author: JUSTICE SLATER

text:
    CLARENCE WALKER, Petitioner-Appellant, v. PAUL J. KLINCAR et al., Respondents-Appellees.
    Third District
    No. 3 — 92—0669
    Opinion filed April 29, 1993.
    Clarence Walker, of Joliet, appellant pro se.

    Roland W. Burris, Attorney General, of Springfield (Brian F. Barov, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE SLATER

delivered the opinion of the court:

The petitioner, Clarence Walker, appeals from a motion for summary judgment granted in favor of the respondent, Paul J. Klincar of the Illinois Prisoner Review Board (the Board). We reverse.

The record reveals that in March of 1968, Walker was convicted of rape, armed robbery, and attempted murder. Walker’s first parole hearing was held in 1977, and annual rehearings were held from 1978 to 1989. After being denied parole in February of 1989, Walker’s next rehearing was scheduled for February of 1992.

On March 30, 1989, Walker filed a petition for writ of mandamus alleging that he was entitled to annual parole rehearings under section 3 — 3—5(f) of the Unified Corrections Code of 1973 (the Code) (Ill. Rev. Stat. 1973, ch. 38, par. 1003 — 3—5(f)). He further alleged that the continuance of his parole hearing for three years under a 1988 amendment to section 3 — 3—5(f) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 3—5(f)) violated the constitutional prohibition against ex post facto laws. On May 22, 1989, Walker filed an amended petition adding the allegation that the reasons given for denying his parole request violated his right to due process and were constitutionally inadequate.

The Board subsequently filed a motion to dismiss arguing that the 1988 amendment to section 3 — 3—5(f) which allowed the Board to extend the time between parole rehearings to three years was a procedural change that did not affect Walker’s substantive rights. Additionally, the Board argued that the reasons given for the denial of parole complied with due process requirements and were constitutionally adequate.

The circuit court granted the Board’s motion to dismiss and Walker appealed. On September 12, 1990, this court affirmed the dismissal of Walker’s petition. (Walker v. Klincar (3d Dist. 1990), No. 3 — 90—0097 (unpublished order under Supreme Court Rule 23).) In so doing, we concluded that the 1988 amendment to section 3 — 3—5(f) was a procedural change which did not disadvantage Walker. We also concluded that the reasons given by the Board for denying Walker’s parole were constitutionally adequate.

One week later, the Illinois Supreme Court decided Tiller v. Klincar (1990), 138 Ill. 2d 1, 561 N.E.2d 576. In that case, our supreme court was faced with the same basic issues that were raised by Walker. The court concluded that the 1988 amendment to section 3— 3 — 5(f) violated the constitutional prohibition against ex post facto laws. However, the court further found that the reasons given for denying parole complied with due process requirements and were constitutionally adequate.

Subsequent to the Tiller decision, Walker filed a petition for leave to appeal in the Illinois Supreme Court. In that petition, Walker argued that this court’s September 12, 1990, order was in direct conflict with Tiller on the ex post facto issue.

The Illinois Supreme Court allowed Walker’s petition for leave to appeal and exercised its supervisory authority to reverse the judgments of both this court and the circuit court. The court further ordered that the cause be remanded to the circuit court for further proceedings consistent with Tiller.

On remand, the Board filed a motion for summary judgment alleging that section 3 — 3—5(f) was not ex post facto as applied to Walker. The Board argued that Walker was not entitled to annual parole hearings because, unlike the prisoner in Tiller, Walker was convicted prior to enactment of the law requiring annual parole board hearings.

On August 27, 1992, the circuit court entered summary judgment in the Board’s favor. Walker appeals.

On appeal, Walker raises two issues. First, he contends that the circuit court erred in concluding that section 3 — 3—5(f) was not ex post facto as applied to him. Second, he argues that the reasons given for denying parole did not comply with due process requirements and were constitutionally inadequate.

Before we reach these issues, we must address the Board’s contention that we do not have jurisdiction to hear this case. The Board notes that the circuit court entered summary judgment only on the ex post facto issue and that no final order was entered on the due process issue. The Board contends that we do not have jurisdiction since the judgment was not dispositive of all of the claims. See 134 Ill. 2d Rules 301, 304.

• 1 We begin by noting that we previously determined that Walker’s due process issue was without merit in our September 12, 1990, order. (Walker v. Klincar (3d Dist. 1990), No. 3 — 90—0097 (unpublished order under Supreme Court Rule 23).) Walker’s petition for leave to appeal from that order raised only the ex post facto issue, not the due process issue. Accordingly, the only issue properly before the supreme court was the ex post facto issue. See People v. Anderson (1986), 112 Ill. 2d 39, 490 N.E.2d 1263.

Since the reversal and subsequent remandment were premised entirely on the ex post facto issue, that issue was the only issue properly before the circuit court on remand. (See People ex rel. Daley v. Schreier (1982), 92 Ill. 2d 271, 442 N.E.2d 185.) Further, because the circuit court’s granting of summary judgment based on the ex post facto issue was dispositive of all the issues properly before the court, the judgment was final and appealable. See 134 Ill. 2d Rules 301, 304.

Although we have jurisdiction to hear the ex post facto issue, we note that Walker’s due process claim was properly before neither the supreme court nor the circuit court on remand. Thus, we may not reconsider that issue. The due process claim remains res judicata based on our September 12, 1990, order. Accordingly, we turn our attention to Walker’s contention that the circuit court erred in concluding that section 3 — 3—5(f) was not ex post facto as applied to him.

Prior to 1973, annual parole rehearings were not statutorily required. (Ill. Rev. Stat. 1967, ch. 38, par. 123 — 1 et seq.) In 1973, section 3 — 3—5(f) of the Code became effective and required annual parole rehearings. (Ill. Rev. Stat. 1973, ch. 38, par. 1003 — 3—5(f).) In 1988, section 3 — 3—5(f) was amended so that annual parole rehearings were no longer required. Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 3— 5(f).

In Tiller v. Klincar (1990), 138 Ill. 2d 1, 561 N.E.2d 576, the supreme court made it clear that the 1988 version of section 3 — 3—5(f) was an ex post facto law when applied to persons convicted while the 1973 version of section 3 — 3—5(f) was in effect.

The Board argues that Tiller is not controlling in the instant case. The Board contends that the 1988 version of section 3 — 3—5(f) is not an ex post facto law when applied to Walker since he was convicted prior to the 1973 enactment of section 3 — 3—5(f). We disagree.

We begin by noting that our supreme court explicitly remanded the instant cause “for further proceedings consistent with Tiller.” From this we conclude that our supreme court has decided to extend the ex post facto holding in Tiller to defendants such as Walker who were convicted prior to the 1973 enactment of section 3— 3 — 5(f).

Even if we were not bound by the supreme court’s order, we would still conclude that section 3 — 3—5(f) was ex post facto as applied to Walker. Section 3 — 3—5(f) merely codified the Board’s general practice of allowing parole rehearings every 12 months. (See 730 ILCS 5/ 3 — 3—5(f), Council Commentary, at 56 (Smith-Hurd 1992); see also People ex rel. Jones v. Brantley (1970), 45 Ill. 2d 335, 259 N.E.2d 33.) Thus, it would be inconsistent to provide annual parole rehearings for prisoners convicted subsequent to the 1973 enactment of section 3— 3 — 5(f) while not providing such hearings for prisoners convicted prior to the enactment of section 3 — 3—5(f).

Finally, we note that subsequent to the Tiller ruling, the Board has provided annual parole rehearings for other prisoners, who, like Walker, were convicted prior to enactment of the 1973 version of section 3 — 3—5(f). (See Goins v. Klincar (1992), 225 Ill. App. 3d 961, 588 N.E.2d 420; Sterling v. Klincar (1992), 226 Ill. App. 3d 675, 589 N.E.2d 1149.) We see no reason to treat Walker differently from those other similarly situated prisoners.

For the reasons set forth above, we reverse the circuit court’s summary dismissal of Walker’s ex post facto claim and order that Walker is entitled to annual parole rehearings.

Reversed.

BRESLIN and LYTTON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BRESLIN

license: Public Domain

text:
    BERT B. CLARK, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF BRADLEY et al., Defendants-Appellees.
    Third District
    No. 3 — 92—0637
    Opinion filed May 14, 1993.

      Roger C. Elliott, of Elliott & McClure, of Momence (Paul E Michel, of counsel), for appellant.
    Alan F. Smietanski, of Kankakee, for appellee David Greenstreet.
    Thomas F. McGuire & Associates, Ltd., of Long Grove (Thomas F. McGuire, of counsel), for other appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

The plaintiff, Bert B. Clark, challenged the decision of the defendants, Police Chief David Greenstreet and the Board of Fire and Police Commissioners of the Village of Bradley (hereinafter the Board) to terminate his employment as a police officer for the Village of Bradley. The trial court upheld the decision of the Board. We affirm.

Following an investigation into his activities on June 5, 1990, four charges were brought against Officer Clark. The first charge alleged official misconduct in violation of section 33 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 33 — 3) inasmuch as Officer Clark failed to investigate a violation of the criminal law, failed to make a written report and failed to arrest persons who were acting in violation of the criminal law. The second charge alleged obstructing justice in violation of section 31 — 4 (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 4) inasmuch as Officer Clark knowingly erased an audio tape belonging to the police department with the intent to prevent apprehension of or prosecution of himself or someone else on a criminal charge. The third charge alleged bribery in violation of section 33 — 1 (Ill. Rev. Stat. 1989, ch. 38, par. 33 — 1) inasmuch as Officer Clark had attempted to influence the testimony of dispatcher Klingler by offering him employment and money for his defense fund. The fourth charge alleged conspiracy in violation of section 8 — 2 (Ill. Rev. Stat. 1989, ch. 38, par. 8 — 2) inasmuch as Officer Clark and trustee Robert Redmond agreed to commit the offense of official misconduct.

The record reveals that on June 5, 1990, Officer Clark was on duty patrolling the streets of Bradley. Between 9:30 p.m. and 10 p.m. the police dispatcher (dispatcher Klingler) received two phone calls complaining of a teenage drinking party taking place at 248 South Blaine Street. After the second call, dispatcher Klingler sent Officer Clark to investigate.

The party was being held at the home of Bob Redmond, a trustee for the Village of Bradley. When Officer Clark arrived, a young man, later identified as Ronald Malnar, Jr., was sitting on the front porch holding a walkie-talkie and drinking from a can of Coke. Malnar testified that while he and Officer Clark waited for Redmond to come out of the house, Officer Clark remarked that there were a lot of kids in the house and Malnar replied that there were. Officer Clark then asked what the kids were drinking, and Malnar responded, “Budweiser and stuff like that.” Malnar further testified that'when Redmond appeared, Officer Clark informed Redmond of the complaints and volunteered to try to find out who had made the calls.

Malnar testified that after his first visit, Officer Clark returned to the Redmond home, this time approaching the back door. He asked "Redmond when the party would end and advised Redmond to keep the noise down. Officer Clark further advised Redmond that he believed at least one of the complaints had come from the two women who were "visiting at a house across the street from the Redmond home.

According to dispatcher Klingler and the written log of radio transmissions, after his initial contact with Robert Redmond, Officer Clark radioed the station to report that he had investigated the party, that there were no parking problems and no signs of underage drinking.

After clearing from the scene, Officer Clark appeared at the Bradley police station and spoke with Klingler about the phone calls complaining of the party at Redmond’s home. Klingler replayed the second complaint call so Officer Clark could try to identify the voice. Klingler testified that shortly after this he saw Officer Clark in the room which contained the main tape deck. According to Klingler, only dispatchers, lieutenants and the chief were allowed in that room, and he did not know whether Clark had authorization to be there. A later check of the tape revealed that there was no recording of the radio transmission Officer Clark had made from the scene of the party.

Dispatcher Klingler further testified that after the chief of police ordered an investigation into the actions of Officer Clark on the night in question, Officer Clark spoke with him several times about the radio transmission made from the Redmond home on the night of the party. Officer Clark repeatedly insisted that he had not cleared by radio from the party, but that he had cleared when he arrived back at the station. Officer Clark also offered Klingler a part-time job maintaining security at a local festival and offered to give Klingler $100 to use for paying Klingler’s attorney.

At the hearing before the Board, Officer Clark objected to the participation of two members of the Board, arguing that they could not serve because they had not posted a bond as required by statute. He further argued that the department rules were invalid because they were based on an unconstitutional delegation of authority to the police chief. However, the Board found Officer Clark guilty of the charges by a preponderance of the evidence and terminated his employment.

This case presents four issues for our consideration: (1) whether the alleged failure of two of the commissioners to post a bond deprived the Board of its power to hear the case; (2) whether the police department rules are based upon an unconstitutional delegation of power to the chief of police; (3) whether the Board was required to find Officer Clark guilty of the charges by clear and convincing evidence; and (4) whether the Board’s decision was against the manifest weight of the evidence.

As to the first issue, Officer Clark argues that the Board lacked the power to rule on his case because two of the commissioners had not posted a bond as required by statute.

Section 3 — 14—3 of the Illinois Municipal Code requires all municipal officers to post a bond of security when taking office. (Ill. Rev. Stat. 1991, ch. 24, par. 3 — 14—3.) However, a person actually performing the duties of a position is an officer de facto and his acts are valid as against the public or third parties. (Swanson v. Board of Police Commissioners (1990), 197 Ill. App. 3d 592, 555 N.E.2d 35.) Thus it appears that the lack of a bond is a proper argument only in disputes between the municipality and the municipal officeholder who is required to post the bond. Such is not the situation before us, and therefore, we hold that the alleged failure of two commissioners to post a bond did not deprive the Board of its authority to render a decision in Officer Clark’s case.

With regard to the second issue, Officer Clark argues that the regulations he has been accused of violating are invalid because they are based on an unconstitutional delegation of authority to the chief of police.

Although the complaint against Officer Clark alleges the existence of police department rules, it does not allege that Officer Clark violated those rules. Its allegations of wrongdoing are based solely on the criminal code. Therefore, we need not determine the validity of the rules.

Third, Officer Clark argues that he cannot be terminated for a violation of the criminal law unless his guilt is proven by clear and convincing evidence.

In Drezner v. Civil Service Comm’n (1947), 398 Ill. 219, 75 N.E.2d 303, the Illinois Supreme Court issued the following apparently self-contradictory statement: “While we adopt and hold that the charge need only be proved by a preponderance of the evidence, *** we believe that the evidence of guilt should be clear and convincing.” Drezner, 398 Ill. at 227, 75 N.E.2d at 307.

Interpretation of the Drezner decision led to two lines of cases. One line espoused the rule that when a crime is charged in a civil proceeding, the evidence must be clear and convincing. (See Wilkey v. Illinois Racing Board (1978), 65 Ill. App. 3d 534, 381 N.E.2d 1380; Shallow v. Police Board (1981), 95 Ill. App. 3d 901, 420 N.E.2d 618; Savaglio v. Board of Fire & Police Commissioners (1984), 125 Ill. App. 3d 391, 465 N.E.2d 1065.) The other line espoused the preponderance of the evidence standard. See Board of Education of St. Charles Community Unit School District No. 303 v. Adelman (1981), 97 Ill. App. 3d 530, 423 N.E.2d 254; Feliciano v. Illinois Racing Board (1982), 110 Ill. App. 3d 997, 443 N.E.2d 261; Carrigan v. Board of Fire & Police Commissioners (1984), 121 Ill. App. 3d 303, 459 N.E.2d 659.

The Illinois Supreme Court addressed the issue again in Board of Education v. State Board of Education (1986), 113 Ill. 2d 173, 497 N.E.2d 984. In Board of Education, the court balanced the public interest against the private interests in determining that the preponderance of the evidence standard is the correct standard of proof in tenured-teacher dismissal proceedings when a violation of the criminal law has been alleged. However, the court specifically limited its decision to tenured-teacher dismissals and opined that “in certain proceedings the private interests involved may be such as to require a different standard of proof.” Board of Education, 113 Ill. 2d at 189, 497 N.E.2d at 990.

Although we are aware of cases in which courts have applied the preponderance of the evidence standard in police officer dismissal cases (see Thornton v. University Civil Service Merit Board (1987), 154 Ill. App. 3d 1016, 507 N.E.2d 1262; Schlobohm v. Rice (1987), 157 Ill. App. 3d 90, 510 N.E.2d 43; Martin v. Thompson (1990), 195 Ill. App. 3d 43, 551 N.E.2d 1081), we decline to follow these cases inasmuch as they cite Board of Education as authority for using the standard without applying the balancing test outlined in the case. This approach disregards the self-limiting language of the Board of Education opinion. Therefore, we will apply the test set forth in Board of Education to determine the proper standard of proof for police officer dismissal cases which involve allegations of violations of the criminal law.

The first balancing factor in the test is the private interest sought to be protected. This “requires inquiry into both the nature of the private interest threatened and the permanency of the threatened loss.” (Board of Education, 113 Ill. 2d at 192, 497 N.E.2d at 992.) The nature of the loss encompasses the monetary interest of the plaintiff in remaining employed. This monetary interest is shared by all police officers whose employment is terminated. The loss is no greater for an officer charged with a violation of a criminal statute. The officer’s monetary loss is adequately protected by the preponderance of the evidence standard. See Board of Education, 113 Ill. 2d at 192, 497 N.E.2d at 992.

The permanency of the loss encompasses the plaintiff’s professional interest in his/her chosen career. In Board of Education, the court distinguished between the interests of a teacher and an attorney in their chosen professions. A teacher dismissed for allegedly criminal conduct retains his/her teaching certificate and therefore may continue to teach despite the termination. An attorney charged with criminal conduct, however, may lose his/her license to practice law and consequently his/her career and livelihood. Therefore, the applicable standard in attorney disciplinary hearings should be higher than in teacher dismissal hearings. See Board of Education, 113 Ill. 2d at 193, 497 N.E.2d at 992.

Although Officer Clark claims that a police officer discharged for cause “faces the prospect of never again being hired in his chosen profession,” that statement applies equally to all officers discharged for cause and the burden does not fall more heavily on officers charged with criminal conduct. Further, a police officer discharged for cause or for allegedly criminal conduct is not barred by law from attaining a position with another police force. See Ill. Rev. Stat. 1991, ch. 24, par. 10 — 2.1—6.

Therefore, we find that a police officer’s position is more like that of a teacher than an attorney, and a preponderance of the evidence standard adequately protects a police officer’s professional interests.

The second factor articulated in Board of Education is the public or government interest. Just as a school district has an interest in dismissing teachers who violate the law and as such are poor role models for the youngsters they teach, a police department has an interest in making sure its officers are enforcing the laws they are sworn to uphold. Thus, as in Board of Education, it is in the public’s interest to apply a standard to police officer dismissals which reduces the risk of error that may result in an unfit person remaining a police officer. See Board of Education, 113 Ill. 2d at 194, 497 N.E.2d at 993.

We conclude that the possible harm to each party in police officer dismissals is roughly equal. Thus, it is appropriate for the parties to share the risk of error and a preponderance of the evidence standard is sufficient. See Board of Education, 113 Ill. 2d at 194, 497 N.E.2d at 993.

Consequently, we hold that the Board applied the appropriate standard of proof when it found Officer Clark guilty of the charges by a preponderance of the evidence.

Lastly, Officer Clark argues that the Board’s findings with regard to the guilt of Officer Clark are against the manifest weight of the evidence and further that the Board’s decision to discharge Officer Clark was arbitrary and unreasonable.

With regard to the Board’s determination that Officer Clark is guilty of the charges against him, the appellate court’s function is not to reweigh the evidence or substitute its judgment for the judgment of the Board but only to determine whether enough evidence exists to support the Board’s findings. (Burgett v. City of Collinsville Board of Fire & Police Commissioners (1986), 149 Ill. App. 3d 420, 50 N.E.2d 951.) If the findings are based upon facts established by competent evidence, they are considered prima facie true and correct. Flosi v. Board of Fire & Police Commissioners (1991), 221 Ill. App. 3d 858, 582 N.E.2d 185.

After carefully reviewing the record on appeal, we hold that the decision of the Board is not against the manifest weight of the evidence. While it may be possible to cast an innocent light on some of Officer Clark’s activities, it is also at least equally possible to find guilt in the same activities. It is the function of the Board to determine the credibility of the witnesses (Hruby v. Board of Fire & Police Commissioners (1974), 22 Ill. App. 3d 445, 318 N.E.2d 132), and we have determined that there is sufficient evidence to uphold its decision.

With regard to the Board’s determination that Officer Clark should be discharged, the agency’s finding is not considered prima facie true and correct and is subject to judicial review. (Christenson v. Board of Fire & Police Commissioners (1980), 83 Ill. App. 3d 472, 404 N.E.2d 339.) However, the finding will not be disturbed as long as it is related to the requirements of service and is not so trivial as to be arbitrary or unreasonable. Humbles v. Board of Fire & Police Commissioners (1977), 53 Ill. App. 3d 731, 368 N.E.2d 1049.

A police officer may not be discharged except for cause. (Ill. Rev. Stat. 1991, ch. 24, par. 10 — 2.1—17.) Cause has been defined as “some substantial shortcoming which renders the employees [sic] continuance in office some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognizes [sic] as good cause for his no longer holding the position.” Hruby v. Board of Police & Fire Commissioners (1974), 22 Ill. App. 3d 445, 453, 318 N.E.2d 132, 138.

A police officer’s refusal to enforce the law is perhaps the most substantial shortcoming possible. It is clearly detrimental to the discipline and efficiency of the police force, and there can be no doubt that the law and sound public opinion recognize it as good cause for the officer’s dismissal. Therefore, we find that the Board’s decision to discharge Officer Clark is not arbitrary or unreasonable.

Because we find that the Board’s findings regarding Officer Clark’s guilt are not against the manifest weight of the evidence and further find that the Board’s determination of cause for discharge is not arbitrary or unreasonable, we hold that the trial court did not err in affirming the Board’s decision.

We hold that each of Officer Clark's arguments fails, and therefore we affirm the judgment of the circuit court of Kankakee County.

Affirmed.

LYTTON and SLATER, JJ., concur.


author: JUSTICE STOUDER

text:
    SHIRLEY EYMAN, Plaintiff-Appellant, v. McDONOUGH DISTRICT HOSPITAL, Defendant-Appellee.
    Third District
    No. 3-92-0627
    Opinion filed May 14, 1993.
    Cusack & Fleming, P.C., of Peoria (Michael A. Fleming, of counsel), for appellant.
    Flack, McRaven & Stephens, of Macomb (A. Anthony Ashenhurst, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff, Shirley Eyman, filed a complaint for declaratory judgment against the defendant, McDonough District Hospital. The defendant filed a motion to dismiss, claiming that the plaintiff was improperly seeking a declaration of nonliability for past conduct. The circuit court granted the defendant’s motion and also denied the plaintiff’s oral motion for leave to file an amended complaint alleging breach of contract. The plaintiff appeals to this court, asking us to consider the following issues: (1) whether the circuit court abused its discretion in dismissing the plaintiff’s declaratory judgment complaint with prejudice, and (2) whether the circuit court abused its discretion in refusing to allow the plaintiff to amend her complaint. For the following reasons, we affirm the judgment of the circuit court.

On June 19, 1992, the plaintiff filed a complaint for declaratory judgment. In the complaint, the plaintiff alleged that she entered into a physician recruitment agreement with the defendant, whereby she was to serve as medical director of the defendant’s inpatient psychiatry unit. This unit was to be established by the defendant. The following financial incentives were offered the plaintiff in article II of the agreement: (1) $5,000 in moving expenses, and (2) guaranteed income of $10,416.66 per month, or $125,000 per year, by paying her the difference between this figure and the net income from her practice.

The plaintiff alleged that the defendant materially breached the physician recruitment agreement by failing to establish a psychiatry unit within a reasonable time. On May 27, 1991, the plaintiff sent a letter to the defendant, giving it notice that the agreement was terminated effective June 27, 1991. The plaintiff stated in her complaint that the defendant had advanced certain funds to her under article II of the agreement, and she claimed that she was entitled to retain those funds.

The contract contained various provisions with respect to breach. If the hospital terminated the contract due to a breach by the plaintiff, or if the plaintiff chose to exercise her right to quit at any time with a 30-day notice, then, if this occurred before the second anniversary of the contract, the plaintiff would be obligated to repay all monies; if this occurred after the second anniversary but before the third, the plaintiff would repay only 65% of the advances; and if the plaintiff served out the three-year contract period, she would be completely forgiven and would make no repayment. If the contract was terminated due to a material breach by the defendant, the plaintiff was entitled to retain any funds advanced to her under article II prior to the termination date. These funds would serve as liquidated damages.

The defendant filed a motion to dismiss the plaintiff’s complaint. In the motion, the defendant claimed that the plaintiff was seeking a declaration of nonliability for her past conduct in terminating the agreement. The defendant cited Howlett v. Scott (1977), 69 Ill. 2d 135, 370 N.E.2d 1036, for the proposition that a declaration of nonliability for past conduct is not a function of the declaratory judgment statute. On July 31, 1992, the court entered an order granting the defendant’s motion. The court also denied the plaintiff’s oral motion for leave to file an amended complaint alleging breach of contract.

The plaintiff first argues on appeal that the circuit court abused its discretion in dismissing her declaratory judgment complaint with prejudice. The plaintiff argues that she was asking the court to construe a contract between the parties, rather than seeking a declaration of nonliability for past conduct. We disagree.

The central purpose of the declaratory judgment procedure is to allow the court to address a controversy one step sooner than normal after a dispute has arisen, but before steps are taken which would give rise to a claim for damages or other relief. (Senese v. Climatemp, Inc. (1991), 222 Ill. App. 3d 302, 582 N.E.2d 1180.) The declaratory judgment procedure allows parties to a dispute to learn the consequences of their action before acting. (Buege v. Lee (1978), 56 Ill. App. 3d 793, 372 N.E.2d 427.) A declaration of nonliability for past conduct is not a function of the declaratory judgment statute. (Chicago & Eastern Illinois R.R. Co. v. Reserve Insurance Co. (1981), 99 Ill. App. 3d 433, 425 N.E.2d 429.) The granting or denying of declaratory relief rests within the sound discretion of the trial court, and the appellant must affirmatively show an abuse of discretion. Marlow v. American Suzuki Motor Corp. (1991), 222 Ill. App. 3d 722, 584 N.E.2d 345.

Despite the plaintiff’s attempt to cast her pleading in a different light, it is apparent to us that she is seeking a declaration of nonliability for past conduct. The plaintiff asked the court to determine that she properly terminated the agreement and that she was entitled to retain the funds previously advanced to her as liquidated damages. She had already embarked on a course of conduct and wanted the court to find her not liable.for that conduct. She was not seeking to learn the consequences of her actions before acting. The plaintiff tries to distinguish her case by stating that she also asked the court to declare that the defendant materially breached the contract. Nevertheless, a breach of contract claim is an action at law and is not a proper subject for a declaratory judgment. (Flashner Medical Partnership v. Marketing Management, Inc. (1989), 189 Ill. App. 3d 45, 545 N.E.2d 177.) We find no abuse of discretion by the circuit court.

As a further matter, we note that the plaintiff’s complaint was insufficient to state a cause of action for declaratory judgment because it did not disclose an actual controversy between the parties. In order to maintain a declaratory judgment action, there must be an actual controversy between the parties, capable of being affected by a determination of the controversy. (Reagor v. Travelers Insurance Co. (1980), 92 Ill. App. 3d 99, 415 N.E.2d 512.) The plaintiff’s complaint alleged, in conclusional fashion, that there was an actual controversy between the parties, but pled no facts indicating such a controversy. Legal conclusions unsupported by allegations of specific facts are insufficient to state a cause of action. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 520 N.E.2d 37.) The plaintiff apparently believes that she can cure this defect in pleading by including facts foreign to the record in her appellate brief. The plaintiff states in her brief that the hospital wrote to her and accused her of a breach of contract, declared a termination of the contract if she failed to cure her breach, and asked for reimbursement of contract payments made to her if she failed to cure the breach. These “facts” have no basis in the record and will not be considered by this court on appeal. See Finance America Commercial Corp. v. Econo Coach, Inc. (1981), 95 Ill. App. 3d 185, 419 N.E.2d 935.

The plaintiff next argues that the trial court abused its discretion in refusing to allow her to amend her complaint. The plaintiff apparently made an oral motion for leave to file an amended complaint, alleging breach of contract and seeking damages. The allowance of amendment to the pleadings is within the sound discretion of the trial court, and a refusal to allow amendment is reversible error only if there is an abuse of discretion. (City of Des Plaines v. Pollution Control Board (1978), 60 Ill. App. 3d 995, 377 N.E.2d 114.) The plaintiff did not present the proposed amendment to the trial court, nor did she incorporate it into the record on appeal. Therefore, we are unable to review the soundness of the trial court’s ruling and must assume that the denial of the motion was not an abuse of discretion. See Erzrumly v. Dominick’s Finer Foods, Inc. (1977), 50 Ill. App. 3d 359, 365 N.E.2d 684.

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

Affirmed.

LYTTON and BRESLIN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES J. WESTERFIELD, a/k/a Charles J. Lard, Defendant-Appellant.
    Third District
    No. 3 — 92—0861
    Opinion filed May 17, 1993.
    Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Larry VanDerSnick, State’s Attorney, of Cambridge (John X. Breslin and Lawrence Michael Kaschak, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Charles J. Westerfield, was charged by information with one count of unlawful possession of a controlled substance with intent to deliver and one count of unlawful possession of a controlled substance. Following a stipulated bench trial, the defendant was found guilty of the former charge and sentenced to five years’ imprisonment. On appeal, the defendant raises the following issues: (1) whether, where defense counsel did not merely stipulate to the State’s evidence, but to the sufficiency of that evidence to sustain a conviction, guilty plea admonishments pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402) were required; (2) whether the defendant received ineffective assistance of counsel; and (3) whether the defendant’s street-value fine should be reduced and then vacated. Because we find that Rule 402 admonishments were required on the facts of this case, we reverse and remand for a new trial.

On July 22, 1992, the defendant filed a motion to suppress evidence claimed to be illegally seized. The defendant alleged in his motion that property had been seized from his person during a search conducted without a warrant or probable cause to search or arrest him. Following a hearing on September 16, 1992, the circuit court denied the motion.

On September 21, 1992, the case came before the court for trial. The defendant waived his right to a jury trial in open court and indicated through counsel that he intended to stipulate that the evidence presented at the preliminary hearing and the hearing on the motion to suppress would be proved at trial. The defense counsel also stated that he agreed “that there’s sufficient evidence to prove [the defendant] guilty beyond a reasonable doubt.” The State then read a stipulated statement of facts that summarized the evidence presented at the suppression hearing and further indicated that the substance found on the defendant was cocaine. The cumulative weight of the cocaine was 5.3 grams. Defense counsel informed the court that the facts were strictly stipulated. The court found the defendant guilty of the count charging possession with intent to deliver and set the cause for sentencing.

At the sentencing hearing on October 30, 1992, the defendant presented a post-trial motion in which he contended that his motion to suppress evidence had been wrongly decided. The court denied the motion. The defendant testified that he would comply with the terms and conditions of probation, the disposition he had requested in an earlier letter to the court. Defense counsel argued that a sentence of imprisonment was not what the defendant needed. The State responded that the defendant was ineligible for probation based upon the amount of cocaine he was found guilty of possessing. The trial judge and defense counsel indicated that they had assumed defendant could be put on probation. The trial judge then stated that he might not have granted probation anyway. The court subsequently sentenced the defendant to five years’ imprisonment and ordered that he pay a street-value fine of $840.

On appeal, the defendant argues that his conviction should be vacated and the cause remanded because the trial court failed to apprise him of the mandatory sentencing consequences of his conviction. The defendant’s argument is based on the supreme court’s decision People v. Horton (1991), 143 Ill. 2d 11, 570 N.E.2d 320. In Horton, the supreme court held that when a defendant in a stipulated bench trial stipulates not only to the evidence, but also to the sufficiency of the evidence to convict, the proceeding is tantamount to a guilty plea, thus requiring Rule 402 admonishments. This is true even when the defendant preserves a defense for appeal. (See Horton, 143 Ill. 2d at 22, 570 N.E.2d at 325.) In that case, the supreme court was faced with two separate stipulated bench trials and found that guilty plea admonishments were required in only one of them. In the first trial, the defense counsel stipulated to the facts and conceded in closing argument that the evidence was sufficient to convict. Because comments made in closing arguments are not considered evidence, the court found that the defendant had not stipulated that the evidence was sufficient to sustain a conviction. The court found that the proceeding was not tantamount to a guilty plea. (Horton, 143 Ill. 2d at 21, 570 N.E.2d at 324.) In the second trial, defense counsel stipulated not only to the evidence but to the sufficiency of the evidence to sustain a conviction. After the State presented the stipulated facts, the defense counsel stated “[b]ut in terms of [the] sufficiency of the evidence, we are stipulating.” The court found that guilty plea admonishments were required because the defendant was stipulating not only to the evidence but to the legal conclusion to be drawn from the evidence. Horton, 143 Ill. 2d at 22, 570 N.E.2d at 325.

Our analysis, therefore, must necessarily focus on whether the defense counsel in the instant case merely commented during argument that the evidence was sufficient to convict, or whether he was stipulating to that fact. The defense counsel’s remarks in this regard were as follows:

“THE COURT: Why don’t you go ahead and state for the record what your intentions are.
MR. STOCKTON: Your honor, we have it set for pretrial conference; however, we are — well, not however; he is prepared to waive jury and then stipulate to the evidence that’s been presented previously at the preliminary hearing and the motion to suppress evidence. That would be what would be presented as evidence at that trial, and therefore agree that there’s sufficient evidence to prove him guilty beyond a reasonable doubt, and then the matter would have to be set for sentencing, as far as I know.”

It is apparent to us from the above passage that defense counsel was stipulating that the evidence was sufficient to convict the defendant. The defense counsel, by his own statement, believed that the matter was essentially ready for sentencing. The State argues that the above comment was made in the argument portion of the proceeding rather than in the trial portion. However, we find that the State is being disingenuous in this respect, as the proceeding in the instant case was not divided into evidentiary and argument phases. The case was called, the defense counsel made the above-quoted remark, the judge admonished the defendant of various rights he was giving up, the State read the stipulated facts, and the court entered the conviction. The State argues that the above-quoted statement was made “far in advance” of the reading of the stipulated facts. An examination of the transcript of the proceeding shows the above comment was made two pages before the court asked for the facts to be read. In fact, the entire bench trial proceeding, from the calling of the case to the entry of conviction, occupied only six pages of transcript. The defense counsel’s above-quoted remarks at the beginning of the proceeding indicated that the “trial” was going to be a mere formality.

As further support for our holding, we note that the trial judge himself apparently believed that Rule 402 admonishments were necessary. The judge told the defendant that the proceeding was the “next closest thing to pleading guilty,” and that “it’s still like pleading guilty except you’re not admitting.” The trial judge then went on to give the defendant most of the Rule 402 admonishments, but left out the one most critical to this defendant — the minimum and maximum sentences prescribed by law. The defendant had proceeded to that point on the assumption that he could be given probation for the charged offense.

The State has argued in the alternative that we should find that the court substantially complied with Rule 402, but we cannot do so when the court omitted the most important admonishment to this particular defendant. “Defendants are entitled to be properly advised of the consequences of their acts, whether they are entering a plea of guilty or stipulating to evidence for a bench trial.” People v. Jones (1991), 212 Ill. App. 3d 570, 574, 571 N.E.2d 278, 281.

For the reasons stated, we reverse the defendant’s conviction and remand the cause for a new trial. Our resolution of this issue in the defendant’s favor renders unnecessary a discussion of the other issues raised.

Reversed and remanded.

McCUSKEY, P.J., and SLATER, J., concur.


author: JUSTICE LYTTON

text:
    LARRY HOMERIN, Plaintiff-Appellant, v. MID-ILLINOIS NEWSPAPERS, d/b/a Pekin Daily Times, Defendant-Appellee.
    Third District
    No. 3-92-0642
    Opinion filed May 19, 1993.
    Burt L. Dancey, of Elliff, Keyser, Oberle & Davies, P.C., of Pekin (William P. Streeter, of counsel), for appellant.
    Frederick A. Bernardi, of Pekin, for appellee.
   JUSTICE LYTTON

delivered the opinion of the court:

Plaintiff, Larry Homerin, former mayor of the City of Pekin, filed this libel action in the circuit court of Tazewell County seeking damages against defendant, Mid-Illinois Newspapers, doing business as Pekin Daily Times. The circuit court granted defendant’s motion to dismiss on the basis of the “modified innocent construction” rule. We affirm.

On April 13, 1990, defendant published a political cartoon depicting a grinning, white male character wearing glasses and a cowboy-type hat. The character was holding a bag with the initials of “FBOP” and five dollar signs ($) on the front of the bag. Around the head of the character appeared the words “CROCODILE DONE-DEAL.”

Plaintiff filed a complaint against defendant alleging that defendant acted with actual malice and intended to injure plaintiff’s good name and reputation by publishing the cartoon. Plaintiff claimed that the cartoon communicated a lack of integrity on his part in the discharge of his duties as the mayor of Pekin and as a member of city council. Plaintiff alleged that the cartoon suggested that his decisions as a public official were done for personal gain and profit, and that he received money from the Federal Bureau of Prisons. At the time the cartoon was published, the issue of whether a Federal prison site could be located in Pekin was before the city council. Plaintiff claimed that the publication was false and prayed for compensatory and punitive damages.

Defendant moved to dismiss the complaint pursuant to section 2— 615 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.) Defendant raised the following arguments to support the motion to dismiss: that the cartoon was constitutionally protected speech under the first amendment of the United States Constitution; that the cartoon could not be considered defamatory per se because it did not name or identify the plaintiff, and because it was necessary to provide extrinsic facts to establish the alleged defamatory meaning; that the cartoon was susceptible to a reasonable innocent interpretation; that the complaint failed to allege actual malice; and that the complaint could not form the basis of an action per quod because plaintiff failed to adequately plead special damages.

The circuit court granted defendant’s motion dismissing plaintiff’s complaint, but allowed plaintiff 28 days to replead. The court’s order, in relevant part, provided: “The Court finds that the publication is reasonably susceptible to an innocent construction and in addition, the Court finds that the complaint fails to allege special damages with particularity to sustain a per quod action.”

Plaintiff moved for reconsideration and clarification of the order. The circuit court issued a second order finding that plaintiff’s complaint had established actual malice, but reaffirmed its prior order in all other respects. The court gave plaintiff 14 days to amend his complaint; if he did not amend, the order would become final and appealable. Plaintiff chose to appeal the order as of right.

The sole issue for review is whether the circuit court erred in dismissing plaintiff’s complaint based on its finding that the cartoon was susceptible to a reasonable innocent interpretation.

A statement is considered to be defamatory if it tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with him. (Kolegas v. Heftel Broadcasting Corp. (1992), 154 Ill. 2d 1, 10, 607 N.E.2d 201.) Defamatory statements may be classified as being defamatory per se or per quod. Per se statements occur when the defamatory character is apparent on its face, and are typically within one of four classifications: (1) words which impute the commission of a criminal offense; (2) words that impute infection with a loathsome disease; (3) words that impute an inability to perform or want of integrity in the discharge of duties of office or employment; or (4) words that prejudice a party, or impute lack of ability in his trade, profession or business. (Kolegas, 154 Ill. 2d at 10.) Per se statements are so obvious and materially harmful to the plaintiff that injury to his or her reputation may be presumed. Kolegas, 154 Ill. 2d at 10.

Per quod statements, on the other hand, are not defamatory on their face and require extrinsic facts to explain their defamatory meaning. (Kolegas, 154 Ill. 2d at 10.) In the instant case, plaintiff waived any claims of error as to his per quod theory when he chose not to amend his complaint. He appealed the circuit court’s order on the basis that the court erred in applying the modified innocent construction rule to his theory of defamation per se. The modified innocent construction rule applies only to defamation per se. (Mittelman v. Witous (1989), 135 Ill. 2d 220, 232-33, 552 N.E.2d 973.) As such, this court’s discussion will be limited to a determination of whether the circuit court erred in its application of the modified innocent construction rule.

The modified innocent construction rule was announced in Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195.

“[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. (Chapski, 92 Ill. 2d at 352.)

Whether a statement is reasonably susceptible to an innocent construction is question of law to be decided by the trial court. (Kolegas, 154 Ill. 2d at 11.) The trial court, in determining whether the statement is defamatory, is required to focus on the predictable effect the statement had upon those who received the publication. Colson v. Stieg (1982), 89 Ill. 2d 205, 212, 433 N.E.2d 205.

In the instant case, the cartoon at issue was found by the circuit court not to be defamatory per se under the modified innocent construction rule. There are two avenues of defense under the rule. The first is whether the cartoon could “reasonably be interpreted as referring to someone other than the plaintiff.” (Chapski, 92 Ill. 2d at 352.) The second is where “the statement may reasonably be innocently interpreted.” Chapski, 92 Ill. 2d at 352.

The circuit court did not expressly state under which part of the rule the cartoon could be innocently construed. Under either part of the rule, we would affirm. First, the cartoon does not identify plaintiff by name. Even if his likeness could be reasonably interpreted as being depicted in the cartoon, his complaint is fatally flawed for failing to allege that the readers of the publication reasonably understood the cartoon to refer to him. Archibald v. Belleville New Democrat (1964), 54 Ill. App. 2d 38, 42, 203 N.E.2d 281; see Schaffer v. Zekman (1990), 196 Ill. App. 3d 727, 732, 554 N.E.2d 988 (plaintiff’s allegation that publication at issue was “of and concerning” defendant was conclusory and, therefore, insufficient to support a claim of defamation per se).

In addition, we find that the cartoon is susceptible to a reasonable innocent interpretation. Defendant suggests that the cartoon could be construed as meaning that plaintiff was successful in bringing the Federal Bureau of Prison’s money to the Pekin area. We agree that this is a reasonable innocent construction of the cartoon and gives the cartoon a nondefamatory meaning.

The circuit court’s decision to dismiss plaintiff’s complaint is affirmed.

Affirmed.

BRESLIN and STOUDER, JJ., concur.


author: PRESIDING JUSTICE McCUSKEY

text:
    JOSEPH T. MARROQUIN, SR., Plaintiff-Appellant, v. AUTO-OWNERS INSURANCE COMPANY, Defendant-Appellee.
    Third District
    No. 3 — 92—0690
    Opinion filed May 24, 1993.
    Anthony C. Raccuglia & Associates, of Peru (Louis L. Bertrand, of counsel), for appellant.
    Johnson, Martin, Russell, English, Scoma & Beneke, of Princeton (Daniel K. Russell, of counsel), for appellee.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The plaintiff, Joseph T. Marroquin, Sr., filed a complaint for a declaratory judgment against the defendant, Auto-Owners Insurance Company. The court entered an order granting the defendant’s motion for judgment on the pleadings. The plaintiff appeals from this order.

The sole issue raised by the plaintiff on appeal is whether the trial court erred in concluding that the plaintiff was not entitled to recover under his underinsured motorist coverage with the defendant. We affirm.

On August 13, 1991, the plaintiff was working as a flagman at a road construction site when he was struck by a car driven by Mabel Haas. Haas’ automobile liability insurance policy had a bodily injury coverage limit of $100,000 per person. The plaintiff settled with Haas’ insurer for the policy limits.

The plaintiff had purchased a policy of automobile insurance from the defendant which included underinsured motorist coverage in the amount of $50,000. The plaintiff filed a declaratory judgment action against the defendant. He sought a declaration that he was entitled to payment of $50,000 based upon his underinsured motorist coverage. The parties stipulated that the plaintiff’s actual compensatory damages exceeded $150,000.

The defendant filed a motion for judgment on the pleadings. The defendant noted it was undisputed that Haas’ policy limits were greater than plaintiff’s underinsured motorist coverage limits. As a consequence, the defendant argued the plaintiff was not entitled to any recovery based upon the language of the policy and based upon section 143a — 2 of the Illinois Insurance Code (Code) (Ill. Rev. Stat. 1991, ch. 73, par. 755a — 2). The trial court agreed and granted the defendant’s motion. We agree with the defendant’s analysis and the trial court’s ruling.

On appeal, the plaintiff relies on Hoglund v. State Farm Mutual Automobile Insurance Co. (1992), 148 Ill. 2d 272, 592 N.E.2d 1031, and argues the trial court erred in ruling he was not entitled to any recovery under his underinsured motorist coverage. We conclude that Hoglund is distinguishable on its facts and does not apply to this case.

In Hoglund, the court decided two consolidated cases. In both cases, the plaintiffs were passengers in uninsured motor vehicles. The uninsured vehicle in which each plaintiff was riding collided with another vehicle. In each case, the drivers of both vehicles were at fault. Each plaintiff claimed total damages in excess of $200,000. Each plaintiff recovered $100,000 from the insurance company of the driver of the other vehicle. Both plaintiffs then sought uninsured motorist benefits for the excess damages under their own policies. Hoglund, 148 Ill. 2d at 274, 592 N.E.2d at 1032-33.

Our supreme court held that the plaintiffs were entitled to recover uninsured motorist benefits. The court found the setoff provision in the insurance policies at issue was ambiguous when viewed in the light of the extrinsic evidence. (Hoglund, 148 Ill. 2d at 280, 592 N.E.2d at 1034-35.) The court concluded that the insurance companies could not set off the payment from the insured motorist’s coverage against the uninsured motorist coverage. Since both plaintiffs were injured by uninsured motorists, the Hoglund court determined that to deny coverage would be against public policy because “the insured would be denied the very insurance protection against uninsured motorists for which he had paid premiums.” (Emphasis added.) (Hoglund, 148 Ill. 2d at 280, 592 N.E.2d at 1035.) The court finally stated:

“We conclude that [the insurer], under its policy provision and under the statute, is entitled to a setoff for uninsured motorist coverage only to the extent necessary to prevent a double recovery.” Ill. 2d at 280-81, 592 N.E.2d at 1035.

Based upon Hoglund, the plaintiff argues he should be entitled to recover because the trial court’s ruling denied him the economic value of the premium he paid for his coverage. The plaintiff also argues that the language in the policy is ambiguous when it is considered “in conjunction with the extrinsic facts and extraneous evidence.” The plaintiff finally contends that he should not be denied recovery because an award under his policy would not result in a windfall or double recovery.

The plaintiff has made a valiant argument based upon the language of Hoglund. The fact is, however, that the plaintiff’s situation here is entirely different from that of the plaintiffs in Hoglund. The plaintiffs in Hoglund sought recovery under their uninsured motorist coverage. Equally important, the latent ambiguity found by the Hoglund court was based upon the fact there were two tortfeasors involved, one insured and one uninsured, a situation not squarely addressed by the setoff provisions of the Code related to uninsured motorist coverage (Ill. Rev. Stat. 1991, ch. 73, par. 755a(4)) or the setoff provisions of the plaintiffs’ insurance policies. Cf. Gibbs v. Madison Mutual Insurance Co. (1993), 242 Ill. App. 3d 147, 156-57, 610 N.E.2d 143, 150 (latent ambiguity found where there were two tortfeasors, one insured and one underinsured).

In contrast to Hoglund, the plaintiff here is attempting to recover under his underinsured motorist coverage. The language in the applicable statute and the language in the policy of insurance issued to the plaintiff squarely address the plaintiff’s situation. There is no ambiguity in the applicable statute or in the language of the insurance policy. It has recently been noted that Hoglund cannot be “properly interpreted to stand for the proposition that the payment of a premium will in all cases create in the insured a reasonable expectation that he will receive the full amount of coverage stated in the policy despite clear policy language providing for setoffs and prohibiting stacking.” Obenland v. Economy Fire & Casualty Co. (1992), 234 Ill. App. 3d 99, Ill, 599 N.E.2d 999, 1006.

The plaintiff’s insurance policy provided that the defendant’s liability was limited to the amount by which the limits of the underinsured motorist coverage exceeds the total limits of all bodily injury insurance policies applicable to the person or persons responsible for the damages. Also, section 143a — 2 of the Code provides, in pertinent part:

“ ‘[Ujnderinsured motor vehicle’ means a motor vehicle whose ownership, maintenance or use has resulted in bodily injury or death of the insured *** for which the sum of the limits of liability under all bodily injury liability insurance policies *** is less than the limits for underinsured coverage provided the insured as defined in the policy at the time of the accident. 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.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 73, par. 755a — 2(4).

The insurance policy and the statute clearly state that underinsured motorist coverage only applies when the amount of the coverage exceeds the limits of liability under all applicable bodily injury liability insurance policies. Therefore, under the statute, there can be no underinsured motorist coverage “if the insured recovers under a bodily injury liability insurance policy in an amount equal to or greater than the stated underinsured policy limit.” Chester v. State Farm Mutual Automobile Insurance Co. (1992), 227 Ill. App. 3d 320, 327, 591 N.E.2d 488, 493.

“ ‘Underinsured motorist coverage’ comes into play only if the offending motorist is ‘underinsured’ as that term is used in the Insurance Code.” (Emphasis omitted.) (Shefner v. Illinois Farmers Insurance Co. (1993), 243 Ill. App. 3d 683, 691.) Underinsured motorist coverage is intended only to assure compensation for an insured’s injuries in an amount equal to his policy limit for the coverage. (Sulser v. Country Mutual Insurance Co. (1992), 147 Ill. 2d 548, 556, 591 N.E.2d 427, 430.) It is “not intended to allow the insured to recover amounts from the insurer over and above the coverage provided by the underinsured motorist policy.” (Sulser, 147 Ill. 2d at 556, 591 N.E.2d at 430.) Any benefit due under the terms of an underinsured motorist policy is reduced dollar for dollar by the amount recovered from the tortfeasor. Sulser, 147 Ill. 2d at 557, 591 N.E.2d at 430.

Here, there is no dispute that the amount the plaintiff recovered from Haas’ insurance company exceeded the limits of the plaintiff’s underinsured motorist coverage. Under these circumstances, the plaintiff was not entitled to recover based upon the clear language of his insurance policy, section 143a — 2 of the Code and the relevant case law.

For the reasons indicated, the judgment of the circuit court of Bureau County is affirmed.

Affirmed.

STOUDER and LYTTON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY L. ROBINSON, Defendant-Appellant.
    Third District
    No. 3 — 92—0288
    Opinion filed May 25, 1993.

      Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Larry VanDerSnick, State’s Attorney, of Cambridge (John X. Breslin and Lawrence Michael Kaschak, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Anthony L. Robinson, was convicted of unlawful possession of cannabis (720 ILCS 550/4(e) (West 1992)) and conspiracy to commit unlawful manufacture of cannabis (720 ILCS 5/8 — 2(a) (West 1992)). He was sentenced to a four-year term of imprisonment for the unlawful possession conviction and a concurrent three-year term for the conspiracy conviction. The defendant appeals. We affirm.

On appeal the defendant raises two related arguments. He first argues that his conspiracy conviction should be reversed because he was charged with conspiracy to deliver a substance containing cannabis under the general conspiracy statute (720 ILCS 5/8 — 2 (West 1992)) rather than under the conspiracy provision of the Cannabis Control Act (720 ILCS 550/9 (West 1992)). The defendant contends that because more than two conspirators are involved in the instant case, the conspiracy provision of the Cannabis Control Act preempted prosecution under the general conspiracy statute. See People v. Urban (1990), 196 Ill. App. 3d 310, 553 N.E.2d 740.

The defendant alternatively argues that the conspiracy charge was void for duplicity since it charged the defendant with conspiracy under both the conspiracy provision of the Cannabis Control Act and the general conspiracy statute. See People v. Capitol News, Inc. (1990), 137 Ill. 2d 162, 560 N.E.2d 303.

We initially note that the defendant’s arguments are waived because he failed to raise these arguments prior to trial, during the trial, or in his post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Additionally, even , if these issues were not waived, we would still uphold the defendant’s conviction.

The defendant correctly notes that where more than two conspirators are involved, the more specific conspiracy provision of the Cannabis Control Act preempts prosecution under the general conspiracy statute. (See People v. Urban (1990), 196 Ill. App. 3d 310, 553 N.E.2d 740.) However, such preemption occurs only to the extent that the more specific statute applies. (People v. Caballero (1992), 237 Ill. App. 3d 797, 604 N.E.2d 1028.) Where the more specific statute is silent, such a conspiracy may be prosecuted under the general conspiracy statute. People v. Caballero (1992), 237 Ill. App. 3d 797, 604 N.E.2d 1028.

By its own terms, the Cannabis Control Act prohibits conspiracies to manufacture cannabis only where all of the following factors are present: (1) the transaction involves more than 20 Cannabis sativa plants; (2) the defendant conspires with two or more other persons; and (3) the defendant either obtains something of more than $500 in value from the conspiracy, or he organizes, directs, or finances it. (720 ILCS 550/9(b) (West 1992).) Here, although the conspiracy involved two or more other persons, there was no evidence that the defendant obtained something of more than $500 in value from the conspiracy, or that he organized, directed, or financed it. Thus, he could not have been convicted under the Cannabis Control Act. Since the conspiracy provision of the Cannabis Control Act did not apply to the defendant, it was proper to prosecute him under the general conspiracy statute. People v. Caryl (1977), 54 Ill. App. 3d 537, 369 N.E.2d 926.

Finally, we find no merit to the defendant’s contention that the conspiracy charge was void for duplicity. Our review of the record discloses that the plain language of the charges apprised the defendant that he was being charged under the general conspiracy statute. The defendant’s arguments to the contrary are premised entirely upon the belief that a defendant may never be charged under the general conspiracy statute where multiple coconspirators are involved. However, for the reasons set forth in our discussion of the defendant’s first issue, it should be clear that this belief was erroneous.

For the reasons indicated, the judgment of the circuit court of Henry County is affirmed.

Affirmed.

STOUDER and BARRY, JJ., concur.