text:
    OLD BEN COAL COMPANY, Plaintiff-Appellant, v. THE DEPARTMENT OF MINES AND MINERALS, Defendant-Appellee.
    Fifth District
    No. 5—89—0352
    Opinion filed January 25, 1991.

      Terry R. Black, of Campbell, Black, Camine & Hedin, of Mt. Vernon, and Jeffrey C. Conrad, of Cleveland, Ohio, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jennifer A. Keller, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Old Ben Coal Company, appeals from an order of the circuit court of Franklin County affirming the holding of a hearing officer of defendant, Department of Mines and Minerals. In this cause, plaintiff argues that while under an interim permit granted by defendant, it is not bound by the permanent regulations. We affirm.

The Congress enacted the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. §1211 et seq. (1988)) (hereinafter Federal Act) in August 1977. On August 11, 1978, the General Assembly passed Public Act 80 — 1342 (hereinafter interim Act) to participate in the initial regulatory program of the Federal Act. The interim Act amended the Surface-Mined Land Conservation and Reclamation Act (Ill. Rev. Stat. 1989, ch. 96V2, par. 4501 et seq.) approved September 17, 1971. The interim Act allowed defendant to issue interim permits for surface coal mining operation. Pub. Act 80 — 1342 §17, eff. Aug. 11, 1978 (adding Ill. Rev. Stat. 1979, ch. 961/2, par. 4520).

Plaintiff sought interim permits for its mines No. 21, No. 24, and No. 25, which were granted on September 17, July 22, and September 22, 1980.

On April 12, 1979, the permanent Federal regulations became effective. On June 1, 1980, the Illinois permanent Act, the Surface Coal Mining Land Conservation and Reclamation Act (Ill. Rev. Stat. 1981, ch. 961/2, par. 7901 et seq.) (hereinafter permanent Act) replaced the interim Act. Under the permanent Act, defendant promulgated the Surface Coal Mining Land Conservation and Reclamation State Program Rules and Regulations (62 Ill. Adm. Code §1700.11 et seq. (1985)) (hereinafter permanent regulations)). The parties agree that the United States Secretary of the Interior conditionally approved these permanent regulations on June 1, 1982, citing 47 Fed. Reg. 23858 (June 1, 1982).

In July 1982, plaintiff applied for permanent permits. The applications were deemed administratively complete, but substantive problems continued to exist as of July 1984.

On April 6, 1984, defendant issued notice of violation No. 20 — 3— 84 for mine No. 24. On April 25, 1984, defendant issued notice of violation No. 20 — 6—84 for mine No. 21. On May 15, 1984, defendant issued notice of violation No. 20 — 4—84 for mine No. 25. Each notice of violation alleged that plaintiff violated 62 Ill. Adm. Code §1817.122 by failing to notify surface owners and residents above the area of underground workings at least six months prior to mining. Plaintiff admits these violations, but argues that it is not governed by the regulation in question.

On October 19, 1984, a hearing was held. Following the hearing, both parties filed briefs -with the hearing officer. On January 16, 1985, the hearing officer issued his decision holding that 62 Ill. Adm. Code §1817.122 applied to the mines in question at the time the notices of violation were issued. The officer further held that section 1817.122 was valid under section 1.02 of the permanent Act. (Ill. Rev. Stat. 1983, ch. 961/2, par. 7901.02(c).) Finally, the officer affirmed all three notices of violation. The circuit court of Franklin County affirmed the hearing officer’s determination in full on January 15, 1987, holding that the findings were not against the manifest weight of the evidence and the interpretation of law was reasonable. The circuit court granted plaintiff’s motion to reconsider and remanded the case to the hearing officer to review the legality of defendant’s enforcement in light of recent United States Department of the Interior Office of Hearings and Appeals cases submitted by plaintiff. The hearing officer concluded that these new cases do not affect his prior ruling. On April 27, 1989, the circuit court reaffirmed the hearing officer’s decision.

Plaintiff argues that defendant erroneously applied a permanent regulation to it while it had an interim permit. Defendant responds that the statute in question requires compliance with all regulations, interim and permanent, by February 1, 1983.

In construing a statute or regulation, Illinois courts are guided by basic tenets of statutory construction. Normally, courts will try to give effect to every word, clause and sentence. (Bauer v. H.H. Hall Construction Co. (1986), 140 Ill. App. 3d 1025, 1028, 489 N.E.2d 31, 33.) We cannot adopt a construction which renders words or phrases superfluous or meaningless. (In re Application of the County Collector (1989), 132 Ill. 2d 64, 72, 547 N.E.2d 107, 110; People v. Parvin (1988), 125 Ill. 2d 519, 525, 533 N.E.2d 813, 815.) Where more than one construction can be placed on a statute, a court should select the construction which leads to a logical result and avoid that which would be absurd. (Illinois Department of Revenue v. Country Gardens, Inc. (1986), 145 Ill. App. 3d 49, 56, 495 N.E.2d 161, 166; People v. Jones (1985), 134 Ill. App. 3d 1048, 1051, 481 N.E.2d 726, 728.) As we stated in Jones:

“The prime consideration in construing a statutory enactment is to give effect to the intent of the legislature. In ascertaining the legislature’s intention, the entire statute must be considered, as well as the evil to be remedied and the object to be obtained.” (134 Ill. App. 3d at 1051, 481 N.E.2d at 728.)

In addition, our courts have given great deference to the interpretation of an ambiguous statute by an agency charged with the administration and enforcement of the statute. (Illinois Power Co. v. Illinois Commerce Comm’n (1986), 111 Ill. 2d 505, 510-11, 490 N.E.2d 1255, 1257; Chemed Corp. v. State of Illinois (1989), 186 Ill. App. 3d 402, 410, 542 N.E.2d 492, 497.) Finally, perhaps the most basic tenet of statutory construction directs that the language of the statute should get its plain and ordinary meaning. Coldwell Banker Residential Real Estate Services of Illinois, Inc. v. Clayton (1985), 105 Ill. 2d 389, 396, 475 N.E.2d 536, 539.

Section 4.01 states:

“General Requirement. Each person conducting underground mining operations shall as a minimum comply with all applicable performance standards set forth in this Article. Each permit issued under this Act to conduct underground mining operations shall require as a minimum that such operations meet all applicable requirements set forth in this Article.” Ill. Rev. Stat. 1981, ch. 96V2, par. 7904.01.

In light of the tenets outlined above, section 4.01 seems to require each person conducting underground mining operations to comply with all applicable performance standards. Section 4.01 further requires each permit holder to meet all of the applicable requirements in article IV of the permanent Act (Ill. Rev. Stat. 1981, ch. 96V2, pars. 7904.01 through 7904.11). Plaintiff urges that the only “applicable performance standards” which apply to interim permit holders are interim performance standards. To adopt plaintiffs construction, however, would render the first sentence of the section superfluous and meaningless. Moreover, it would allow plaintiff to mine without protecting those living on the land from subsidence. Such a result is absurd in light of what we believe to be the intent of both the United States Congress and the General Assembly. See Beck, Illinois Coal Mine Subsidence Law Updated, 1985 S. Ill. U.L.J. 379; Beck & Sigwerth, Illinois Coal Mine Subsidence Law, 29 De Paul L. Rev. 383 (1980).

Although not binding on this court, we are guided by Chief Judge Foreman’s memorandum and order in the case of Melvin v. Old Ben Coal Co. (S.D. Ill. 1985), 610 F. Supp. 131. There, the court held that the General Assembly “clearly intended compliance with performance standards set forth in Article IV of the Illinois Permanent Act regardless of whether a permanent permit had been issued under the Act.” (610 F. Supp. at 133.) Judge Foreman noted, as we do, that “[defendant would now have the Court interpret these provisions to reach the unreasonable result of authorizing it to ignore performance standards merely because the Department of Mines and Minerals is delinquent in processing permanent applications.” (610 F. Supp. at 134.) We cannot sanction such an absurd result.

Plaintiffs argue that section 9.08 of the permanent Act (Ill. Rev. Stat. 1983, ch. 96V2, par. 7909.08) in particular exempts interim permittees from the permanent regulations. According to plaintiff, this result is especially apparent when read together with section 1.02(c) of the permanent Act, Consolidation Coal Co. v. Department of Mines & Minerals (1987), 160 Ill. App. 3d 677, 514 N.E.2d 9, and cases of the Department of the Interior Office of Hearing and Appeals. Defendant responds that, to the contrary, section 9.08 conditions the continued validity of the interim permit upon compliance with the permanent regulations.

Section 9.08 states, in pertinent part:

“Transition. The Department shall provide for the orderly transition from ‘The Surface-Mined Land Conservation and Reclamation Act’, approved September 17, 1971, as amended, to this Act. Such rules shall as a minimum provide for temporary permit procedures, filing and application schedules and requirements, and time limits different from those set forth in this Act and which satisfy the requirements of the Federal Act and Regulations, for transition from the initial regulatory program to the permanent program. Such rules shall provide for the continued validity of permits and bonds issued under ‘The Surface-Mined Land Conservation and Reclamation Act’, approved September 17, 1971, as amended, in a manner which satisfies the requirements of the Federal Act and Regulations, and may provide for delay in the applicability of any provisions of this Act to mining and reclamation operations to the extent required if the State program is not approved under the Federal Act.” (Ill. Rev. Stat. 1983, ch. 96V2, par. 7909.08.)

Section 1.02(c) states:

“(c) It is also the purpose of this Act to establish requirements that are no more stringent than those required to meet the Federal Surface Mining Control and Reclamation Act of 1977 (PL 95-87).” Ill. Rev. Stat. 1983, ch. 96^2, par. 7901.02(c).

Although section 1.02 declares general guidelines for construction of the permanent Act, section 9.08 states that the rules promulgated shall, “as a minimum,” comply with the Federal Act and regulations. “Under accepted and established rules of statutory construction, the more specific provisions prevail over more general ones in cases of conflict.” (County of Winnebago v. Davis (1987), 156 Ill. App. 3d 535, 539, 509 N.E.2d 143, 146.) Therefore, section 9.08’s “as a minimum” prevails over the guidelines of section 1.02(c).

Neither of the sections cited in Consolidated Coal contain the words “as a minimum.” (160 Ill. App. 3d at 680, 514 N.E.2d at 10.) Here, however, the General Assembly clearly set out the Federal Act and regulations as “a minimum.” Illinois law, in fact, has been regulating subsidence questions since 1880. (Wilms v. Jess (1880), 94 Ill. 464; Beck & Sigwerth, Illinois Coal Mine Subsidence Law, 29 De Paul L. Rev. 383, 384-88 (1980).) Since 1975 alone, there have been six acts approved by the General Assembly that could relate to subsidence of underground mines. 29 De Paul L. Rev. at 410.

We are aware of the Department of the Interior Office of Hearing and Appeal cases which hold that interim permit holders are only bound by interim regulations, not permanent regulations. (Citizens For the Preservation of Knox County (June 5, 1984), 81 I.B.L.A. 209, 218-19 (“The interim program and the permanent program are separate regulatory regimes”); Harman Mining Corp. v. Office of Surface Mining Reclamation & Enforcement (April 27, 1987), OHA Docket No. NX 5 — 103—R, slip op. at 2; Lone Star Steel Co. v. Office of Surface Mining Reclamation & Enforcement (January 9, 1987), OHA Docket No. TU 5 — 22—P, slip op. at 3, rev’d on other grounds (February 6, 1989), slip op. I.B.L.A. No. 87 — 284; Josephine Coal Co. v. Office of Surface Mining Reclamation & Enforcement (November 25, 1986), OHA Docket Nos. CH 0 — 52—R, NX 5 — 18—P, slip op. at 5-6, affd (October 30, 1989), 111 I.B.L.A. 316, 324; Alabama By-Products Corp. v. Office of Surface Mining Reclamation & Enforcement (May 6, 1986), OHA Docket Nos. NX 4-54-R, NX 5-93-R, NX 5-31-P, NX 5 — 32—P, NX 5 — 52—P, slip op. at 4; Palmer Coking Coal Co. v. Office of Surface Mining Reclamation & Enforcement (December 6, 1985), OHA Docket No. DV 5 — 5—R, slip op. at 3-4.) Nevertheless, the General Assembly, as noted above, intended the Federal Act and regulations to be the minimum boundaries in setting Illinois’ regulations.

We must also consider the evil the General Assembly attempted to remedy as well. According to the Illinois Abandoned Mined Lands Reclamation Council:

“ ‘Today, the effects of subsidence are being felt by many property owners throughout Illinois. Homes and other structures resting above or near land atop underground mines have been seriously damaged by coal mine subsidence. Entire structures have dropped or shifted as underground mines have collapsed. Foundations and walls have cracked, and many structures have been abandoned. Also, water mains, sewage pipes and gas lines have broken causing communities great hardship and economic loss.
Mines which have been abandoned for decades are now causing severe subsidence problems. Although the mining companies usually avoid mining directly under communities, they did undermine areas around communities. As time passed, development occurred and today, residential subdivisions, industrial parks, and schools often rest a few hundred feet above abandoned mines.
* * *
Problems related to subsidence will continue to occur in Illinois and will probably intensify as the mines age and as development expands across undermined areas.’ ” (Illinois Abandoned Mined Lands Reclamation Council Progress Report 1979/1980, quoted in Beck, Illinois Coal Mine Subsidence Law Updated, 1985 S. Ill. U.L.J. 379.)

Professor Beck further reports that suspected subsidence from underground coal mining was reported in 32 of the 69 Illinois counties which are undermined. This subsidence has resulted in land depression, standing water in depressed areas, surface drainage and tile line disruption, and reduced crop yields as well as structural damage to buildings, fences, bridges and roads. 1985 S. Ill. U.L.J. at 380.

In light of the specific language used in section 9.08 and the history behind it, we believe it is eminently appropriate for defendant to issue regulations more stringent than those required by the Federal Act.

Defendant promulgated rule 1700.11, which states that any person who conducts surface coal mining and reclamation operations on or after eight months from the date of approval of the State program shall, with certain exceptions, have a permanent permit. (62 Ill. Adm. Code §1700.11 (1985).) Defendant allowed an exception providing for the continued validity of an interim permit if, as a minimum, (1) a timely application for a permanent permit is filed, (2) defendant has not rendered an initial decision on that application, and (3) mining operations are in compliance with (a) the interim permit, (b) the Federal permanent Act, (c) the State permanent Act, and (d) the State permanent regulations. (62 HI. Adm. Code §1700.11 (1985).) This regulation complies with the State permanent Act and requires plaintiff to meet the State permanent program requirements eight months after approval by the United States Secretary of the Interior. As noted above, the Secretary approved the program on June 1, 1982; therefore, plaintiff should have complied by February 1, 1983.

We believe that our decision today gives effect to every relevant word, clause and sentence of the permanent Act. We do not adopt a construction which renders words or phrases superfluous or meaningless. Our construction of the permanent Act leads to a logical result where more than one construction can be placed on the statute and avoids a result which would be absurd. Most importantly, we give effect to the intent of the legislature considering the entire statute as well as the evil to be remedied and the goals to be achieved. Finally, we note the agreement of Federal Chief Judge Foreman, and the approval of Illinois’ regulatory scheme by the Secretary of the Interior.

For the foregoing reasons, the order of the circuit court of Franklin County is affirmed.

Affirmed.

RARICK, P.J., and HOWERTON, J., concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL R. RAINWATER, Defendant-Appellant.
    Fifth District
    No. 5—89—0141
    Opinion filed January 28, 1991.

      Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Kathryn Dobrinic, State’s Attorney, of Hillsboro (Kenneth R. Boyle, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

Michael Rainwater’s lawyer left the courthouse, giving the court no place where he could be reached while a jury deliberated Rainwater’s fate on criminal sexual assault charges.

When the jury retired, the court and counsel conferred:

“THE COURT: If you leave?
[COUNSEL]: I will waive my presence during the...[.]
THE COURT: So, we will bring your client back to the courtroom.
[COUNSEL]: Yes, he should be.
THE COURT: If there are any questions by the Jurors to the Court we will convene and by your absence then you would be waiving your presence?
[COUNSEL]:' Okay, yes.
THE COURT: When the verdicts come in will you be here?
[COUNSEL]: I doubt it.”

We hold that counsel’s absence during jury deliberations deprived defendant of effective representation of counsel as guaranteed by the sixth amendment of the United States Constitution (U.S. Const., amend. VI).

Defendant, a childhood schoolmate of the victim, J.H., learned that J.H. and some of her friends would be at a local bar.

At the bar, J.H. and her friends found a table, bought drinks and danced to the music of a live band. Defendant came to the table, talked with J.H. and her friends and asked J.H. if she wanted to go to a concert. She declined. Defendant then asked if J.H. and her friends wanted to go smoke a joint in his motel room. The others said they did not want to smoke marijuana. However, J.H. agreed to accompany defendant to his nearby motel room, at the same time cautioning defendant that she had to hurry because her boyfriend soon would be arriving.

Defendant and J.H. went to his motel room.

According to J.H., defendant threatened her, forced her to remove her clothes, threw her on the bed, raped her, forced her to perform fellatio and then raped her again.

According to defendant, he and J.H. smoked a joint and then, with mutual consent, had sexual intercourse, J.H. returning to Ken’s Lounge first, and, then defendant, after dressing, also returning to Ken’s Lounge.

In the meantime, Carr, Woodruff and Richard Knoche, J.H.’s neighbor, looked for J.H. while she was gone. Knoche testified that after J.H. had been gone about 45 minutes, J.H. came up to him, crying and shaking. He asked her if she had gone somewhere with “this guy,” and J.H. indicated that she had. Knoche asked if “this guy” had hurt her, and “she kind of nodded her head yes, a little bit.”

Carr and Woodruff also quizzed J.H. about where she had been. They testified that she returned to the bar crying and shaking. In response to their questioning, J.H. answered that defendant had raped her.

The police were called to the bar. Defendant was arrested and charged with two counts of criminal sexual assault.

An emergency room examination on J.H. revealed no cuts, bruises or choke marks.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant asserts that he was denied effective assistance of counsel because his attorney was not present during jury deliberations and return of the verdict. On these facts, we agree.

After the jury had deliberated for an unknown period, the foreperson returned into open court and asked the judge if the jury could see the victim’s statement regarding how she had been threatened.

The court said:

“Basically it was admitted into evidence because there was some attempt to impeach by use of that statement. It really was not evidence as such because the person that made that statement was testifying for you.”

The court then had the court reporter read the victim’s testimony regarding how defendant had gotten her onto the bed.

The jury continued to deliberate. Five hours later they were returned into court and the court asked if progress had been made, to which the foreperson replied, “There has been some progress made, but there is still no definite decision.” The court then gave the jury the Prim instruction. People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.

After further, deliberations, the jury returned a verdict of guilty. The court then asked defendant if he wanted the jury polled. He said he did and the jury were polled and affirmed their verdict.

During none of this was defendant’s lawyer present. Defendant had been abandoned by his advocate.

The State argues that defendant has waived the ineffectiveness of his counsel by failing to raise it in the post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) However, where the post-trial motion has been drafted and argued by the same defense counsel against whom defendant has lodged a claim of ineffectiveness, and where the error is substantial and of constitutional magnitude, application of the plain error doctrine is appropriate. (People v. Knowles (1979), 76 Ill. App, 3d 1004, 395 N.E.2d 706; see also People v. Chandler (1989), 129 Ill. 2d 233, 543 N.E.2d 1290; see also People v. Adams (1990), 195 Ill. App. 3d 870, 553 N.E.2d 3; People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045; 107 Ill. 2d R. 615(a).) Furthermore, in criminal cases in which the evidence is closely balanced, errors that have not been properly preserved may also be reviewed. (People v. Pickett (1971), 2 Ill. App. 3d 560, 276 N.E.2d 751.) We find the evidence in this case is closely balanced because the lack of cuts, bruises or choke marks on J.H. together with a lack of other physical and corroborative evidence made this case a credibility contest between J.H. and defendant. Accordingly, we review defendant’s claim as one of plain error.

A criminal defendant has been denied the effective assistance of counsel as guaranteed by the sixth amendment to the United States Constitution, made applicable to the States by incorporation through the due process clause of the fourteenth amendment to the United States Constitution, if defendant shows: (1) counsel’s representation fell below an objective standard of reasonableness and deprived the defendant of a reliable trial; and (2) that there is a reasonable probability that counsel’s performance so prejudiced the proceeding that absent the unprofessional conduct the results would have been different. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674,104 S. Ct. 2052.

In the case at bar, we have no hesitation in saying that the failure of defense counsel to be present during the deliberation, or at least leaving a place where he could be reached so as to return within a reasonably short time, falls below an objective standard of reasonableness. And, we hasten to add that the measure of this conduct is not made in hindsight, knowing as we do here that the jury later encountered difficulty and during the deliberations communicated with the court. Rather, counsel’s conduct is constitutionally assessed at the time the conduct occurred, i.e.) in this case the retirement of the jury to begin deliberations. Jury deliberations and the return, of verdict both constitute critical stages of a criminal trial. (Siverson v. O’Leary (7th Cir. 1985), 764 F.2d 1208.) Defendant in this case, therefore, was deprived of a reasonable level of representation because counsel was unavailable during a critical stage of the proceedings against him.

The next inquiry under the Strickland test is whether there is a reasonable probability that counsel’s performance so prejudiced the proceedings that the outcome would have been different had counsel been effective. We conclude that there is such a probability. This basically was a “one-on-one” case, pitting the credibility of defendant against that of the victim. By not being present, counsel robbed defendant of all effective chance to object to the victim’s testimony being read to the jury during their deliberations. We are certain beyond reasonable doubt that reading the testimony to the jury affected the jury because the testimony was read to them in response to their request. That request is pregnant with a tacit statement that they believed the difficulties they were having could be ameliorated by having a portion of her testimony read to them. It is legitimate, therefore, to draw the inference that rereading the testimony affected the outcome, especially since the jury’s decision in this case hinged on whether they believed the victim or the defendant.

The State claims that the record shows that defendant acquiesced in his counsel’s absence because he did not object when counsel announced he was leaving. Silence is insufficient to establish acquiescence. Acquiescence in the loss of the right to assistance of counsel, like acquiescence in the loss of any other fundamental constitutional right, is not to be presumed; rather, courts are to indulge every reasonable presumption against waiver. (Johnson v. Zerbst (1938), 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019.) Presuming waiver from a silent record is impermissible. (Carnley v. Cochran (1962), 369 U.S. 506, 516, 8 L. Ed. 2d 70, 77, 82 S. Ct. 884, 890.) The right may be waived only by voluntary and knowing action. (Boyd v. Dutton (1972), 405 U.S. 1, 30 L. Ed. 2d 755, 92 S. Ct. 759.) To establish a constitutionally permissible waiver of counsel’s presence during this critical stage, the record should show that the court addressed defendant personally, advising defendant of his right to have counsel present or reasonably accessible during jury deliberations and then taking a knowing, free and voluntary waiver, much as is done in taking a plea of guilty. The record in this case does not clearly establish a knowing and intelligent waiver. We, therefore, reverse and remand to the circuit court.

Because the case may be retried, we address one further issue. The court allowed the victim’s friends to testify over a hearsay objection that each asked the victim, “Were you raped?” to which the victim responded affirmatively.

One friend testified,

“She just kept saying that he choked her and she was crying and I asked her, I figured something bad had happened so I asked her did he rape her and she said yes.”

The other testified,

“I said, what was going on and she just, you know, I just came out and I finally said did he rape you. And she said like, ‘Yes, he did.’ ”

To be admissible as a corroborative or prompt complaint, the statement must be promptly made, without inconsistent or unexplained delay and must be spontaneous rather than in response to a series of questions. People v. Russell (1988), 177 Ill. App. 3d 40, 531 N.E.2d 1099; see also People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25.

Much briefing and argument was devoted to the question whether an affirmative response to a leading question can be considered a prompt complaint of rape. We do not precisely address this issue; however, we point out that in this case there was an insufficient foundation of all circumstances surrounding and under which the declaration was made.

We reverse and remand for a new trial.

Reversed and remanded.

CHAPMAN and HARRISON, JJ., concur.

      We note that it is unclear from defendant’s brief whether he claims that he was denied effective assistance of counsel as guaranteed by the United States Constitution or the Illinois Constitution. However, since defendant cites Federal cases as well as State cases for the ineffective assistance standard, we review defendant’s claimed error as stating a Federal violation. Thus, we find that this case is governed by Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; see also Cooper v. California (1967), 386 U.S. 58, 17 L. Ed. 2d 730, 87 S. Ct 788; South Dakota v. Neville (1983), 459 U.S. 553, 566, 74 L. Ed. 2d 748, 761, 103 S. Ct. 916, 924 (Stevens and Marshall, JJ., dissenting).


author: JUSTICE GOLDENHERSH

text:
    WILLIAM EDWARD VINCENT et al., Plaintiffs-Appellees, v. DON A. VITS, Defendant-Appellant.
    Fifth District
    No. 5—89—0373
    Opinion filed January 28, 1991.

      Byers, Byers & Greenleaf, Ltd., of Decatur (Frank H. Byers, of counsel), for appellant.
    Richard Schmitz, of Pana, for appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant/purchaser, Don A. Vits, appeals from an order of the circuit court of Christian County- granting the petition for specific performance of the contract in question of plaintiffs/vendors, William Edward Vincent and Olive Vincent, and denying defendant’s counterclaim for rescission. In this cause, defendant argues that specific performance is inappropriate because plaintiffs (1) have an adequate remedy at law, namely, money damages, and (2) failed to prove they were always ready, willing and able to perform. Defendant further argues that he is entitled to rescission. We affirm.

On April 15, 1982, the parties entered into an agreement for the sale and purchase of real estate. This agreement recited that the premises were subject to a mortgage obligation in favor of the Mutual Life Insurance Company of New York (hereinafter Mutual Life) in excess of the purchase price. Defendant was to make a down payment as well as semi-annual payments to be applied to reduce the mortgage. The final payment was due on or before April 15, 1987. Defendant’s payments were to be by check payable jointly to plaintiffs and Mutual Life; plaintiffs would merely endorse the check and send it to Mutual Life. Defendant received possession of the land and, as stipulated, remained in possession through a tenant farmer.

Defendant failed to make payments due on January 1, 1986, July 1, 1986, January 1, 1987, and also failed to pay the remaining balance which was due on or before April 15, 1987. Defendant also failed to pay the real estate taxes for 1984, due and payable in 1985, for 1985, due and payable in 1986, and for 1986, due and payable in 1987, as required by the contract. As of April 15, 1987, plaintiffs had not paid the mortgage to Mutual Life.

On February 27, 1986, plaintiffs, pursuant to the contract, served notice of acceleration of all payments due under the contract. On April 28, 1986, plaintiffs filed their complaint seeking specific performance. Plaintiffs later paid the mortgage obligation, and Mutual Life released the mortgage lien on April 13, 1988. Plaintiffs served a second notice of acceleration on defendant on April 16, 1988, and filed their amended complaint seeking specific performance on October 11, 1988. On October 28, 1988, defendant filed his answers, affirmative defenses, and a counterclaim seeking rescission of the contract.

Defendant claims that plaintiffs breached the contract by not making mortgage payments in a timely manner. Defendant reasons that as the property was subject to the mortgage lien on April 15, 1987, rescission automatically occurred and he was under no obligation to pay the balance of the purchase price. Defendant also claims that as the premises were subject to the mortgage obligation, performance by plaintiffs was legally and practically impossible. This impossibility also excused further performance by defendant.

It is important to note that pursuant to the contract, defendant remains in possession of the premises. He has neither tendered payment nor returned possession to plaintiffs. The circuit court believed that without such action by defendant, it was impossible to know whether plaintiffs could have performed pursuant to the contract. Plaintiffs claim that they could have delivered merchantable title free and clear of the mortgage obligation on the contract date.

Defendant’s first issue on appeal is whether specific performance is appropriate since plaintiffs have an adequate remedy at law, namely, money damages. Defendant argues that because of the unique quality of real estate, a contract purchaser may be entitled to specific performance, but the appropriate legal remedy for breach of contract is money damages; therefore, a vendor is entitled only to money damages. Plaintiffs respond that where a contract is fairly and knowingly entered into, does not contain circumstances of fraud or oppression and involves only the sale and transfer of real estate, specific performance is allowable as a matter of right.

It is well settled that a vendor of real estate may seek specific performance of a contract to buy and sell real estate even though he only seeks money. (Ruddock v. American Medical Association (1953), 415 Ill. 53, 71, 112 N.E.2d 107, 112; Burger v. Potter (1863), 32 Ill. 66, 73; Andrews v. Sullivan (1845), 7 Ill. (2 Gilman) 327, 332, 43 A.D. 53 (pointing out the benefits of proceeding in equity and not law); 81 C.J.S. Specific Performance §§29, 33.) Certainly, plaintiffs here may seek specific performance even though they only seek the money owed under the contract.

Plaintiffs are correct that where a contract is fairly and understandably entered into, does not contain circumstances of fraud or oppression, and involves only the sale and transfer of real estate, specific performance is allowable as a matter of right. (Smith v. Farmers’ State Bank (1945), 390 Ill. 374, 379, 61 N.E.2d 557, 560.) That right is not absolute, but rests within the sound discretion of the circuit court. (390 Ill. at 380, 61 N.E.2d at 560; Heller v. McGuin (1914), 261 Ill. 588, 593, 104 N.E. 158, 160; see also Fitzpatrick v. Allied Contracting Co. (1962), 24 Ill. 2d 448, 455, 182 N.E.2d 183, 187 (surrounding facts and circumstances of each case guide discretion); Bliss v. Rhodes (1978), 66 Ill. App. 3d 895, 900, 384 N.E.2d 512, 515.) As the decision rests within the sound discretion of the circuit court, this court will reverse only upon a showing of an abuse of that discretion.

As we stated in Washington v. Illinois Power Co. (1990), 200 Ill. App. 3d 939, 942, 558 N.E.2d 509, 511:

“Abuse of discretion means clearly against logic. (Daiber [v. Montgomery County Mutual Fire Ins. Co. (1989), 191 Ill. App. 3d 566, 568, 548 N.E.2d 17, 19].) The question is not whether the appellate court agrees with the circuit court, but whether the circuit court acted arbitrarily, without employing conscientious judgment, or whether in view of all of the circumstances, the court exceeded the bounds of reason and ignored recognized principles of law so that substantial prejudice resulted. In re Marriage of Aud (1986), 142 Ill. App. 3d 320, 326, 491 N.E.2d 894, 898.”

It appears from the record that the contract was fairly and understandably entered into. Neither party claims circumstances of fraud or oppression, and the contract involves only the sale and transfer of real estate. We cannot say that the circuit court acted arbitrarily, without employing conscientious judgment. In view of all of the circumstances, the circuit court did not exceed the bounds of reason or ignore recognized principles of law so that substantial prejudice resulted when it granted specific performance.

We do not believe that Lakshman v. Vecchione (1981), 102 Ill. App. 3d 629, 430 N.E.2d 199, cited by defendant, is controlling. While defendant argues that Lakshman stands for the proposition that specific performance is not available to a vendor in a real estate setting, Lakshman actually held that the trial court did not abuse its discretion in awarding money damages instead of granting specific performance.

Defendant’s second issue on appeal is whether plaintiffs failed to prove they were ready, willing and able to perform on the contract date. Defendant specifically argues that the record demonstrates that plaintiffs could not timely perform their obligation as the land was subject to a mortgage lien. Plaintiffs respond that the testimony offered at trial indicated that plaintiffs were able to perform at all times. Defendant offered no testimony to controvert this.

At trial, plaintiffs explained that the mortgage covered a large tract of land, part of which was the land under contract with defendant. Plaintiffs further explained that defendant’s checks were payable jointly to plaintiff and the mortgage company. Plaintiffs merely endorsed each and sent it to the mortgage company. Plaintiff William Edward Vincent was asked by his attorney:

“Q. If Mr. Vits had tendered to you on April 15, 1987 payment in full of what he owed you under the contract, would that have been enough to pay off the Mutual of New York mortgage?
A. No, it would not.
Q. Would there have been a necessity for you to either get a partial release or expend extra funds to pay off the mortgage?
A. Yes, that is correct.
* * *
Q. Was the possibility of obtaining a partial release from Mutual of New York ever discussed if Vits’ tract of land had been paid off?
A. Yes.
* * *
Q. Okay, if Mr. Vits had paid off the portion of the contract he owed to you and assuming that for the sake of argument that Mutual of New York would not have given you a partial release, could you have on your own paid off that mortgage?
A. Yes.
* * *
Q. Okay, did you have the funds available to you to pay off that mortgage?
A. I had some of my own and through my family I could have.
Q. In fact, have you paid off that mortgage on your own?
A. Yes, it has.
Q. And was that mortgage paid off through this same method you spoke of through funds of your own and through your family?
A. Yes, it was.”

From the above, the trial court could reasonably infer that plaintiffs would have been able to perform had defendant tendered payment.

Defendant’s final issue on appeal is whether the trial court erred in not granting rescission. Defendant specifically argues that the contract was materially frustrated by plaintiffs’ conduct in that they failed to make mortgage payments. Plaintiffs respond that defendant’s failure to tender either performance or the property eliminates any right to rescission.

One who desires to rescind a contract must show nonperformance or an inability to perform. (Christopher v. West (1951), 409 Ill. 131, 136, 98 N.E.2d 722, 725.) The circuit court found that defendant’s failure to pay made it impossible to determine whether plaintiffs were able to perform. Thus, defendant has failed to meet his Christopher burden. A right of rescission must be exercised promptly. (Lipkin v. Burnstine (1958), 18 Ill. App. 2d 509, 519, 152 N.E.2d 745, 750.) The circuit court did not act arbitrarily or without employing conscientious judgment. We cannot say that the circuit court abused its discretion in not granting rescission to defendant.

For the foregoing reasons, the order of the circuit court of Christian County is affirmed.

Affirmed.

RARICK, P.J., and CHAPMAN, J., concur.


text:
    EDWARD BEFFA, Plaintiff-Appellee, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Defendant-Appellant.
    Fifth District
    No. 5—88—0129
    Opinion filed January 29, 1991.
    Rehearing denied March 6, 1991.

      Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville (Richard M. Roessler and Kenneth L. Halvachs, of counsel), for appellant.
    Cook, Shevlin, Keefe & Ysursa, Ltd., of Belleville (Bruce N. Cook, of counsel), for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

It happened in a high-crime area of St. Louis, Missouri, where Goodfellow Street passes under defendant’s railroad bridge.

Goodfellow Street had been lowered and made into an underpass, and the bridge, which was formed by the tracks and a sidewalk, ran at ground level. The bridge was convenient for people living in a nearby housing project to use as a shortcut. The use was so heavy, and so well known, that the railroad’s chief engineer testified:

“A. It is so frequent that there’s very little we can do to prevent it.”

This is an open railroad bridge; there is a five-inch or so gap between each railroad tie. A solid bridge deck has an enclosed bottom so, looking down, nothing below the solid decking can be seen. But on this open-decked bridge, looking down, Goodfellow Street can be seen through each gap between each tie. From Goodfellow Street looking up, railroad ties cast a prison-bar-like pattern across an empty sky.

Thirty years before it happened, the railroad had been warned in a letter to make the bridge deck solid and had been warned that the bridge was decaying.

Twenty-one years before it happened, the railroad’s building department had been sent a letter from a woman who claimed that concrete had come off the bridge and damaged her car as she was passing under. The railroad’s inspection gave “no indication that any concrete had spalled from the bridge recently.”

Six days before it happened, defendant’s assistant track supervisor had inspected the bridge. He testified that ties had rotted and tie-plates had come loose.

Tie-plates are 20-pound steel pieces that are laid on top of railroad ties. Railroad tracks are laid on top of the tie-plates. Spikes are driven, attaching tracks to tie-plates and tie-plates to railroad ties.

The railroad knew the bridge was in a high-crime area. The assistant track supervisor testified:

“Q. Are you personally — when you’re in that area, are you careful?
A. Extra careful.
Q. Is it an area where — when you inspect it, are you by yourself?
A. No, sir.
Q. Would you — would you recommend that people go by themselves on inspection trips in this area?
A. No, sir.
Q. At day.
A. Anytime.
Q. Are there vandals in the area all the time?
A. Yes, sir.
Q. How long have you known that?
A. Ever since I been working for the railroad.”

Fencing, including barbed wire, could be used to keep people off the bridge, the railroad’s special police acknowledged; however, defendant did not fence the bridge to keep people from using it as a shortcut. The railroad’s chief engineer said fences would not work because, “the same people who trespass break the fences down.”

The railroad knew that objects are thrown from bridges. Its assistant track supervisor testified:

“Q. You ever hear of any vandals getting on these bridges and throwing stuff on people below?
A. Yes, sir.”

The problem of objects being thrown off bridges is widespread and recurrent. A Guide for Protective Screening of Overpass Structures, published by the American Association of State Highway Officials, was put into evidence, and the railroad’s chief engineer was cross-examined thereon. That guide stated: “[I]n the Chicago area in 1964-65 there were over 1,200 reported incidents of objects being dropped or thrown from overpasses onto vehicles below.”

This problem extended to this bridge. A St. Louis police officer testified to the danger:

“Q. Have you ever responded to incidents where there have been complaints of things falling or being dropped from that particular railroad bridge ***?
A. We averaged one to two serious injuries there approximately in the summertime, that’s not counting the wintertime with snowballs and everything else.”

Bridges can be screened to prevent them from being used as launching pads. The American Association of State Highway Officials’ Guide for Protective Screening provides:

“Screens of various types can definitely reduce the number of incidents of objects being dropped from overpasses and striking vehicles below. The addition of a screen or barrier should not be delayed until a serious incident definitely establishes a need for such a device.”

According to the guide, screens should be considered on all overpasses in large urban areas used exclusively by pedestrians and not easily kept under surveillance by police.

The chief engineer was asked about screens:

“Q. [Why haven’t you] screened this railroad bridge when you knew that kids played on the bridge all the time. Why didn’t you screen it?
A. We have no screens on any railroad bridge that I know of.”

He then was asked:

“Q. *** Does that make it all right ***?”

He answered:

“A. There’s a lot of things that must be left to certain chances in life.”

It happened sometime after 7 p.m., May 2, 1983, the time of day during that part of the year that daylight dies.

A St. Louis teacher had been to a burial team rehearsal. Leaving, she travelled north in the fading twilight, approaching the Goodfellow railroad overpass, and on the overpass she saw two or three children.

At the same time, Edward Beffa, a St. Louis police officer, was on patrol in his squad car with his partner, Robert Pizzella, in the area of the overpass. A police radio dispatch warned that someone was brandishing a shotgun in the area. Beffa positioned his squad car so he and his partner could respond if they were needed, and the squad car cruised in the gathering dusk toward the overpass.

The children, not seen by Beffa or Pizzella, but seen by the teacher, moved to the edge of the overpass.

As the squad car came under the overpass, something fell or was dropped from where the children were standing, and they ran.

A 20-pound, railroad tie-plate crashed through the squad car windshield and shattered Edward Beffa’s lower face.

We affirm the jury’s verdict for plaintiff, Edward Beffa, and against the railroad and hold: (1) defendant had a duty to protect plaintiff from the criminal acts of third persons under the circumstances of this case; and (2) plaintiff proved that defendant’s conduct was the proximate cause of plaintiff’s injury, and therefore, the circuit court did not err in refusing to enter judgment notwithstanding the verdict.

Robert Pizzella’s case is not part of this appeal.

Defendant invites us to view this case as an intentional bombing of plaintiff’s squad car. This invitation is expected because this view of the facts presents the case most favorably to defendant.

Plaintiff, on the other hand, points out, correctly, that the evidence also supports an inference that the tie-plate fell or was unintentionally knocked off the bridge, and that the negligence of defendant in maintaining the bridge created the condition on defendant’s premises that caused the injury to plaintiff. Certainly the verdict is sustainable on that ground, but we accept defendant’s invitation and address its argument.

Plaintiff was injured in Missouri, and the substantive law of Missouri applies. However, whether judgment notwithstanding the verdict should be granted is procedural not substantive (Restatement (Second) of Conflicts §127 (1971)), and therefore, we apply the Illinois test for granting judgment notwithstanding the verdict, namely: does all the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favor the railroad that no contrary verdict based on that evidence could ever stand? Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.

Although the test for the propriety of a judgment notwithstanding the verdict is procedural, negligence is a substantive issue and is determined by the law of the State that has the most significant relationship to the occurrence and the parties. Therefore, Missouri law governs the substantive question of negligence. See Restatement (Second) of Conflicts §145 (1971).

According to Missouri law, a defendant is negligent if that defendant: (1) had a duty to protect the plaintiff from the harm, (2) that duty was breached, and (3) the breach of duty proximately caused the plaintiff’s injuries. Virginia D. v. Madesco Investment Corp. (Mo. 1983), 648 S.W.2d 881.

Defendant claims it owed plaintiff no duty and bases its argument on Faheen v. City Parking Corp. (Mo. App. 1987), 734 S.W.2d 270, 274. Faheen is a landlord-tenant case. The tenant died in a car bombing which occurred in the landlord’s parking garage. Plaintiff’s next friend alleged that the landlord negligently failed to provide adequate security to protect the tenants from criminal assaults. The court held that the landlord had no duty to protect plaintiff from the car bombing, because under the circumstances no reasonable person would have been put on notice to take precautions to protect against a criminal act, stating:

“[Although the case law and comments use terms such as ‘foreseeability,’ ‘proximate cause,’ and ‘intervening cause,’ the final resolution of the issue is dictated by basic fairness and public policy. ‘Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk and the public interest in the proposed solution.’ ” Faheen, 734 S.W.2d at 273, quoting Goldberg v. Housing Authority of City of Newark (1962), 38 N.J. 578, 583, 186 A.2d 291, 293.

The pivotal issue is whether, under the circumstances, a reasonable railroad would have had notice of need to protect passersby from harm hurled from above. Under Faheen, if the circumstances were insufficient to put defendant on notice, there would be no duty. If, on the other hand, the circumstances were sufficient to provide notice, defendant’s duty could arise depending upon a weighing of the relationship of the parties, the nature of the risk and the public interest in the proposed solution. (Faheen, 734 S.W. 2d at 273.) In this case-, defendant knew the bridge was in a high-crime area, knew that people used the bridge as a shortcut, knew objects were thrown from overpasses in general and knew that objects had fallen or been dropped from this particular overpass. Given the particular neighborhood and special facts of the case at bar, we believe the record supports the jury’s determination that the railroad knew or should have known that failure to fence or screen the bridge would eventually result in harm to passersby. We further believe that the evidence supports a finding that the railroad could have screened or otherwise guarded the overpass at reasonable cost. Therefore, we hold that the railroad had a duty to protect plaintiff under the circumstances of this case.

Defendant, furthermore, is not relieved of liability by deeming the act of the children to be criminal under the doctrine of “intervening cause.” As stated by the Missouri Supreme Court in Zubher v. Clarkson Construction Co. (Mo. 1952), 251 S.W. 2d 52:

“If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.” Restatement (Second) of Torts §449 (1965).

In the case at bar, the testimony showed that defendant either realized or should have realized that pedestrians dropped objects from the overpass and the testimony also showed that the bridge, as it disintegrated, might furnish the ammunition itself to those who were inclined to drop objects from the overpass onto those below. Therefore, under these circumstances, the children’s criminal act of dropping a tie-plate was not an intervening cause that would render plaintiff unable to prove proximate cause. See Swindell v. J.A. Tobin Construction Co. (Mo. App. 1981), 629 S.W. 2d 536.

Defendant, lastly, argues that the facts of this case are insufficient to prove that it had reasonable notice of the danger because there was an insufficient similarity between the earlier incidents and this incident, and points out that while this incident involved a 20-pound tie-plate, the earlier incidents involved rocks, snowballs and bits of concrete. We disagree. It is true that the nature of a snowball as a thrown object seems benign, while the nature of a 20-pound piece of steel seems lethal. But, under the circumstances of this case, both a snowball and this piece of steel are missiles of potential harm. It is not the nature of the object in the abstract that matters, it is the nature of the object in the matrix of all the circumstances that surround the event that is the concern, and the inquiry is whether, under the circumstances, the object carries a potential for harm that should be within the cognizance of a reasonable person. Rocks, snowballs, pieces of concrete of undescribed size, a 20-pound piece of steel thrown, dropped, or hurled from this bridge are all alike — a threat to the safety of those below. Defendant owed a duty to the public to use reasonable care in preventing its property from being used as a staging area for violence and those who travel in peace have a right to be protected by a bridge owner who is aware or has reason to know its bridge is being used as a public launching pad.

The circuit court is affirmed.

Affirmed.

RARICK, RJ., and CHAPMAN, J., concur.


author: PRESIDING JUSTICE RARICK

text:
    NEVA A. SULSER, Indiv. and as Special Adm'r of the Estate of George R. Sulser, Deceased, Plaintiff-Appellant, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    Fifth District
    No. 5—90—0167
    Opinion filed January 29, 1991.
    Craig R. Reeves and William L. Broom III, both of Barrett, Twomey, Morris, Broom & Hughes, of Carbondale, for appellant.
    Michael F. Dahlen, of Feirich/Schoen/Mager/Green, of Carbondale, for appellee.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Neva A. Sulser, appeals from the entry of judgment on the pleadings granted by the circuit court of Jackson County in favor of defendant, Country Mutual Insurance Company. We reverse and remand.

Plaintiff’s husband was killed in a motor vehicle accident involving an underinsured motorist. At the time of the accident, the Sulsers had an insurance policy with Country Mutual which provided for underinsured motorist benefits in the amount of $100,000. Plaintiff already recovered $50,000 from the underinsured motorist and now seeks payment from Country Mutual in the amount of $50,000, that is, $100,000 (the limit of underinsured motorist benefits) less $50,000 recovered from the underinsured motorist. Country Mutual, however, claims any workers’ compensation benefits received by plaintiff should also be deducted from the $100,000 limit of underinsured motorist benefits. The trial court agreed with Country Mutual and accordingly granted its motion for judgment on the pleadings. We believe the trial court erred in so ordering.

The issuance of underinsured motorist coverage in Illinois is governed by section 143a — 2(3) of the Illinois Insurance Code (Code) (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(3)). This section states: “The limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recovered under the applicable bodily injury insurance policies, bonds or other security maintained on the underinsured motor vehicle.” In contrast, section 143a(4) pertaining to uninsured motorist coverage provides: “In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payments shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the property damage, bodily injury or death for which such payment is made ***.” (Ill. Rev. Stat. 1987, ch. 73, par. 755a(4).) Viewing these two provisions together, it is clear underinsured and uninsured motorist coverages are not identical under the Code. Under the uninsured motorist’s provision, an insurer is entitled to deduct workers’ compensation payments from uninsured motorist coverage as “any rights of recovery of such person against any person or organization legally responsible for the property damage, bodily injury or death for which such payment is made.” Underinsured motorist coverage, on the other hand, does not include a provision which can be interpreted to include a deduction for workers’ compensation benefits. Clearly an injured worker’s statutory remedies under the workers’ compensation law do not comprise “policies, bonds or other security.” Rather, underinsured motorist coverage is subject only to those deductions and setoffs expressly listed. Had the legislature intended to allow an insurer to deduct workers’ compensation benefits from underinsured motorist coverage, it would have enacted similar, if not identical, language as that used in connection with uninsured motorist coverage. We therefore conclude the Code simply does not authorize a setoff of workers’ compensation benefits against underinsured motorist coverage. Consequently, any deduction for such payments is in error.

We acknowledge the second district in Parker v. American States Insurance Co. (1990), 193 Ill. App. 3d 671, 550 N.E.2d 40, has reached the opposite conclusion under similar circumstances. We, however, choose not to follow Parker. We believe the second district failed to adequately consider the difference in the language of the two provisions and relied on cases pertaining primarily to uninsured motorist coverage. We also acknowledge Country Mutual’s policy language specifically allows for a setoff of any workers’ compensation recovery from underinsured motorist coverage, and we further recognize that generally parties are free to make their own contracts. Where a policy provision is inconsistent with statutory law, however, the latter must control. See Bertini v. State Farm Mutual Automobile Insurance Co. (1977), 48 Ill. App. 3d 851, 854, 362 N.E.2d 1355, 1357-58.

For the aforementioned reasons, we reverse the decision of the circuit court of Jackson County and remand this cause for further proceedings consistent with this opinion.

Reversed and remanded.

HARRISON and WELCH, JJ., concur.


text:
      In re MARRIAGE OF DELORIS TOLLISON, Petitioner-Appellee, and JOHN TOLLISON, Respondent-Appellant.
    Fifth District
    No. 5—89—0734
    Opinion filed January 29, 1991.

      Law Offices of Bill T. Walkier, of Granite City (Ronald D. Lowery, of counsel), for appellant.
    Storment & Read, of Belleville, for appellee.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Deloris Tollison filed a petition for dissolution of marriage in the circuit court of St. Clair County against John Tollison on November 28, 1983. The parties had eight children, five of whom were minors at the time. John was subsequently ordered to pay $500 per month in temporary child support. On January 13, 1984, John filed a petition to modify alleging that Deloris had voluntarily relinquished custody of three of the minor children to him.

A judgment of dissolution was entered on April 4, 1984. Deloris was given custody of two of the minor children and John was given custody of the other three. John was ordered to pay $25 per week per child in child support and $213.76 per month in maintenance. The maintenance award was to be paid in 35 equal monthly installments through a wage deduction order of $213.76, and one payment of $78.20. An order of withholding was entered ordering John’s employer to withhold $106.85 per check for 70 pay periods and $78.20 for one pay period, plus $25 per week to pay for a $175 arrearage.

On April 4, 1985, Deloris filed a petition for contempt and for attorney fees, alleging that John had failed to make maintenance and support payments since November of 1984. On May 7, 1985, Deloris petitioned to change custody of the minor child Crystal on grounds that Crystal had resided with her since February 1, 1985.

On May 23, 1985, a hearing was held after which the court granted Deloris custody of Crystal, found $3,000 in support arrearages, ordered John to pay child support for Crystal in the amount of $35 per week, and ordered John’s employer to be served with a withholding order for $300 per pay period with $47 being credited to the arrearage. A withholding order was entered for $276.50 per check for child support and $23.50 per check for arrearages.

On February 14, 1989, John filed a motion for clarification alleging that he believed he had complied with prior court orders regarding support and maintenance and requesting the court to hold a hearing to identify any other sums he owed to Deloris.

On March 27, 1989, Deloris filed a petition to modify child support for the two minor children in her custody and requesting that John pay unreimbursed medical bills and attorney fees. John responded on June 12, 1989, denying that Deloris had custody of three minor children, but admitting that she had legal custody of two, and that all the minor children were covered by his medical insurance policy through his place of work.

On August 29, 1989, the court entered an order increasing the amount of child support to $210 biweekly, retroactive to March 27, 1989, and also found that while John’s obligations since the order of May 23, 1985, totaled $23,115.92, he had paid $27,810.75, for an overpayment of $4,697.78, all by virtue of the withholding order. The court gave the parties seven days to submit memoranda regarding the overpayment, but neither party could find any authority on point. On October 5, 1989, the court entered an order stating that no grounds existed to reimburse John for the overpayment, and John Tollison appeals.

There is little case law dealing with the subject of overpayment, and that which does exist deals with voluntary overpayments of child support. Indeed, the parties found no Illinois cases addressing the issue before us.

The general rule is no credit is given for voluntary overpayments of child support, even if made under the mistaken belief that they are legally required. (Harner v. Harner (1982), 105 Ill. App. 3d 430, 434 N.E.2d 465.) Reasons given for this rule include that one party should not be allowed to unilaterally modify the divorce decree and that credit might result in potential deprivation of future benefits. (Harner, 105 Ill. App. 3d at 433, 434 N.E.2d at 468; see also Raczynski v. Raczynski (1976), 558 P. 2d 425.) As we noted, however, the situation presented in this case is clearly different. The overpayment here consists of both maintenance and child support, and was not voluntarily made, but was the result of a wage deduction order. The amount being deducted by the order was the same amount specified in the August 23, 1985, order. It is not clear from the record exactly how the overpayment occurred, and while Deloris Tollison maintains that it resulted from the oldest child’s having attained majority, neither party disputes that the overpayment occurred or the amount thereof.

Numerous exceptions to the general rule mentioned above have been made where the equities of the circumstances so demand, provided such allowance will not work a hardship. (See Farmer v. Farmer (1978), 147 Ga. App. 387, 249 S.E.2d 106.) If equity may demand that credit be given for voluntary payments, it is certainly proper to give credit where the overpayment is the result of a wage deduction order. John Tollison paid more through the deduction order than he was obligated to pay, and he cannot be denied relief simply because no procedural mechanism or current legal theory exists to undo the error. The law is replete with legal theories such as constructive trusts, implied in law contracts, etc., the underlying principle of which is that one person should not profit at the expense of another because of a wrong or a mistake. These doctrines were crafted to provide justice where it otherwise would not be done. While there appears to be no precedent providing that Tollison must be given credit for his involuntary overpayments, fundamental fairness demands that such credit be given. Deloris Tollison argues that because of his failure to take action to prevent the overpayment in the first place and because of her reliance thereon, John Tollison is equitably estopped from seeking reimbursement. She also argues that he waived any right to reimbursement by virtue of this delay. Both arguments overlook the fact that the overpayment was a result of a court wage deduction order, and that John Tollison had, in February of 1989, filed a motion for clarification wherein he indicated he had been seeking clarification of the correct amount owed but to no avail. This was sufficient to put Deloris Tollison on notice that he was not waiving any rights and to preclude any reliance on her part on the over-payments. As the record is insufficient to determine how credit may best be given without working a deprivation on the children, however, we must remand this case to the trial court. We hold that Tollison must be given credit for his overpayment and remand to the circuit court for further proceedings not inconsistent with this opinion.

The judgment of the circuit court of St. Clair County is reversed and remanded.

Reversed and remanded.

HARRISON and HOWERTON, JJ., concur.


text:
    G.J.Z. ENTERPRISES, INC., Plaintiff-Appellee, v. THE CITY OF TROY, Defendant-Appellant (William Buchanan et al., Intervenors-Appellants).
    Fifth District
    No. 5—90—0147
    Opinion filed January 30, 1991.

      Mark Levy, of Collinsville, for appellant City of Troy.
    Floyd D. Peterson, Jr., of Law Offices of William W. Schooley, of Granite City, for appellants William Buchanan, Susan Buchanan, John Winning, Linda Winning, Dan Kurtz, Shirley Kurtz, Robert Garcia, and Cheryl Garcia.
    John T. Papa, of Pratt & Callis, P.C., of Granite City, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

This is an appeal from a preliminary injunction granted to plaintiff. A hearing on a permanent injunction is yet to come.

Plaintiff purchased land in Troy, Illinois, believing the land was zoned R-3, i.e., suitable for multifamily dwellings. It appears that the land actually was zoned R-2, i.e., suitable for single-family dwellings.

The City of Troy mistakenly issued a building permit to plaintiff to build apartments on the land. Realizing its mistake, one month later, after the apartments were 70% complete, the city withdrew the building permit and issued a stop-work order.

Plaintiff filed a complaint to enjoin the city from revoking its building permit and also filed a motion for a preliminary injunction to enjoin the city from enforcing the stop-work order. The circuit court, after allowing homeowners in the area to intervene, issued a preliminary injunction preventing the enforcement of the stop-work order and preventing withdrawal of the permit. The city and the intervenors appealed.

One seeking a preliminary injunction must show (1) a clear, protectable right of that party; (2) an irreparable injury to this right if the injunction does not issue; (3) an inadequate legal remedy; and (4) likelihood of success on the merits. (American National Bank & Trust Co. v. Chicago Title & Trust Co. (1985), 134 Ill. App. 3d 772, 481 N.E.2d 71; Houseknecht v. Zagel (1983), 112 Ill. App. 3d 284, 445 N.E.2d 402.) When reviewing an issuance or denial of a preliminary injunction, the role of the appellate court is to determine whether there was a sufficient showing to sustain the order of the trial court. (First Condominium Development Co. v. Apex Construction & Engineering Corp. (1984), 126 Ill. App. 3d 843, 467 N.E.2d 932.) In doing so, the appellate court is limited to examining the issues on their merits only insofar as is necessary to determine if the circuit court’s findings are against the manifest weight of the evidence. McRand, Inc. v. VanBeelen (1985), 138 Ill. App. 3d 1045, 486 N.E.2d 1306.

Examination of the propriety of the issuance of this preliminary injunction necessarily, then, turns on the question of whether plaintiff might successfully impose upon the city an estoppel of enforcement of its zoning ordinance. This is true, because there still is some confusion manifest at this stage of the proceedings as to whether the land was zoned R-2 or R-3. If, at the hearing on the permanent injunction, it were found to be zoned R-3, then plaintiff may have established a case sufficient for the issuance of a permanent injunction. If, at the hearing on the permanent injunction, it were found to be zoned R-2, then plaintiff still may obtain a permanent injunction if plaintiff were to establish facts sufficient to estop the city from enforcing its zoning ordinance against the plaintiff and the land in question.

In Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157, 171 N.E.2d 605, the Illinois Supreme Court stated that municipalities are estopped from enforcing their ordinances only “under special circumstances which would make it highly inequitable or oppressive to enforce such public rights.” (Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157, 161, 171 N.E.2d 605, 607, citing Melin v. Community Consolidated School District (1924), 312 Ill. 376, 144 N.E. 13.) To invoke the doctrine of estoppel, a party must show that he was induced by the conduct of municipal officers and would suffer substantial loss if the city were permitted to retract its previous representation. Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157, 161, 171 N.E.2d 605, 608.

The circuit court in the case at bar made an express finding “that there was no inducement on the part of the city.” Yet, the circuit court enjoined the city. The city argues that the preliminary injunction ought to have been denied, because without a finding of inducement the city cannot be estopped from enforcing its building codes, and therefore, there is no likelihood of success on the merits when the permanent injunction is heard. Inducement indeed is the predicate to estoppel, and the order issuing the preliminary injunction inherently conflicts with the finding upon which it must be based; therefore, we examine the record to determine if the circuit court’s finding that there was no inducement by the city was against the manifest weight of the evidence.

G.J.Z. expressly conditioned the purchase of the land upon it being zoned for apartments, an R-3 designation. The seller provided to G.J.Z. the minutes of a town council meeting which indicated that the council had voted to change the zoning from R-2 to R-3. Relying on the minutes, G.J.Z. bought the land. Before construction, G.J.Z. contacted the city’s building inspector, who said that the property was zoned R-2, but proceeded to “double check” with the city clerk. The city clerk provided the building inspector with minutes of the town council meeting which indicated a change in the zoning from R-2 to R-3. After reviewing the minutes, the inspector reviewed his plat; it also indicated R-3. With that, the inspector issued a building permit, and construction began.

The city cites O’Laughlin v. City of Chicago (1976), 65 Ill. 2d 183, 357 N.E.2d 472, as authority for the proposition that the mere issuance of a building permit does not establish inducement. In O’Laughlin, however, there was an express finding that O’Laughlin had misinformed the city on his application for a building permit. The court found that it was O’Laughlin who had induced the city to issue the permit by way of providing misinformation. Here, the facts are the reverse. G.J.Z. provided no misinformation. G.J.Z. merely inquired. It was the city that provided information in response to the inquiry made by G.J.Z. The city argues that the change in zoning never was completed because an ordinance never was enacted. The record establishes some confusion, but the confusion and any mistake are chargeable to the city, not G.J.Z., at least on the facts presented in the hearing on the preliminary injunction. The building inspector and city clerk would appear to a reasonable builder to be in a position to know the correct zoning status of the land in question. In fact, the circuit court in its order stated that it was reasonable for G.J.Z. to have relied on the representations of the city clerk and the building inspector. It is not the mere fact that the permit was issued, but rather “the particular facts and circumstances” surrounding the issuance of the permit that constitute inducement. (O’Laughlin v. City of Chicago (1976), 65 Ill. 2d 183, 191, 357 N.E.2d 472, 476.) We believe that these facts constitute inducement.

The circuit court’s finding that the city did not induce G.J.Z. to build upon this land is reversed, and pursuant to Supreme Court Rule 366 (107 Ill. 2d R. 366), we enter a finding of inducement.

. Inducement having been found, there no longer exists an inherently destructive inconsistency between the finding and the order issuing the preliminary injunction. Upon review, therefore, we find no error in the issuance of a preliminary injunction under these circumstances.

The circuit court is affirmed.

Affirmed.

WELCH and LEWIS, JJ., concur.


text:
    DALE L. WAGNER, Plaintiff-Appellee, v. BOARD OF TRUSTEES OF THE POLICE PENSION FUND OF BELLEVLLE, Defendant-Appellant.
    Fifth District
    No. 5—90—0239
    Opinion filed January 30, 1991.

      Philip R. Rice, of Rice Law Offices, of Belleville, for appellant.
    Michael J. Reagan and Kevin T. Hoerner, both of Belleville, for appellee.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Dale Wagner, filed a petition for a duty-related disability pension with defendant Board of Trustees of the Police Pension Fund of Belleville (the Board). After a hearing, the Board determined that Wagner’s condition was not duty related but that he was entitled to a non-duty-related disability pension. Wagner filed a complaint for administrative review, and the trial court reversed the decision of the Board, finding that the Board’s determination that Wagner’s disability was not duty related was against the manifest weight of the evidence. The Board appeals. We affirm.

Wagner became a Belleville police officer in 1966. In 1980, he twisted his right knee while getting out of a car. He was treated by Dr. Stan London, who performed surgery to remove torn cartilage. In December of 1985, he injured his left knee while escorting a resisting prisoner up a flight of steps. He went to St. Elizabeth Hospital and had X rays taken. Wagner again injured his left knee on March 20, 1986. While serving a notice to appear, a rotted porch plank gave way and his left leg fell through to the groin. He was examined by the emergency room physician, but sought no further treatment. Wagner injured his left knee a third time on May 27, 1986. While responding to a disturbance, he stepped into a culvert offset and twisted his leg. Wagner saw Dr. London on May 31, 1986, and X rays were taken again. London suspected a torn cartilage, and this was confirmed by a subsequent dye injection. Wagner did not mention the other two injuries to his left knee to Dr. London. He saw London again on June 7 and on July 31 had outpatient surgery to remove torn cartilage. Dr. London testified that the X rays showed some osteoarthritis, which was not uncommon for a 48-year-old man. Wagner saw London several more times throughout 1986 and 1987.

Wagner saw Dr. Bassman, an associate of Dr. London’s, on May 18, 1987. Bassman reviewed Wagner’s file and the previous X rays taken by Dr. London and testified that X rays of the left knee showed a mild degree of degenerative arthritis which predated the May 27, 1986, injury. He also stated that based upon Wagner’s statement that he needed to be “100 percent,” Wagner could not return to full active duty as a policeman. Bassman further stated that the May 27, 1986, accident was sufficient to cause the torn cartilage in Wagner’s left knee, and that the degenerative changes could be related to his previous injuries. Wagner also saw Dr. Robert Tatkow. In his report, Tatkow indicated that Wagner was unfit for performing street duty as a police officer. Wagner saw two other doctors, Dr. Rogers and Dr. Kuhlman, at the request of the Board. Both found a mild degree of degenerative arthritis, but Rogers concluded that Wagner could return to work without any limitation on his day-to-day activities, and Kuhlman concluded Wagner’s condition did not preclude his working as a police officer.

Wagner sought a disability pension, and the Pension Board granted a non-duty-related pension. Wagner appealed, and the trial court reversed the Board to the extent the Board found the injury to be non-duty related.

We note initially that the question of whether Wagner was disabled is not at issue here. The Board found Wagner to be disabled but that such disability was not duty related. The trial court reversed the Board only as to its finding that Wagner’s disability was not duty related. We therefore consider only whether the trial court erred in finding the Board’s decision that the injury was non-duty related to be against the manifest weight of the evidence.

The Board first argues that its ruling that the injury was non-duty related is supported by the evidence because the only objective evidence of disability is the presence of osteoarthritis, common for a man Wagner’s age. The evidence depositions of four expert witnesses were admitted into evidence. Dr. Kuhlman and Dr. Rogers testified that Wagner was fit for duty, while Dr. Bassman and Dr. London testified that Wagner was disabled and should not return to police work. Dr. Tatkow’s report indicated the same. Further, the latter three all testified that there was a causal relationship between Wagner’s disability and his work-related injuries. Dr. Rogers, who testified that Wagner was not disabled, conceded that Wagner could not pass a preemployment physical. Although he took X rays, Dr. Kuhlman did not review any of Wagner’s medical records in reaching his conclusion that Wagner was not disabled. Having accepted the testimony of Dr. London, Dr. Bassman, and Dr. Tatkow that Wagner was disabled, we find it difficult to understand that the Board would reject their opinion that the disability arose from work-related injuries and conclude that it was the result of an arthritic condition common for a middle-aged man. Such a conclusion was contrary to the manifest weight of the evidence, and the trial court was correct in so finding.

We next address the Board’s contention .that its finding that Wagner’s disability was non-duty related is supported by the evidence because it was not clear that Wagner’s disability was caused by his March 20, 1986, injury. The Board maintains that the only X rays discussed by Bassman and London were the X rays of the left knee taken on May 31, 1986, and that those X rays showed degenerative arthritis. Dr. Bassman testified that the degenerative arthritis could not have been caused by the May 27, 1986, injury, and this testimony was not contradicted by any of the other medical experts. The Board maintains that the March 20, 1986, injury was not duty related. The Board’s argument ignores the fact that Dr. London performed surgery on Wagner’s left knee to remove cartilage which was torn by the May 27, 1986, accident. Neither Dr. London’s nor Dr. Bassman’s opinion was based solely on the March 20, 1986, injury. The question we must determine is whether these injuries were duty related.

Section 5 — 113 of the Illinois Pension Code defines “Act of duty” as:

“Any act of police duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life, imposed on a policeman by the statutes of this State or by the ordinances or police regulations of the city in which this Article is in effect ***.” Ill. Rev. Stat. 1987, ch. lOSVa, par. 5 — 113.

In Johnson v. Retirement Board of the Policemen’s Annuity & Benefit Fund (1986), 114 Ill. 2d 518, 502 N.E.2d 718, our supreme court held that the determination of whether a police officer was injured while performing an “act of duty” depended upon the capacity in which the officer was acting when injured. In Johnson, a police officer was on traffic control duty when a citizen called to him for assistance regarding a traffic accident. As the officer was crossing the street to respond, he slipped on wet pavement and fell. In holding that the officer’s disability was the result of a duty-related injury, our supreme court stated that the Pension Code did not require that the officer be injured by an act of duty to be entitled to duty-related disability benefits, but only that the officer be disabled by an injury incurred in the performance of an act of duty. (Johnson, 114 Ill. 2d at 522, 502 N.E.2d at 720.) Further, the act in question need not be one unique to police officers.

“Police officers assigned to duties that involve protection of the public discharge those duties by performing acts which are similar to those involved in many civilian occupations. Driving an automobile, entering a building, walking up stairs, and even crossing the street are activities common to many occupations, be it policeman or plumber.” (Johnson, 114 Ill. 2d at 521-22, 502 N.E.2d at 720.)

The determinative question, the court ruled, is the capacity in which the officer was acting.

Citing Morgan v. Retirement Board of the Policemen’s Annuity & Benefit Fund (1988), 172 Ill. App. 3d 273, 526 N.E.2d 493, the Board argues that Wagner’s injury was not duty related. In Morgan, a police officer was injured while attempting to sit down at a desk and fill out a police report when the chair rolled out from under him. The court in Morgan held that the injury was not duty related, finding that completing police reports did not inherently involve any special risk not ordinarily assumed by a citizen in the ordinary walks of life. In reaching this conclusion, the court focused on the fact that, unlike the situation in Johnson, there were comparable civilian occupations which involved the completion of various types of reports.

Wagner was discharging his duty as a police officer on March 20, 1986, when he fell through the rotted porch plank and injured his left knee. While the act of walking across a porch is hardly unique to police officers, serving notices to appear generally is. Wagner was likewise performing an act of duty on May 27, 1986, when he stepped into a culvert offset while answering a call about a disturbance, a factual situation closely analogous to that in Johnson, and it was this latter injury which necessitated the surgery to Wagner’s left knee. The opinions of Drs. London, Bassman, and Tatkow were not based on the March 20, 1986, injury, but to the extent that this injury played a role in Wagner’s disability, it too was duty related.

We conclude that the trial court was correct in reversing the Board’s finding that Wagner’s disability was not duty related. The decision of the circuit court of St. Clair County is affirmed.

Affirmed.

HARRISON and WELCH, JJ., concur.


text:
    SUBHEN GHOSH, Plaintiff-Appellant, v. ANURADHA GHOSH ROY, Defendant-Appellee (Richard Windisch, Defendant).
    Fifth District
    No. 5—89—0827
    Opinion filed January 30, 1991.

      Subhen Ghosh, of Indianapolis, Indiana, appellant pro se.

    Robert L. Douglas and Fred W. Johnson, both of Law Offices of Robert L. Douglas, Ltd., of Robinson, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Three criminal informations charged plaintiff with child abduction. One was dismissed in return for plaintiffs agreement not to sue either the State’s Attorney, the Department of Children and Family Services or his ex-wife. The other two were dismissed on the State’s motion. Plaintiff sued his ex-wife for malicious prosecution, alleging that she caused him to be arrested and charged with child abduction in those three cases.

The circuit court dismissed the plaintiff’s first amended complaint pursuant to Illinois Code of Civil Procedure sections 2 — 619(a)(5) and (a)(9) (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 619(a)(5), (aX9)) and correctly refused to rule on a second amended complaint that added Richard Windisch as a defendant because it was filed without leave of court, and therefore, was a nullity and should be stricken. (See Peoples v. Peoples (1981), 96 Ill. App. 3d 94, 420 N.E.2d 1072; Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 447 N.E.2d 1358.) Therefore, Windisch is not a party to this appeal and was not a party in the original action.

We examine the propriety of the dismissal of the first amended complaint.

At the outset, plaintiff presents a claim of procedural error, namely, that the circuit court should not have dismissed this case outright under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619); instead, plaintiff claims that the court merely should have stricken the complaint with leave to replead pursuant to section 2 — 615 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615). The purpose of sections 2 — 619(a)(5) and (a)(9) is to provide summary disposition of a case either by showing that the case is barred by the statute of limitations or that some affirmative matter will defeat the claim. (See, e.g., Millan v. Seibt (1977), 49 Ill. App. 3d 506, 364 N.E.2d 521.) In the case at bar, defendant filed the motion pursuant to section 2 — 619 and alleged the expiration of the statute of limitations, as well as other affirmative matters — i.e., that the criminal charges were dropped in return for an agreement not to sue. Therefore, once the court found these matters to be as defendant had alleged, dismissal under section 2 — 619 was proper. We now address the plaintiff’s substantive challenge to the court’s dismissal.

Plaintiff pleaded malicious prosecution, a cause of action not favored in the law. (Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 411 N.E.2d 229; Schwartz v. Schwartz (1937), 366 Ill. 247, 8 N.E.2d 668; Shedd v. Patterson (1922), 302 Ill. 355, 134 N.E. 705.) That disfavor rests upon a recognition that cooperation of the citizenry, a critical ingredient in the battle against crime, would be discouraged if citizens were in fear of a civil suit for damages. (Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 411 N.E.2d 229.) In order to raise the threshold for recovery, malice, therefore, has been made one of the elements of a cause of action for malicious prosecution. A cause of action for malicious prosecution consists of these elements: “(1) the commencement or continuance of an original criminal or civil proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff.” (Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 45, 411 N.E.2d 229, 232; Ritchey v. Maksin (1978), 71 Ill. 2d 470, 475, 376 N.E.2d 991, 993.) If criminal proceedings are not terminated in a manner that indicates plaintiff’s innocence, then plaintiff cannot make out a cause of action for malicious prosecution. (Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 411 N.E.2d 229; Schwartz v. Schwartz (1937), 366 Ill. 247, 252, 8 N.E.2d 668, 671; Ewe v. Angland (1945), 325 Ill. App. 677, 60 N.E.2d 774; Restatement (Second) of Torts §660(a) (1977); 52 Am. Jur. 2d Malicious Prosecution §43 (1970); Annot., 67 A.L.R. 513 (1930).) Consequently, a party to an agreement that criminal charges be dismissed cannot maintain an action for malicious prosecution based upon those charges. Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 411 N.E.2d 229; Rich v. Baldwin (1985), 133 Ill. App. 3d 712, 479 N.E.2d 361; Stanger v. Felix (1981), 97 Ill. App. 3d 585, 422 N.E.2d 1142; Ewe v. Angland (1945), 325 Ill. App. 677, 60 N.E.2d 774.

In the case at bar, three criminal cases had been lodged against plaintiff. One case, numbered 86 — CF—93, had been dropped in return for plaintiff’s agreement not to sue. Plaintiff’s suit for malicious prosecution based on this criminal case could not be maintained because plaintiff had agreed not to bring suit in return for dismissal of this case, .a disposition that indicates neither guilt nor innocence. Therefore, the circuit court was correct in dismissing plaintiff’s cause of action.

Plaintiff’s complaint based upon the other two criminal cases, numbered 83 — CM—183 and 85 — CM—48, is barred by the statute of limitations. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 202.) The limitations period for malicious prosecution is two years, and the action accrues on the date the criminal proceeding is terminated. (Stanger v. Felix (1981), 97 Ill. App. 3d 585, 422 N.E.2d 1142.) The case numbered 83 — CM—183 was dismissed on January 17, 1984. Case 85— CM — 48 was dismissed on February 18, 1986. Plaintiff did not file suit until December 21, 1988, more than two years after the cause accrued in each case. Therefore, the statute of limitations barred these causes of action, and the circuit court was correct in dismissing plaintiff’s complaint for malicious prosecution based on these two criminal charges brought against him.

The circuit court is affirmed.

Affirmed.

LEWIS and WELCH, JJ., concur.