author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN L. ROOT, Defendant-Appellant.
    Second District
    No. 2—90—1300
    Opinion filed September 10, 1992.

      G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Roger T. Russell, State’s Attorney, of Belvidere, and William Hall, of Chicago (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

On December 9, 1988, defendant, Steven Root, was charged by information with one count of deceptive practices (Ill. Rev. Stat. 1991, ch. 38, par. 17 — l(B)(d)). A second information was filed on June 9, 1989, which charged defendant with two additional counts of deceptive practices. (Ill. Rev. Stat. 1991, ch. 38, par. 17 — l(B)(d).) Defendant pleaded guilty to all three counts on May 4, 1990. The trial court imposed concurrent sentences of two years’ imprisonment on each count. On appeal, defendant contends his sentence is excessive.

However, before addressing the issue raised by defendant, we must first determine whether we have jurisdiction over this appeal. Although defendant appeals the propriety of the sentence imposed upon his guilty plea, he failed to file a motion in the trial court seeking reconsideration of that sentence. Defendant contends the trial court failed to properly admonish him of the necessity of filing a motion to reconsider before appealing the propriety of his sentence and, therefore, we have jurisdiction to hear his appeal. We disagree.

In People v. Wilk (1988), 124 Ill. 2d 93, our supreme court expanded Rule 604(d) (134 Ill. 2d R. 604(d)) by holding that when a defendant complains only of his sentence, it is sufficient to file a motion for reconsideration, rather than a Rule 604(d) motion to withdraw the guilty plea, in order to appeal from the sentence. (Wilk, 124 Ill. 2d at 109-10.) The court’s holding in People v. Wallace (1991), 143 Ill. 2d 59, clarified Wilk by holding that the filing of a motion to reconsider sentence is a “prerequisite” to an appeal from a sentence imposed upon a plea of guilty. People v. Wallace, 143 Ill. 2d at 61.

The purpose of a motion to reconsider a sentence is to allow the trial court an opportunity to review the appropriateness of the sentence imposed and correct any errors made. (Wallace, 143 Ill. 2d at 61.) This is also the purpose behind Rule 604(d). Rule 604(d) was designed to eliminate needless trips to the appellate court and to give the trial court an opportunity to consider any alleged errors. (Wilk, 124 Ill. 2d at 106.) However, if a defendant is only appealing his sentence, it is no longer necessary that a defendant ask for leave to withdraw the guilty plea itself. (Wallace, 143 Ill. 2d at 61.) Thus, following this rationale, this court has found that any issue not raised in a motion to reconsider the sentence is waived on appeal. People v. Bronson (1991), 216 Ill. App. 3d 839, 842; People v. Carroll (1990), 195 Ill. App. 3d 445, 446-47; People v. Favelli (1988), 176 Ill. App. 3d 618, 622-23.

Defendant argues he should have been admonished of the necessity of filing a motion to reconsider before an appeal could be taken with regard to his sentence. Defendant failed to cite authority supporting his position, nor have we discovered any authority which requires the court to admonish a defendant in this manner. Supreme Court Rule 605(b) (134 Ill. 2d R. 605(b)) requires only that a trial court admonish a defendant of his right to appeal and the necessity of filing a motion to vacate judgment and withdraw his plea of guilty before an appeal may be taken. It does not require the trial court to admonish a defendant of the necessity of filing a motion to reconsider should that defendant decide to appeal his sentence only.

Defendant in this case was properly admonished under Rule 605(b), but failed to file a motion to withdraw his plea of guilty or a motion to reconsider his sentence. Accordingly, we do not have the jurisdiction to consider the propriety of defendant’s sentence. This does not leave defendant without a remedy. A defendant who is aggrieved by the failure of his counsel to preserve properly an issue for appeal may, in proper circumstances, have an alternative remedy by way of a post-conviction hearing. People v. Wilk, 124 Ill. 2d at 108-09.

Because we lack the jurisdiction to hear the instant appeal, it must be dismissed.

Appeal dismissed.

GEIGER and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    ANDREW HOLEC, Plaintiff-Appellant, v. HEARTLAND BUILDERS, INC., Defendant-Appellee.
    Second District
    No. 2—91—1252
    Opinion filed September 15, 1992.
    Thomas A. Else, of Hieber & Else, of Oak Lawn, for appellant.
    Carolyn S. Roscich, of Roscich & Roscich, of Naperville, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Andrew Holec, appeals the circuit court’s order granting summary judgment to defendant, Heartland Builders, Inc. Plaintiff sued defendant for damages resulting from defendant’s allegedly improper proration of real estate taxes in connection with plaintiff's purchase of a home from defendant. On appeal, plaintiff contends that the court erred in holding that the sales contract merged into the deed, thereby precluding plaintiff’s recovery.

The facts are not in dispute. On July 5, 1989, plaintiff entered into a contract with defendant to purchase a home which defendant had constructed in Naperville. The contract provided that defendant would be responsible for unpaid real estate taxes for the period defendant occupied the property. Paragraph 14 provided:

“General real estate taxes shall be prorated as of the closing date on the basis of the tax assessor’s latest assessed valuation, the latest known equalization factors, and the latest known tax rate.”

The closing took place on July 28, 1989. Plaintiff received a credit of $706.92 for unpaid 1989 real estate taxes, calculated on the basis of “209 days at 3.38 per day.”

When plaintiff received the tax bill for 1989, it showed an actual tax liability for the first 209 days of 1989 of $4,553.12. Plaintiff filed a complaint in the circuit court of Du Page County seeking $3,846.20, the difference between the credit plaintiff received at closing for real estate taxes for the first 209 days of 1989 and the amount actually due for that period.

At his deposition, defendant’s president, Don Smyczynski, testified that he believed his attorney calculated the tax proration based on the 1988 tax bill. Smyczynski believed that this procedure complied with the contract.

On January 2, 1989, the house had been substantially completed, and the Du Page Township assessor’s office reassessed the property as improved real estate. On or about February 15, the reassessment was spread of record on the books of the Du Page Township assessor. Defendant, however, did not receive notice of the reassessment until sometime after July 31,1991.

The parties filed cross-motions for summary judgment. Plaintiff contended that a mutual mistake occurred regarding the tax proration and that defendant had been unjustly enriched by paying only a fraction of the taxes that were actually due.

In its motion, defendant contended that plaintiff accepted its deed to the property and any error in failing to follow the contract requirements merged into the deed, barring plaintiff’s recovery. In the alternative, defendant argued that plaintiff waived any error by signing the closing statement.

The court denied plaintiff’s motion for summary judgment and granted defendant’s motion. Plaintiff timely appealed.

On appeal, plaintiff contends that the court improperly applied the doctrine of merger to this cause. In response, defendant reiterates its merger and waiver arguments.

A motion for summary judgment should only be granted when the “pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) In the instant case, the parties agree that there is no genuine issue of material fact, but disagree concerning which party is entitled to judgment as a matter of law.

Plaintiff contends the trial court incorrectly applied the doctrine of merger to bar his cause of action. When the terms of a contract for the sale of real estate are fulfilled by the delivery of the deed, there is a merger of the two instruments, and the deed supersedes all the contract provisions. (Mallin v. Good (1981), 93 Ill. App. 3d 843, 845; Harris Trust & Savings Bank v. Chicago Title & Trust Co. (1980), 84 Ill. App. 3d 280, 283.) However, exceptions to the rule exist where the executory contract contains provisions collateral to and independent of the provisions in the subsequent deed, and where the evidence clearly and convincingly proves that a misrepresentation or mutual mistake existed when the deed was delivered. Batler, Capitel & Schwartz v. Tapanes (1987), 164 Ill. App. 3d 427, 429.

In Hagenbuch v. Chapin (1986), 149 Ill. App. 3d 572, the court held that a mutual mistake regarding the acreage to be conveyed barred application of the merger doctrine. (Hagenbuch, 149 Ill. App. 3d at 577.) In Mallin v. Good (93 Ill. App. 3d at 846-47), an agreement to make certain repairs was held to be collateral to the deed and thus not merged into it. Most recently, in Batler, this court held that an agreement to prorate taxes was not collateral to the main contract and was merged into the deed. However, in that case, we specifically found that plaintiff failed to raise the issue of a mutual mistake of fact. Batler, 164 Ill. App. 3d at 430.

In this case, plaintiff did raise the issue of mutual mistake of fact. Moreover, the evidence was sufficient to establish the existence of a mutual mistake. The contract called for the proration to be calculated on the basis of the “tax assessor’s latest assessed valuation,” rather than the most recent tax bill. Smyczynski testified that the proration was calculated on the basis of the 1988 tax bill, even though it did not represent the most recent valuation. In fact, the valuation had increased considerably, reflecting the completed improvement to the property. Smyczynski stated, however, that he believed the calculation complied with the contract. In his affidavit, plaintiff stated that he, too, believed the proration had been done properly according to the contract. Since the parties were mutually mistaken concerning a material fact, the doctrine of merger does not apply.

Defendant further contends, however, that plaintiff waived any right to contest the proration by signing the closing statement. The statement specifically provides, “the undersigned, hereby approve the foregoing prorations and authorize the disbursements as indicated in this statement.” Defendant maintains that the closing statement clearly reveals the basis of the proration and that plaintiff specifically accepted that proration. Defendant contends that if plaintiff wanted to confirm the accuracy of the prorated amount, he could have called the assessor and learned the valuation. By proceeding in “conscious ignorance,” plaintiff waived his right to challenge subsequently the amount of the proration.

Plaintiff responds that a waiver is the intentional relinquishment of a known right. (See Whalen v. K mart Corp. (1988), 166 Ill. App. 3d 339, 343.) Since both parties mistakenly believed that the proration had been done correctly according to the contract, he could not intentionally relinquish his right to contest the proration.

The thrust of defendant’s argument is to place upon plaintiff the onus of establishing the correctness of the proration. The contract, however, assigned to defendant the responsibility of calculating this amount. Moreover, defendant, as the builder, was in a better position than plaintiff to know the facts surrounding the assessment. Defendant knew, or reasonably should have known, that the 1988 assessment was based upon the value of the property as vacant land and that the valuation would increase substantially once the home was completed.

Smyczynski stated in his deposition that he had experience as a contractor and real estate agent. He “would assume” that an improved property would be assessed at a higher rate than a vacant one. It is unreasonable to expect plaintiff to call the assessor’s office during the closing to confirm the most recent assessed valuation of the property when this information was presumably within the knowledge of the defendant or readily available to it.

Contrary to defendant’s assertion, the closing statement does not reveal the basis of the proration. It merely states that the $706.92 figure was derived by multiplying 209 days by $3.38 per day. It does not reveal the source of the $3.38 amount.

The Federal district court rejected a similar argument in Bentley v. Slavik (S.D. Ill. 1987), 663 F. Supp. 736. The defendant in that case contended that a subsequent letter by the plaintiff expressing her pleasure with the purchase “ratified” the agreement in spite of the parties’ mutual mistake. The court stated that when the plaintiff wrote the acceptance letter, she had no reason to know that the contract had been breached. (Bentley, 663 F. Supp. at 740-41.) Similarly, in the instant case, plaintiff had no reason to suspect that the proration figures were mistaken. The contract provided that defendant was to be responsible for proration of the taxes, and in the absence of some basis to suspect an error plaintiff was entitled to rely on defendant’s calculations. See Batter, 164 Ill. App. 3d at 431 (Reinhard, J., dissenting).

Since the record demonstrates the existence of a mutual mistake of fact, the doctrine of merger does not apply, and plaintiff did not waive the right to assert the error. It follows that the court should have granted plaintiff’s motion for summary judgment and denied defendant’s motion.

For the foregoing reasons, the judgment is reversed, and the cause is remanded to the circuit court with directions to enter judgment for plaintiff in the amount of $3,846.20.

Reversed and remanded with directions.

GEIGER and DOYLE, JJ., concur.


author: PRESIDING JUSTICE INGLIS JUSTICE DUNN,

text:
    REAL ESTATE BUYER’S AGENTS, INC., Plaintiff-Appellant, v. EDWARD FOSTER, Defendant-Appellee.
    Second District
    No. 2—91—1175
    Opinion filed September 10, 1992.
    Rehearing denied October 19, 1992.

      DUNN, J., concurring in part and dissenting in part.
    Terry Laughlin, of Real Estate Buyer’s Agents, Inc., of Roselle, appellant pro se.

    No brief filed for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Real Estate Buyer’s Agents, Inc., appeals pro se through its president and nonattomey, Terry Laughlin, from an order of the circuit court of Kane County which dismissed its small claims complaint against defendant, Edward Foster. The sole issue raised on appeal is whether the trial court erred in dismissing plaintiff’s complaint based upon section 2 of the Frauds Act (Ill. Rev. Stat. 1991, ch. 59, par. 2).

On August 21, 1991, plaintiff filed its small claims complaint against defendant. It alleged that defendant, through his agent, Village Real Estate, offered plaintiff a 3% real estate commission if plaintiff obtained an offer from Ramona Webb of “$80,000 with no points to seller” for a house owned by defendant in Bellwood, Illinois. Plaintiff further alleged that it obtained a signed offer to purchase the real estate on those terms, but that defendant refused to sign the contract. Plaintiff sought a real estate broker’s commission from defendant in the amount of $1,500. The complaint was signed by Terry Laughlin, plaintiff’s president. A copy of a written offer by Ramona Webb to purchase the property for a purchase price of $80,000 was attached to the complaint. The offer stated that the seller would pay plaintiff a commission in the amount of $2,400.

Defendant filed a motion to dismiss the complaint on September 13, 1991. Defendant argued in the motion that the complaint should be dismissed pursuant to section 2 — 619(a)(2) of the Civil Practice Law (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(a)(2)) because, according to Supreme Court Rule 282(b) (134 Ill. 2d R. 282(b)), no corporation may appear as a claimant in a small claims proceeding unless represented by counsel. Defendant also argued that the complaint should be dismissed pursuant to section 2 — 619(a)(7) of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(a)(7)) because the unsigned contract for the sale of land relied on by plaintiff was unenforceable under section 2 of the Frauds Act (Ill. Rev. Stat. 1991, ch. 59, par. 2).

Following a hearing on October 15, 1991, an order was entered which stated that the court found that “this matter concerns itself with the sale of real estate and is governed by the Statute of Frauds.” The court therefore granted defendant’s motion to dismiss pursuant to section 2 — 619(a)(7) of the Code. The order also stated that the court denied defendant’s motion to dismiss based upon Supreme Court Rule 282(b) and that “Terry Laughlin can represent Plaintiff herein.” Plaintiff filed a timely notice of appeal.

On appeal, plaintiff argues that its complaint should not have been dismissed based upon the Statute of Frauds as an agreement to pay a real estate broker’s commission may be oral. Defendant has not filed an appellee’s brief in response. We will, however, consider the appeal under the standard set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

Section 2 of the Frauds Act provides:

“No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith ***.” (Ill. Rev. Stat. 1991, ch. 59, par. 2.)

Although the Frauds Act requires that any contract for the sale of land must be in writing, it contains no such requirement with regard to real estate brokers’ contracts of employment. (Arthur Rubloff & Co. v. Drovers National Bank (1980), 80 Ill. App. 3d 867, 871.) There is no requirement under the Frauds Act that agreements to pay a real estate broker’s commission must be in writing or that claims for a brokerage commission must be based upon a written instrument. (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 487.) A brokerage contract may be oral, and the contract is governed by the law applicable to ordinary contracts. Bossow v. Bowlway Lanes, Inc. (1987), 161 Ill. App. 3d 983, 986.

In its complaint, plaintiff was seeking to enforce an alleged oral agreement to pay a real estate broker’s commission and was not seeking to enforce a contract for the sale of real estate. The trial court therefore erred in dismissing the complaint based upon the Frauds Act.

However, we may affirm the trial court on any basis supported by the record. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387.) In his motion to dismiss, defendant raised another basis for dismissing the complaint. He argued that plaintiff, a corporation, had to be represented by counsel pursuant to Supreme Court Rule 282(b) (134 Ill. 2d R. 282(b)). Rule 282(b), which was effective August 1, 1987, states that “[n]o corporation may appear as claimant *** in a small claims proceeding, unless represented by counsel.” (134 Ill. 2d R. 282(b).) We conclude that this cause was properly dismissed as the record shows that plaintiff was represented by its president and not by legal counsel.

We recognize that the Appellate Court, Third District, in Woerner v. Seneca Petroleum, Inc. (1988), 175 Ill. App. 3d 329, held that Rule 282(b) was preempted by section 2 — 416 of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 416). Section 2 — 416, which was effective January 1, 1984, provides that a corporation may prosecute a small claims proceeding as plaintiff “through any officer, director, manager, department manager or supervisor of the corporation, as though such corporation were appearing in its proper person.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 416.) Woerner held that the legislative enactment was controlling as the “legislature preempted the question of pro se representation of corporations by enacting section 2 — 416 almost four years prior to the supreme court’s adoption of Rule 282.” Woerner, 175 Ill. App. 3d at 331.

Our supreme court, however, has held that, when a statute directly and irreconcilably conflicts with a supreme court rule on a matter within the court’s authority, the rule prevails. (People v. Williams (1991), 143 Ill. 2d 477, 483; People v. Felella (1989), 131 Ill. 2d 525, 538.) As the statute and the supreme court rule directly and irreconcilably conflict, the rule must prevail. We therefore decline to follow Woerner.

The record on appeal demonstrates that plaintiff’s president is not an attorney. In plaintiff’s summons of the defendant, plaintiff’s attorney is listed as “NONE — Pro Se.” The new case information sheet also lists plaintiff’s attorney as “NONE.” Plaintiff’s appellate brief is signed by Terry Laughlin as “Plaintiff-Appellant Pro Se.” Finally, although Supreme Court Rule 13(c)(l) requires that an attorney file a written appearance before addressing the court (134 Ill. 2d R. 13(c)(l)), no such appearance was filed here.

Because plaintiff, a corporation, was not represented by counsel, as required by the rule, the complaint was properly dismissed. We further conclude, however, that, under these circumstances, the dismissal should have been without prejudice. Plaintiff should be allowed an opportunity to proceed with its cause of action with counsel. We therefore affirm the dismissal of this cause; however, the dismissal shall be without prejudice.

For the foregoing reasons, the judgment of the circuit court of Kane County dismissing the cause is affirmed as modified, and this cause is remanded for further proceedings.

Affirmed as modified and remanded.

McLAREN, J., concurs.

JUSTICE DUNN,

concurring in part and dissenting in part:

Although I agree with the majority’s conclusion that the trial court erred in dismissing plaintiff’s complaint based upon the Frauds Act (Bl. Rev. Stat. 1991, ch. 59, par. 2), I adamantly disagree with its conclusion that the trial court’s dismissal should be affirmed because plaintiff, a corporation, was not represented by counsel. This conclusion results in a substantial injustice to plaintiff.

While the majority is correct that it may affirm the trial court on any basis supported by the record (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387), in this case, the majority is affirming the trial court based on a fact not at all supported by the record on appeal. There was no report of proceedings filed on appeal regarding the hearing on defendant’s motion, nor is there a bystander’s report pursuant to Supreme Court Rule 323(c) (134 Ill. 2d R. 323(c)). The record contains only the complaint itself, defendant’s motion to dismiss and the trial court’s order. That order specifically states, “[Djefendant’s motion to dismiss pursuant to Supreme Court Rule 282(b) is denied and Terry Laughlin can represent [pjlaintiff hereon [sic].”

The record is silent as to whether Terry Laughlin is an attorney. The record reveals only that Terry Laughlin, as president, was representing the corporation pro se. In the absence of a complete record on appeal, it will be presumed that the order entered by the trial court was in conformity with the law and had a sufficient factual basis. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 392.) Thus, there is no basis for the majority’s conclusion that it may affirm the dismissal of this cause because plaintiff was not represented by an attorney. I would reverse the portion of the trial court’s order dismissing plaintiff’s complaint based upon the Fraud Act, but affirm the portion of the trial court’s order finding that Terry Laughlin may represent the plaintiff.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. MICHAEL PIAT, Defendant-Appellee (George H. Ryan, Secretary of State, Appellant).
    Second District
    No. 2—91—0755
    Opinion filed September 4, 1992.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jerald S. Post, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Bryan R. Winter, of Fuqua, Winter, Stiles & Anderson, Ltd., of Waukegan, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

The Illinois Secretary of State (Secretary) appeals from an order of the circuit court of Lake County, traffic division, directing the Secretary to issue a judicial driving permit (JDP) to the defendant, Michael Piat.

At issue is whether the circuit court erred in ordering the Secretary of State to issue a JDP to defendant after the Secretary had ordered a discretionary suspension of defendant’s driving privileges pursuant to section 6 — 206(a)(31) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat., 1990 Supp., ch. OS1^, par. 6 — 206(a)(31)). Hereafter, all statutory references will refer to the Code unless otherwise indicated. Resolution of this issue involves a legal interpretation of section 6— 206(a)(31) of the Code.

On March 2, 1991, following a motor vehicle accident, defendant was arrested and charged under section 11 — 501 (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501) for driving under the influence of alcohol (DUI). On April 17, 1991, defendant’s driver’s license was summarily suspended pursuant to section 11 — 501.1 (Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 501.1), commonly referred to as a statutory summary suspension. On the same date, the Secretary, pursuant to section 6— 206(a)(31), also ordered a discretionary suspension of defendant’s driving privileges. On April 30, 1991, the circuit court, pursuant to the court’s authority set forth in sections 11 — 501.1 and 6 — 206.1 (Ill. Rev. Stat. 1989, ch. 951/2, pars. 11 — 501.1, 6 — 206.1), issued defendant a JDP. On May 10, 1991, the court order contained a finding that, except for the statutory summary suspension, defendant had valid driving privileges at the time of the court hearing. On May 10, 1991, the Secretary advised the circuit court by letter that defendant was not entitled to a JDP because, in addition to the summary suspension based on section 11 — 501.1, defendant’s driver’s license was also suspended by the Secretary pursuant to his discretionary powers set forth in section 6 — 206(a)(31). On May 28, 1991, the circuit court reconsidered the matter and again ordered the Secretary to issue a JDP. The Secretary appeals from the May 28,1991, order.

The Secretary argues that the circuit court has the statutory authority to issue a JDP only when the suspension of driving privileges is a statutory summary suspension pursuant to section 11 — 501.1. Defendant argues that the circuit court did not err because section 6 — 206(a)(31) specifically provides that the penalties associated therewith shall be as prescribed by section 6 — 208.1 which, by its section 6 — 208(e) language, authorizes the circuit court to issue a JDP.

Section 11 — 501.1 provides, inter alia, for the statutory summary suspension of a person’s driving privileges upon failure to take a chemical test intended to determine the alcohol, other drug, or combination thereof content of such person’s blood, if arrested for offenses defined in section 11 — 501 or a similar provision of a local ordinance. Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.1(a).

Section 6 — 206.1 sets forth the requirements and procedures to be followed by a driver seeking a JDP. With reference to the case before us, section 6 — 206.1(a)(4)(iii) provides:

“The Court shall not issue an order granting a JDP to:
* * *
(iii) Any person whose privilege to operate a motor vehicle was invalid at the time of arrest for the current violation of Section 11 — 501, or a similar provision of a local ordinance, except in cases where the cause for a driver’s license suspension has been removed at the time a JDP is effective. In any case, should the Secretary of State enter a suspension or revocation of driving privileges pursuant to the provisions of this Code while the JDP is in effect or pending, the Secretary shall take the prescribed action and provide a notice to the person and the court ordering the issuance of the JDP that all driving privileges, including those provided by the issuance of the JDP, have been withdrawn.” Ill. Rev. Stat. 1989, ch. 951/2, par. 6— 206(a)(4)(iii).

Section 6 — 206 provides the Secretary with discretionary authority to suspend or revoke a person’s driver’s license. (Ill. Rev. Stat. 1989, ch. 951/2, par. 6 — 206.) Section 6 — 206(a)(31), which the Secretary utilized to suspend defendant’s JDP, states:

“The Secretary of State is authorized to suspend or revoke the driving privileges of any person without preliminary hearing upon a showing of such person’s records or other sufficient evidence that such person:
* * *
31. Beginning on January 1, 1991, has refused to submit to a test as required by Section 11 — 501.6 or has submitted to such a test resulting in an alcohol concentration of 0.10 or more in which case the penalty shall be as prescribed in Section 6 — 208.1.” Ill. Rev. Stat., 1990 Supp., ch. 95½, par. 6— 206(a)(31).

Section 11 — 501.6 provides for the chemical testing of a driver who has been involved in a personal injury or fatal motor vehicle accident for the purpose of determining the alcohol or other drug content of such person’s blood. (Ill. Rev. Stat., 1990 Supp., ch. 95½, par. 11— 501.6.) Section 11 — 501.6(a) states, in part:

“Compliance with this Section does not relieve such person from the requirements of Section 11 — 501.1 of this Code.” (Ill. Rev. Stat., 1990 Supp., ch. 95½, par. 11 — 501.6(a).)

Both sections 11 — 501.6 and 6 — 206(a)(31) became effective January 1, 1991, and focus on an intoxicated driver involved in a personal injury or fatal motor vehicle accident.

Section 6 — 208.1 establishes the time period for various types of statutory alcohol or other drug-related suspensions. Section 6— 208.1(e) provides:

“Following a statutory summary suspension of driving privileges pursuant to Section 11 — 501.1, for a first offender, the circuit court may, after at least 30 days from the effective date of the statutory summary suspension, issue a judicial driving permit as provided in Section 6 — 206.1.” Ill. Rev. Stat. 1989, ch. 95½, par. 6 — 208.1(e).

In legal support of its position that the trial court erred in ordering the issuance of a JDP, the Secretary cites the cases of People v. Boyd (1991), 211 Ill. App. 3d 99, and People v. Dobrinick (1991), 215 Ill. App. 3d 144. In Boyd, defendant was arrested for an alleged violation of section 11 — 501. He took a breath test, with results showing an alcohol concentration in excess of 0.10, and accordingly received a statutory summary suspension from July 12, 1990, to October 12, 1990. On July 24, 1990, defendant pleaded guilty to the DUI offense and was placed on one year’s probation. At the same time, the court granted his petition for a JDP for the period of August 12 to October 12, 1990. The Secretary refused to grant the JDP because defendant’s driving privileges were revoked due to his guilty plea to the DUI (see Ill. Rev. Stat. 1989, ch. 95½, par. 6 — 205(a)(2)). In upholding the Secretary’s refusal to grant defendant a JDP, the appellate court stated:

“However, it is clear the JDP is only effective for statutory summary suspensions. (See Ill. Rev. Stat. 1989, ch. 95½, par. 6 — 206.1(a).) It can have no impact on any other suspension or revocation authorized by the Code. Therefore, if a driver’s underlying driving privileges are lost for another reason and he also has received a statutory summary suspension, the court cannot issue a JDP and any JDP already issued is invalid because there are no driving privileges to be allowed to be used. This is clearly the import of section 6 — 206.1(a)(4)(iii)-” Boyd, 211 Ill. App. 3d at 101.

In Dobriniek, defendant was arrested on August 16, 1990, for DUI. His breathalyzer test showed an alcohol concentration in excess of 0.10, and accordingly he received a statutory summary suspension from October 3, 1990, to January 3, 1991. On September 26, 1990, on defendant’s petition, the trial court granted him a JDP for the period of November 2, 1990, to January 3, 1991. The Secretary refused to issue the JDP because the defendant’s driving privileges were suspended for 12 months, effective October 5, 1990, for repeated moving violations. In upholding the Secretary’s refusal, the appellate court reaffirmed the holding in Boyd that a JDP could not be granted when the defendant’s driving privileges are lost for reasons other than a statutory summary suspension. (Dobrinick, 215 Ill. App. 3d at 146-47.) The fact that Dobrinick involves the suspension of the underlying driving privileges rather than a revocation, as in Boyd, does not affect the analysis or change the conclusion reached in Boyd. Dobrinick, 215 Ill. App. 3d at 147.

In our case, defendant argues that Boyd and Dobrinick are distinguishable because each arises out of DUI arrests occurring before section 6 — 206(a)(31) became law. Defendant asks that we construe section 6 — 206(aX31) as authority for the court to order the Secretary to issue a JDP. Defendant theorizes that subsection 31 is distinguishable from the preceding 30 subsections of section 6 — 206(a) because it is the only subsection requiring that the penalties shall be as prescribed in section 6 — 208.1.

The cardinal rule of all statutory construction, to which other rules are subordinate, is that the true intent and meaning of the legislature must be ascertained and given effect; the language used in statutes is the primary source for determining the intent, and where the language used is certain and unambiguous, the proper function of the court is to enforce the statute as enacted. (People v. Markovich (1990), 195 Ill. App. 3d 999, 1004.) Where the language of the statute is clear, its meaning should be given effect without resort to supplementary principles of statutory construction. (People v. Server (1986), 148 Ill. App. 3d 888, 901, appeal denied (1987), 114 Ill. 2d 555, cert. denied (1987), 484 U.S. 842, 98 L. Ed. 2d 88, 108 S. Ct. 131.) Absent statutory definitions indicating a different legislative intention, courts will assume that words have their ordinary and regularly understood meaning. People v. Dednam (1973), 55 Ill. 2d 565, 568.

The State relies upon the Boyd and Dobrinick decisions as authority for the proposition that the defendant’s suspension of driving privileges is a discretionary suspension. Section 6 — 206 of the Code is entitled, “Discretionary authority to suspend or revoke license or permit — Right to a hearing.” As indicated earlier, section 6 — 206(a) provides that the Secretary is “authorized to suspend or revoke” a person’s driving privileges. (Ill. Rev. Stat., 1990 Supp., ch. 95½, par. 6 — 206(a).) We believe such language makes it clear that defendant’s suspension pursuant to section 6 — 206(a)(31) was discretionary. More importantly, defendant’s section 6 — 206(a)(31) suspension was clearly not a statutory summary suspension mandated under section 11— 501.1, which Boyd and Dobrinick point out is an essential prerequisite for the issuance of a JDR

We believe defendant’s argument that Boyd and Dobriniek are distinguishable because the cases concern arrests before section 6— 206(a)(31) became effective is of little avail. The language labeling subsection 31 discretionary is contained in the general applicability heading of section 6 — 206 and in section 6 — 206(a) and is therefore equally applicable to subsection 31 as to the other 30 subsections under section 6 — 206(a) in existence at the time of the Boyd and Dobriniek decisions. Further, defendant’s discretionary 6 — 206(a)(31) supervision is clearly not a suspension under section 11 — 501.1 and, thus, not a suspension for which a JDP could be issued. Boyd, 211 Ill. App. 3d at 101.

Defendant next argues that a JDP may be issued for discretionary suspensions under subsection 31 because of the language therein that, if the Secretary chooses to issue a suspension under its provisions, “the penalty shall be as prescribed in Section 6 — 208.1” (Ill. Rev. Stat., 1990 Supp., ch. 95½, par. 6 — 206(a)(31)). Defendant theorizes that, as a result of the above-quoted language, all of the provisions of section 6 — 208.1 are incorporated into subsection 31, including the language of section 6 — 208.1(e) that “the circuit court may, after at least 30 days from the effective date of the statutory summary suspension, issue a judicial driving permit as provided in Section 6— 206.1” (Ill. Rev. Stat. 1989, ch. 95½, par. 6 — 208.1(e)). Defendant takes out of context only language favorable to his argument. As already indicated, section 6 — 208.1(e) provides, in full:

“Following a statutory summary suspension of driving privileges pursuant to Section 11 — 501.1, for a first offender, the circuit court may, after at least 30 days from the effective date of the statutory summary suspension, issue a judicial driving permit as provided in Section 6 — 206.1.” (Ill. Rev. Stat. 1989, ch. 95½, par. 6 — 208.1(e).)

The plain language of that section indicates that a JDP may be granted only for statutory summary suspensions issued pursuant to section 11 — 501.1. As defendant’s suspension was issued pursuant to section 6 — 206(aX31), not section 11 — 501.1, he could not be issued a JDP.

Finally, defendant cites People v. Inghram (1987), 118 Ill. 2d 140, and the dissenting opinion of People v. Pine (1989), 129 Ill. 2d 88, as authority for his argument that the legislature intended to allow circuit courts to issue JDP’s in all cases where a person’s driving privileges have been suspended under the Code. In Inghram, the supreme court held that the authorization of the circuit court, pursuant to section 6 — 206.1, to issue a JDP was not an unconstitutional delegation of its executive power to the judiciary. Inghram, 118 Ill. 2d at 150.

The majority opinion in Pine concluded that the Secretary had standing as a nonparty to appeal an order of the circuit court directing him to issue a JDP pursuant to section 6 — 206.1 based on the Secretary’s broad authority to administer the State’s laws governing the conduct of drivers on the road. (Pine, 129 Ill. 2d at 96-100.) The Pine dissent disagreed with the majority finding that the Secretary’s administrative and ministerial responsibilities in JDP proceedings as set forth in the Code were sufficient to grant the Secretary standing to appeal as a nonparty. We find that neither Inghram nor Pine, as defendant suggests, supports the proposition that the circuit court has the authority to issue a JDP in all cases where a person’s driving privileges are suspended.

For the above-noted reasons, it is clear that the suspension of defendant’s driving privileges by the Secretary, pursuant to his discretionary powers set forth in section 6 — 206(a)(31), was effective during the duration of the period of the JDP. Therefore, the order of the circuit court of Lake County directing the Secretary to issue a JDP is reversed.

Reversed.

INGLIS, P.J., and NICKELS, J., concur.


author: PRESIDING JUSTICE INGLIS

text:
    RICHARD C. BIELES, Plaintiff and Counterdefendant-Appellant, v. ORVILLE L. ABLES, Defendant and Counterplaintiff-Appellee.
    Second District
    No. 2—91—1130
    Opinion filed August 26, 1992.
    Modified on denial of rehearing October 8, 1992.
    Frederick J. Sentman, of Libertyville, and Dennis E. Carlson, of Chicago, for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Richard C. Bieles, plaintiff and counterdefendant, appeals after a jury denied his claim against Orville L. Abies, defendant and counter-plaintiff, for approximately $58,000 in contract damages. Bieles also appeals the jury’s award of $14,000 in contract damages to Abies on Abies’ claim against him. Abies did not file a brief. We will nevertheless consider the merits of the appeal pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

Five issues are raised: (1) whether the jury was improperly instructed; (2) whether certain evidence was improperly excluded; (3) whether the verdicts were against the manifest weight of the evidence; (4) whether the jury’s verdict was tainted because they saw trial notes during jury deliberations; and (5) whether Bieles received a fair trial. We reverse and remand for a new trial based solely on the fact that trial notes were viewed by the jury during jury deliberations.

In February 1988, Abies orally agreed to remodel a dental clinic in Gurnee, Illinois, for Bieles. After Abies finished the work in September 1988, a dispute arose between the parties concerning the quality of the remodeling work and payment. Bieles sued Abies for $58,290.53 in damages in February 1990. Two months later, Abies sued Bieles for $22,000, the amount that Bieles allegedly still owed Abies. The two cases were consolidated, and a six-day trial ensued in May 1991 at which 12 witnesses testified.

We will not attempt to summarize the testimony at trial since we do not find Bieles’ statement of facts to be particularly helpful. The statement of facts presented an overly detailed and somewhat incoherent recitation of only the first 600 pages of the 900-page trial transcript and omitted reference to the last three witnesses’ testimony and a majority of Abies’ testimony. We also note that Bieles failed to provide a proper appendix to his brief as required by Supreme Court Rule 342(a) (134 Ill. 2d R. 342(a)). The appendix did not include a table with “the names of all witnesses and the pages on which their direct examination, cross-examination, and redirect examinations begin.” (134 Ill. 2d R. 342(a)(3).) Supreme court rules regarding appellate briefs (134 Ill. 2d Rules 341 through 345) have purpose, and attorneys must comply with these rules when preparing an appeal. Suffice it to say that our review of the record leads us to conclude that both Bieles and Abies were given an opportunity to present their side of the dispute, through their own testimony and the testimony of witnesses, to the jury.

Sometime after the jury began deliberating, a jury member sent a note to the trial judge asking if an attached set of notes, consisting of two pages from a yellow legal pad, should be considered as evidence in the case. This material appears in the record and is apparently a set of trial notes, although the identity of the writer is unknown. The trial notes apparently were mistakenly included with evidence items taken into the jury room. The trial notes included the following statements: “more lies about not knowing”; “more playing dumb”; “so it proves he didn’t intend to pay”; “play dumb again”; “told a lie about Oct. 21”; and “plays dumb again.”

The trial judge sent a note back to the jury stating: “The document you sent out is not part of the evidence. Disregard any reference to it. Thank you for sending it out.” The judge then added the jury’s note, the actual trial notes in question, and a copy of his response to the trial record. Also included in the record is a notation signed by the judge stating: “Subject of jury note at 4:50 p.m. Conferred wI both attys by 4:55 p.m. Sent note back at 4:58 p.m.”

The jury subsequently denied Bieles’ claim against Abies and granted Abies $14,000 on his claim against Bieles. Bieles filed a timely post-trial motion requesting a directed verdict and, in the alternative, a new trial. The trial court denied the motion. Bieles filed a timely notice of appeal.

TRIAL NOTES TO JURY ROOM

Bieles argues that prejudicial error occurred when the jury viewed the trial notes. Our review of this issue is hindered because there is no transcript of proceedings or a bystander’s report that sets forth the communication that occurred between the trial judge and the attorneys for Bieles and Abies. As such, we do not know if Bieles’ attorney objected at that time to the jury’s having seen the notes by, for example, making a motion for a mistrial. Parties are urged to prepare and present a complete record of proceedings in future appeals, especially when delicate situations such as this one arise.

Even though Bieles’ attorney did argue this issue in a post-trial motion, we will assume that he did not properly preserve the issue for review since we find no objection in the trial record. Although all errors should be preserved for review, there are instances when a reviewing court will consider assignments of error even though the error was not preserved for review. (Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389, 399; Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill. 2d 208, 210-11.) In Granite City Steel, our supreme court held that Supreme Court Rule 366 (134 Ill. 2d R. 366) could be applied in civil cases to the same end that the plain error doctrine is applied in criminal cases. (Granite City Steel, 93 Ill. 2d at 211.) In criminal cases, courts of review may invoke the plain error doctrine if the error compromised the defendant’s right to a fair trial. (People v. Herrett (1990), 137 Ill. 2d 195, 209-10.) Similarly here, we will consider this assignment of error since the effect of the jury’s viewing the trial notes could have compromised Bieles’ right to a fair trial.

We briefly review the rules regarding papers and exhibits taken to the jury room. A trial court may in its discretion permit all admitted evidence relevant to any material fact to go to the jury room. (75B Am. Jur. 2d Trial §1665 (1992); see Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1107(d); Wetherell v. Matson (1977), 52 Ill. App. 3d 314, 318 (X rays admitted into evidence can go to jury room).) We emphasize, however, that trial judges and counsel must scrutinize all items that are to be taken to the jury room and purge all extraneous matter. The jury should not be allowed to examine, and draw conclusions or inferences from, an item not in evidence. (See Gertz v. Bass (1965), 59 Ill. App. 2d 180, 183 (reversible error to allow a dictionary into the jury room when it was not offered into evidence); Fedors v. O’Brien (1963), 39 Ill. App. 2d 407, 411.) “Only those errors which are prejudicial to the rights of the complaining party are reversible.” Gertz, 59 Ill. App. 2d at 183.

In the instant case, how the jury viewed the credibility of each party to this oral agreement was a crucial element in their decision-making process. Both Bieles and Abies testified extensively as to their recollections of what the oral remodeling agreement specified and the subsequent sequence of events leading to their dispute. If the jury believed one party more than the other, that belief would probably manifest itself in a favorable verdict for that party. Here, the jury viewed the trial notes which squarely impugned the credibility of Bieles, and then held for Abies in both of the consolidated cases. We cannot say that Bieles received a fair trial when the trial notes went to the jury room.

We conclude that under the circumstances of this case it was reversible error for the jury to view the trial notes. We therefore need not consider the other grounds on which reversal is sought.

The judgment of the circuit court of Lake County is reversed, and the cases are remanded for a new trial.

Reversed and remanded.

McLAREN and DUNN, JJ., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID PARKER, Defendant-Appellant.
    Fifth District
    No. 5—91—0115
    Opinion filed September 25, 1992.
    Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Rebecca Sanders, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Following a jury trial in the circuit court of St. Clair County, defendant David Parker was convicted of murder, armed violence, attempted murder and aggravated battery. (Ill. Rev. Stat. 1985, ch. 38, pars. 9—l(a)(l), 33A—2, 8—4(a), 12—4(a).) Defendant was sentenced to a 30-year term of imprisonment for murder, to be served concurrently with terms of imprisonment of 10 years for armed violence, 15 years for attempted murder and five years for aggravated battery. On appeal, defendant presents 10 issues for this court’s review. We believe one issue to be dispositive: whether defendant was proved guilty beyond a reasonable doubt where the only evidence against him consisted of the prior inconsistent statements of three State’s witnesses which were disavowed by the witnesses at trial.

Initially, we note that a criminal conviction will not be set aside on review unless the evidence is so improbable or unsatisfactory that there remains a reasonable doubt of the defendant’s guilt. (People v. Nitz (1991), 143 Ill. 2d 82, 95, 572 N.E.2d 895, 900, cert. denied (1991), 502 U.S. 927, 116 L. Ed. 2d 283, 112 S. Ct. 344.) The relevant question on review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472, cert. denied (1990), 497 U.S. 1031, 111 L. Ed. 2d 798, 110 S. Ct. 3290.) When presented with a challenge to the sufficiency of the evidence, it is the reviewing court’s function to carefully examine the evidence, giving due consideration to the fact that the court and jury saw and heard the witnesses. If, after such consideration, the reviewing court is of the opinion that the evidence is not sufficient to remove all reasonable doubt of the defendant’s guilt and is not sufficient to create an abiding conviction that he is guilty of the crime charged, then the conviction must be reversed. (Young, 128 Ill. 2d at 48, 538 N.E.2d at 472.) Given these principles, and based upon a careful review of the record herein, we do not believe that the evidence presented by the State was sufficient to remove all reasonable doubt or create an abiding conviction of defendant’s guilt.

Testimony at trial revealed that between 1 and 2:30 a.m. on March 10, 1986, near Haymore’s Liquor Store and Pool Hall (Hay-more’s) in East St. Louis, Illinois, Prentis Reid was fatally wounded by a single gunshot which perforated his aorta. Lee Wiley, Jr., also was shot, receiving a bullet wound in the neck. Defendant was sought in connection with the crimes but could not be located for some time. Defendant’s trial was held on December 19 and 20,1990.

Detective Walter Boone of the East St. Louis police department testified that he took a written statement from Lee Wiley, Jr., on March 17, 1986, at St. Louis University Hospital. Wiley’s statement, People’s exhibit 1, which was admitted over defendant’s objection, read as follows:

“I was at Lois Tucker’s house drinking some beer at around 10:15 p.m.. I walked up to Haymore’s to get some cigarettes and I saw Rondey [s-ic] Spears, David James and Marcus Williams and Dave Parker standing along side of Haymore’s. I have known David Parker for about 10 years. My brother in law Printess [sic] Reid came walking up and Dave Parker for no reason at all went off on him calling him a fag and punks and what was he going to do. Prentiss [sic] did not say anything and started backing up and David was walking towards him. David pulled out a black looking gun and Marcus said to David to slow down and I told David to ‘cool out Dave,’ David told me ‘nigger shut up’ and then David turned and shot me in my neck and I fell to the ground. That is about all I remember because I passed out. David did not like Prentiss [sic] because David was suppose [sic] to be the king of dice and about 4 yrs. ago Prentiss [sic] broke David at a dice game and David hasn’t liked him since. I did not see anyone else with a gun nor did I have one. I do remember that after I was shot, I saw Dave Parker walk past me with the gun, towards Prentiss [sic] and said, ‘What you want now.’ That’s when I passed out.”

Detective Boone testified that on March 17, 1986, Wiley was alert, responsive and able to talk to him. Boone admitted, however, that he did not ask the doctors or nurses about the type of medication Wiley was receiving. Boone wrote down the statement that Wiley gave and handed it to Wiley, who “appeared to be reading it” before he signed it. Boone testified that he showed Wiley 58 photographs on March 11, 1986, and asked Wiley to pick out the person who shot him. Wiley, who was unable to speak at that time, nodded when he was shown the photograph of defendant.

Lee Wiley, Jr., testified that he was currently serving a 22-year prison sentence in Missouri for first-degree robbery. Wiley stated that he did not see anyone shot at Haymore’s on March 10, 1986, nor did he see who shot him, adding: “I just remember a lot of people across the street. I remember some people behind me, some people by the pool room door. I heard a gunshot and felt a gunshot, and I was out.” Wiley remembered seeing defendant earlier that evening, but not immediately prior to the shooting. When asked if he understood that defendant was being charged with attempting to murder him, Wiley replied, “Yes,” but when asked if defendant had shot him, Wiley replied, “No. If he did, I would want him to be doing time like me ***.”

Wiley testified that he was shown a group of photographs by Detective Boone and identified defendant as being one of the people at the scene. Wiley admitted giving a statement to Detective Boone while he was in the hospital, and that he had been given an opportunity to read the statement and had signed it. However, Wiley denied telling Detective Boone that defendant had shot him or that he had seen defendant with a gun. Wiley stated that he was in the hospital for 2xk months and that he had signed the statement only seven days after being admitted, while still recovering from surgery and in great pain: “I had tubes all over my body. I could not move. Like I said, I did not want to be bothered. *** I had tubes in my mouth, tubes in my nose, tubes everywhere in my body, even to use the bathroom.” Wiley stated that he signed the statement “to get [Boone] out of the hospital room with all those questions.”

Detective Lenzi Stewart of the East St. Louis police department testified that he took a statement at the East St. Louis police station from Tommy Coleman on March 10, 1986. Stewart stated that he interviewed Coleman because he had read an offense report in which Coleman was listed as a witness. Coleman’s statement, People’s exhibit 2, was admitted over defendant’s objection and -stated in pertinent part:

“On Sun., Mar. 10, 1986 at approximately 1:00 AM or so, I had just walked out of the Haymore’s Liquor store and Variety store, located at 15th and Lynch Av. [sic] in East St. Louis, II. when I saw David Parker saying something to Steve Folks, Lee Wiley and Pretis [sic] Reid, who were standing next to the roadway just west of the alley next to the Haymore’s Pool room. I was approximately ten feet behind (east) David and the others and could not hear what David said to the three guys. Immediately after David said what he had said to the guys, David reached under his the [sic] dark jacket that he had on and pulled out a weapon, which sounded like an automatic type. When David pulled the weapon, which was black in color, he pointed it at Lee Wiley and fired the weapon. Lee fell to the ground. Steve and Prentis took off running. Steve ran down the alley behind Haymore’s Pool Room north bound. Prentis ran across to the street and down the same alley, south bound. David ran after Prentis. While David was running after Prentis, he fired the weapon at Prentis at least two times. David fired the weapon at least four times prior to running after Prentis. When I saw what was happening, I ran back towards Haymore’s. I stayed in the area until the police arrived. I saw Lee laying [sic] on the ground bleeding. I did not get a chance to talk with Lee.”

Detective Stewart testified that when he finished questioning Coleman, a three-page statement was prepared. Coleman was given the opportunity to read this statement before he signed it. Stewart denied telling Coleman that he would be arrested or prosecuted for withholding evidence if he refused to sign the statement.

Tommy Coleman testified that he was not at Haymore’s on the night of the shootings. Coleman stated that he did not know defendant and denied telling Detective Stewart that defendant shot Wiley and Reid. Coleman testified that Detective Stewart and several other officers came to his home with a prepared statement and told him that if he did not sign it he would be arrested for withholding information, “because somebody put me at the scene of the crime.” Coleman stated that he signed the statement because at the time he was 17 years old and had just been released from the juvenile Department of Corrections, and this threat frightened him. Coleman stated that he was currently serving the third year of a prison sentence for “[a]c-countability of stickup murder.”

Detective Stewart was recalled and testified that he took a statement from William David James on March 11, 1986, at the East St. Louis police station. James' statement, People’s exhibit 10, was admitted without objection. The statement indicated that James was inside Haymore’s playing pool when he heard two shots, then a series of shots. Several minutes later, someone ran to the front door of the pool room and shouted that Lee Wiley had been shot. James ran outside and saw Wiley lying on the ground and bleeding from his neck area. James saw defendant and two other people standing over Wiley. After the ambulance took Wiley away, defendant asked James for a ride home. Defendant told James that Ricky Carter had driven by in a Cadillac and started shooting at him, but that Wiley “took the bullet.” After defendant was taken home, James met Rodney Spears, who told him that “Prentis Reid was laying [sic] back in the alley dead.” James went to the alley across the street from Haymore’s and saw Reid “laying [sic] across some tree branches.” While Spears was searching Reid’s pockets, the police arrived, took Spears’ and James’ names and addresses and told them they could go.

According to James’ statement, when Stewart asked him if he had seen defendant earlier that evening, James replied: “Yes, he was in the Projects, at Marcus’s house with us. He and J.C. rode to pool room together. I lied earlier and didn’t mention [defendant’s] name, because I am afraid of him.” The statement further related that when Stewart asked James if he had known the defendant was armed, James responded: “Yes. When we were in the Projects, Marcus’s house, I saw the handle sticking out of his waistband ***.” Stewart testified that at the time James’ statement was taken, no one was present except him and James. The statement was typed as James was telling it, and he then reviewed it and signed it. Stewart denied having beaten or coerced James into giving the statement but admitted that he had told James that he could be charged with “robbing the dead.”

At trial, William David James testified that the statement given to police was falsified and that the police had beaten him and forced him to sign the statement. James testified that he was outside Hay-more’s on March 10 when “a car came by and started shooting.” He did not see the driver of the car but stated that defendant was in the liquor store when Wiley and Reid were shot. James testified that about an hour after the shooting, the police stopped him near Prentis Reid’s body but only held him for five minutes. James stated that two days later the police came and picked him up and threatened to jail him for robbing the dead. James further stated that he told the police about the car that drove by Haymore’s and started shooting, but that he did not know what else to say to them because it was an unknown car and he could give them no further information. James stated that he was arrested at 1 o’clock and was released at 5 o’clock that evening after being beaten by Detective Stewart and forced to make a statement against defendant. James denied telling Stewart that he was afraid of defendant or that defendant was armed on the night of the shooting.

Tommy Williams, the doorman at Haymore’s, testified that he saw defendant at Haymore’s near the time of the gunfire. Williams stated that when he searched defendant earlier that night, “I might have felt — felt like something on him, you know. It might have been a weapon. I don’t know for sure.” Williams went outside Haymore’s “a minute or so” after the final shots were fired and saw defendant with Wiley. Defendant told Williams’ wife, a nurse, to “save” Wiley. Williams stated that he had seen Wiley fighting with someone within “a couple hours” of when Wiley was shot, but that it was not defendant.

Yolanda Wiley, the sister of Lee Wiley, Jr., testified that her brother had told her he had received anonymous letters which threatened their family. Yolanda stated that Wiley told her, “I’m worried about mama and yaw [sic] and that I wouldn’t be testifying. If I did, I wouldn’t remember — I wouldn’t be knowing what to say or I just might not testify at all because I was scared.” Yolanda admitted that she was “going with” Prentis Reid at the time of his death. Yolanda had not seen any of the letters and did not know from whom they came.

Lee Wiley, Jr., was called as a witness on behalf of defendant and testified that although he had spoken to his sister Yolanda on the telephone from the St. Clair County jail the previous week, he did not tell her that he had received threatening notes. Harry Seper, chief investigator for the St. Clair County public defender’s office, testified that he had interviewed Wiley at the jail that week. Seper stated that Wiley told him he did not know who shot him, but that it was not defendant. Wiley told Seper that he did not want to testify but gave no indication that he had received threats to dissuade him.

In People v. Wise (1990), 205 Ill. App. 3d 1097, 563 N.E.2d 1057, the victim testified that while he was in a sandwich shop, the defendant came from behind him and grabbed him in a bear hug. At the same time, Edgar Jones walked up to the victim, pulled a gold chain with a medallion from around the victim’s neck and struck him in the eye. Two police officers arrived, and the defendant and Jones fled. The police apprehended the defendant and Jones and brought them back to the sandwich shop. However, the victim had left. It was not until two detectives located the victim the next day that he indicated he had been robbed and identified photographs of the defendant and Jones. The defendant was then charged with aggravated battery and robbery.

Following a jury trial, the defendant in Wise was granted a directed verdict on the aggravated battery count and was found guilty of robbery on an accountability theory. On appeal, the defendant claimed that there was insufficient evidence to establish his guilt beyond a reasonable doubt. The Wise court agreed and reversed the defendant’s conviction on the grounds that the only evidence as to the defendant’s involvement in the robbery was the inconsistent testimony of the victim, who had been impeached by prior statements he had made exonerating the defendant from any complicity in the robbery. The court in Wise commented:

“The State repeatedly cites in its argument the proposition that discrepancies in testimony do not destroy credibility and that the testimony of a single witness, if positive and credible, even if contradicted, is sufficient to support a conviction. [Citations.] While these statements are undoubtedly true, they are not applicable to this case since in this case the single accusing witness’ testimony did not merely contain minor discrepancies. Instead, it was severely impeached by evidence of his own inconsistent statements concerning the robbery and defendant’s participation in it, thereby greatly reducing the credibility of [the victim’s] trial testimony. In light of this fact, and the lack of any corroborative evidence, we find [the victim’s] trial testimony insufficient.” Wise, 205 Ill. App. 3d at 1101, 563 N.E.2d at 1060.

In the case at bar, the sole evidence of guilt consisted of the prior inconsistent statements of Wiley, Coleman and James, admitted pursuant to section 115—10.1 of the Code of Criminal Procedure of 1963 ail. Rev. Stat. 1985, ch. 38, pars. 115-10.1(a), (b), (c)(2)(A)). These statements, however, were severely impeached by the witnesses’ trial testimony, which exculpated defendant and cast doubt on the authenticity of the statements. Therefore, where the only evidence that inculpated defendant was prior inconsistent statements which were directly contradicted by the alleged declarents at trial, the credibility of this evidence was greatly reduced. This lack of credible eyewitness testimony in favor of the State, combined with the complete absence of any physical evidence tying defendant to the crime, prompts us to find, as the court did in Wise, that the evidence presented was insufficient to sustain defendant’s convictions. See People v. McCarthy (1981), 102 Ill. App. 3d 519, 430 N.E.2d 135 (testimony of State’s witnesses and discrepancies therein raised a reasonable doubt concerning incident giving rise to charges against defendant and therefore evidence was not sufficient to support conviction for aggravated battery).

The State argues that the present case is similar to People v. McBounds (1989), 182 Ill. App. 3d 1002, 536 N.E.2d 1225, in which the reviewing court held that where the trial court found section 115—10.1 out-of-court statements more trustworthy than those witnesses’ trial testimony, it was not improper to credit the statements substantively so as to find sufficient evidence to convict beyond a reasonable doubt. In McBounds, two of the State’s witnesses, who had earlier given statements to police inculpating the defendant, testified at trial that their statements were coerced and that they had witnessed nothing which would incriminate the defendant. However, in McBounds, unlike the instant case, there was sufficient evidence to support the trier of fact’s finding that the witnesses’ prior statements were not coerced and were voluntary, where an investigator testified that he did not find any evidence to support the witnesses’ claims of abuse by police. Here, although Detectives Stewart and Boone denied the witnesses’ claims that their statements were falsified, there is no evidence that an independent investigation of their claims was undertaken. Additionally, although Yolanda Wiley testified that her brother had told her he was receiving threatening letters and was afraid to testify, this testimony was hearsay and should not have been admitted. See People v. Spicer (1979), 79 Ill. 2d 173, 402 N.E.2d 169, cert. denied (1980), 446 U.S. 940, 64 L. Ed. 2d 794, 100 S. Ct. 2162 (prior inconsistent hearsay statements of an in-court witness cannot be used as substantive evidence).

Further, as the State admitted in oral argument, the instant case also differs from McBounds because there the prosecution’s entire case did not rest on disavowed prior inconsistent statements. (McBounds, 182 Ill. App. 3d at 1005-07, 536 N.E.2d at 1228-29.) Even when viewing the evidence in the light most favorable to the prosecution, we find the State has failed to prove beyond a reasonable doubt that defendant committed the charged offenses. We therefore reverse defendant’s convictions for murder, attempted murder, armed violence and aggravated battery.

Reversed.

GOLDENHERSH, P.J., and RARICK, J., concur.

      The record reveals that defendant waived extradition from California and first appeared in St. Clair County circuit court to answer these charges on August 24, 1990.

      People’s exhibit 10 shows that James’ interview was begun at 1:55 p.m. and completed at 5:30 p.m. on March 11,1986.


author: JUSTICE McMORROW

text:
    DOUGLAS MILZ, Plaintiff-Appellant, v. M.J. MEADOWS, INC., Defendant-Appellee.
    First District (4th Division)
    No. 1—91—1517
    Opinion filed August 27, 1992.

      James E. Pancratz, of Chicago, for appellant.
    Robert Marc Chemers, Robert J. Franco, and Andrew G. Witik, all of Pretzel & Stouffer, Chartered, of Chicago, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

This is an appeal from the dismissal of count III of plaintiff’s second amended complaint seeking recovery for personal injuries and property damages. On appeal, plaintiff contends that the trial court erred in finding that defendant owed no duty to plaintiff, and that defendant’s motion to dismiss under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) (the Code) was procedurally improper.

On November 29, 1989, plaintiff, Douglas Milz, brought suit against defendant, M.J. Meadows, Inc., and codefendants PNP Landscaping, Inc. (PNP), and PNP’s president, Matthew Pécora, for injuries plaintiff sustained when the motorcycle he was driving collided with a parked flatbed construction trailer at approximately 11 p.m. on August 11, 1989, in the Village of Arlington Heights (the Village).

Count III of plaintiff’s complaint alleged that defendant owned, controlled and maintained two residential lots on the 300 block of North Douglas Avenue on which defendant was constructing single-family houses; that sometime prior to the date of the collision, defendant contracted with PNP to provide grading and landscaping services on the lots; that as part of the construction project a utility trailer was parked by defendant and PNP facing south along the east side of Douglas Avenue at or near one of defendant’s lots; and that plaintiff was injured when his northbound motorcycle collided with the front of the trailer.

Plaintiff further alleged that defendant owed him a legal duty to exercise due care in the operation, control, maintenance and use of construction vehicles on or about the construction site and to not obstruct traffic on public ways with such vehicles. The complaint alleged that defendant breached its duty to plaintiff by carelessly and negligently: controlling and supervising the use of the trailer; failing to adequately supervise the use and placement of construction vehicles on or near the construction site; allowing the trailer to be illegally parked by facing the wrong direction; and allowing on or near the construction site the use of construction vehicles which were unsafe and not equipped with devices designed to warn motorists. Plaintiff alleged that these acts and omissions were the proximate cause of his injuries and damages.

On March 22, 1990, defendant filed an answer in which it admitted ownership of the lots, that it had hired PNP to perform grading work, and that the trailer was parked in front of or near its lot at 309 North Douglas. Defendant denied, however, that it owed a duty to plaintiff with respect to the matters alleged in the complaint, and also denied that it controlled or used the trailer involved in the collision. Defendant also asserted that plaintiff had failed to exercise reasonable care for his own safety by failing to drive in a cautionary manner, to maintain a proper lookout and to otherwise protect himself from dangers on the roadway.

On December 7, 1990, defendant filed a motion to dismiss plaintiff's complaint pursuant to section 2 — 619 of the Code on the ground that it owed no duty to plaintiff in connection with the accident. In a memorandum attached to the motion, defendant stated, inter alia, the following: that the trailer involved in the collision was owned by PNP; that prior to the date of the accident defendant had hired PNP to perform excavating, grading and garbage removal on certain of defendant's lots in the subdivision; and that at no time did defendant supervise PNP in its work, nor did defendant ever maintain control over the placement of PNP’s vehicles.

Also attached to the motion to dismiss was the affidavit of defendant’s president, Martin Meadow. Meadow averred that he was required by law to be, and was, licensed as a general contractor; that on August 11, 1989, a home was under construction at defendant’s lot at 309 North Douglas Avenue; that on the date of the accident, the work performed by PNP for defendant was the removal of trash from lot 3 on Hickory Avenue; and that PNP used its own equipment, and at no time did defendant possess or control the trailer, or supervise PNP’s work, nor did defendant authorize, supervise or control the placement of the trailer by PNP or any of its employees.

In support of dismissal, defendant argued that it owed no duty to plaintiff to keep public streets clear of property not owned, possessed or controlled by it, and that general contractors are not liable for the acts of a subcontractor when the general contractor does not control the details of the subcontractor’s work. Defendant asserted that because plaintiff failed to allege any facts to support his conclusion that defendant owed him a legal duty, the complaint was deficient as a matter of law.

In response, plaintiff argued that the motion to dismiss did not raise affirmative matters as required by section 2 — 619(9Xa) of the Code, but merely attacked the sufficiency of the complaint. Plaintiff asserted that the motion was, therefore, actually a motion pursuant to section 2 — 615 of the Code, and that because section 2 — 615 does not allow inclusion of supporting affidavits, the court should strike Meadow’s affidavit and deny the motion to dismiss for lack of any affirmative matter defeating plaintiff’s claim.

Attached to plaintiff’s response were excerpts from the depositions of Meadow and Pécora, and defendant’s application for a contractor’s license from the Village. Plaintiff asserted that a duty was imposed upon defendant by the Village ordinance which required all contractors to keep the site of construction activities free of unguarded, dangerous implements, and prohibited contractors from obstructing traffic on public walks and streets. Plaintiff maintained that by applying for a license as a general contractor, defendant accepted the duty of conforming to the Village code, which was enacted for the public safety, and that, at the very least, there was a question of fact as to whether defendant breached that duty by allowing the trailer to be improperly parked on Douglas Avenue. Plaintiff further argued that as the owner of lot 6, defendant owed plaintiff a duty to keep the street abutting its property free from vehicles and conditions which could create a hazard to motorists such as plaintiff. Plaintiff also asserted that Meadow admitted having made inspections of the construction project at least once a week, and, by undertaking such inspections, he acknowledged the obligation of defendant to comply with the Village ordinances and assumed a duty to exercise reasonable care in conducting inspections.

Defendant filed a reply disputing plaintiff’s arguments. Following a hearing, the transcript of which is not contained in the record, the trial court granted defendant’s motion to dismiss with prejudice. This appeal followed.

We first consider plaintiff’s contention that defendant’s motion to dismiss pursuant to section 2 — 619 was improper because it did not raise affirmative matters but merely attacked the factual sufficiency of count III of the complaint. The purpose of section 2 — 619 is primarily that of affording a means to obtain summary disposition of issues of law or easily proven issues of fact at the outset of a case. (Ill. Ann. Stat., ch. 110, par. 2—619, Historical & Practice Notes, at 662 (Smith-Hurd 1983).) Subparagraph (a)(9) provides for the raising of affirmative matter which avoids or defeats a claim or cause of action. (Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(9).) “Affirmative matter” must be more than an assertion that the complaint fails to plead sufficient facts to state a cause of action, or evidence offered to refute a well-pleaded fact. However, Illinois case law holds that “affirmative matter” may be “something in the nature of a defense that negates the alleged cause of action completely or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint.” Perkaus v. Chicago Catholic High School Athletic League (1986), 140 Ill. App. 3d 127, 134-35, 488 N.E.2d 623, 628.

It is fundamental that a complaint for negligence must set out the existence of a legal duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the defendant’s breach of duty. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617.) Whether a duty exists is a question of law to be determined by the court (Perkaus, 140 Ill. App. 3d at 132), and the nonexistence of a duty may be the basis for a section 2 — 619 motion to dismiss (Johnson v. Hilton Hotel Corp. (1989), 190 Ill. App. 3d 197, 546 N.E.2d 617; Perkaus v. Chicago Catholic High School Athletic League, 140 Ill. App. 3d 127, 488 N.E.2d 623; Cross v. Moehring (1989), 188 Ill. App. 3d 830, 544 N.E.2d 1259).

In the instant case, plaintiff alleges that defendant owed him both a statutory and common law duty stemming from defendant’s alleged control and supervision of the use and placement of the trailer with which plaintiff collided. Defendant’s motion and accompanying affidavit averred that defendant did not own the trailer, nor did it maintain, supervise or otherwise control the use of it or the placement of it upon the public roadway where the collision occurred, and consequently defendant owed no duty to plaintiff. Since the absence of a duty wholly negates a cause of action for negligence (Frankel v. Otiswear, Inc. (1991), 216 Ill. App. 3d 204, 576 N.E.2d 955), we do not believe that defendant’s use of a section 2 — 619 motion to dismiss was improper. See Johnson v. Hilton Hotel Corp., 190 Ill. App. 3d 197, 546 N.E.2d 617; Cross v. Moehring, 188 Ill. App. 3d 830, 544 N.E.2d 1259; Perkaus v. Chicago Catholic High School Athletic League, 140 Ill. App. 3d 127, 488 N.E.2d 623.

We turn now to the propriety of the order of dismissal. Plaintiff contends that defendant’s liability arises from a statutory duty created by the Village’s Municipal Code. Section 14 — 306 provides in part:

“Duties of licensee. *** It shall be the duty of all building contractors licensed hereunder to comply with all the provisions of this Code, relating to or regulating their activities as building contractors and, in addition thereto, to remove or cause to be removed at least once each week from the site of said building contractor’s activities all trash, refuse and waste materials. Building contractors shall at all times keep the site of activities in an orderly condition, free from standing water, unguarded dangerous implements, and health and safety hazards. Building contractors shall not obstruct traffic, street or sidewalks nor permit dirt or waste materials from falling or being carried onto such public ways.” (Arlington Heights, Ill., Municipal Code §14 — 306.)

Section 14 — 301 defines “building contractor” as:

“[a]ny person who engages in the construction, repair or alteration of any building, structure, or street or sidewalk pavement within the Village, for which a building permit is required.” (Arlington Heights, Ill., Municipal Code §14—301.)

The ordinance lists numerous types of contractors to which the ordinance applies, and includes those who engage in excavating, moving and landscaping.

Plaintiff asserts that by applying for a license and engaging in general building contracting, defendant had a statutory duty to obey and enforce the Village ordinances relating to building activities. Plaintiff argues that the Village code imposed upon defendant an absolute duty to maintain its construction site in a safe manner, free of unguarded and hazardous equipment and vehicles, and to prevent such equipment and vehicles from obstructing traffic and endangering motorists on the adjoining public ways.

Defendant does not dispute that the Village code imposes a duty upon it with respect to its own construction site and activities. Defendant argues, however, that the interpretation plaintiff ascribes to section 14 — 306 is overly broad and would place upon contractors the unreasonable burden of monitoring the activities of other contractors. Defendant maintains that section 14 — 306 does not impose a duty on any individual building contractor to police or regulate the activities of other individual contractors in the use and placement of their equipment. Rather, defendant asserts, section 14 — 306 places a duty upon each contractor to perform its work and maintain the site of its activities in a safe manner and condition and to not obstruct public ways with its equipment. We agree.

Section 14 — 306 places a duty upon all building contractors “to comply with all provisions of this Code relating to or regulating their activities.” (Emphasis added.) (Arlington Heights, Ill., Municipal Code §14—306.) The term “building contractor” is not limited to general contractors, but includes anyone who engages in any of the more than 20 trades listed in section 14—301, including those who perform excavating, moving and landscaping. Thus, when these sections are read together, it is clear from the plain language used that the intent of the drafters was to impose a duty upon each individual contractor to comply with the provisions of the code, one of which is to not obstruct traffic or streets, in the performance of its own contracting activities.

Plaintiff does not allege that defendant owned the construction trailer involved in the collision, nor does the complaint contain any facts to support plaintiff’s allegation that defendant controlled or supervised the use of the trailer or its placement on a public street on the date of the collision. In his affidavit, Martin Meadow expressly stated that he did not own the trailer or control or supervise PNP’s use of it; nor, on the day in question, did he even hire PNP to perform any work on the construction site in front of which the collision occurred. Section 14 — 306 of the code imposed upon defendant a duty to maintain the construction site in a safe condition and to not obstruct public walks and streets. The ordinance does not, however, impose upon defendant a duty to ensure that another contractor’s construction vehicle did not obstruct traffic on a public street.

Plaintiff also contends that defendant owed him a duty under principles of common law. Plaintiff cites Chicago Economic Fuel Gas Co. v. Myers (1897), 168 Ill. 139, 48 N.E. 66, North Chicago Street R.R. Co. v. Dudgeon (1900), 184 Ill. 477, 56 N.E. 796, and Reith v. General Telephone Co. (1974), 22 Ill. App. 3d 337, 317 N.E .2d 369, for the proposition that a corporation engaging in activities under a license granted by a public authority is liable for the negligence of a subcontractor. Plaintiff then asserts that, as the licensed general contractor of the construction project, defendant is vicariously liable for the alleged negligence of the subcontractor, PNP, in improperly parking the trailer on the street in front of the construction site.

The general rule of law is that an employer is not liable for the negligence of an independent contractor except where the employer orders or directs the acts causing the harm, negligently selects an incompetent contractor, or retains control over the operative details of the contractor’s work. Gomien v. Wear-Ever Aluminum, Inc. (1971), 50 Ill. 2d 19, 276 N.E.2d 336; Dvorak v. Primus Corp. (1988), 168 Ill. App. 3d 625, 522 N.E.2d 881.

The courts in the cases cited by plaintiff expressly recognized, with approval, this longstanding rule, but found that on the facts before them the rule was inapplicable. Chicago Economic Fuel Gas Co. v. Myers, 168 Ill. 139, 48 N.E. 66; North Chicago Street R.R. Co. v. Dudgeon, 184 Ill. 477, 56 N.E. 791; Reith v. General Telephone Co. (1974), 22 Ill. App. 3d 337, 317 N.E .2d 369.

The facts in those cases are distinguishable from the facts before us. First, defendant is not a public utility, nor was it acting under a special, exclusive license in its construction of the residences on Douglas Avenue. The license obtained by defendant was merely one to engage in activities as a general building contractor within the Village. There was nothing intrinsically dangerous about the construction project itself, nor, more specifically, about the work defendant periodically hired PNP to perform, i.e., trash removal and grading of various lots belonging to defendant in the Hickory Woods subdivision. Nor, in performing such work, was PNP exercising some power or privilege which could not be exercised independently of defendant’s charter or license.

Further, plaintiff did not allege facts stating, or from which it could be inferred, that defendant ordered or directed the manner in which PNP performed its work or placed its vehicles, or that defendant otherwise retained control over the “operative details” of PNP’s work. Neither are there any other factual allegations supporting an inference that PNP was actually a servant or agent of defendant rather than an independent contractor for whose negligence defendant is not liable.

Indeed, in his affidavit and deposition testimony, Martin Meadow expressly denied that he supervised or controlled PNP in the performance of its work. He stated that PNP worked for defendant under an oral agreement, was paid by the job and used and was responsible for its own equipment. As shown by an invoice submitted by PNP, on the day in question PNP did not even perform any work at the Douglas Street lot in front of which the collision occurred but, rather, at a lot on Hickory Avenue, one street west of Douglas Avenue.

Matthew Pécora, president of PNP, testified in his deposition that during the summer of 1989, PNP performed landscaping, grading and trash removal for defendant as well as landscaping work for individual homeowners in the Hickory Woods subdivision. The trailer was owned by his company and parked on Douglas Avenue by one of his employees. Pécora stated that it was his policy that all vehicles be returned to PNP’s yard at the end of a workday, and that prior to the date of the collision, none of PNP’s vehicles were left parked on a Village street overnight. Defendant’s representatives did not inspect any of PNP’s vehicles, nor did they direct PNP where to park its vehicles or place its equipment, except on a few occasions when vehicles had to be moved to allow ingress and egress of delivery or material trucks at the construction site. Pécora further stated that defendant did not direct PNP or its employees in the performance of their work; defendant’s only instructions were where and when a job was to be performed. Pécora assumed that defendant inspected a completed job before making payment to PNP, but he did not recall ever seeing anyone from defendant conduct such an inspection.

It is clear from the above evidence that PNP was not an agent or servant of defendant, nor was it performing hazardous work for which defendant had been issued an exclusive or special license or permit, as was the situation in each of the cases cited by plaintiff in support of his argument that defendant is vicariously liable for PNP’s alleged negligence. Rather, it is clear that Pécora was self-employed and doing business through PNP as an independent contractor. Thus, this case is governed by the longstanding, general rule that an employer owes no duty to a third party for injuries resulting from the negligence of an independent contractor. Dvorak v. Primus Corp. (1988), 168 Ill. App. 3d 625, 522 N.E.2d 881.

Relying on Donovan v. Raschke (1969), 106 Ill. App. 2d 366, 246 N.E.2d 19, plaintiff also contends that as the owner of the property at 309 North Douglas Avenue, defendant owed a nondelegable common law duty to keep the street in front of his property free from any condition which might have created a danger or hazard to persons, like himself, who are lawfully on the roadway.

Plaintiff’s reliance on Donovan is misplaced. In Donovan the plaintiff was injured when she tripped over a roll of wire mesh which fell in front of her as she was walking on a sidewalk in front of a building which was under renovation. The sidewalk had been narrowed by the placement of scaffolding and construction equipment and materials on it, and the street was blocked by a parked car, leaving plaintiff with nowhere else to walk. Plaintiff brought suit against the masonry contractors who stacked the rolls of mesh and the owner of the building. In reversing the directed verdict for the owner, the appellate court stated that the owner of the building owed the plaintiff a duty to keep the sidewalk which abutted his property free of any dangerous or hazardous conditions which were foreseeable sources of injury to passersby including those placed upon the walkway by independent contractors hired by the owner.

The present case involves a stationary vehicle, which, as discussed in detail above, defendant did not own, possess, control or supervise; which was parked on a public street by an employee of PNP; and which, according to PNP’s invoices, had not even been used to perform work on the construction site in front of which it was parked on the day of the collision. Plaintiff has cited no cases, nor have we found any, which have extended the holding in Donovan, relating to hazardous conditions on sidewalks, to impose a duty upon landowners to prevent the illegal parking of vehicles which are not owned, controlled or even engaged in any contracting activities for the owner, upon public streets. Cf Zimmerman v. Netemeyer (1984), 122 Ill. App. 3d 1042, 462 N.E.2d 502 (owner of parking lot had no duty to the plaintiff who was injured when he backed his car out and was struck by a car proceeding on the highway, because the collision did not occur upon the defendant’s land, and no condition of the land, no structure on the land, and no activity conducted upon the land was alleged to have contributed to the collision).

As defendant argues, the imposition of such a duty would place an unreasonable, if not impossible, burden upon landowners to guard against the negligence of persons whose improper parking on public property results in injuries to other persons. For example, in Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 566 N.E.2d 1365, the supreme court held that a landowner whose driveway was obscured by foliage owed no duty to a bicyclist on the street who was struck by a dump truck backing out of the driveway. Quoting from an earlier decision, the court stated that “ ‘[the] imposition of a general duty to anticipate and guard against the negligence of others would place an intolerable burden on society.’ ” (142 Ill. 2d at 52, quoting Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 366.) The court observed that the plaintiff was seeking to impose a duty on the defendant to guard against an injury occurring off defendant’s land, despite that the land itself posed no danger to the plaintiff. The court held that the imposition of such a duty would place too great a burden upon landowners.

The reasoning in Ziemba is applicable to the case before us. It would be unreasonable to impose a duty upon defendant to guard against the negligence of persons who park their vehicles on the public street in front of defendant’s property where there is no allegation that any condition upon defendant’s property contributed to the collision.

Finally, plaintiff contends that defendant voluntarily assumed a duty by undertaking to make inspections of the construction site. Plaintiff asserts that Meadow admitted in his deposition that during a six-month period prior to the date of the collision, it was his custom and practice to drive by and inspect the site at least once each week. Plaintiff argues that having undertaken to make inspections, defendant was bound to exercise reasonable care in doing so, and that there is a question of fact as to whether defendant breached the duty it assumed by permitting the presence of a hazardous condition on the street. We find no merit in plaintiff’s argument.

Meadow testified at his deposition that “maybe once a week,” when he was in the area between approximately 8 and 11 p.m., he would drive by the construction site. His purpose was to check “for vandals, kids breaking into houses there.” He did not inform any subcontractors that he did not wish them to park on Douglas Avenue during nonworking hours, nor did he ever direct any subcontractor at any construction site where to park or not park because "where they parked their trucks *** [was] under their control.”

We find nothing in Meadow’s testimony to support plaintiff’s assertion that Meadow assumed a duty to inspect and ensure that the public street was clear of improperly parked vehicles on the date of the collision. The cases cited by plaintiff, Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 412 N.E.2d 472, and Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596, involved negligence in the provision of security guard services which the public authority voluntarily undertook to provide and are inapposite to the case before us.

As we have repeated throughout this decision, plaintiff has not alleged facts or presented evidence which establish or from which it can be inferred that defendant controlled or had any right to control PNP’s use or placement of the trailer involved in the collision at issue; that some condition on defendant’s property caused or contributed to the collision; or that defendant undertook a duty to guard against the negligence of others on the public street in front of his property. Absent such evidence, plaintiff has failed to establish the existence of either a statutory or common law duty owed or assumed by defendant to plaintiff. For these reasons, the trial court properly dismissed plaintiff’s cause of action against defendant as a matter of law.

Affirmed.

JOHNSON and LINN, JJ., concur.