author: JUSTICE SLATER

text:
      In re MARRIAGE OF GEORGIANNE MILLER, Petitioner-Appellant, and JOSEPH A. MILLER IV, Respondent-Appellee.
    Third District
    No. 3—91—0282
    Opinion filed July 7, 1992.

      Valerie Moehle Umholtz, of Moehle, Swearingen & Associates, Ltd., of Pekin, for appellant.
    Stephen W. Bush, of Bush & Bush, of Washington, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Petitioner Georgianne Miller and respondent Joseph A. Miller IV were married on December 7, 1987. One child was born during the marriage. A petition for dissolution of marriage was filed on August 2, 1989, and a judgment of dissolution was entered on February 22, 1991, which was modified on April 8, 1991. On appeal, petitioner raises the following issues: (1) whether the amount of child support awarded was against the manifest weight of the evidence; (2) whether the trial court abused its discretion in failing to award maintenance to petitioner; (3) whether the computation of marital contributions to nonmarital property was against the manifest weight of the evidence; (4) whether a purported loan made by respondent should have been classified as a marital asset; (5) whether the trial court erred in awarding petitioner only 50% of the marital assets; and (6) whether the trial court erred in refusing to award petitioner a claimed arrearage in temporary child support. We affirm in part, reverse in part and remand.

Petitioner first contends that the child support award of $120 per week was against the manifest weight of the evidence. The trial court based the award on its finding that respondent’s net weekly income was $600. Petitioner claims that respondent’s income was much greater than that found by the court. She notes that the parties’ lifestyle during the marriage included a nice home, clothes and cars, expensive jewelry, several vacations and membership in a country club. Petitioner also relies on her testimony that in 1984, while she was acting as a bookkeeper for the restaurant owned by respondent, he received unreported cash payments of $300 to $500 per week. In addition, petitioner notes that respondent’s business paid for groceries, car expenses, country club and golf fees and provided meals at half price.

Respondent does not deny that large sums of money were spent during the marriage, but he notes that he received approximately $44,000 in nonrecurring income during the marriage, primarily from the sale of a business and six parcels of real estate. Respondent contends that he has no other pending investments and that his present income is derived solely from his salary and interest he receives from certificates of deposit. Respondent also argues that petitioner’s testimony regarding alleged unreported cash payments in 1984, three year’s prior to the parties’ marriage, did not establish that he currently receives such payments. Respondent notes petitioner’s testimony that after the marriage the only time that she was aware that cash was taken out was to pay employees.

Section 505 of the Illinois Marriage and Dissolution of Marriage Act (the Act) defines “net income” as the total of all income from all sources, minus various deductions such as Federal and State income tax, social security payments and health insurance premiums. (Ill. Rev. Stat. 1989, ch. 40, par. 505(3).) The record in this case reflects that respondent receives $513 per week in wages and interest payments. The trial court initially found that respondent’s net weekly income was $500. This finding was increased to $600, however, after petitioner filed her motion for reconsideration in which she pointed out that respondent’s business paid for his car expenses ($93.50), country club dues and golf expenses ($87) and groceries ($105). Thus it is apparent that the trial court found that some of these items represented income to respondent, although which items and to what extent is unclear. The court may have found that some of these items represented reasonable business expenses rather than income. (See In re Marriage of DeGironemo (1990), 206 Ill. App. 3d 1019, 565 N.E.2d 189.) Findings regarding net income are within the trial court’s discretion (In re Marriage of Harmon (1991), 210 Ill. App. 3d 92, 568 N.E.2d 948), and we find no abuse of that discretion here.

Similarly, we find no error by the trial court in failing to consider the alleged unreported cash income received by respondent. Petitioner’s testimony regarding these sums largely concerned events prior to the parties’ marriage and respondent denied receiving any such payments for several years. The trial court was in the best position to judge the credibility of the witnesses, and its determination was not against the manifest weight of the evidence. In addition, while the parties’ expenditures during the marriage suggest an income greater than that found by the court, respondent’s testimony regarding receipt of over $40,000 in nonrecurring income between 1988 and 1990 was largely undisputed. While nonrecurring income may properly be included in calculating net income for purposes of child support (In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 551 N.E.2d 737), this is not an inflexible rule and the trial court has the discretion to exclude such income. To hold otherwise could lead to absurd results, as where a party’s income is artificially inflated by a large capital gain on the sale of a residence. We believe that such determinations are best left to the sound discretion of the trial court.

Petitioner next contends that the trial court erred in failing to award maintenance. At the time the parties were married, petitioner was a licensed beautician earning approximately $300 per week. She also worked as a bartender and waitress at respondent’s business. She continued working until a few months before the parties’ child, Joey, was born. After Joey was born petitioner worked occasionally at respondent’s business and also worked as a beautician at home and at a salon in Peoria. Petitioner testified that the respondent “sabotaged” her in-home beautician business by being rude to her customers. Petitioner later attended college part time seeking to obtain a teaching certificate. She testified that she would like to continue her education, but that it would be difficult to work and attend school and also take care of Joey and Nathan, her son by a previous marriage. At the time of the hearing petitioner was 30 years old and unemployed. She received approximately $13,000 in liquid assets as her share of the marital estate. The trial court found that petitioner was healthy and employable and had background and training making her suitable for a number of different occupations. The court further found that she had sufficient property and income to provide for her reasonable needs. The court ordered, based upon the short duration of the marriage and after considering the factors contained in section 504 of the Act, that respondent maintain petitioner’s insurance coverage for two years as temporary maintenance, terminating upon petitioner obtaining employment. No other maintenance was awarded by the court.

Section 504 of the Act provides in part:

“Maintenance, (a) In a proceeding for dissolution of marriage *** the court may grant a maintenance order for either spouse, only if it finds that the spouse seeking maintenance:
(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and
(2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home, or
(3) is otherwise without sufficient income.
(b) The maintenance order shall be in such amounts and for such periods of time as the court deems just, made without regard to marital misconduct and may be in gross or for fixed or indefinite periods of time and the maintenance may be made from the income or property of the other spouse after consideration of all relevant factors, including:
(1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) the standard of living established during the marriage;
(4) the duration of the marriage;
(5) the age and the physical and emotional condition of both parties;
(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and
(7) the tax consequences of the property division upon the respective economic circumstances of the parties.” Ill. Rev. Stat. 1989, ch. 40, par. 504.

The propriety, amount and duration of a maintenance award lie within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. (In re Marriage of Cheger (1991), 213 Ill. App. 3d 371, 571 N.E.2d 1135.) An abuse of discretion occurs only where no reasonable person would take the view adopted by the trial court. (Cheger, 213 Ill. App. 3d 371, 571 N.E.2d 1135.) In this case, while the trial court’s order states that it considered all the factors contained in section 504, it appears that the court was heavily influenced by two factors: petitioner’s potential ability to support herself and the short duration of the marriage. While section 504 requires a court to consider all relevant factors, there is no requirement that the factors be given equal weight, so long as the balance struck by the court is reasonable under the circumstances. While this court might have decided differently had the task been ours, we are unable to say that no reasonable person could have taken the view adopted by the trial court. We find no abuse of discretion.

Petitioner next maintains that the marital estate made contributions to several nonmarital properties which should have been credited to the marital estate. Those properties are: respondent’s business, known as Miller’s Cliftwood of Morton (Cliftwood); a property known as the “Hank’s lot”; and the marital residence. Section 503(c)(2) of the Act provides:

“When one estate of property makes a contribution to another estate of property, or when a spouse contributes personal effort to non-marital property, the contributing estate shall be reimbursed from the estate receiving the contribution notwithstanding any transmutation; provided, that no such reimbursement shall be made with respect to a contribution which is not retraceable by clear and convincing evidence, or was a gift, or, in the case of a contribution of personal effort of a spouse to non-marital property, unless the effort is significant and results in substantial appreciation of the non-marital property. Personal effort of a spouse shall be deemed a contribution by the marital estate. The court may provide for reimbursement out of the marital property to be divided or by imposing a lien against the non-marital property which received the contribution.” Ill. Rev. Stat. 1989, ch. 40, par. 503(c)(2).

Petitioner contends that both she and respondent contributed significant personal effort to Cliftwood in their respective capacities as waitress/bartender and owner/manager. Petitioner relies on testimony regarding improvements to Cliftwood to establish that these efforts resulted in substantial appreciation. These improvements included a coatroom, new booths, barstools and lighting, a computer and catering equipment. The cost of these items was disputed, with respondent indicating a cost of approximately $9,000 while petitioner’s figures totalled over $20,000.

We agree with the trial court’s finding that there was insufficient evidence presented to prove any increase in value in Cliftwood. No accountants, real estate appraisers or other experts testified regarding the value of the business before or after the marriage. “The party claiming reimbursement must prove that the property has substantially appreciated through the significant personal efforts of the spouse.” (In re Marriage of Eddy (1991), 210 Ill. App. 3d 450, 458, 569 N.E.2d 174, 180.) Capital expenditures by a business do not necessarily result in an increase of the value of that business. Furthermore, there was no evidence that these improvements were the result of the parties’ personal efforts, rather than some factor external to the marriage. (See Eddy, 210 Ill. App. 3d at 458, 569 N.E.2d at 180 (an increase in value resulting from factors external to the marriage is not synonymous with appreciation arising from the personal effort contemplated by the statute).) We find no error.

Petitioner also contends that mortgage payments made by respondent on Hank’s lot were made with marital funds. Respondent and Jack Rosenak purchased the lot in September of 1987 for $26,500. The two men were to split the $600 monthly mortgage payment and a payment book contained in the record indicates that this arrangement was followed for the most part. Respondent and Rosenak testified, however, that Rosenak loaned respondent approximately $4,000 to make his share of the payments. Rosenak testified that there was nothing in writing regarding the loan because he and respondent were old friends and business associates. Petitioner contends that the testimony in this regard was completely unbelievable.

The trial court is in a position superior to a court of review to observe the witnesses while testifying, to assess their credibility and to weigh the evidence, and its findings will not be disturbed unless they are against the manifest weight of the evidence. (In re Marriage of Taylor (1989), 191 Ill. App. 3d 648, 548 N.E.2d 106.) Section 503(c)(2) prohibits reimbursement for contributions which are not retraceable by clear and convincing evidence. The trial court found that no clear and convincing evidence was presented that marital funds were used. Given the nature and quality of the evidence, we are unable to hold that such a finding was against the manifest weight of the evidence.

Petitioner further maintains that the court erred in finding that $3,650 of the funds used to pay off the balance of the mortgage on the marital residence were nonmarital funds. The marital residence is respondent’s nonmarital property. Respondent made all mortgage payments on the marital residence from his checking account, which contained marital funds. On March 3, 1988, respondent deposited his paycheck and a payment of $10,797.50 he had received from the sale of nonmarital property into the checking account. Prior to that time the balance in the account was $318.86. A few days later respondent paid the $3,650 mortgage balance. The court found that the reduction in the mortgage during the marriage of over $11,000 was a marital asset, but subtracted the final payment made by respondent from that amount. Petitioner argues that when the nonmarital funds were commingled in the checking account with marital funds, they lost their identity and should have been considered marital funds. (Ill. Rev. Stat. 1989, ch. 40, par. 503(c)(1).) We find, however, that the evidence presented was clear and convincing that the source of the $3,650 was the sale of a non-marital asset, and therefore, respondent was entitled to reimbursement from the marital estate under section 503(c)(2). Petitioner also requests reimbursement for $2,000 in improvements made to the marital residence. However, no evidence was presented regarding the source of the $2,000 and therefore no reimbursement can be allowed.

Petitioner next contends that the court erred in failing to classify a loan made by respondent to the Scrub Tub Pub, Inc. (STP), as a marital asset. Respondent held a one-third interest in STP, which is a nonmarital asset. A balance sheet listing STP’s assets and liabilities showed a note payable to respondent in the amount of $6,200. Respondent admitted loaning the money to STP but he stated that Rosenak paid almost all of it for him and he owed the money to Rosenak. Respondent later admitted making payments of $800 and $350. Rosenak testified that respondent owed him approximately $2,000 for payments made to STP. Petitioner identified three withdrawals made from the parties’ joint savings account as funds given to STP. These withdrawals totaled $1,800. The trial court found that contribution by the marital estate to STP had not been proved by clear and convincing evidence. We hold that such a finding was against the manifest weight of the evidence with respect to the two payments admitted by respondent and the unrebutted testimony of petitioner concerning the withdrawals from the joint savings account. Since it is apparent from the record that the trial court’s intention was to divide the marital property equally, we need not remand to the trial court for reexamination of the property distribution. (See In re Marriage of Orlando (1991), 218 Ill. App. 3d 312, 577 N.E.2d 1334.) We direct that the loans by respondent to STP in the amount of $2,950 be classified as a marital asset and that this amount be distributed equally between the respondent and petitioner.

Petitioner next contends that she should have received a greater share of the marital assets than the approximate 50% distribution awarded by the court. Each party received marital assets valued at approximately $19,000. In addition respondent was awarded his nonmarital assets, which were substantial, and he was ordered to pay $3,500 of petitioner’s attorney fees and over $8,000 in credit card debts. The parties stipulated that petitioner would receive a 1985 Lincoln automobile and the corresponding loan debt and $2,000 in credit card debts. The stipulation also provided that two parcels of marital real estate with net equity of approximately $6,000 would be sold and the proceeds divided evenly.

Section 503 of the Act provides that marital property is to be divided in “just proportions” considering all relevant factors. (Ill. Rev. Stat. 1989, ch. 40, par. 503(d).) These factors include: the contribution or dissipation of each party with respect to the property; the value of the property set apart to each spouse; the duration of the marriage; the economic circumstances of each spouse; the age, health, employability, amount and sources of income and needs of each party; the custodial provisions for any children; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each spouse for future acquisition of capital assets and income. (Ill. Rev. Stat. 1989, ch. 40, par. 503(d).) The division and distribution of marital property is within the sound discretion of the trial court and will not be disturbed on review unless no reasonable person would take the view adopted by the court. (In re Marriage ofMarthens (1991), 215 Ill. App. 3d 590, 575 N.E.2d 3; In re Marriage of Harding (1989), 189 Ill. App. 3d 663, 545 N.E.2d 459.) While some of the factors listed above, such as petitioner’s custody of Joey and the relative economic circumstances of the parties, weigh in favor of a larger property distribution to petitioner, other factors such as the length of the marriage and the contributions of each party in acquiring the property support the trial court’s decision. We find no abuse of discretion.

Finally, petitioner maintains that the trial court erred in finding that respondent was not in arrears in his temporary child support payments. Petitioner testified that respondent had failed to make the $75-per-week support payments for a nine-week period. On cross-examination petitioner agreed that respondent had paid $150 per week on nine occasions, but she considered the additional money to be a gift. She denied that these payments were an advance on the child support, explaining that respondent said he would give her $150 per week as long as she “took care of the babysitter out of the $150 and any outstanding things [she] needed to buy.”

Whether the additional $75 payments are characterized as a gift or an “advance” on future support payments, respondent remained obligated to pay $75 per week. Spouses may not modify a court-ordered child support obligation by creating a new agreement between themselves without judicial approval. (Blisset v. Blisset (1988), 123 Ill. 2d 161, 526 N.E.2d 125.) The additional amounts paid by respondent constituted voluntary overpayments.

As a general rule, no credit is given for voluntary overpayments of child support, even if made under the belief that they are legally required. (In re Marriage of Tollison (1991), 208 Ill. App. 3d 17, 566 N.E.2d 852; Harner v. Harner (1982), 105 Ill. App. 3d 430, 434 N.E.2d 465.) While exceptions may be made where the equities of the circumstances so demand (see, e.g., Tollison, 208 Ill. App. 3d 17, 566 N.E.2d 852), we find no need to depart from the rule in this case. We direct the trial court to enter an order requiring respondent to pay $675 to petitioner in unpaid temporary child support.

For the reasons stated above, the judgment of the circuit court is affirmed in part, reversed in part and remanded with directions.

Affirmed in part; reversed in part and remanded, with directions.

GORMAN and McCUSKEY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCUSKEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HAROLD MASON, Defendant-Appellant.
    Third District
    No. 3—91—0388
    Opinion filed July 9, 1992.

      Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    William Herzog, State’s Attorney, of Kankakee (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Following a bench trial, the defendant, Harold Mason, appeals his convictions for attempted murder, armed robbery, and attempted armed robbery (Ill. Rev. Stat. 1991, ch. 38, pars. 8—4, 9—1, 18—2). The only issue on appeal is whether the trial judge considered an improper factor in sentencing. We find the trial judge did not consider any improper factors during sentencing. Therefore, we affirm.

According to the record, Cynthia Baltimore testified that she was getting ready to leave her home for work around 7 a.m. on February 6, 1990. Mason approached her in her driveway, pointed a handgun at her, and demanded her money. She told him to wait and walked back to her house. Mason followed her. When she reached the door, she called out for her boyfriend, Michael Hutson.

Hutson testified that he began to come down the stairs when he heard Baltimore calling for help. Mason stood in the doorway, pointed a gun at Baltimore, and warned Hutson not to come any farther or he would shoot her. Hutson stopped and tried to reason with Mason, but Mason said he would shoot everyone in the house if they did not give him all their money. Hutson noted that his son was nearby and feared that Mason would shoot the entire family. Hutson then went down the rest of the stairs and began struggling with Mason. As Hutson came down the stairs, Mason pointed the gun at him and pulled the trigger several times. The gun, however, did not fire.

Hutson managed to push Mason outside but was unable to close the door because a garbage bag was wedged in it. Mason pointed the gun inside at Hutson and Baltimore. Baltimore said that Mason pulled the trigger four or five times but the gun did not fire. After Hutson gave Mason $5, Mason ran away.

The trial judge found Mason guilty of the attempted murder and armed robbery of Hutson and the attempted armed robbery of Baltimore.

At the sentencing hearing, the trial judge stated that Mason had attempted to commit a horrendous crime. The judge noted that Mason had tried to murder Hutson in Hutson’s home. The judge also pointed out the fact that the attempted murder occurred in front of Hutson’s family. The judge observed that only the malfunctioning of the gun prevented the murder from occurring. When the judge later recounted the aggravating factors, he found that Mason had threatened serious harm in order to obtain a small amount of money. Thereafter, the court imposed a 10-year term of imprisonment.

On appeal, Mason argues that the judge erred in considering the threat of harm as an aggravating factor because such a factor is implicit in the offense. See People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.

In People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138, the supreme court stated that a reasoned judgment as to the proper sentence must be based on the particular circumstances of each case. Consequently, a sentencing court could consider the degree of harm caused or threatened by the defendant, even where serious bodily harm was implicit in the offense.

When the trial judge’s comments are read in context, it is clear that he was not considering the mere threat of harm as an aggravating factor. Rather, his concern was with the particular circumstances of the crimes. The judge specifically noted that Mason tried to murder Hutson in his own home and in front of his family in order to obtain a small amount of money. The judge went on to observe that only the malfunctioning of the gun prevented a murder from occurring. Consequently, the judge’s comments were proper observations of the level of harm threatened by the offenses. We therefore affirm Mason’s convictions and sentence.

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

Affirmed.

GORMAN and SLATER, JJ., concur.


text:
    CRAIG CARLSON, Plaintiff, v. MOLINE BOARD OF EDUCATION, SCHOOL DISTRICT No. 40, Defendant and Third-Party Plaintiff-Appellant (Edstrom’s, Inc., Third-Party Defendant-Appellee).
    Third District
    No. 3—91—0893
    Opinion filed July 7, 1992.

      Martin H. Katz, of Katz, McAndrews, Balch, Lefstein & Fieweger, of Rock Island (John F. Doak, of counsel), for appellant.
    John V. Patton, of Bozeman, Neighbour, Patton & Noe, of Moline (Joan Scaia, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

More than 10 years ago, on March 2, 1982, plaintiff Craig Carlson was severely injured when a group of lockers fell on him at Moline Senior High School. Plaintiff was employed by third-party defendant Edstrom’s, Inc. (Edstrom), which had contracted with defendant/ third-party plaintiff Moline Board of Education, School District No. 40 (the Board), to perform certain work, including the removal of floor tile and underlayment and removal and reinstallation of lockers. Plaintiff’s original complaint against the Board was filed on August 13, 1982. The circuit court subsequently dismissed portions of plaintiff’s complaint. Plaintiff appealed to this court pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), and we affirmed on June 6, 1984. (Carlson v. Moline Board of Education, School District No. 40 (1984), 124 Ill. App. 3d 967, 464 N.E.2d 1239.) Thereafter followed periods of pretrial activity, or a lack thereof, including discovery and various motions. On March 7, 1989, the Board filed a motion for leave to file a third-party complaint for contribution against Edstrom, which was granted on March 16, 1989. On July 19, 1991, Edstrom filed a motion for summary judgment, alleging that the Board’s contribution action was barred by the two-year statute of limitations contained in section 13—214(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-214(a) (subsequently amended by Public Act 84 — 551 §54A, eff. Sept. 18, 1985 (extending the limitations period to four years))). The circuit court granted Edstrom’s motion for summary judgment on September 25, 1991, and this appeal followed pursuant to Supreme Court Rule 304(a). Thus this case is before us for the second time, a decade after plaintiff was injured, while the underlying claim remains unresolved.

The Board contends that its complaint should not have been dismissed as time barred. The Board maintains that section 5 of the Contribution Act (Ill. Rev. Stat. 1989, ch. 70, par. 305), section 13 — 204 of Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13—204) and our supreme court’s decision in Laue v. Leifheit (1984), 105 Ill. 2d 191, 473 N.E.2d 939, govern contribution actions and preclude application of the two-year statute of limitations contained in section 13— 214(a). We disagree.

Section 5 of the Contribution Act provides:

“Enforcement. A cause of action for contribution among joint tortfeasors may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action.” (Ill. Rev. Stat. 1989, ch. 70, par. 305.)

In Laue the supreme court interpreted the language in section 5 and held that if there is a pending action, then a party seeking contribution must assert a claim by counterclaim or by third-party claim in that action. (Laue, 105 Ill. 2d at 196, 473 N.E.2d at 941-42.) However, as the court later explained in Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 557 N.E.2d 873, Laue merely established a procedural requirement that contribution actions must be filed during the pendency of the underlying direct action. It “does not hold that all actions for contribution brought within the time an underlying suit is pending are timely filed.” Hayes, 136 Ill. 2d at 460, 557 N.E.2d at 877-78.

In Hayes the court held that the medical malpractice statute of repose (Ill. Rev. Stat. 1987, ch. 110, par. 13—212(a)) applied to a contribution claim brought against physicians for medical negligence where the underlying complaint also alleges medical negligence. The court examined the language of section 13 — 212(a), which provides:

“Physician or hospital, (a) Except as provided in Section 13— 215 of this Act, no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110, par. 13—212(a).

The Hayes court first determined that an “action for damages” included a third-party action for contribution. The court then considered the meaning of the phrase “or otherwise” and stated:

“Because a suit for contribution against the insured for damages arising out of patient care exposes insurance companies to the same liability as if the patient were to have brought a direct action against the insured, we believe that the term ‘or otherwise’ in the medical malpractice statute of repose includes actions for contribution against a physician for injuries arising out of patient care. *** The inclusion of the term ‘or otherwise’ following more restrictive language in the statute seems to us to indicate that the legislature intended the term to be all-inclusive. We believe that the term demonstrates the General Assembly’s desire at the time it originally enacted the statute to limit a physician’s exposure to liability for damages for injury or death arising out of patient care under all theories of liability, whether then existing or not.” Hayes, 136 Ill. 2d at 458-59, 557 N.E.2d at 877.

The statutory section at issue in this case provides:

“Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 2 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 110, par. 13—214(a).)

Despite the Board’s claim that the statute of limitations at issue in this case should be construed differently from the statute of repose interpreted in Hayes, we find that the term “or otherwise” has the same meaning in section 13 — 214(a) as it does in the medical malpractice statute of repose. In construing a statute, the court must ascertain and give effect to the legislative intent in enacting the statute and looks to the language of the statute itself as the best indication of the intent of the drafters. (Kirwan v. Welch (1989), 133 Ill. 2d 163, 549 N.E.2d 348.) In addition, the court may consider the reason and necessity for the law, the evils sought to be remedied and the purpose to be achieved. People v. Chandler (1989), 129 Ill. 2d 233, 543 N.E.2d 1290.

In Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill. App. 3d 515, 511 N.E.2d 706, the court examined the legislative debates preceding the passage of section 13 — 214 and found that the legislature intended to include contribution actions within the scope of the repose provision of the statute. That section provided:

“No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 12 years have elapsed from the time of such act or omission. However, any person who discovers such act or omission prior to expiration of 12 years from the time of such act or omission shall in no event have less than 2 years to bring an action as provided in subsection (a) of this Section.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 110, par. 13—214(b).

The Board maintains that Hartford is distinguishable, however, because it interpreted the repose provision of section 13 — 214 rather than the limitation provision at issue here. We agree, however, with the decision in La Salle National Bank v. Edward M. Cohon & Associates, Ltd. (1988), 177 Ill. App. 3d 464, 532 N.E.2d 314, which rejected a similar argument, finding that “the statute of repose of section 13 — 214(b) must be read in conjunction with the statute of limitations of section 13 — 214(a). [Citation.] [The] distinction between the statute of limitations and statute of repose does not change the result of this case.” LaSalle, 177 Ill. App. 3d at 472, 532 N.E.2d at 319; see also Board of Library Directors v. Skidmore, Owings & Merrill (1991), 215 Ill. App. 3d 69, 574 N.E.2d 869 (section 13-214(a) statute of limitations applies to third-party actions).

The same or substantially the same words or phrases used in different sections of a statute should be given a consistent meaning absent a clear legislative intent to the contrary. (Mirabella v. Retirement Board of the County Employees’ Annuity & Benefit Fund (1990) , 198 Ill. App. 3d 971, 556 N.E.2d 686; Village of South Elgin v. City of Elgin (1990), 203 Ill. App. 3d 364, 561 N.E.2d 295.) The repose and limitation provisions of section 13 — 214 employ identical language (“based upon tort, contract or otherwise”) when describing the types of actions to which those subsections apply. Hartford found that the repose provision was intended to apply to contribution actions and there is no indication that the limitation provision was intended to exclude such actions from its reach. We hold, therefore, that the limitation provision of section 13 — 214(a) applies to actions for contribution based on an act or omission in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property. Cf. Rummel v. Yazoo Manufacturing Co. (1991), 222 Ill. App. 3d 526, 583 N.E.2d 19 (one-year statute of limitations for action against local governmental entities (Ill. Rev. Stat. 1989, ch. 85, par. 8—101) applies to contribution actions).

The Board argues, however, that contribution actions should be governed by the limitations period provided in section 13 — 204 of the Code of Civil Procedure, which provides:

“Contribution among tortfeasors. No action for contribution among joint tortfeasors shall be commenced with respect to any payment made in excess of a party’s pro rata share more than 2 years after the party seeking contribution has made such payment towards discharge of his or her liability.” (Ill. Rev. Stat. 1989, ch. 110, par. 13-204.)

The Board contends that section 13 — 204 should prevail over section 13 — 214 because it is the more specific provision and because applying the latter section renders the former section meaningless. The plaintiffs in Hayes proffered a similar argument, contending that section 13 — 204 superseded the medical malpractice statute of repose because a specific statutory provision relating to a specific subject prevails over a conflicting general provision. The supreme court disagreed, finding that reliance on section 13 — 204 was misplaced. “Section 5 of [the Contribution Act,] rather than section 13 — 204 of the Illinois Code of Civil Procedure, applies to actions for contribution when a direct action is pending.” (Hayes, 136 Ill. 2d at 459, 557 N.E.2d at 877.) Based on Hayes, it appears that section 13 — 204 has no application to a contribution action when that action was filed, as here, during the pendency of the underlying suit. (See Rummel, 222 Ill. App. 3d at 529, 583 N.E.2d at 21.) Therefore, we need not address the Board’s argument with regard to section 13 — 204.

In view of our holding, we find that the trial court was correct in granting Edstrom’s motion for summary judgment. Plaintiff’s original complaint against the Board was filed on August 13, 1982, and the Board was served on August 16, 1982. The Board’s third-party complaint was filed on March 16, 1989, more than six years later. Ordinarily, the limitations period for a contribution claim will begin to run when the underlying complaint is filed or on the date of service of the complaint upon the defendant/third-party plaintiff. (See LaSalle, 177 Ill. App. 3d at 471, 532 N.E.2d at 319 (a court may consider, in an appropriate case, the date of service of the complaint rather than the date of filing).) In the majority of cases, we believe, knowledge of the existence of the underlying suit is sufficient notice to the defendant/third-party plaintiff to satisfy the statutory requirement that the person bringing an action “knew or should reasonably have known” of the act or omission giving rise to a contribution action (Ill. Rev. Stat. 1983, ch. 110, par. 13—214(a)). It is conceivable, however, that in a particular case a defendant may be justifiably unaware at the commencement of the underlying suit that the acts or omissions of a third party contributed to the plaintiff’s injury. In such a case the limitations period would not begin to run until a third-party plaintiff knew or reasonably should have known of the acts or omissions of the third-party defendant. There is no indication that this is such a case, however, and therefore we find that the Board’s third-party complaint was untimely.

Finally, the Board maintains that a “new rule” applying section 13 — 214(a) should be applied prospectively only. The Board argues that the decisions in LaSalle and Board of Library Directors were cases of first impression that were not foreshadowed by prior case law. The Board also contends that it relied on Laue for the proposition that its contribution action was timely filed and that it will suffer injustice and hardship as a result of the change in this “established precedent.”

While, as a general rule, a decision will be applied retrospectively, a court has the inherent power to determine whether its decision shall be prospectively or retroactively applied. (Larrance v. Human Rights Comm’n (1988), 166 Ill. App. 3d 224, 519 N.E.2d 1203.) The threshold inquiry in determining prospective application is whether the decision establishes a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. (Elg v. Whittington (1987), 119 Ill. 2d 344, 518 N.E.2d 1232.)

“If this criterion is met, the question of prospective or retroactive application will be answered by considering: (1) whether, given the purpose and prior history of the rule, its operation will be retarded or promoted by prospective or retroactive application and (2) whether prospective application is mandated by the balance of equities.” Elg, 119 Ill. 2d at 357, 518 N.E.2d at 1238.

In this case the initial criterion for prospective application has not been met. The decisions in LaSalle and Board of Library Directors were clearly foreshadowed in Hartford, which was decided more than a year and a half before the Board sought leave to file its third-party complaint. Moreover, judicial construction of a statute does not necessarily constitute a change in the law. (Larrance, 166 Ill. App. 3d at 230, 519 N.E.2d at 1208; see Rothe v. Maloney Cadillac, Inc. (1988), 119 Ill. 2d 288, 518 N.E.2d 1028 (prior opinion construing provisions of Magnuson-Moss Warranty Act for the first time did not create a new rule of law).) With respect to the Board’s reliance on Laue, it is clear that such reliance was misplaced, since Laue did not hold that all actions for contribution brought within the pendency of an underlying suit are timely. (Hayes, 136 Ill. 2d at 460, 557 N.E.2d at 877-78.) Thus neither LaSalle, Board of Library Directors nor this decision overrules any clear past precedent. Finally, even if prospective application were warranted, it would not change the outcome of this case. Where a new rule is applied prospectively, the holding of the court nevertheless controls the case at bar. John Carey Oil Co. v. W.C.P. Investments (1988), 126 Ill. 2d 139, 533 N.E.2d 851.

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

Affirmed.

BARRY, R J., and HAASE, J., concur.


author: JUSTICE CHAPMAN

text:
    GENE EARL JONES, Plaintiff-Appellant, v. BURKART FOAM, INC., et al., Defendants-Appellees.
    Fifth District
    No. 5—91—0586
    Opinion filed July 17, 1992.

      John D. Alleman, of R. Courtney Hughes & Associates, of Carbondale, for appellant.
    W.C. Spomer, of Cairo, and Frank J. Saibert and Timothy A. Wolfe, both of Katten, Muchin & Zavis, of Chicago, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

This action was brought by the plaintiff, Gene Earl Jones, to recover damages for the alleged wrongful discharge from his employment by the defendants, Burkart Foam, Inc. (count I), and personnel manager Don Hook (count II). The trial court granted defendants’ motions for summary judgment from which plaintiff appeals. We reverse and remand.

Plaintiff began working for Burkart Foam, Inc., in September 1984. Plaintiff took several medical leaves of absence due to complications resulting from diabetes during his employment with Burkart. On April 10, 1989, plaintiff injured his right hand at work while operating a machine known as a laminator. After an initial examination and several follow-up examinations, plaintiff was eventually excused from all work by his physician, Dr. Lents. On or about May 26, 1989, plaintiff filed a workers’ compensation claim for the April 10 injury.

On August 14, 1989, Burkart personnel manager Don Hook received a return-to-work form from Dr. Lents’ office allowing the plaintiff to return to light-duty work. Hook put the plaintiff back on the seniority list and changed his status from “medical leave” to “active as a light-duty classification” effective August 14, 1989. Plaintiff claimed, however, that he did not receive any notice from Dr. Lents and that, in fact, such a release was an error. Plaintiff did not return to work on August 14, 15 or 16, 1989. On August 17, 1989, Burkart Foam terminated plaintiff based on the three-day, no-show policy contained in its collective bargaining agreement with employees.

After receiving Burkart’s termination letter at home, plaintiff’s wife called Hook and told him that plaintiff had never received Dr. Lents’ notice releasing him for work. On August 23, 1989, plaintiff met with Hook, who agreed to disregard the termination notice and offered to reinstate the plaintiff immediately. Plaintiff refused to return to work that day, and Hook presented him with an agreement to return to work on August 28, 1989, which plaintiff signed. Plaintiff contends that he understood the agreement to be effective only if Dr. Lents released him for light duty. Plaintiff did not return to work on August 28, 29, or 30, 1989. Pursuant to the three-day, no-show policy, a second termination notice to the plaintiff was issued on August 31, 1989.

On September 1, 1989, plaintiff again met with Hook and presented a note from Dr. Lents dated August 25, 1989, excusing plaintiff from work until September 9, 1989, the date of plaintiff’s next appointment. Defendants refused to reinstate plaintiff.

On December 4, 1989, plaintiff filed this action against Burkart Foam alleging that the company had discharged him in retaliation for his pursuit of his workers’ compensation claim. On May 23, 1990, plaintiff amended his complaint to allege the same cause of action against Don Hook. On November 1, 1990, defendants filed motions for summary judgment. The trial court granted the motions on July 31, 1991, and stated that plaintiff had “failed to set forth sufficient facts from which an inference of retaliatory discharge could be drawn” on either count.

A summary judgment

“shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c).

Plaintiff argues that materials presented to the trial court raised a question of material fact as to defendants’ motive. In an action for retaliatory discharge, the issue of motive or intent is a question of material fact and one which is not normally subject to summary judgment. Palmateer v. International Harvester Co. (1986), 140 Ill. App. 3d 857, 860, 489 N.E.2d 474, 476.

The center around which the majority of this dispute seems to revolve is the apparent inconsistency between the handling of the two discharges. Plaintiff contends that such a dissimilar treatment under such similar circumstances suggests that defendants’ motive in the second discharge was a retaliation for the filing of the workers’ compensation claim and was unrelated to his absences. Defendants have two responses. First, they argue that the situations were not similar. Second, defendants contend that they did their best to return plaintiff to work and only terminated him after the second violation. In addition, defendants argue that their refusal to rehire plaintiff is irrelevant as this is an action for retaliatory discharge and not a retaliatory refusal-to-rehire case.

The record establishes that plaintiff’s original discharge was rescinded once plaintiff convinced Don Hook that he had never been made aware of the doctor’s change in his work status. There is, unfortunately, some confusion as to the understanding of the agreement to return to work on August 28, 1989. The fact that plaintiff apparently saw Dr. Lents on August 25, 1989, where he received a release from all work until September 9, 1989, gives some credibility to plaintiff’s alleged interpretation of the agreement, i.e., that he believed he was to return only if cleared by Dr. Lents. Defendants counter that this is irrelevant since they were not made aware of this release. Defendants point out that although plaintiff had full knowledge of both the release and the company’s three-day absence policy, he failed to inform them of the release prior to his second discharge. However, the fact that defendants refused to rehire plaintiff, even when shown that plaintiff was actually not released to work on the days in question, places the defendants’ professed motive for discharge in some doubt. Termination seems a rather harsh punishment for an employee’s mere failure to inform the employer of his continued unavailability to work until only a few days beyond a disputed deadline. Such a drastic measure for a minor infraction could suggest an inference that defendants had a motive different than that which they professed. Hugo v. Tomaszewski (1987), 155 Ill. App. 3d 906, 508 N.E.2d 1139.

Defendants reply that their refusal to rehire is of no significance and should not be considered since this is an action for a retaliatory discharge and not a retaliatory refusal to rehire. What defendants fail to grasp is that their refusal to rehire, even when confronted with evidence demonstrating plaintiff had not been released to work on the days in question, casts a shadow as to the purity of their motive. Contrary to defendants’ argument, the mere fact that plaintiff was rehired after the first discharge does not somehow purge future terminations of any possible illicit motives, including retaliatory discharge.

For this same reasoning, we cannot agree with defendants that the evidence proves Burkart had a valid nonpretextual reason to fire plaintiff. Defendants correctly argue that the requisite causality for a retaliatory discharge will not exist if the basis for discharge is valid and nonpretextual. (Slover v. Brown (1986), 140 Ill. App. 3d 618, 621, 488 N.E.2d 1103, 1105.) While defendants’ stated motive for discharge was valid on its face, it must also be nonpretextual. There is no dispute that defendants were aware that plaintiff had filed his workers’ compensation claim only three months earlier, and it is also undisputed that defendants became aware of plaintiff’s continued work release by September 1, 1989. Defendants’ refusal to rescind plaintiff’s termination suggests that defendants’ purported motive for the second discharge may have been, in fact, a pretext for a retaliatory discharge.

Whether or not the facts presented establish plaintiff’s case is not for us to say. We are not endorsing the worthiness of plaintiff’s claim but only acknowledging that there is at least a genuine issue as to a material fact, defendants’ motive in the second discharge. Where fair-minded people could draw different inferences from the facts presented, the issue should be submitted to the trier of fact. Hugo v. Tomaszewski (1987), 155 Ill. App. 3d 906, 910, 508 N.E.2d 1139, 1142.

We, therefore, reverse the order granting summary judgment and remand for further proceedings.

Both parties have urged this court to rule on the validity of count II against Don Hook, plaintiff’s supervisor, who committed the alleged retaliatory discharge. However, the trial court’s order of July 31, 1991, did not address count II’s validity as a cause of action but dismissed it for plaintiff’s failure to establish sufficient facts to withstand the summary judgment motions. Since the trial court has not ruled on the legal sufficiency of count II, we decline to rule on it at this time.

Reversed and remanded.

GOLDENHERSH, P.J., and WELCH, J., concur.


author: JUSTICE WELCH JUSTICE H. LEWIS,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISREAL CLARKE, Defendant-Appellant.
    Fifth District
    No. 5—91—0403
    Opinion filed July 17, 1992.

      H. LEWIS, J., dissenting.
    Daniel M. Kirwan and Janet Gandy Fowler, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Grace, State’s Attorney, of Mürphysboro (Kenneth R. Boyle, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, Isreal Clarke, was charged by information with felony retail theft under section 16A — 3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 16A—3(a)). He was found guilty in a trial by jury on March 18, 1991, and was sentenced to three years’ imprisonment in the Illinois Department of Corrections on May 6, 1991. He asserts that the trial court erred in failing to grant his motion to dismiss the charge against him for failure to provide him with a prompt preliminary hearing. We affirm.

Defendant was taken into custody on November 30, 1990. A preliminary hearing was scheduled for December 28, 1990, but because a snowstorm interfered with the operation of the court, it was not held at that time. A preliminary hearing date was reset for January 8, 1991. The record does not demonstrate that the defendant agreed to the delay, and defendant moved on January 7, 1991, for discharge from the county jail and dismissal of the charges against him, citing sections 109 — 3.1(b) and 114 — l(a)(11) of the Code of Criminal Procedure of 1963 (the Code) (Ill. Rev. Stat. 1989, ch. 38, pars. 109 — 3.1(b), 114 — l(a)(11)). On January 8, 1991, the circuit court denied the motion to dismiss, finding that the original preliminary hearing date was within the 30-day period, but due to the snowstorm, it was not possible to have the hearing. The circuit court proceeded to hold defendant’s preliminary hearing at that time.

We initially note that our constitution provides that a prompt preliminary hearing to establish probable cause is necessary where a person is held to answer for a crime punishable by imprisonment in the penitentiary. (Ill. Const. 1970, art. I, §7.) The right to a prompt preliminary hearing was statutorily mandated in section 109 — 3.1 of the Code, effective January 1, 1984, which provides in pertinent part, “[ejvery person in custody in this State for the alleged commission of a felony shall receive either a preliminary examination *** or an indictment by Grand Jury *** within 30 days from the date he or she was taken into custody.” (Ill. Rev. Stat. 1989, ch. 38, par. 109 — 3.1(b).) Though not applicable in the instant case, this section of the Code further provides that “[ejvery person on bail or recognizance for the alleged commission of a felony shall receive either a preliminary examination *** or an indictment by Grand Jury *** within 60 days from the date he or she was arrested.” (Ill. Rev. Stat. 1989, ch. 38, par. 109 — 3.1(b).) Thus, under section 109 — 3.1(b), a “prompt” preliminary hearing is one which is held within 30 or 60 days, as the case may be. People v. Roby (1990), 200 Ill. App. 3d 1063, 1066, 558 N.E.2d 729, 731.

Until 1984, no constitutional or statutory remedy existed for the violation of a defendant’s constitutional or statutory rights to a prompt preliminary hearing. However, effective January 1, 1984, section 114— l(a)(11) of the Code was enacted, which provides that where a defendant makes a written motion prior to trial, either before or after a plea has been entered, the court may dismiss the indictment, information, or complaint against the defendant for failure to provide a preliminary hearing in accordance with the requirements of section 109 — 3.1. (See People v. Roby (1990), 200 Ill. App. 3d 1063, 1066-67, 558 N.E.2d 729, 731.) However, the legislature further provided that where a charge is dismissed for failure to comply with section 109 — 3.1, it does not preclude the State from returning a new indictment or filing a new charge, and where a court dismisses a complaint for failure to provide a preliminary hearing, the defendant may be held in custody pending the filing of a new charge. (See 111. Rev. Stat. 1989, ch. 38, par. 114 — 1(e).) This recognized legislatively what case law had repeatedly recognized: the remedy of dismissal of the charge with prejudice was not available to the defendant as a sanction for violation of the requirement for a prompt preliminary hearing. See People v. Howell (1975), 60 Ill. 2d 117, 122-23, 324 N.E.2d 403, 406; People v. Holman (1984), 103 Ill. 2d 133, 155, 469 N.E.2d 119, 130; People v. Riddle (1986), 141 Ill. App. 3d 97, 101, 489 N.E.2d 1176, 1178.

In defendant’s motion for dismissal of the charges against him, he asserted that he had not contributed to the delay in this proceeding, and he pointed out that inclement weather caused the courthouse to be closed on the day the hearing was scheduled, December 28, 1990. Defendant cites several cases in support of his thesis that delay cannot be attributed to the defendant where the record is silent as to whether the defendant agreed to the delay (People v. Cunningham (1979), 77 Ill. App. 3d 949, 951, 396 N.E.2d 876, 877); that delays caused by docket crowding and prosecutorial overloads are attributable to the prosecution and not to the defendant (People v. DeCarlis (1980), 88 Ill. App. 3d 634, 638, 410 N.E.2d 677, 680); and that discharge is a proper remedy for failure to afford to defendant a speedy trial (People v. Love (1968), 39 Ill. 2d 436, 441, 235 N.E.2d 819, 822).

All of the above-cited cases involved the running of the speedy trial period, as opposed to the time period in which a prompt preliminary hearing must be held. Section 103 — 5 of the Code provides in pertinent part that “[e]very person not tried in accordance with subsections (a), (b) and (c) of this Section [the speedy trial provisions] shall be discharged from custody or released from the obligations of his bail or recognizance.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(d).) Such mandatory discharge language is distinctly absent from the legislature’s enactment in 1984 of sections 109 — 3.1, 114 — l(aXll) and 114— 1(e). Indeed, as noted above, the 1984 legislation specifically included a provision that dismissal of an information or indictment for failure to comply with the prompt preliminary hearing provisions would not preclude the return of a new indictment or the bringing of a new charge. (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1(e).) We therefore feel that the rules applicable to speedy trial calculation do not have a valid application in our determination in the instant case, whether failure to hold the preliminary hearing within 30 days absolutely mandates dismissal under section 114 — l(aXll) or whether, under certain circumstances, the court may properly deny a motion made pursuant to section 114 — l(aXll). Because section 114 — l(aXll) of the Code provides that the court may dismiss the information because the requirements of the prompt preliminary hearing statute were not complied with, the precise issue which we must review is whether the circuit court abused its discretion in denying defendant’s motion to dismiss where such dismissal would, pursuant to section 114 — 1(e) of the Code, be without prejudice.

In this regard, section 109 — 3.1 only provides that delay occasioned by the defendant shall temporarily suspend, for the time of the delay, the period within which the preliminary examination must be held. (111. Rev. Stat. 1989, ch. 38, par. 109 — 3.1.) As noted above, neither the State nor the defendant was responsible for the delay of 10 days in the holding of defendant’s preliminary examination. To be sure, the court could have exercised its discretion and dismissed the charge, without prejudice. The State maintains, however, that had the trial court granted defendant’s motion to dismiss, the trial court would have then ordered that the defendant be held over until the State could file new charges rather than discharge the defendant from custody pursuant to section 114 — 1(e) of the Code. The purpose of the right to a prompt preliminary hearing is to ensure that a defendant will not be held in custody or to bail, that is, that his freedom will not be restricted, without a prompt showing of evidence that a crime has been committed. (Roby, 200 Ill. App. 3d at 1067, 558 N.E.2d at 731, citing People v. Bartee (1988), 177 Ill. App. 3d 937, 941, 532 N.E.2d 997, 999.) It is readily apparent that a delayed preliminary hearing of only 10 days without dismissal of the charge worked to shorten the aggregate length of time defendant would have been held in custody without a preliminary hearing if a new charge had to be brought, defendant’s custody was continued, and a new preliminary hearing date had to be reset.

We therefore find that the trial court did not abuse its discretion under the circumstances of this case in denying defendant’s motion to dismiss the charge against him for failure to hold a prompt preliminary hearing within the period of time specified in section 109 — 3.1 of the Code. By this decision we do not mean to give wholesale approval to any attempt to ignore the time limitations specified in section 109 — 3.1 for preliminary hearings of persons charged with felonies. Accordingly, we affirm the March 18, 1991, judgment of defendant’s conviction of felony retail theft, entered by the circuit court of Jackson County.

Affirmed.

HARRISON, J., concurs.

JUSTICE H. LEWIS,

dissenting:

I respectfully dissent. I believe, as does the majority, that a person held to answer for a crime punishable by imprisonment in the penitentiary is entitled to a prompt preliminary hearing.

Under section 109 — 3.1(b) of the Code, effective January 1, 1984, “[e]very person in custody in this State for the alleged commission of a felony shall receive either a preliminary examination *** or an indictment by Grand Jury *** within 30 days from the date he or she was taken into custody.” (Ill. Rev. Stat. 1989, ch. 38, par. 109 — 3.1(b).) A “prompt” preliminary hearing is thus one which is held within 30 days.

Until 1984, no constitutional or statutory remedy existed for the violation of a defendant’s constitutional or statutory rights to a prompt preliminary hearing. However, effective January 1, 1984, section 114— l(aXll) of the Code was enacted. It provides that where a defendant makes a written motion prior to trial, either before or after a plea has been entered, the court may dismiss the indictment, information, or complaint against the defendant for failure to provide a preliminary hearing in accordance with the requirements of section 109 — 3.1.

The majority relies heavily on that portion of section 114 — l(aXll) which states the court “may” dismiss. Section 114 — 1(a) recites a litany of reasons why a court may dismiss a case, one of which, set forth in section 114 — l(aXll), is that the requirements of section 109 — 3.1 have not been complied with. I believe that under section 109 — 3.1(b), unless one of the exceptions applies, dismissal without prejudice is mandatory. Section 109 — 3.1(b), providing for preliminary examination or indictment within 30 days, says “shall” and means “shall.” The legislature also provided an “out” for the State when it did not preclude the State from the opportunity to return a new indictment or to file a new charge.

The majority hypothesizes that “a delayed preliminary hearing of only 10 days without dismissal of the charge worked to shorten the aggregate length of time defendant would have been held in custody without a preliminary hearing if a new charge had to be brought, defendant’s custody was continued, and a new preliminary hearing date had to be reset.” (Emphasis in original.) (231 Ill. App. 3d at 508.) What the trial court may or may not have done had it granted defendant’s motion requires speculation well beyond the purview of this court. The majority also says that it does not mean to give wholesale approval to any attempt to ignore the time limitations specified by the statute. I am sure it does not, but what it is saying is that, unless the trial court abuses its discretion, this court will not reverse. However, I believe the statute is clear. Unless a preliminary hearing is conducted within 30 days, in the absence of an applicable exception, the cause shall be dismissed without prejudice. In this case, clearly, none of the exceptions apply. The trial court found that the preliminary hearing had been set within the 30-day period but, due to a snowstorm, it was not possible to have the hearing. This incident does not fall within any exception. I also believe, contrary to the majority’s view, that the cases involving the running of the speedy-trial period and those cases involving faulty indictments give us guidance. See People v. Meier (1992), 223 Ill. App. 3d 490, 585 N.E.2d 232.

The trial court committed reversible error when it failed to grant defendant’s motion to dismiss the charge against him without prejudice for failure to hold a prompt preliminary hearing within the statutorily mandated period of time. I would reverse the defendant’s conviction.