources reaches an unacceptable, and therefore punishable, level. Hence, the market value of the fish is not tied to the purpose of the statute. Here, the defendant has made no showing that the amount of fish necessary to constitute an offense under the present valuation system was arbitrary or unreasonable. We therefore find that he was not denied due process of law.

The defendant also argues that even under the values of the Fish Code, the total value of the fish was less than $300. The statute provides that bluegill and bass are to be valued at $4 per pound “dressed or not dressed ***. *** For parts of fish processed past the dressed state, $8 per pound.” (515 ILCS 5/5 — 25 (West 1992).) “Dressed” simply means “having the head removed.” 515 ILCS 5/1 — 45 (West 1992).

Officer Holbrook stated that the fish were dressed. However, he also testified that they were cleaned, filleted, and ready for frying. We find that this testimony clearly established the fish were processed beyond the “dressed” stage. As such, the statutory value was $8 a pound, making the total value of approximately 40 pounds of fish in excess of $300.

The defendant next argues that he was not proved guilty on a theory of accountability of unlawful commercialization of fish.

To convict a person of an offense on a theory of accountability, the State must prove: (1) the defendant solicited, aided, abetted, agreed, or attempted to aid another in the planning or commission of an offense; (2) the participation took place either before or during the commission of the offense; and (3) the defendant had the concurrent specific intent to promote or facilitate the commission of the offense. On appeal, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Haynes (1991), 223 Ill. App. 3d 147, 583 N.E.2d 1177.

Here, the defendant was sitting in the truck at the time Swan and Holbrook began discussing the fish. Near the end of the conversation, the defendant approached the pair. Although the defendant did not receive any money in the transaction and took no part in the conversation, he admitted that he picked up Swan and took him to the meeting place for the express purpose of selling fish. This admission establishes beyond a reasonable doubt that the defendant’s action furthered the unlawful sale of fish. Accordingly, we find that he was proved guilty of the offense.

The judgment of the circuit court of Fulton County is affirmed.

Affirmed.

SLATER and LYTTON, JJ., concur.