author: JUSTICE REINHARD

text:
    VALERIE R. STRINGHAM, as Adm’r of the Estate of David E. Stringham, Deceased, and for the use and benefit of Tracy Stringham, et al., Plaintiff-Appellee, v. UNITED PARCEL SERVICE, INC., Defendant-Appellant.
    Second District
    No. 2—88—0591
    Opinion filed March 29, 1989.

      Stephen E. Balogh, of Williams & McCarthy, P.C., of Rockford (John W. France, of counsel), for appellant.
    Clark, McGreevy & Johnson, P.C., of Rockford (Robert H. Clark, of counsel), for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, United Parcel Service, Inc. (UPS), appeals from a judgment of the circuit court of Winnebago County entered on a jury verdict for $252,631.08 ($505,262.16 reduced 50% by the negligence of plaintiff’s decedent) in favor of plaintiff, Valerie R. Stringham, as administrator of the estate of David E. Stringham, deceased, and for the use and benefit of her two children, Tracy and Tina Stringham, in this wrongful death action.

On appeal, defendant contends that the trial court erred by (1) allowing testimony regarding the future care, treatment, and prognosis of a beneficiary, (2) allowing an economist to calculate present cash value of future earnings using factors for inflation and growth of earnings, (3) precluding defendant’s economist from testifying beyond what had been disclosed in discovery, and (4) precluding defendant’s toxicologist from testifying to his opinion regarding the proximate cause of decedent’s death.

As the only issues raised on appeal are evidentiary errors, we need only briefly summarize the facts of the occurrence. On December 27, 1985, at approximately 10:20 p.m., the vehicle being driven by David E. Stringham collided with the rear end of defendant’s semi-tractor trailer, which was temporarily parked with its emergency light flashers on in the curb lane of the four-lane road, two lanes in each direction. While the driver of defendant’s vehicle stated that he was only stopped for a short while in order to close the passenger door in the cab which had come open, another witness testified that the truck had been parked there as long as 20 minutes. Stringham died from injuries resulting from the accident. Evidence was introduced that he had a blood-alcohol level of .21. Stringham was divorced from his former wife, Valerie R. Stringham, and left two children surviving, Tracy and Tina. Tina was seven years old and suffers from Down’s Syndrome.

Defendant first contends that the circuit court erred in denying its motion in limine and allowing into evidence testimony regarding the future care, treatment, and prognosis of a surviving child of decedent, Tina Stringham, who has Down’s Syndrome. In this regard, defendant objects to the testimony of Dr. Robin Spencer that Tina would receive a maximum level of education to the third or fourth grade, that Tina would need someone to follow her development and foster her for the rest of her life, that Tina’s visual impairment will get progressively worse as she grows older, that Tina has no substantial income earning potential, and that all Tina’s afflictions and deteriorating conditions were based upon a reasonable degree of medical certainty. Defendant argues that the health or helplessness of a beneficiary in a wrongful death action is an improper consideration, relying principally on Freehill v. De Witt County Service Co. (1970), 125 Ill. App. 2d 306, 261 N.E.2d 52. Essentially, defendant maintains that damages may not be recovered for future, speculative conditions brought on by Down’s Syndrome as contrasted to allowable compensation for loss of benefits of companionship which exist in a family relationship. Plaintiff responds that this testimony was relevant, not speculative, and was properly admitted to show the nature and extent of the loss of decedent’s society to Tina, citing Chladek v. Albon (1987), 161 Ill. App. 3d 884, 515 N.E.2d 191.

In a wrongful death action, the jury may award pecuniary damages for a child’s loss of instruction and training due to the death of the father. (Elliott v. Willis (1982), 92 Ill. 2d 530, 537-38, 442 N.E.2d 163; see Illinois Pattern Jury Instructions, Civil, No. 31.04 (2d ed. 1971).) The trend in the more recent Illinois Supreme Court decisions interpreting the Wrongful Death Act has been to expand the scope of pecuniary injury to encompass nonmonetary losses. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 514, 468 N.E.2d 1228.) The supreme court in Allendorf v. Elgin, Joliet & Eastern Ry. Co. (1956), 8 Ill. 2d 164, 133 N.E.2d 288, in construing the Wrongful Death Act and the term “pecuniary injuries” contained therein, looked to Miller v. Southern Pacific Co. (1953), 117 Cal. App. 2d 492, 256 P.2d 603, where a jury’s award was upheld for children’s loss of the father’s guidance, attention, advice, training, and instruction. See Elliott v. Willis (1982), 92 Ill. 2d 530, 537, 442 N.E.2d 163.

In Chladek v. Albon (1987), 161 Ill. App. 3d 884, 515 N.E.2d 191, the appellate court considered whether evidence as to the mental condition of decedent’s sister, that she was taking medication for a personality disorder, and other family background was improperly admitted. The court held that evidence pertaining to the family relationship was not limited to the time of the death of the decedent, and evidence of decedent’s sister’s personality disorder was relevant to demonstrate the effect and loss upon an already burdened family — necessary to an understanding of the interrelationship among all the family members. Chladek, 161 Ill. App. 3d at 889, 515 N.E.2d at 194.

While the appellate court in Freehill v. De Witt County Service Co. (1970), 125 Ill. App. 2d 306, 261 N.E.2d 52, relied on by defendant, stated that “[i]n an action for wrongful death, the wealth, health, poverty or helplessness of the beneficiary cannot be considered in determining the damages for the wrongful death” (Freehill, 125 Ill. App. 2d at 320, 261 N.E.2d at 58), the more recent supreme court and appellate court cases cited above appear to have diminished the vitality of that holding insofar as they now admit testimony of future health or helplessness if relevant to show a child’s loss of his father’s guidance, attention, instruction, moral training and superintendence of education. Moreover, in Freehill testimony was erroneously admitted as to the expenses incurred for treatment of cancer by decedent’s spouse.

Accordingly, we find relevant in this case a limited inquiry into Tina’s Down’s Syndrome, including the extent of her educability, her development, and any future visual impairment, all of which Dr. Spencer was able to determine to a reasonable degree of medical certainty. This information provided a context in which the jury could evaluate the decedent’s value in providing guidance, attention, and instruction to the child and the attendant pecuniary loss to the child. While the testimony of Tina’s lack of income earning potential was not relevant (see Wilcox v. Bierd (1928), 330 Ill. 571, 581, 162 N.E. 170; Illinois Pattern Jury Instructions, Civil, No. 31.07 (2d ed. 1971) (in determining pecuniary injuries the jury may not consider the poverty or wealth of the child)), such error in the admission of this brief testimony was not prejudicial and did not affect the outcome below, as it is insignificant and was not specifically referred to again in the trial or arguments. See J.L. Simmons Co. ex rel. Hartford Insurance Group v. Firestone Tire & Rubber Co. (1985), 108 Ill. 2d 106, 115, 483 N.E.2d 273.

Defendant next argues that the circuit court erred in allowing the testimony of plaintiff’s witness, Jack Skeels, an economist, as to the value of decedent’s projected future earnings because Skeels, in calculating the present value of future earnings, had incorporated a factor accounting for inflation. Defendant maintains that, under Illinois law, the effects of inflation are not to be considered in determining the present value of future earnings. Defendant contends that Skeels’ testimony resulted in an excessive verdict unsupported by any proper evidence.

While Skeels’ testimony describing the method he followed in computing decedent’s future earnings is somewhat lacking in clarity, from examination of this testimony and the written income loss analysis prepared by Skeels and entered into evidence, we understand the method employed by Skeels to be as follows. Skeels first projected how long decedent would have been expected to work, had he lived, based upon actuarial data. Skeels then determined the amount decedent would be expected to earn during his working life based upon decedent’s income and certain personal characteristics. In doing so, rather than assuming decedent’s income level would remain constant, Skeels generated an age income profile predicting, based upon statistical data, how decedent’s income would change over time due to factors such as increased experience. The income age profile data does not account for the effect of inflation on wage levels, as it is apparently based upon data comparing income levels of workers of different ages at the same point in time.

Skeels next discounted decedent’s future earnings to present value. In doing so, Skeels used a base discount rate of 7.3% from which he subtracted 6%, representing “growth of earnings,” giving a net discount rate of 1.3% used in the present value calculation. Skeels stated during cross-examination that growth of earnings is essentially inflation and that subtracting it from the discount rate “squeezed out” the effect of inflation from the calculation.

Defendant argues that the use of inflation or growth of earnings factors in calculating present value is improper. Defendant cites American National Bank & Trust Co. v. Thompson (1987), 158 Ill. App. 3d 478, 511 N.E.2d 1206, wherein it was held that the plaintiff’s expert’s method of calculating present cash value which considered growth of earnings and inflation was “not in accordance with the legal definition of present cash value as set forth in IPI Civil 2d No. 34.05 and the relevant case law.” 158 Ill. App. 3d at 483-84, 511 N.E.2d at 1209.

It is well established that, in weighing the amount of damages to be assessed against a tort-feasor, the jury must discount the amount of future damages to their present value. (La Salle National Bank v. City of Chicago (1987), 154 Ill. App. 3d 456, 466, 506 N.E.2d 1326; see also Avance v. Thompson (1944), 387 Ill. 77, 55 N.E.2d 57.) There is, however, little authority in Illinois governing whether inflation may be taken into account in computing future awards, and if so, how it is to be taken into account.

In Jones & Laughlin Steel Corp. v. Pfeifer (1983), 462 U.S. 523, 76 L. Ed. 2d 768, 103 S. Ct. 2541, the United States Supreme Court noted that at one time, many American courts did not allow consideration of the effects of inflation in computing awards of lost earnings. (Pfeifer, 462 U.S. at 539-40, 76 L. Ed. 2d at 785, 103 S. Ct. at 2552; see also Comment, Inflation, Productivity, and the Total Offset Method of Calculating Damages for Lost Future Earnings, 49 U. Chi. L. Rev. 1003, 1011 (1982) (hereinafter Damages for Lost Future Earnings).) These courts accepted evidence of both individual and societal factors that would lead to wage increases even in an inflation-free economy but required proof that those factors were not influenced by predictions of future price inflation, reasoning that such estimates were unreliably speculative. (Pfeifer, 462 U.S. at 540, 76 L. Ed. 2d at 785, 103 S. Ct. at 2552.) However, in discounting to present value, these courts applied a market interest rate. As market interest rates increase in response to inflation, the Court stated:

“The effect of [this method] was to deny the plaintiff the benefit of the impact of inflation on his future earnings, while giving the defendant the benefit of inflation’s impact on the interest rate that is used to discount those earnings to present value. Although the plaintiff in such a situation could invest the proceeds of the litigation at an ‘inflated’ rate of interest, the stream of income that he received provided him with only enough dollars to maintain his existing nominal income; it did not provide him with a stream comparable to what his lost wages would have been in an inflationary economy.” (Emphasis in original.) (462 U.S. at 540, 76 L. Ed. 2d at 785, 103 S. Ct. at 2552.)

In other words, predicting future earnings without considering the effects of inflation on wage levels produces an unrealistically low estimate of the plaintiff’s total future earnings. When this estimate is discounted by the market interest rate, the plaintiff will receive an award which, even if invested at that rate, would yield fewer dollars than if the plaintiff had continued earnings which kept pace with inflation. See O’Shea v. Riverway Towing Co. (7th Cir. 1982), 677 F.2d 1194, 1199.

Because of this problem, today, in a majority of jurisdictions, courts attempt to account for the effects of inflation in some way. (See Pfeifer, 462 U.S. at 540-41, 76 L. Ed. 2d at 785, 103 S. Ct. at 2552; American National Bank & Trust Co. v. Thompson (1987), 158 Ill. App. 3d 478, 490, 511 N.E.2d 1206 (Buckley, J., dissenting).) Courts have developed several approaches. One approach incorporates inflation into the computation of future earnings and then discounts that amount using the market interest rate as the discount rate. Another approach does not consider inflation in estimating total earnings but uses a discount rate equal to the market interest rate minus the inflation rate. (See O’Shea, 677 F.2d at 1199; see also Damages for Lost Future Earnings, 49 U. Chi. L. Rev. at 1014-15.) Both these approaches yield identical results. O’Shea, 677 F.2d at 1199.

Still other courts employ two other methods. One, the “partial offset” or “real interest” method, assumes that market interest rates exceed inflation by an essentially constant amount over time. This amount, generally believed to be 1.5% to 2%, is known as the “real” interest rate. (See 22 Am. Jur. 2d Damages §146 (1988); Damages for Lost Future Earnings, 49 U. Chi. L. Rev. at 1016-18; Pfeifer, 462 U.S. at 541-42, 76 L. Ed. 2d at 786, 103 S. Ct. at 2553.) A court employing the partial offset method does not allow consideration of inflation in estimating total future earnings, but, in discounting to present value, uses the real interest rate rather than the market rate.

The final method, the “total offset” method, assumes that inflation and other factors affecting growth of wages will equal the ideal discount rate. Hence, in predicting total future earnings inflation is not considered, nor is any discounting to present value performed as the two steps would cancel each other out. See 22 Am. Jur. 2d Damages §145 (1988); Damages for Lost Future Earnings, 49 U. Chi. L. Rev. at 1018-1022; Pfeifer, 462 U.S. at 544-46, 76 L. Ed. 2d at 787-89, 103 S. Ct. at 2554-55.

In the instant case, plaintiff’s economist appears to have employed a method accounting for inflation by subtracting the inflation rate from the appropriate market interest rate in discounting to present value, which is equivalent to first increasing future earnings by the inflation rate and then discounting by the market interest rate. Defendant notes that such a method is improper in view of the holding of the Appellate Court for the First District in American National Bank & Trust Co. v. Thompson (1987), 158 Ill. App. 3d 478, 511 N.E.2d 1206. In that case, the court stated that “[wjhile in some jurisdictions the testimony of plaintiff’s expert might, with proper explanation, be admissible to demonstrate to the jury the total amount of future damages, i.e., to demonstrate the effect the inflation rate and growth of real earnings would have on future earnings, it has not been the rule in Illinois.” 158 Ill. App. 3d at 484, 511 N.E.2d at 1210.

We find, however, little support in Illinois case law for the proposition in Thompson that evidence of the effects of inflation on future earnings is inadmissible in Illinois. We observe that in Raines v. New York Central R.R. Co. (1970), 129 Ill. App. 2d 294, 263 N.E.2d 895, rev’d on other grounds (1972), 51 Ill. 2d 428, 283 N.E.2d 230, the appellate court held that evidence concerning future inflationary trends was speculative and therefore inadmissible. (129 Ill. App. 2d at 305-06, 263 N.E.2d at 900.) However, in reversing the decision of the appellate court, on the basis that the award was supported by other proper evidence, our supreme court expressly declined to “examine the validity of the defendant’s contention that the admission of evidence regarding future inflation resulted in an excessive verdict.” (Raines v. New York Central R.R. Co. (1972), 51 Ill. 2d 428, 437, 283 N.E.2d 230, 235; see also Meador v. City of Salem (1972), 51 Ill. 2d 572, 581, 284 N.E.2d 266; Twait v. Olson (1982), 104 Ill. App. 3d 191, 198, 432 N.E.2d 1244; Crabtree v. St. Louis-San Francisco Ry. Co. (1980), 89 Ill. App. 3d 35, 40, 411 N.E.2d 19; Kapelski v. Alton & Southern R.R. (1976), 36 Ill. App. 3d 37, 46-47, 343 N.E.2d 207; Walczak v. General Motors Corp. (1976), 34 Ill. App. 3d 773, 776, 340 N.E.2d 684.) Prendergast v. Cox (1984), 128 Ill. App. 3d 84, 470 N.E.2d 34, cited in Thompson, notes the lack of any authoritative decision as to the propriety of evidence or argument concerning the effects of future inflation. In Prendergast, the court merely held that where no evidence as to future inflation was present, it was proper to sustain an objection to argument of counsel urging jurors to consider inflation. 128 Ill. App. 3d at 92, 470 N.E.2d at 39.

Illinois Pattern Jury Instructions, Civil, No. 34.05 (2d ed. 1971) (IPI Civil 2d) defines “present value” as follows:

“ ‘Present cash value’ means the sum of money needed now, which, together with what that sum will earn in the future, will equal the amounts of the pecuniary benefits at the times in the future when they would have been received.”

Defendant notes that the Thompson court found that consideration of inflation or growth of earnings is inconsistent with this definition. Both defendant and the court in Thompson fail to recognize that two steps are involved in determining a proper award based on loss of future earnings, and that IPI Civil 2d No. 34.05 only pertains to the second step in the process. Before the amount of future earnings can be discounted to present value, it must be determined what that amount is. We agree that once the amount of future earnings to be discounted is known, the inflation rate plays no role in the discount process. However, inflation is relevant to the initial step of determining the total amount of future earnings. In the instant case, plaintiffs economist subtracted inflation from the interest rate during the discount stage. However, as previously noted, this method is mathematically equivalent to inflating earnings and discounting by an unadjusted market interest rate. Thus, we do not find the result of this method inconsistent with the definition of present value in IPI Civil 2d, No. 34.05.

We, therefore, decline to follow Thompson as we believe it is illogical and indefensible to build inflation into the discount rate and yet ignore it in calculating the lost future wages that are to be discounted. (O’Shea v. Riverway Towing Co. (7th Cir. 1982), 677 F.2d 1194, 1200.) We further find that the method employed by plaintiff’s economist is an appropriate method of accounting for the impact of inflation. We do not hold that it is the only proper method, nor do we address the propriety of the economist’s use of actual figures involved in the case in his testimony rather than “neutral figures” (see Allendorf v. Elgin, Joliet & Eastern Ry. Co. (1956), 8 Ill. 2d 164, 177-78, 133 N.E.2d 288; Thompson, 158 Ill. App. 3d at 485-86, 511 N.E.2d at 1210), as the parties have not raised this issue.

Defendant next contends that its own economist, Dr. Robert Van der Ohe, was improperly barred from testifying to the present cash value of decedent's future earnings pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220). On March 8, 1988, several weeks before trial began, defendant filed supplemental answers to plaintiff’s supplemental interrogatories in which defendant disclosed Van der Ohe as an expert witness it might call at trial. Further, the answer stated that the subject matter of his testimony would be “present value of future cost of support” and provided Van der Ohe’s report setting forth the amount necessary to provide $25 per week to each of decedent’s two children until age 21 and, in Tina’s case, for life. Defendant called Van der Ohe, and, following his testimony on the matter previously disclosed, attempted to elicit an opinion on present cash value of decedent’s future earnings. Following plaintiff’s objection for failure to disclose that the witness would render an expert opinion on this particular subject, the trial judge barred Van der Ohe’s testimony on this matter based on defendant’s failure to disclose pursuant to Rule 220(b).

Defendant contends that, as it disclosed Van der Ohe as an expert witness, Rule 220(b) is inapplicable. Rather, subsections (c) and (d) of Rule 220 are more relevant. In this regard, defendant essentially argues that Van der Ohe’s testimony was not an undisclosed shift in theory or belief, citing Singh v. Air Illinois, Inc. (1988), 165 Ill. App. 3d 923, 520 N.E.2d 852, and that, as the testimony was based on testimony of plaintiff’s expert, Dr. Skeels, there would be no surprise or prejudice resulting if the testimony was admitted, citing Mazur v. Lutheran General Hospital (1986), 143 Ill. App. 3d 528, 493 N.E.2d 62, and Georgacopoulos v. University of Chicago Hospitals & Clinics (1987), 152 Ill. App. 3d 596, 504 N.E.2d 830.

It is evident that defendant did disclose Van der Ohe as an expert witness in its supplementary answers to plaintiff’s supplementary interrogatories. Defendant disclosed, however, that the subject matter of the witness’ expert testimony was the “present value of future cost of support.” Nevertheless, defendant at trial also sought to ask his opinion on the present value of decedent’s future earnings. The proffered testimony would have contradicted plaintiff’s expert’s testimony as to the method of computing present cash value of future earnings. We conclude that this testimony clearly went beyond the scope of what had been disclosed in the supplemental answer to interrogatories and was in violation of Rule 220(d).

Rule 220(d) provides:

“To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions or requests to produce, his direct testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.” (107 Ill. 2d R. 220(d).)

Its purpose is to permit litigants to ascertain and rely upon the opinions of experts retained by their adversaries and it limits the permissible scope of an expert’s testimony to those opinions expressed in response to discovery. (107 Ill. 2d R. 220(d), Committee Comments.) Defendant had limited the scope of its expert witness’ testimony by its answer to supplemental interrogatories during the discovery process. We are unpersuaded that any of the cases cited by defendant are relevant to the factual circumstances present here, nor is the reasoning applicable. The failure to comply with Rule 220 will debar the witness from testifying on the particular subject matter not disclosed unless to do so would create a manifest injustice. See Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 224, 511 N.E.2d 974.

Defendant’s last contention is that his expert toxicologist witness, Dr. Komiskey, was improperly prohibited by the trial court from rendering an opinion on the causal relationship between David Stringham’s intoxication and the accident. In a motion in limine, the trial court barred this opinion, but allowed any testimony by Komiskey as to what .21 blood-alcohol level means in terms of an individual’s impairment. During trial, Dr. Komiskey testified extensively on the impairment of senses, motor coordination, and attention span of a person with a blood-alcohol content of .21, such as defendant, although he was not allowed to specifically testify as to how this would affect someone’s ability to drive an automobile. Defendant, nevertheless, further argues that the expert should have been allowed to testify on the ultimate issue of proximate cause.

In Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 273 N.E.2d 809, our supreme court held that because the trier of fact was not required to accept the opinion of the expert, allowing him to testify to the ultimate issue in the case did not usurp the province of the jury. (49 Ill. 2d at 122, 273 N.E.2d at 811; see also Freeding-Skokie Roll-Off Service, Inc. v. Hamilton (1985), 108 Ill. 2d 217, 221, 483 N.E.2d 524.) Relaxation of the proscription of opinions on the ultimate issue has not, however, affected the requirement that to be admissible opinion testimony must be of assistance to the trier of fact. (Freeding-Skokie Roll-Off Service, Inc., 108 Ill. 2d at 221, 483 N.E.2d at 526; Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90, 99, 382 N.E.2d 1201.) A trial judge possesses wide discretion in allowing expert testimony which he feels will aid in the understanding of the issues in a particular case. Presswood v. Morris (1979), 70 Ill. App. 3d 513, 516, 388 N.E.2d 844; Stanley v. Board of Education (1973), 9 Ill. App. 3d 963, 973-74, 293 N.E.2d 417.

As the jury here heard ample opinion evidence on the impairment to a person caused by a blood-alcohol content of .21 and, in particular, the severity of the impairment depending upon percentage of the blood-alcohol reading, we find that an opinion on whether there was a causal relationship between plaintiff’s decedent’s intoxication and the accident to be of little assistance to the jury in this case as they could form their opinion on causation from the evidence in the record. Therefore, the ruling by the trial judge was not an abuse of discretion.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

UNVERZAGT, P.J., and INGLIS, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PAUL E. DUFF, Defendant-Appellee.
    Second District
    No. 2—88—0811
    Opinion filed March 31, 1989.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Rosalyn B. Kaplan and Kimary Lee, Assistant Attorneys General, of Chicago, of counsel), for the People.
    No brief filed for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court;

Plaintiff appeals an order of the circuit court of Du Page County granting a judicial driving permit (JDP) to defendant, Paul Duff. The Attorney General raises one issue on appeal: whether the trial court abused its discretion by granting a JDP to defendant, who was not a first offender within the meaning of section 6 — 206.1(B) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 6-206.1(B)).

Although no appellee’s brief has been filed in response, we will consider the appeal under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

On April 17, 1988, defendant was arrested for driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 95½, par. 11-501). Defendant’s driver’s license was summarily suspended, and the notice of suspension indicated that defendant was not a first offender under the definition set forth in section 11 — 500 of the Vehicle Code. See Ill. Rev. Stat. 1987, ch. 95½, pars. 11-500, 11-501.1.

On May 25, 1988, defendant petitioned for a JDP to relieve undue hardship. Attached to the petition was an abstract of defendant’s driving record from the Secretary of State’s office. The abstract showed that two dispositions had taken place on January 11, 1984, regarding an arrest on December 12, 1983. The court granted the JDP to defendant for the purpose of driving within the scope of defendant’s employment. The Secretary of State requested that the court review its decision to issue the JDP because defendant was a second offender for DUI. On July 12, 1988, after a hearing on the matter, the court issued a final order directing the Secretary of State to issue a JDP to defendant. The plaintiff then filed this appeal.

On appeal, plaintiff contends that the court should not have granted the JDP to defendant because he is not a first offender. When construing statutes, courts must ascertain and give effect to the intent of the legislature. (People v. O’Donnell (1987), 116 Ill. 2d 517, 522.) The purpose of the summary suspension framework is protection of highway travelers. (Koss v. Slater (1987), 116 Ill. 2d 389, 395.) To interpret the statute, we must look to the language of the statute itself. (Niven v. Siqueira (1985), 109 Ill. 2d 357, 365.) Here, the statutory language is clear and unambiguous.

Section 6 — 206.1(B) of the Vehicle Code provides that a driver who is impaired by alcohol is a threat to public safety and that, to provide a deterrent to driving while intoxicated and to remove impaired drivers from the roads, the State may summarily suspend a driver’s license. (Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 206.1(B).) The section further provides:

“[W]henever a first offender is arrested for any offense as defined in Section 11 — 501 ***:
(a) Subsequent to a notification of a statutory summary suspension of driving privileges as provided in Section 11 — 501.1, the first offender as defined in Section 11 — 500 may petition the circuit court of venue for a Judicial Driving Permit ***.” (Ill. Rev. Stat. 1987, ch. 95½, par. 6-206.1(B)(a).)

A first offender is defined as:

“[A]ny person who has not had a previous conviction or court assigned supervision for violating Section 11 — 501 *** within the last 5 years ***.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 500.

The plaintiff argues that defendant was not a first offender because he had a court supervision for DUI within the last five years'. Defendant was assigned supervision for DUI on January 11, 1984. The five-year time period did not expire until January 11, 1989, and the JDP was issued on May 25, 1988. Thus, if defendant had received supervision for DUI on January 11, 1984, defendant was not a first offender within the meaning of the statute.

Defendant argued at the hearing that he qualified as a first offender because the DUI charge of December 12, 1983, was subsequently reduced to a charge of improper lane usage. This interpretation of the abstract is erroneous. The trial court's confusion over whether defendant’s driving record included a supervision for a DUI offense is understandable because the State, in the trial court and on appeal, failed to explain adequately the coding system of the Secretary of State’s abstract of defendant’s driving record. In spite of this omission, we have deciphered the code.

The first column on the abstract is titled “Type Action.” This column is a list of numbers, the meanings of which are listed on the back of the abstract. The fourth column from the left is entitled “Authority Section Doc. Ctrl. No. Test Res.” This column refers to the section of the Vehicle Code under which the State has proceeded. The seventh column from the left is entitled “Action Reference Information.” This column also refers to a section of the Vehicle Code.

The two pertinent actions were the two orders on January 11, 1984. The first of these has a “55” in the “Type Action” column. The 55 stands for “Driver Remedial Program.” This remedial program was imposed under “6 117E” in the “Authority Section” column. Section 6 — 117(e) of the Vehicle Code provides that “[t]he Secretary of State shall also maintain appropriate records relative to a driver’s referral to a driver remedial or rehabilitative program, as required by the Secretary of State or the courts.” (Ill. Rev. Stat. 1983, ch. 95½, par. 6 — 117(e).) In the “Action Reference Information” column is the code 11 — 501. Section 11 — 501 of the Vehicle Code is the DUI statute.

The abstract reveals that the conviction on January 11, 1984, was for improper lane usage under section 11 — 709. (Ill. Rev. Stat. 1983, ch. 95V2, par. 11 — 709.) The driver remedial program, supervision, was for the DUI offense. Thus, defendant had a previous court-assigned supervision for DUI -within five years of his petition for a JDP. As such, defendant does not fall within the first offender category and is therefore ineligible to receive a JDP. We conclude that the trial court abused its discretion by granting a JDP to defendant who was not a first offender as required by the statute.

The order of the circuit court of Du Page County is reversed.

Reversed.

McLAREN and DUNN, JJ., concur.


author: JUSTICE DUNN

text:
    BECKY ANN SAAL, Plaintiff-Appellant, v. THE COUNTY OF CARROLL et al., Defendants-Appellees.
    Second District
    No. 2—88—0768
    Opinion filed March 29, 1989.

      John P. Duggan, of Lowe & Steinmetz, Ltd., of Aurora, for appellant..
    Val Gunnarsson, State’s Attorney, of Mt. Carroll (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appel-lees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Becky Ann Saal, appeals from a judgment order in favor of defendants, County of Carroll (County) and County Board of Carroll County (Board), with regard to her complaint pursuant to the Administrative Review Law (Act) (Ill. Rev. Stat. 1987, ch. 110, par. 3— 101 et seq.) challenging her dismissal as county supervisor of assessments. On appeal, plaintiff contends that the Board’s failure to notify her of 6 of the 10 charges against her until five minutes before the hearing was a due process violation and that the Board’s decision to uphold the termination was against the manifest weight of the evidence. Defendant contends that the circuit court lacked jurisdiction when it made its final ruling because plaintiff failed to file a new complaint for administrative review after a remand to the Board from the circuit court. We reverse.

On August -8, 1985, plaintiff received a letter from Albert Ehringer, chairman of the Board, advising her that she had been dismissed from her position as county supervisor of assessments, effective immediately. The letter cited the following four reasons for the dismissal: (1) failure of her office to perform the farmland reassessment; (2) failure to have her office issue certificates of error during a prolonged absence by plaintiff; (3) failure to do all things required at her annual meeting with township assessors; and (4) failure to finish work on real estate declaration forms and submit them to the appropriate State agency in timely fashion. Plaintiff requested a hearing before the Board, which was set for September 12,1985.

On the morning of the hearing, plaintiff received a list of reasons for her dismissal. The list contained the following reasons: (1) failure to accomplish the farmland reassessment; (2) failure to provide for the issuance of certificates of error during a seven-day absence from work; (3) failure to submit and process real estate transfer declarations in a timely manner as required by law; (4) failure to deliver the assessment books to township assessors by January 1, as required by law; (5) failure to submit the tentative abstract to the Department of Revenue in a timely manner; (6) failure to have the assessment books signed by the Board of Review prior to sending the final abstract to the Department of Revenue; (7) failure to record the minutes of 1984 Board of Review hearings into the log book; (8) failure to prorate the assessment of the First Brethren Church of Lanark; (9) failure to properly reassess the Shilling property; and (10) failure to prepare a list of exempt property requested by the Department of Revenue. Although plaintiff’s counsel objected to the introduction of any evidence at the hearing concerning charges not mentioned in the August 8 termination letter, such evidence was presented and considered by the Board.

Ron Kane testified that he was hired by plaintiff to serve as deputy supervisor of assessments commencing June 17, 1985. When plaintiff was dismissed, he became acting super-visor of assessments. Kane testified that the farmland reassessment could not have been completed by the January 1, 1986, deadline considering the progress that had been made as of August 1, 1985. Kane stated that if work had commenced on the project at the time plaintiff became supervisor of assessments, it could have been completed.

According to Kane, plaintiff took a vacation in July 1985 and missed seven days of work. Plaintiff did not give Kane the authority to issue certificates of error during this period, and Kane was not aware of any employee who had been given such authority. Kane turned away two or three people during this time who requested certificates of error.

Kane testified that when a real estate sale takes place in the county, the county clerk’s office sends a real estate transfer declaration form to the supervisor of assessments’ office. The supervisor’s office must fill in certain information on the form and submit it to the Department of Revenue no later than the 15th day of the month after the sale took place. Kane stated that the real estate transfer declaration forms for March, April, May, and June 1985 were not submitted to the Department of Revenue until August 1985.

According to Kane, the supervisor of assessments receives two copies of the assessment books each year from the county clerk. The supervisor is required to transmit one copy of the appropriate assessment book to each township assessor by the end of the year. Kane stated that he heard from Vivian Eaton, another employee in the office, that plaintiff failed to turn the books over to the township assessors by the January 1, 1985, deadline and did not accomplish this task until April. Plaintiff’s counsel objected to this testimony on the basis of hearsay, but it was admitted.

Kane stated that a tentative abstract which the supervisor of assessments is supposed to prepare was not transmitted to the Department of Revenue by the required time. He also stated that plaintiff, who, in her capacity as supervisor of assessments, was also clerk of the County Board of Review, failed to have the Board sign the assessment books prior to the submission of the final abstract of assessed valuation to the Department of Revenue as required by law. The abstract was submitted on March 27, 1985, and the assessment books were not signed until August 21,1985.

The Board of Review holds hearings on appeals of assessments by property owners. Plaintiff, as clerk, was supposed to take minutes of those meetings and transfer the minutes into a log book. Plaintiff had not transferred the minutes into the log book, according to Kane, at the time of her dismissal.

After Kane became acting supervisor of assessments, the First Brethren Church of Lanark sought a proration of their assessment as of the date that the church had a certain improvement removed. Kane granted the request. The church had previously made the same request to plaintiff, but she refused the proration. Kane also stated that plaintiff reassessed the Shilling property using the method set forth in the farmland reassessment bill even though, in Kane’s opinion, the property did not meet the criteria of the farmland assessment law and should therefore have been assessed according to another method.

Kane also testified that plaintiff received a letter from the Department of Revenue dated October 24, 1984, requesting a list of exempt property in the county. Plaintiff did not comply with this request, which resulted in an audit of the office that was currently taking place.

Homer Byers testified that he was a member of the Carroll County Board and chairman of the Board’s committee on finance and assessment. This committee interviewed plaintiff before her appointment as supervisor of assessments. Byers, Board chairman Donald Swanson, and the other committee members were present. They advised plaintiff of the deadline for the farmland reassessment and that the reassessment was to be performed by the personnel in the supervisor of assessments’ office. Plaintiff stated that she could complete the work if she could purchase some new equipment and hire some extra people. The Board appropriated funds in order to enable plaintiff to hire two additional part-time employees, Vivian Eaton and Dawn Rath, who began work in December 1984. The Board also gave her the authority to purchase extra equipment.

In July 1985, Byers heard from Board of Review member Dean Lower that plaintiff’s office had ceased work on the farmland reassessment in April. This testimony was admitted over the hearsay objection of plaintiff’s attorney. Byers testified that plaintiff acknowledged contacting the Manatron Company in April 1985 to pursue the possibility of having it perform the farmland reassessment. Plaintiff never informed the Board that she was having difficulty completing the reassessment. Byers felt that plaintiff’s unwillingness to perform the reassessment was demonstrated by the fact that Vivian Eaton stopped working on the program and assumed front office responsibilities. The cessation of work on the project by plaintiff’s office forced the Board to hire an outside firm to complete the farmland reassessment at a cost of $43,700.

Byers stated that the firing of Karen Zink, a full-time employee in plaintiff’s office, came as a complete surprise to the Board and that the Board did not fire her. Byers did not know why Dawn Rath was fired. According to Byers, plaintiff had the authority and the money in her budget to hire replacement employees.

Plaintiff testified that she worked as Carroll County supervisor of assessments for 15 months and one week prior to her dismissal. There were two employees in the supervisor’s office when she began work there. Plaintiff stated that one of her duties was to guide and instruct the township assessors. According to State statute, the township assessors were supposed to assess the property in their townships and determine a level of assessment consistent with State and county law. At the time plaintiff became supervisor of assessments, the township assessors had not performed these tasks for about 10 years. These duties were performed by plaintiff’s office instead.

Plaintiff’s office was also required to develop from information provided by the county clerk’s office boundary lines between properties on an aerial photograph and was also required to determine property ownership. Plaintiff was also required to notify taxpayers of any change of value in their property as a result of action taken by her office or a township assessor. Plaintiff’s office was accomplishing these tasks during her tenure, in addition to assessing new construction.

Plaintiff testified that before she took office, a firm called Vanguard Appraisal had performed a reappraisal of the county. Plaintiff’s office was required to update its records with the data from the reappraisal, to develop a level of assessment, and to send notices to taxpayers of any resulting value changes. This work was being accomplished by plaintiff’s office. Plaintiff testified that during a certain 15-day period, about 300 members of the general public came into the office each day with questions about the reassessment. Ordinarily, only about two or three members of the public per day went to plaintiff’s office.

When plaintiff became supervisor of assessments, the office had two full-time employees and no part-time employees. Plaintiff added one part-time clerical worker in the summer of 1984 who usually only worked four to six hours per week. In December 1984, plaintiff hired two more part-time employees, Vivian Eaton and Dawn Rath, to work on the farmland reassessment. Plaintiff stated that she attended a Board personnel committee meeting in mid-January 1985 and was directed to terminate one of her part-time employees. Dawn Rath was fired as a result.

Plaintiff fired Karen Zink, one of the full-time employees, on April 11, 1985, because she was not performing certain duties, including preparation of the township assessor books for the 1985 tax year. When Zink was fired, Vivian Eaton requested her job, and plaintiff moved Eaton into the front office. Eaton stopped work on the farmland reassessment at this time. In May another full-time employee, Candy Bouch, left her position. Plaintiff hired Ron Kane to replace her in June.

Around June 1, 1985, plaintiff spoke to Homer Byers of the Board’s personnel committee about having Vivian Eaton reclassified as a permanent full-time employee. Byers said that this sounded reasonable to him. Plaintiff never heard from Byers again on this matter and never received the authority to reclassify Eaton. Since Eaton’s temporary position was not technically vacant, plaintiff was unable to hire a new temporary employee. Plaintiff did not speak to anyone on the Board except Byers about reclassifying Eaton.

At the time plaintiff was terminated, work on the farmland reassessment had been temporarily halted because all remaining employees were needed for the day-to-day operation of the office. About 2,500 parcels of farmland remained to be reassessed. Since Vivian Eaton had moved to the front office in April 1985, only five or six parcels had been reassessed.

Plaintiff stated that she missed seven working days in 1985 at the end of June because she took a vacation. She was subsequently reprimanded by Board Chairman Ehringer for failing to inform the Board about her vacation, although she was aware of no policy requiring her to do so.

With regard to the real estate transfer declarations forms, plaintiff testified that a former office employee named Mary Lang had worked on the forms in 1984. Lang was dismissed by plaintiff in August 1984 for poor performance. In November 1984, the Department of Revenue notified plaintiff that about 400 of the forms would have to be returned to her office and corrected because of inaccurate or incomplete information.

Plaintiff testified that she did not prorate the assessment of the First Brethren Church of Lanark because the church had failed to file an exempt status request as required by law. She testified that the Board of Review, not her office, reassessed the Shilling property.

Plaintiff admitted that she received a letter from the Department of Revenue in October 24, 1984, requesting a list of exempt property. Plaintiff called and told the Department her office would provide them such a list the following year. In July 1985, plaintiff and the Assistant Director of the Department of Revenue discussed having the Department send out an auditor to help plaintiffs office prepare the list.

At the conclusion of the hearing, the Board voted to reaffirm plaintiff’s dismissal. Plaintiff filed a timely complaint challenging the dismissal with the circuit court of Carroll County pursuant to the Act. The circuit court agreed with plaintiff’s contention that the notice given to her of most of the charges on the morning of the hearing was inadequate. The court also concluded that a remand was necessary because the Board failed to make findings of fact at the original hearing. In remanding the case, the court directed the Board to permit plaintiff to present any additional evidence she might wish to present.

The new hearing before the Board took place on June 19, 1986. Plaintiff was given an opportunity to present new evidence but declined to do so. Her attorney argued that the farmland reassessment was a statutory duty of the township assessors rather than the supervisor of assessments. The Board voted to adopt 18 findings of fact that had already been prepared and reaffirmed plaintiff’s dismissal.

On August 22, 1986, plaintiff filed a motion with the circuit court to limit consideration of the record and to reverse the Board’s decision. For reasons not apparent from the record, the trial court did not rule on the motion until July 13, 1988, when it issued an order affirming the dismissal. Plaintiff now appeals.

As a preliminary matter, we note that while both parties have treated this as a proceeding under the Act, the Act does not apply to review of a decision to terminate a county supervisor of assessments. (Maddox v. Williamson County Board of Commissioners (1985), 131 Ill. App. 3d 816, 821-22, 475 N.E.2d 1349, 1353.) Such a decision is only reviewable by means of common law certiorari. (Maddox, 131 Ill. App. 3d at 822, 475 N.E.2d at 1353.) The court held, however, in Maddox that even though plaintiff’s complaint was filed under the Act, it was sufficient to vest the circuit court with jurisdiction to review the matter by means of common law certiorari. (131 Ill. App. 3d at 822, 475 N.E.2d at 1354.) Accordingly, we conclude that plaintiff’s complaint initially vested the trial court with jurisdiction to consider the Board’s ruling.

Defendants argue that the circuit court lost jurisdiction when it remanded the matter to the Board and that plaintiff was required to file a new complaint in order to revest the court with jurisdiction. In Creamer v. Police Pension Fund Board (1978), 69 Ill. App. 3d 792, 387 N.E.2d 711, the court held that if a circuit court remands an administrative matter to an agency for a hearing de novo and does not expressly reserve jurisdiction in the remand order, the circuit court loses jurisdiction. (69 Ill. App. 3d at 793, 387 N.E.2d at 713.) Under such circumstances, according to the court in Creamer, a new complaint must be filed in order to revest jurisdiction in the circuit court after the agency issues its decision upon remand. (69 Ill. App. 3d at 793, 387 N.E.2d at 713.) In the case at bar, the remand order of the circuit court did not expressly reserve jurisdiction, and plaintiff did not file a second complaint with the circuit court when the Board made its decision following remand.

We agree, however, with the conclusion of the court in Department of Transportation v. Grawe (1983), 113 Ill. App. 3d 336, 447 N.E.2d 467, that Creamer is not good law. (Grawe, 113 Ill. App. 3d at 341, 447 N.E.2d at 470.) A circuit court order in an administrative review matter remanding the cause to the agency for a new hearing or for further proceedings involving disputed issues of law or fact is not a final order. (Wilkey v. Illinois Racing Board (1983), 96 Ill. 2d 245, 249, 449 N.E.2d 843, 844; Mitrenga v. Martin (1982), 110 Ill. App. 3d 1006, 1008, 443 N.E.2d 268, 270.) In Mitrenga, the court stated as follows:

“Where the circuit court has the power to remand an agency decision for further hearings or proceedings, we feel that jurisdiction must necessarily remain with the circuit court until after disposition of these further matters. Only after the circuit court has examined the results of these additional proceedings will we recognize its subsequent order as being final and appealable.” (110 Ill. App. 3d at 1008, 443 N.E.2d at 270.)

This language supports plaintiff’s contention that the circuit court retained jurisdiction after it remanded the case to the Board.

Furthermore, section 3 — 104 of the Act states in part as follows:

“The court first acquiring jurisdiction of any action to review a final administrative decision shall have and retain jurisdiction of the action until final disposition thereof.” (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 104.)

The circuit court’s remand order directed the Board to hear any additional evidence plaintiff wished to present, reconsider its prior ruling, and make findings of fact. Since this order remanded the cause to the Board for further proceedings involving disputed questions of law and fact, it was not final. (Wilkey, 96 Ill. 2d at 249, 449 N.E.2d at 844.) Under section 3 — 104, since the order was not a final disposition, the circuit court retained jurisdiction after remand. While section 3 — 104 is not applicable to common law certiorari proceedings, we do not see any reason why the outcome should be different in such a proceeding, especially in light of the similarities between judicial review under the Act and judicial review of administrative decisions by means of common law certiorari. (Maddox, 131 Ill. App. 3d at 822, 475 N.E.2d at 1353.) Accordingly, we decline to follow Creamer, and we hold that since the circuit court’s remand order was not final, the court retained jurisdiction after remanding the matter to the Board.

Plaintiff argues that defendants’ failure to notify her of most of the charges until minutes before the hearing was a due process violation. Due process of law requires definite charges and adequate notice of those charges. (Florsheim Shoe Co. v. Illinois Fair Employment Practices Comm’n (1981), 99 Ill. App. 3d 868, 871, 425 N.E.2d 1219, 1221.) In its order remanding the case, the circuit court agreed that there was a due process problem and directed the Board to reopen the hearing to allow plaintiff to present additional evidence in order to cure the problem. Defendants argue that the due process problem was vitiated by the reopening of the hearing, at which time plaintiff declined the opportunity to present additional evidence.

It seems readily apparent that plaintiff received inadequate notice of most of the charges against her before the initial Board hearing and that there was a due process violation. We must determine whether the trial court’s remedy for this violation was adequate. Plaintiff’s only assertion in this regard is that the reopening of the hearing to allow her to submit additional evidence was not an adequate remedy because the Board had already made up its mind, as evidenced by the fact that the Board ended up adopting findings of fact that were prepared before the hearing.

The assistant State’s Attorney who represented defendants presented the proposed findings of fact to the Board at the hearing following remand, and the Board subsequently adopted those proposed findings. There is nothing unusual or improper about this procedure. Attorneys often present proposed findings of fact at the conclusion of trials or hearings. Since plaintiff has presented no valid reason to support her contention that the circuit court’s remedy for the due process violation was inadequate, we reject that contention.

Plaintiff next asserts that the evidence presented at the initial Board hearing was insufficient to sustain her dismissal. The applicable standard in reviewing agency findings under common law cer- tiorari is whether the findings of the agency are palpably or manifestly against the weight of the evidence. (Maddox, 131 Ill. App. 3d at 823, 475 N.E.2d at 1354.) In reviewing an administrative decision to discharge an employee, a court must also determine whether the findings of the agency are sufficient to support discharge under the applicable standard of conduct. (131 Ill. App. 3d at 823, 475 N.E.2d at 1354.) A decision to discharge will be overturned if it is arbitrary or unreasonable. Batley v. Kendall County Sheriff’s Department Merit Comm’n (1981), 99 Ill. App. 3d 622, 626, 425 N.E.2d 1201, 1205.

The statute providing for removal of the supervisor of assessments during his or her term of office states in relevant part as follows:

“[T]he county board, by a vote of of its members, may dismiss a supervisor of assessments prior to the expiration of his term for misfeasance, malfeasance or nonfeasance in the performance of the duties of his office.” (Ill. Rev. Stat. 1987, ch. 120, par. 484a.)

In Johnson v. Macon County Board (1982), 104 Ill. App. 3d 885, 433 N.E.2d 707, the court reviewed the dismissal of a county supervisor of highways under a statute authorizing removal for “incompetence, neglect of duty or malfeasance in office” (Ill. Rev. Stat. 1987, ch. 121, par. 5 — 201). The court determined that neglect of duty would only justify removal from office if it constituted a substantial failure to perform the official duties of the position (Johnson, 104 Ill. App. 3d at 892, 433 N.E.2d at 711-12), citing with approval the conclusion of the Arizona Supreme Court that nonfeasance and neglect of duty are synonymous and that nonfeasance is a substantial failure by an officer to perform his duty (see Holmes v. Osborn (1941), 57 Ariz. 522, 539-40, 115 P.2d 775, 783). Since, as the parties agree, the charges against plaintiff basically amount to charges of nonfeasance, the dismissal was proper only if the alleged nonfeasance constituted a substantial failure by plaintiff to perform her official duties. Additionally, there must be no sufficient excuse for plaintiff’s failure to perform these duties. Maddox, 131 Ill. App. 3d at 24-26, 475 N.E.2d at 1355-56.

We will now examine the charges against plaintiff and the evidence relating to those charges. Most of this evidence resulted from the testimony of Ron Kane. Kane’s testimony concerning most of the charges was sparse, with little, if any, explanation of the circumstances surrounding the charges or the significance or consequences of plaintiffs alleged omissions.

The charge that plaintiff took a seven-day vacation and failed to authorize anyone in her office to issue certificates of error appears to be frivolous at best. A certificate of error is a certificate attesting to an error as to the valuation of real property in an assessment. (Ill. Rev. Stat. 1987, ch. 120, par. 526.) Since such certificates must be endorsed by a majority of the Board of Review (Ill. Rev. Stat. 1987, ch. 120, par. 526), they could not have been routinely issued by the personnel in plaintiff’s office. The Board’s finding that “[d]uring this time period, Carroll County taxpayers frequented her office to receive certificates of error, but were turned down” is entirely without support in the evidence. Ron Kane testified only that he personally turned away two or three taxpayers seeking certificates of error. This testimony hardly supports a finding that taxpayers were “frequenting” the office during plaintiff’s vacation. Plaintiff, as the supervisor of the office and a member of the Board of Review, which had to endorse the certificates, may have validly believed that she should personally supervise the process for issuing certificates. Plaintiff’s conduct in this regard did not constitute nonfeasance.

The only evidence that plaintiff failed to deliver the assessment books to the township assessors was the hearsay testimony of Ron Kane that Vivian Eaton told him this was not done. Plaintiff’s attorney objected to this testimony, but it was admitted and considered by the Board. While certain technical evidentiary requirements may be relaxed in an administrative proceeding (Eastman v. Department of Public Aid (1989), 178 Ill. App. 3d 993, 996), the rule against hearsay is a fundamental rather than a technical rule (Novicki v. Department of Finance (1940), 373 Ill. 342, 344, 26 N.E.2d 130, 131; Eastman, 178 Ill. App. 3d at 996). Under these circumstances, where the only evidence supporting this charge was hearsay, the charge should have been rejected by the Board.

Kane testified that the tentative abstract was not transmitted to the Department of Revenue by the required time and that plaintiff failed to have the Board of Review sign the assessment books prior to the submission of the final abstract. Each of these alleged omissions appears to be minor, and there is no evidence in the record to the contrary. With regard to the tentative abstract, Kane did not testify as to when it was due or how late it was actually submitted. The scant evidence presented concerning these charges was not sufficient to support a finding of a substantial failure by plaintiff to perform the duties of her office.

The charge that plaintiff failed to record minutes from 1984 Board of Review meetings into a log book appears to be another frivolous charge. Ron Kane testified that plaintiff took the minutes for those meetings and that the 1984 minutes were on six legal pads which had not been transcribed into a log book. Since the minutes were still available on the legal pads, this does not seem to be a significant act of nonfeasance. Furthermore, there has been no showing by defendants that this is an official duty of the supervisor of assessments.

Kane testified that plaintiff failed to provide the list of exempt property requested by the Department of Revenue in its October 24, 1984, letter. Plaintiff testified that Department representatives agreed to send an auditor to help plaintiffs office prepare the list, but this was not done. Since plaintiffs explanation was not rebutted, her failure to provide the list of exempt property cannot be considered nonfeasance.

Kane testified that he granted a proration to the First Brethren Church of Lanark because the church had removed an improvement. He stated that plaintiff had previously rejected the proration. Plaintiff testified that she denied the church’s request because it failed to file an exempt status request as required by law. There was no evidence rebutting this testimony. The Board’s finding that the paper work submitted by the church was timely and in proper form was not supported by any evidence.

Kane also testified that it was not proper for plaintiff to reassess the Shilling property using the new farmland reassessment procedure because it did not meet the criteria set forth in the farmland reassessment bill. (Ill. Rev. Stat. 1987, ch. 120, par. 501e.) His testimony did not specifically indicate which criteria the property did not meet or indicate the difference this made with regard to the amount of the assessment. Plaintiff denied that she even reassessed this property, testifying that this was done by the Board of Review. Due to the vagueness of Kane’s testimony concerning this issue, it did not support a conclusion of substantial failure by plaintiff to perform her official duties.

The evidence revealed that the real estate transfer declaration sheets for March, April, May, and June 1985 were not submitted to the Department of Revenue by the supervisor of assessment’s office until August 1985, even though they were due on the 15th day of the month after the sale took place. Ron Kane testified that after real estate sales occurred in the county, the county clerk’s office sent plaintiff’s office a real estate transfer declaration form. Plaintiff’s office was then required to fill out certain information and submit the forms to the Department of Revenue. The evidence did not reveal when the forms in question were received from the county clerk’s office by plaintiff’s office. Absent such evidence, it is impossible to determine whether plaintiff or the county clerk’s office was culpable. The evidence relating to this charge was not sufficient to establish nonfea-sance on plaintiff’s part.

Plaintiff argues that her failure to perform the farmland reassessment cannot form the basis for her dismissal because it is not a statutory duty of the supervisor of assessments. By statute, as plaintiff admits, the supervisor of assessments is a member of the county farmland assessment review committee. (III. Rev. Stat. 1987, ch. 120, par. 501e.) The statute provides for a public hearing by the committee on or about June 1 of every year and states that if the committee agrees on certain matters “the chief county assessing official shall proceed with the farmland assessment process.” (Ill. Rev. Stat. 1987, ch. 120, par. 501e.) Plaintiff, as supervisor of assessments, was the chief county assessing official. Ill. Rev. Stat. 1987, ch. 120, par. 501e.

In general, the assessment of property is a duty of county or township assessors, not the supervisor of assessments. (See Ill. Rev. Stat. 1987, ch. 120, par. 525.) The supervisor of assessments’ statutory duty in this regard is to provide instruction to the assessors. (See HI. Rev. Stat. 1987, ch. 120, par. 483.) We believe that the requirement in the farmland assessment statute that the chief county assessing official proceed with the farmland assessment process would only require the supervisor of assessments to provide instruction and guidance to township assessors, who would then be obliged to assess the land.

It is clear from the record that plaintiff did not do this and that she understood instead that the Board expected her office to perform the farmland reassessment. Plaintiff agreed that her office could do so, but only if she was permitted to hire extra help. Prior to the time plaintiff was hired, there were two full-time employees in the supervisor’s office. No work had been done on the farmland reassessment at this point. Thus, the two full-time employees carried out the ordinary day-to-day business of the office.

In April 1985, plaintiff had two full-time employees who carried out the everyday responsibilities of the office. Vivian Eaton, a part-time employee, worked on the farmland reassessment. Plaintiff fired one of the full-time employees because she did not perform her duties. She then had Vivian Eaton cease work on the reassessment and take over front office duties. The other full-time employee unexpectedly quit shortly thereafter in May. Ron Kane replaced her in June. Plaintiff’s testimony that she asked Homer Byers, chairman of the Board’s finance and reassessment committee around June 1, 1985, to have Eaton reclassified so her part-time position would be open is unre-butted, as is her testimony that the Board’s failure to do so prevented her from filling the part-time position.

Under these circumstances, it appears that it was necessary for plaintiff to use her only two fulLtime employees to carry out front office responsibilities and that plaintiff was compelled to discontinue the farmland reassessment because of the Board’s inaction on her request to reclassify Eaton. The only other employee, Michelle Strauch, who was only 17, worked only four to six hours a week at clerical tasks. Since plaintiff had a valid explanation for her suspension of work on the farmland reassessment, she cannot be considered guilty of nonfeasance.

We conclude that the Board’s decision upholding plaintiff’s dismissal was against the manifest weight of the evidence. Accordingly, the judgment of the circuit court of Carroll County is reversed.

Reversed.

LINDBERG and McLAREN, JJ., concur.


author: JUSTICE LINDBERG

text:
    WILLIAM W. JOHNSON et al., Plaintiffs-Appellants, v. RICHARD A. FIELD et al., Defendants-Appellees.
    Second District
    No. 2—88—0781
    Opinion filed March 27, 1989.
    — Rehearing denied May 3, 1989.

      Burl F. Nader, of Libertyville, for appellants.
    Donald W. Kahn, of Law Offices of Kahn & Lapidos, of Libertyville, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiffs, William W. and Wenche W. Johnson, appeal from the judgment of the circuit court of Lake County entered after a bench trial granting the post-trial motion of defendants, Richard A. and Judith W. Field, to vacate judgment for plaintiffs and entering judgment for defendants. The issue at trial was whether defendants breached an agreement to purchase plaintiffs’ home and thereby forfeited their earnest money under the real estate contract. However, we decline to address the merits of the parties’ contentions on appeal because of a lack of appellate jurisdiction.

Plaintiffs filed their complaint on October 24, 1986. Defendants filed their amended answer, affirmative defense and counterclaim on March 23, 1987. On April 6, 1987, plaintiffs filed a motion to strike defendants’ amended answer, affirmative defense and counterclaim. In addition, plaintiffs, in the same April 6, 1987, motion to strike, sought sanctions against defendants pursuant to section 2 — 611 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). A hearing was held on plaintiffs’ motion, and on May 20, 1987, the trial court entered an order granting plaintiffs’ motion to strike defendants’ amended answer, affirmative defense and counterclaim and gave defendants 21 days to respond to plaintiffs’ complaint. The trial court in its May 20, 1987, order specifically reserved its ruling on the section 2 — 611 sanctions sought by plaintiffs. Defendants filed their second-amended answer, affirmative defense and counterclaim on June 11, 1987. On October 28, 1987, plaintiffs filed a motion for additional section 2 — 611 sanctions based on defendants’ June 11, 1987, filing of pleadings which were, in part, a verbatim refiling of the same pleadings the trial court previously ordered stricken on May 20, 1987. On November 12, 1987, the trial court, pursuant to cross-motions for summary judgment, ordered stricken parts of defendants’ affirmative defense, contained in their second-amended answer. The trial court de-dined to grant summary judgment to either party. The trial court did not address the issue of sanctions in its order of November 12, 1987.

On April 11, 1988, a bench trial was held. After the parties stipulated to certain facts, testimony was heard and exhibits presented, the trial court entered judgment on April 19, 1988, finding in favor of plaintiffs on plaintiffs’ complaints and defendants’ counterclaim. The trial court awarded the earnest money and costs to plaintiffs and the accrued interest on the earnest money to defendants. The judgment did not address the issue of section 2 — 611 sanctions. The parties filed their respective post-trial motions pursuant to section 2 — 1203 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203). Neither party addressed the issue of sanctions in its post-trial motions. On July 12, 1988, the trial court, after a hearing on the parties’ post-trial motions, reversed itself and entered judgment in favor of defendants and against plaintiffs and awarded the earnest money and interest accrued to defendants. Also, on July 12, 1988, the trial court entered an order giving plaintiffs until July 22, 1988, to supplement their motion for section 2 — 611 sanctions and giving defendants until July 29, 1988, to respond. A hearing on sanctions was set for August 9,1988.

Plaintiffs filed their supplemental pleadings to their earlier motions for section 2 — 611 sanctions, and defendants filed their response. The trial court held a hearing on the motion on August 9, 1988, and on that date entered an order taking the matter under advisement and stating that a ruling on the issue would be made and the parties notified by mail within 10 days. On August 10, 1988, plaintiffs filed their notice of appeal seeking a review of the trial court’s July 12, 1988, order granting judgment in favor of defendants. On August 24, 1988, the trial court entered judgment for plaintiffs and against defendants on plaintiffs’ motions for section 2 — 611 sanctions previously filed on April 6, and October 28, 1987, and as supplemented by leave of the court. The August 24, 1988, judgment awarded plaintiffs $1,062.50 in attorney fees based on the verbatim refiling by defendants of pleadings which had been previously stricken by the court.

A court of review has a duty to consider its jurisdiction to hear an appeal and to dismiss an appeal if jurisdiction is found to be lacking. (Benet Realty Corp. v. Lisle Savings & Loan Association (1988), 175 Ill. App. 3d 227, 529 N.E.2d 718.) Plaintiffs seek review of the trial court’s order of July 12, 1988, reversing the trial court’s earlier judgment for plaintiffs and granting judgment in favor of defendants. The July 12, 1988, order of the court did not dispose of plaintiffs’ claim for attorney fees pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611) and, therefore, was not yet appealable under Supreme Court Rule 301 (107 Ill. 2d R. 301). See 107 Ill. 2d R. 304.

Supreme Court Rule 304 governs the timing of appeals from final orders which do not dispose of an entire proceeding. (107 Ill. 2d R. 304.) A petition for sanctions pursuant to section 2 — 611 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611) is a “claim” as that term is used in Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). (Hise v. Hull (1983), 116 Ill. App. 3d 681, 452 N.E.2d 372; Martzaklis v. 5559 Belmont Corp. (1987), 157 Ill. App. 3d 731, 510 N.E.2d 1148.) Since the order of July 12, 1988, granting judgment for defendants did not dispose of plaintiffs’ claim for sanctions pursuant to section 2 — 611 of the Code, the July 12, 1988, order was not a final order which disposed of all claims between the parties and, therefore, was not appeal-able absent an express finding by the trial court of “no just reason to delay enforcement or appeal” as required by Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). (Hamer v. Lentz (1987), 155 Ill. App. 3d 692, 508 N.E.2d 324; Hise v. Hull (1983), 116 Ill. App. 3d 681, 452 N.E.2d 372 (held that claim for sanctions pursuant to section 2 — 611 of the Code (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 611), at least if filed as part of responsive pleadings, was a claim as that term is used in Supreme Court Rule 304(a), and trial court’s order which reserved ruling on the claim for sanctions was not appealable order absent required finding under Rule 304(a)).) On July 12, 1988, the trial court entered judgment in favor of defendants; the trial court also entered an order setting the dates for plaintiffs’ supplemental motions for section 2— 611 sanctions, defendants’ response, and a hearing. The trial court on August 24, 1988, entered a judgment in favor of plaintiffs and against defendants awarding plaintiffs $1,062.50 in attorney fees pursuant to section 2 — 611 of the Code. The August 24, 1988, order imposing sanctions under section 2 — 611 resolved the last outstanding claim before the trial court involving plaintiffs and defendants. The notice of appeal filed August 10, 1988, was premature in that it was filed two weeks before the August 24, 1988, order disposing of plaintiffs' claim for sanctions pursuant to section 2 — 611 of the Code. The August 10, 1988, notice of appeal, being premature, was ineffective in conferring appellate jurisdiction upon this court. (Yardley v. Yardley (1985), 137 Ill. App. 3d 747, 484 N.E.2d 873; 107 Ill. 2d R. 304(a).) Accordingly, we lack jurisdiction to address the merits of plaintiffs’ appeal.

Appeal dismissed.

DUNN and McLAREN, JJ., concur.


text:
      In re APPLICATION OF COUNTY COLLECTOR OF McHENRY COUNTY (Gary Verdung, McHenry County Collector, Plaintiff-Appellant, v. Palatine National Bank, Trust No. 953, et al., Defendants-Appellees).
    Second District
    No. 2—88—0618
    Opinion filed March 29, 1989.

      Thomas F. Baker, State’s Attorney, of Woodstock, and Allyn J. Franke, of Brydges, Riseborough, Morris, Franke & Miller, of Chicago (David N. Stone, Assistant State’s Attorney, of counsel), for appellant.
    Richard J. Szura, of Cary, for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Gary Verdung, the McHenry County collector, appeals from an order of the trial court granting a tax refund of $10,120.75 to defendant tax objectors Palatine National Bank, trust No. 953, et al. The trial court found that plaintiff’s extension of a 1984 tax levy for Community School District No. 300 (District 300) was improper because it was filed after the statutory due date. The sole issue presented on appeal is whether section 17 — 3.2 of the School Code (Code) (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 3.2) authorizes a county collector to levy a tax for educational purposes after the statutory due date provided for by section 17 — 11 of the Code (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 11). We reverse and remand.

Prior to the last Tuesday in December 1984, District 300 filed its tax levy certificate which extended the 1984 tax for educational purposes at a rate of 2.4% for each $100 of assessed valuation. On February 26, 1985, pursuant to section 17 — 3.2 of the Code (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 3.2), the voters of District 300 passed a proposition to increase the annual school budget for the current fiscal year. According to the proposition, the tax rate for educational purposes would be increased from 2.4% to 2.9%. On March 26, 1985, District 300 filed a supplemental levy resolution which extended the 1984 tax for educational purposes at a rate of 2.9%.

On January 24, 1986, defendants filed an objection to District 300’s supplemental levy. Defendants’ complaint alleged that because District 300 failed to certify and return the supplemental levy to the county clerk on or before the last Tuesday in December, the supplemental levy was void. The trial court agreed with defendants and granted their objections. From that order, plaintiff brought this appeal.

Under section 17 — 1 of the Code (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 1), the board of education for each district must, within or before the first quarter of each fiscal year, adopt an annual budget. The board is free to determine the dates upon which its fiscal year revolves. (See Ill. Rev. Stat. 1987, ch. 122, par. 17 — 1.) For a given tax year, section 17 — 11 of the Code requires that each district ascertain how much money must be raised by taxes for educational purposes for the ensuing year and certify those amounts to the county clerk on or before the last Tuesday in December. Ill. Rev. Stat. 1987, ch. 122, par. 17 — 11.

Section 17 — 3.2 states:

“Whenever the voters of a school district have voted in favor of an increase in the annual tax rate for educational or operations, building and maintenance purposes or both at an election held after the adoption of the annual school budget for any fiscal year, the board may adopt or pass during that fiscal year an additional or supplemental budget under the sole authority of this Section by a vote of a majority of the full membership of the board, any other provision of this Article to the contrary notwithstanding, in and by which such additional or supplemental budget the board shall appropriate such additional sums of money as it may find necessary to defray expenses and liabilities of that district to be incurred for educational or operations, building and maintenance purposes or both of the district during that fiscal year, but not in excess of the additional funds estimated to be available by virtue of such voted increase in the annual tax rate for educational or operations, building and maintenance purposes or both. Such additional or supplemental budget shall be regarded as an amendment of the annual school budget for the fiscal year in which it is adopted, and the board may levy the additional tax *** immediately." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 122, par. 17 — 3.2.

Plaintiff contends that the plain language of section 17 — 3.2 clearly authorized the extension of the 1984 tax rate for educational purposes to 2.9%. As plaintiff points out and our independent research confirms, no case has interpreted the provisions of section 17 — 3.2, and, therefore, the issue raised on review presents this court with a case of first impression in Illinois. To resolve the question raised in this appeal, we must construe the provisions of section 17— 3.2.

In construing statutory provisions, our role is to examine the entire statute for guidance as to the legislative intent, determine the objective the statute sought to accomplish and the evils it desired to remedy, and upon ascertaining the legislature’s intent, give it effect. (City of Springfield v. Board of Election Commissioners (1985), 105 Ill. 2d 336, 340-41, 473 N.E.2d 1313, 1315.) Where a statute has not been judicially interpreted, a court is guided by both the plain meaning of the statute’s language and the legislative intent. (Eckman v. Board of Trustees (1986), 143 Ill. App. 3d 757, 762, 493 N.E.2d 671, 675.) When the statutory language is clear and unambiguous, our only function is to enforce the law as enacted by the legislature. (Krall v. Secretary of State (1988), 168 Ill. App. 3d 478, 483, 522 N.E.2d 814, 817-18.) For the following reasons, we determine that section 17 — 3.2 authorized the increase of the 1984 tax rate for educational purposes to 2.9%.

The trial court found that plaintiff’s supplemental levy was invalid because it was made after the date fixed by section 17— II. It is axiomatic that a statute regulating the time for making a tax levy is mandatory and any levy made after the date fixed by statute is void. (People ex rel. Joseph v. Pennsylvania R.R. Co. (1959), 18 Ill. 2d 61, 63, 162 N.E.2d 350, 351; People ex rel. Haas v. Amax Zinc Co. (1984), 130 Ill. App. 3d 580, 584, 474 N.E.2d 724, 727.) As was previously noted, section 17 — 11 requires that certification and return of a tax levy to the county clerk be made by the last Tuesday in December. (See Ill. Rev. Stat. 1987, ch. 122, par. 17 — 11.) Section 17 — 3.2, however, gives a school district the ability to adopt a supplementary budget should the original budget fall short of meeting the financial obligations incurred during a given fiscal year. (See III. Rev. Stat. 1987, ch. 122, par. 17 — 3.2.) Section 17 — 3.2 further provides that a school district’s board of education may levy an additional tax immediately to obtain the revenue for the supplemental budget.

Although at first blush these sections seem to conflict, a plain reading of section 17 — 3.2 in conjunction with section 17 — 11 evinces the legislature’s intent to alter the date upon which a levy must be made in cases where a school district needs to raise additional funds for a supplemental budget. Furthermore, when interpreting a statute, a court should not construe it in such a way so as to make words or phrases superfluous, and it should not be presumed that the legislature intended a meaningless act in enacting a statute. (Niven v. Siqueria (1985), 109 Ill. 2d 357, 365-67, 487 N.E.2d 937, 942-43.) Under the trial court’s reasoning, section 17 — 11 would render the use of the term “immediately” in section 17 — 3.2 superfluous. If, as the trial court concluded, section 17 — 11 fixed the date upon which any and all taxes for educational purposes must be levied, the passing of a supplemental budget under section 17 — 3.2 would be a useless act because the taxes needed to support such a budget could not be levied until the following tax year.

We choose not to adopt such an interpretation. It is clear that the legislature enacted section 17 — 3.2 as a method by which a school district could raise additional budgetary funding during a given fiscal year. Therefore, we construe section 17 — 3.2 as authorizing the extension of additional taxes for educational purposes at any time during a given fiscal year.

Defendant asserts that section 17 — 3.2 does not provide authority for plaintiff’s extension of the 1984 tax rate for educational purposes because section 17 — 3.2 makes no provision for compliance with the Truth in Taxation Act (Ill. Rev. Stat. 1987, ch. 120, par. 861 et seq.) or the duties of the county collector (see Ill. Rev. Stat. 1987, ch. 120, par. 671). Defendant’s assertion is meritless. The purpose of the Truth in Taxation Act is to require taxing districts to disclose by publication and to hold a public hearing on any aggregate levy in an amount more than 105% of the property tax to be extended. (Ill. Rev. Stat. 1987, ch. 120, par. 863.) Adoption of a supplemental budget under section 17 — 3.2 can only be accomplished through voter approval and, therefore, meets the requirements of the Truth in Taxation Act. Additionally, we fail to discern how the extension of an additional levy materially impedes the county collector’s efforts to collect taxes. Obviously, the supplemental levy under section 17 — 3.2 must be filed at a time the county collector can without delay incorporate the levy into the tax bills. No problem in this regard was present in this case.

The record indicates that District 300 properly filed a supplemental levy resolution with plaintiff which increased the tax rate for educational purposes to 2.9%. Because section 17 — 3.2 authorized the immediate extension of the increased 1984 tax rate, we reverse the trial court’s decision which granted defendants’ objections, and the cause is remanded for further proceedings consistent with this opinion.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

LINDBERG and McLAREN, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHANE HAMELIN, Defendant-Appellant.
    Second District
    No. 2—87—0807
    Opinion filed March 29, 1989.
    — Rehearing denied May 5, 1989.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Shane Hamelin, appeals from the order of the circuit court of Lake County revoking his probation and sentencing him to five concurrent terms of imprisonment ranging from three to eight years. Defendant’s motions to reconsider the sentences were denied, and this appeal followed. We reverse.

On March 9, 1987, defendant pleaded guilty to one count of residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. .19 — 3), and three counts of burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 1). A continuance was granted so that defendant could be evaluated for possible drug addiction pursuant to the Alcoholism and Substance Abuse Act (Act) (Ill. Rev. Stat. 1985, ch. 111½, par. 6301 et seq.). Defendant was interviewed and a report was issued by Treatment Alternatives to Street Crimes (TASC) indicating that defendant was a drug addict. The report further indicated that substance-abuse treatment would increase the likelihood that defendant could be rehabilitated.

On May 26, 1987, a sentencing hearing was held. Defendant testified that he was a regular user of alcohol, marijuana, and cocaine. He indicated that he used the proceeds of the burglaries to pay for his drug addiction. Defendant also indicated that he used marijuana and cocaine while the burglary charges were pending against him.

The presentence report indicated that defendant was 18 years old on the date of sentencing and that he had two prior traffic convictions and an ordinance violation. The trial court sentenced defendant to four concurrent six-month terms of imprisonment in the Lake County jail and to four concurrent four-year terms of probation under the supervision of TASC. Defendant was then sent to the Lake County jail to begin serving his sentence.

Upon entering the jail, defendant was asked to remove his clothing so that he could be searched. Defendant then advised Officer Herb Hunter that defendant had a small amount of cocaine with him, which he voluntarily gave to Officer Hunter. Defendant was subsequently charged with two new offenses, namely the unlawful possession of cocaine (Ill. Rev. Stat. 1985, ch. 56½, par. 1401) and the bringing of contraband into a non-State penal institution (Ill. Rev. Stat. 1985, ch. 38, par. 31A — 1). The State also filed a petition to revoke defendant’s probation based on the new charges filed against him.

On July 7, 1987, defendant pleaded guilty to the unlawful possession of cocaine in return for a nolle prosequi on the charge of bringing contraband into jail. Updated presentence reports were prepared, and defendant was again found acceptable for the TASC program.

On July 29, 1987, another sentencing hearing was held for defendant. At the hearing, deputy sheriff Michael Blazincic testified that defendant told Blazincic that defendant obtained the cocaine the night before the original sentencing hearing to take into the jail in the event that incarceration would be imposed. Defendant disputed Bla-zincic’s testimony, stating:

“I would also like to say that I am sorry, that I do have a drug problem, and I know it was stupid to bring drugs with me into court, but I didn’t realize I was going to jail that day. I do have a drug problem and would like to, you know, get a chance to get help and get on with my life.”

John Mizner, an area representative for TASC, also testified at the sentencing hearing. It was Mizner’s opinion that defendant was still a drug addict and was still a likely candidate for successful rehabilitation. This opinion was formulated even with the knowledge that defendant appeared in court requesting TASC treatment with cocaine concealed on his person.

The trial court did not believe defendant was telling the truth and also disputed the accuracy of the TASC report. The judge stated:

“[W]ith respect to the Defendants’ [Hamelin’s and a codefend-ant’s] statements, I just don’t believe them. They indicated they didn’t know they were going to jail, and I find that totally incredible. They both pled guilty to mandatory incarceration offenses. I just frankly don’t believe a word of it.”

In addition, it was the trial court’s opinion that defendant only told TASC “what T.A.S.C. wanted to hear” and therefore found the TASC report to be unreliable. It was the judge’s opinion that defendant was not likely to be successfully rehabilitated in the TASC program. The court then sentenced defendant to eight years’ imprisonment for his residential burglary conviction, seven years’ imprisonment for each burglary conviction, and three years’ imprisonment for the possession of cocaine conviction. All sentences were to be served concurrently.

On August 20, 1987, defendant filed motions to reconsider the sentences, which were denied. This appeal followed. On appeal, defendant’s sole contention is that the trial court abused its discretion in sentencing defendant to lengthy terms of imprisonment for the residential burglary, burglary, and possession of cocaine convictions.

The imposition of a criminal sentence is a matter of judicial discretion, and the sentence may not be altered upon review unless there is an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153; People v. Katsigiannis (1988), 171 Ill. App. 3d 1090, 1102.) The trial court is normally in the best position to determine the appropriate sentence based on such diverse factors as the defendant’s age, credibility, moral character, social environment, demeanor, and habits. (Perruquet, 68 Ill. 2d at 154.) Thus, the trial court’s decision is entitled to great deference on review. People v. Younger (1986), 112 Ill. 2d 422, 427-28.

At the original sentencing hearing, the trial court determined that defendant was a drug addict who needed professional help in treating his addiction. The judge sentenced defendant to six months in the Lake County jail and also placed defendant on four years’ probation under the supervision of TASC to cure his drug addiction. However, defendant never received any rehabilitative treatment from TASC. As we previously indicated, the trial court revoked defendant’s probation and sentenced defendant to imprisonment because defendant attempted to bring cocaine into the Lake County jail.

Defendant contends that the trial court abused its discretion in revoking defendant’s probation because defendant never had the opportunity to participate in the drug rehabilitation program. The Act provides in pertinent part:

“It is the public policy of this State that the human suffering and social and economic loss caused by the illness of alcoholism, addiction to controlled substances, the use of cannabis, and the abuse and misuse of alcohol and other drugs are matters of grave concern to the people of the State. *** [T]he provision of a broad range of early intervention, treatment, and rehabilitation for alcoholics, controlled substance addicts, and alcohol and other drug abusers to the end that these unfortunate individuals may be restored to good health and again become useful citizens in the community.” Ill. Rev. Stat. 1987, ch. lll1^, par. 6302.

At the second sentencing hearing, defendant again pleaded guilty to the offense charged. Another TASC report found defendant still to be a drug addict with high rehabilitative potential. The TASC report stated:

“Although he violated his probation on his sentencing date, he seems to now realize the serious nature of his behavior and appears motivated for treatment. A highly structured form of probation supervision concurrent with treatment as recommended by T.A.S.C. may, in officer’s opinion, deter the defendant from further criminal behavior.”

However, the trial court did not believe the TASC report and went on to note that defendant thought his drug problem was nothing more than a “joke.” The trial court did not believe that defendant had a very good chance of rehabilitation.

Defendant contends that our decision in People v. Carter (1988), 165 Ill. App. 3d 169, is instructive as to why the trial court abused its discretion in the resentencing of defendant. In Carter, the defendant pleaded guilty to retail theft and was placed on probation for the purpose of receiving drug therapy through TASC. While on probation, but before receiving any treatment for his addiction, defendant committed another retail theft. Defendant had his probation revoked and was sentenced to three years’ imprisonment. (165 Ill. App. 3d at 171.) The appellate court reversed, holding that the defendant should have had the opportunity to begin the therapy for his drug addiction that the trial court originally prescribed for him. (165 Ill. App. 3d at 176.) The court noted that the trial court apparently saw no connection between defendant’s drug problem and the retail thefts he was committing. 165 Ill. App. 3d at 175.

We find the reasoning of the Carter decision to be persuasive in the case at bar. Defendant never received any of the drug abuse treatment that the trial court initially ordered as a condition of defendant’s probation. We believe the trial court abused its discretion in not allowing defendant the opportunity to cure his drug addiction in this case. As we previously indicated, the legislature enacted the Act in an effort to restore substance-abuse addicts to good health and useful citizenship. The courts have interpreted the Act as strongly favoring rehabilitation programs for drug addicts in need of treatment. (Carter, 165 Ill. App. 3d at 173-74; People v. Robinson (1973), 12 Ill. App. 3d at 291, 295.) We share this view. As the Robinson court indicated, a trial court should not use its discretion to frustrate the purposes of the Act. (12 Ill. App. 3d at 295.) We believe the purposes of the Act would be frustrated if defendant is denied an opportunity to cure his drug addiction.

For the above-stated reasons, we find that the trial court abused its discretion in not allowing defendant to begin his rehabilitation program as originally prescribed. Accordingly, we reverse defendant’s concurrent sentences of eight years for residential burglary, seven years for burglary, and three years for possession of cocaine, and remand this case back to the circuit court of Lake County for further proceedings consistent with this opinion before a different trial judge.

Reversed and remanded.

LINDBERG and WOODWARD, JJ., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY G. TRIMBLE, Defendant-Appellant.
    Second District
    No. 2—88—0271
    Opinion filed April 11, 1989.

      Selwyn Coleman, of Roselle, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Samuel J. Cahnman, of Springfield (William L. Browers, of State's Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Following a jury trial, defendant was found guilty of one count of filing a false police' report of the theft of a vehicle (Ill. Rev. Stat. 1985, ch. 95V2, par. 4 — 103(a)(6)) and two counts of insurance fraud (Ill. Rev. Stat. 1985, ch. 73, par. 1101). Following the denial of defendant’s post-trial motion, defendant received concurrent sentences of 24 months’ probation and 40 hours of community service. On the insurance fraud counts, defendant was also ordered to pay $10,200 in restitution to each of the two defrauded insurance companies.

Defendant raises several issues on appeal; however, we find we are unable to address the merits of any of the issues raised due to a violation of Supreme Court Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)).

Supreme Court Rule 341(e)(7) provides in pertinent part as follows:

“Argument, which shall contain the contentions of the appellant and the reasons therefor, with citations of the authorities and the pages of the record relied on.” 113 Ill. 2d R. 341(e)(7).

An examination of defendant’s appellate brief reveals that he has failed to make a single citation to authority in the argument portion of the brief, nor has he cited any authority in the points and authorities section of his brief, a violation of Supreme Court Rule 341(e)(1) (113 Ill. 2d R. 341(e)(1)). We especially note that after the State in the appellee’s brief commented on the failure of the defendant to cite any authority to support the issues he raised, the defendant proceeded to file his reply brief, which was also without citation to authority.

A court of review is entitled to have the issues clearly defined and to be cited pertinent authority. (Rockford Memorial Hospital v. Schueler (1988), 167 Ill. App. 3d 358, 361-62.) The appellate court is not a depository in which the appellant may dump the burden of argument and research. (See Thrall Car Manufacturing Co. v. Lindquist (1986), 145 Ill. App. 3d 712, 719.) To ignore such a rule by addressing the case on the merits would require this court to be an advocate for, as well as the judge of the correctness of, defendant’s position on the issues he raises. On the other hand, strict compliance with the rules permits a reviewing court to ascertain the integrity of the parties’ assertions, which is essential to an accurate determination of the issues raised on appeal. People v. Gonzales (1989), 179 Ill. App. 3d 546, 549-50.

Arguments which do not satisfy the requirements of Supreme Court Rule 341(e)(7) do not merit consideration on appeal. (Rockford Memorial Hospital, 167 Ill. App. 3d at 362.) We, therefore, decline to consider defendant’s appellate contentions and deem all issues waived.

The judgment of the circuit court is affirmed.

Affirmed.

NASH and INGLIS, JJ., concur.