author: JUSTICE SLATER

text:
    A. MILLER AND COMPANY, Plaintiff-Appellant, v. CINCINNATI INSURANCE COMPANY, Defendant-Appellee.
    Third District
    No. 3 — 90—0681
    Opinion filed August 23, 1991.

      W. Thomas Johnston, of Quinn, Johnston, Henderson & Pretorius, Chartered, of Peoria (John J. Waldman, of counsel), for appellant.
    Elizabeth W. Christensen, of Heyl, Royster, Voelker & Allen, of Peoria (Gary D. Nelson, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

This is a dispute over the interpretation of an interruption of business clause in an insurance policy. We affirm the trial court, which held for the insurer.

Plaintiff, A. Miller & Company, is engaged in the business of purchasing scrap metal, shredding it, and selling the shredded metal. Plaintiff was insured by defendant Cincinnati Insurance Company, under a policy which included an endorsement providing protection against the interruption of plaintiff’s business. The endorsement stated in part that the defendant agreed:

“1. To pay the insured the amount of Daily Indemnity, [$10,000] specified in Item 2, for each Day of Total Prevention of Business;
2. To pay the insured a part of the Daily Indemnity for each Day of Partial Prevention of Business; and
3. To pay that amount of expense which is reasonably incurred by the insured or the company to reduce or avert Prevention of Business, but only to the extent that the total amount, that otherwise would have been paid under Sections 1 and 2 of this Agreement, is thereby reduced * * *. ”

In addition, paragraph E, titled “Reduction of Payment,” provided:

“As soon as possible after an Accident the insured shall resume Business, in whole or in part, and shall utilize every available means, including *** surplus or reserve stock, which may be owned, controlled or used by the insured, which might reduce the amount for which the company would otherwise be liable under this Endorsement. *** All extra expense so incurred, by the insured as permitted in Section 3 of the Insuring Agreement *** shall be a part of and not in addition to the Limit of Loss.”

On October 15, 1988, the motor on a hammer mill machine used in plaintiff’s shredding operation broke down, preventing plaintiff from shredding metal for 321/2 days. While the hammer mill was being repaired, plaintiff used 5,500 tons of its reserve finished stock of shredded metal to meet existing contractual obligations. Plaintiff had an inventory of reserve stock sufficient to meet sales demand during the time that it was unable to produce shredded metal, and, as a result, plaintiff suffered no loss of gross income. Plaintiff was able to rebuild its inventory of shredded metal to its former level within 60 days after the hammer mill machine was repaired.

Plaintiff filed suit for declaratory judgment seeking a finding that defendant was liable under the policy for the expenses related to the replacement of its reserve stock. The parties stipulated that plaintiff was entitled to expenses of $22,960 which it incurred as additional storage and moving costs. They further stipulated that if the cost of the reserve stock was an “expense reasonably incurred to reduce or avert a prevention of business,” then the recoverable expenses were to be increased by $154,000, which represented the cost of the raw materials used by the plaintiff to replenish its inventory of reserve stock.

The trial court granted summary judgment for the defendant, finding that the replacement of plaintiff’s inventory was not a reimbursable expense under the insurance policy. The parties agree that no questions of material fact remain to be resolved, but the plaintiff contends that the trial court erred in construing the provisions of the insurance policy. Construction of an insurance policy is generally a question of law to be decided by the court. (Community State Bank v. Hartford Insurance Co. (1989), 187 Ill. App. 3d 110, 542 N.E.2d 1317; King v. Equitable Life Assurance Society of the United States (1984), 125 Ill. App. 3d 542, 466 N.E.2d 353.) The sole issue presented, given the stipulation and agreement of the parties in this case, is whether the cost of replacing plaintiffs inventory of reserve stock is a reimbursable expense under the insurance policy.

Plaintiff also maintains that the defendant’s failure to define the term “expense” created an ambiguity which should be construed against the defendant insurance company. While ambiguous language in an insurance policy should be construed in favor of the insured (Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376, 400 N.E.2d 921), this rule of construction does not apply when no real ambiguity exists (Western Casualty & Surety Co. v. Brochu (1985), 105 111. 2d 486, 475 N.E.2d 872). The mere absence of a definition does not necessarily render the language of a policy ambiguous (Keyser v. Connecticut General Life Insurance Co. (N.D. Ill. 1985), 617 F. Supp. 1406), nor is an ambiguity created simply because the parties disagree about the meaning of the policy language (Federal Savings & Loan Insurance Corp. v. Pacific Employers Insurance Co. (1978), 63 Ill. App. 3d 157, 161, 379 N.E.2d 682, 686 (Romiti, J., dissenting)). “If the words of a policy can reasonably be given their plain, ordinary, and popular meaning, the provisions should be applied as written and the parties should be bound to the agreement they made.” Western Casualty, 105 Ill. 2d at 495, 475 N.E.2d at 876.

Plaintiff contends that the term “expense” as used in the insurance policy includes the cost of the raw material used to replace the inventory which it used in order to prevent a loss of income. Although plaintiff relies on Northwestern States Portland Cement Co. v. Hartford Fire Insurance Co. (8th Cir. 1966), 360 F.2d 531, we believe the decision in that case supports the defendant insurance company’s position. In Portland Cement, the insured operated two adjacent cement manufacturing plants in Mason City, Iowa. A fire destroyed the induction draft fan located in plant No. 2, rendering its 400-foot-long kiln inoperable. The manufacturing process consisted of three basic steps: (1) quarrying, crushing, and blending limestone with clay; (2) heating the blended mixture of powdered limestone and powdered clay in the rotary kiln where a chemical reaction occurs resulting in a product known as clinker; and (3) grinding clinker to the required degree of fineness and inserting additives.

Due to the fire plant No. 2 was unable to produce clinker. The insured was therefore required to use its older, less efficient, plant No. 1 to produce clinker. The insured did not suffer any loss of sales as a result of the inoperable kiln because it had on hand a large inventory of finished cement and a substantial amount of stockpiled clinker to meet contract requirements and customer demands.

The insured contended that the interruption of business policy entitled it to the value of the clinker it would have produced had there not been a fire. Because there was no readily ascertainable market price for clinker, the insured claimed the proper measure of damages to be the net sales price of finished cement multiplied by the production lost during the interruption period reduced by various costs of production which were not incurred. The insurer contended that the proper measure of damages was the expense in excess of normal that the plaintiff incurred in replacing the finished stock (cement) sold to reduce the loss.

The Portland Cement court disagreed with the insured’s interpretation of the policy and found that the policy was designed to insure against loss of earnings. In the absence of loss of earnings, liability was limited to the extra expense necessary to prevent the loss of earnings. The court held that based on the language of the policy the insured was entitled to receive only those expenses, in excess of normal, which were incurred in replacing the finished stock. This extra expense was the excess cost incurred in replacing the inventory due to using the older and less efficient plant No. 1. The court stated that allowing the insured to recover the amount it sought would put the insured “in a better position than if no shutdown had occurred.” Portland Cement, 360 F.2d at 534.

Similarly, we believe that allowing plaintiff to recover the cost of the raw materials used to replenish its inventory would put plaintiff in a better position than it would have been in if no breakdown had occurred. The general purpose of business interruption insurance is to protect the earnings which the insured would have enjoyed had no interruption occurred. (Portland Cement, 360 F.2d at 534.) It is undisputed that plaintiff suffered no loss of income, nor did it incur any additional expense other than the $22,960 agreed upon by the parties. What plaintiff seeks to recover is the stipulated $154,000 cost of the raw materials used to rebuild its inventory. Plaintiff was obligated to utilize its “reserve stock” (inventory) as a condition of the policy. In any event, production of shredded metal requires the acquisition of the raw product. To allow the raw material costs to be recovered under the policy would provide plaintiff with a double recovery.

Eastern Associated Coal Corp. v. Aetna Casualty & Surety Co. (W.D. Pa. 1979), 475 F. Supp. 586, aff’d in fart & rev’d in fart & remanded (3d Cir. 1980), 632 F.2d 1068, cited by plaintiff, is factually inapposite. In that case the insured was forced to purchase coal on the open market and sell it at a loss in order to meet existing contractual obligations. Here plaintiff was able to fulfill all of its contractual obligations from existing shredded metal without having to cover in the open market.

We believe that plaintiff could have claimed that it was entitled to any additional expenses it incurred in replacing its inventory. Such expenses would not include the cost of the raw materials but might include any costs above those normally incurred for labor, utilities, and other overhead necessary to shred the metal needed to rebuild plaintiff’s inventory. The parties have stipulated to the facts in this case, however, and have presented the trial court and this court with the single issue of whether the cost of the inventory was an expense under the insurance policy. Having decided that issue in favor of the defendant, we will not consider whether plaintiff may have been entitled to an amount greater than the $22,960 agreed to by the parties. See Palos Bank & Trust Co. v. Kardaras (1982), 104 Ill. App. 3d 505, 432 N.E.2d 1123 (when the parties have stipulated to a single issue, others may not be raised).

We believe that when the term “expense” is considered in the context of the entire policy (see Western Casualty, 105 Ill. 2d at 493, 475 N.E.2d at 876) and considering the purposes for which the policy was obtained (see Dora Township, 78 Ill. 2d at 378, 400 N.E.2d at 922), it is clear that the cost of replacing plaintiff’s inventory was not an “expense” under the policy. We find no ambiguity. We hold, therefore, that plaintiff was not entitled to recover the cost of its reserve finished inventory, and we affirm the judgment of the circuit court.

Affirmed.

STOUDER, P.J., and BARRY, J., concur.


source: Caselaw Access Project

author: JUSTICE McCUSKEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARC E. ALEWELT, Defendant-Appellee.
    Third District
    No. 3 — 90—0904
    Opinion filed August 21, 1991.
    David W. Neal, State’s Attorney, of Morris (Jay P. Hoffmann, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      Mueller & Garretson, of Morris (Joseph A. Mueller, of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The People of the State of Illinois appeal the ruling of the circuit court of Grundy County granting defendant’s motion to suppress evidence. We affirm.

On March 12, 1988, Officer Carl Gutierrez of the Illinois State Police, while on routine patrol, clocked the vehicle driven by defendant, Marc Alewelt, at 75 miles per hour in a 65-mile-per-hour speed zone on Interstate 55. Gutierrez was not familiar with the defendant or the vehicle he was driving. When Gutierrez learned that defendant’s driving privileges were suspended, he took the defendant into custody and arrested him for driving while license suspended. Because defendant lived in Springfield, the officer immediately requested the vehicle be towed from the highway. The officer never consulted the defendant about removing the vehicle from Interstate 55, nor did the officer wait to determine if other arrangements could be made before removing the vehicle from the roadway.

Gutierrez stated that when the defendant handed him the keys to the vehicle, the trunk key was missing. The defendant indicated to Gutierrez that the owner of the vehicle never gave him a trunk key. Nevertheless, Gutierrez found the trunk key lying on the driver’s seat. Gutierrez then inventoried the vehicle. Gutierrez testified the reason for the inventory was to safeguard the defendant’s possessions and to protect the State Police against any claims of misappropriation. Gutierrez found various routine items when he inventoried the interior of the vehicle, e.g., camera, radar detector, etc.

After the vehicle was towed to State Police district headquarters, Gutierrez searched and inventoried the trunk without receiving permission from defendant or obtaining a search warrant. The officer noticed a brown bag in the corner of the trunk. He testified he could see a plastic bag containing a white powdery substance within the brown bag. Gutierrez altered his inventory list and filed additional charges against the defendant. Defendant was then charged with both unlawful possession of a controlled substance and unlawful possession of a controlled substance with intent to deliver.

Defendant filed a motion to suppress evidence, claiming (1) the officer did not have reasonable grounds to search the trunk of the vehicle; and (2) the search was pretextual to an investigatory motive. The trial court agreed and granted the defendant’s motion to suppress evidence.

The State contends the trial court erred in granting defendant’s motion to suppress evidence. We disagree.

A reviewing court will not disturb a trial court’s ruling on a motion to suppress evidence unless the trial court’s determination is contrary to the manifest weight of the evidence. The determination of the credibility of witnesses and weighing the sufficiency of the evidence presented at a trial are both discretionary matters best left within the province of the trial court. Unless the trial court clearly abuses its discretion, a reviewing court should not disturb its findings. People v. Jams (1990), 139 Ill. 2d 300, 565 N.E.2d 633.

When an inventory search is found to be unjustified and is pretextual to concealing an investigatory motive, it will be deemed illegal and the evidence found must be excluded. (People v. Reincke (1980), 84 Ill. App. 3d 222, 225-26, 405 N.E.2d 430.) An inventory intrusion into a vehicle is tested for its constitutionality by the application of the fourth amendment standard of reasonableness. In determining whether the inventory search was reasonable, the threshold inquiry is whether the prior impoundment of the vehicle was proper. People v. Braasch (1984), 122 Ill. App. 3d 747, 461 N.E.2d 651.

The trial court based its decision to suppress the evidence in this case in part on the fact there was no probable cause to search the trunk of the automobile. It should be noted the investigating officer did not obtain a search warrant or obtain consent to search the trunk. Furthermore, exigent circumstances did not exist because the car was secure at the police headquarters. At the time of the seizure of the drugs, the defendant was under arrest only for speeding and driving while his license was suspended. Probable cause exists where the totality of the facts and circumstances within the officer’s knowledge are sufficient in themselves to warrant a man of reasonable caution to the belief that an offense has been or is being committed. (Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317.) Probable cause is determined at the time of the arrest. (People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.) Evidence obtained after the arrest cannot be considered in determining whether probable cause existed for the arrest. (Johnson v. United States (1948), 333 U.S. 10, 92 L. Ed. 436, 68 S. Ct. 367.) Two officers testified that the defendant, the owner of the car, and the vehicle itself were not subjects of any investigation regarding drugs.

The trial court noted Gutierrez did not follow intradepartmental regulations concerning the inventory search and towing the vehicle. The directives of the State Police provide a two-hour time limit before a vehicle may be removed when left on an interstate highway.

Section 4 — 203 of the Illinois Vehicle Code provides:

“When a vehicle is abandoned, or left unattended, on a toll highway, interstate highway, or expressway for 2 hours or more, its removal by a towing service may be authorized by a law enforcement agency having jurisdiction.” Ill. Rev. Stat. 1989, ch. 95V2, par. 4-203(a).

Finally, the trial judge indicated that he did not believe certain portions of Gutierrez’s testimony. For example, the trial judge believed Gutierrez conducted a pretextual search for contraband. The trial judge also did not believe Gutierrez’s explanation of the inconsistencies in his inventory report. The inventory given to the tow company was blank, even though Gutierrez had inventoried the interior of the vehicle before it was towed. Also, Gutierrez’s inventory list was written with different pens, presumably at different times.

The trial court has the superior vantage point in which to determine the credibility of the witnesses and weigh the sufficiency of the evidence. Based on the entire record, the trial court’s decision was not against the manifest weight of the evidence and was not an abuse of discretion.

The circuit court of Grundy County is hereby affirmed.

Affirmed.

SLATER and BARRY, JJ., concur.


author: JUSTICE BARRY

text:
    DOLORES D. PERINO et al., Petitioners-Appellants, v. KRISTINE ELDERT et al., Respondents-Appellees.
    Third District
    No. 3 — 90—0660
    Opinion filed August 21, 1991.
    Robert D. Gaubas, of Robert D. Gaubas, Ltd., of Peoria, for appellants.
    Jonathan T. Schlake, of Bill Butts, Barrister, Ltd., of Galesburg, for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Dolores D. Perino and Wallace E. Prince appeal from an order of the circuit court of Knox County, probate division, dismissing their petition to vacate the 1988 will of Bernice Guardalabene which had been admitted to probate and to substitute the 1961 joint and mutual will of Bernice. The sole issue on appeal is whether a petition to vacate the deceased testator’s most recent will was properly filed in the probate proceeding. We agree with the trial court that it was not, and we affirm.

While Bernice was married to C.L. Prince, the two jointly executed a will whereby they left all of their property to each other and with a further provision that the surviving testator shall give his or her entire estate to the children of C.L. Prince: Dolores D. Perino and Wallace E. Prince. This will was dated August 10,1961.

C.L. Prince died in 1964, and Bernice later remarried. In 1988 she executed a new will leaving her property to her nieces and nephews and naming Kristine Eldert as executor. After Bernice’s death in 1990, Kristine presented the 1988 will for probate, and the will was admitted. Perino and Prince subsequently petitioned in probate to vacate the 1988 will and to substitute the 1961 will on the theory that the latter will was a joint and mutual will which became irrevocable upon the death of the first testator, C.L. Prince. The trial court dismissed the petition and, in its written order, stated, “[T]his Order is not intended to preclude Delores [sic] D. Perino from pursuing another avenue in chancery on her claim.”

The law of Illinois concerning probate jurisdiction has long been settled. In a similar factual situation, the Illinois Supreme Court in In re Estate of Baughman (1960), 20 Ill. 2d 593, 601, 170 N.E.2d 557, 561, held:

“We conclude that a county court sitting in probate, or a probate court, in passing on a petition for probate, has no jurisdiction to determine the validity or construction of a prior revoked joint will as a contract not to revoke, but under section 69 of the Probate Act [(now Ill. Rev. Stat. 1989, ch. 1101^, par. 6— 4)] the jurisdiction to be exercised and the issue to be decided is as to which of the proffered instruments is the last will of the testator executed in compliance with the statutory requirements, free of fraud, forgery, compulsion or other improper conduct.”

Subsequently, the supreme court ruled that the abolition of probate courts and the creation of circuit courts of unlimited jurisdiction in the judicial article (Ill. Const. 1870, art. VI, §8 (1964)) did not change the scope of a proceeding to admit a will to probate under the Probate Act. (In re Estate of Marcucci (1973), 54 Ill. 2d 266, 296 N.E.2d 849.) The court in Marcucci stated:

“[T]he validity of a joint and mutual will is not within the permissible scope of inquiry as delineated by the statute (section 69) [(now section 6 — 4)]. The purpose of this section is to expeditiously admit a will to probate and appoint an executor to marshal and protect the assets of the estate. The usual issue presented at such proceedings is a determination of which is the last, valid, unrevoked will of the testator. Any attempt to prove the existence of a contract not to revoke at such proceedings is irrelevant since it is tantamount to an attempt to prove a contractual claim against the estate before the appointment of an indispensable party, the executor.” 54 Ill. 2d at 270, 296 N.E.2d at 851.

These decisions were followed by the trial court here in refusing to decide the question of a contract not to revoke as a part of the probate proceeding. The parties have indicated on appeal that an equitable action has been filed by Perino and Prince to enforce their claimed contractual rights to the property owned by Bernice at her death. Thus, their claim can still be judicially determined in the appropriate proceeding.

In arguing that the trial court erred, Perino and Prince have relied upon two decisions of the appellate court. In Rauch v. Rauch (1983), 112 Ill. App. 3d 198, 445 N.E.2d 77, the issue of whether a will already admitted to probate was a joint and mutual will was raised by a complaint for construction of the will. Unlike the case at bar, there was no question of an attempted revocation of a joint will, and nothing in that decision is contrary to the order of the trial court here.

The facts in In re Estate of Schwebel (1985), 133 Ill. App. 3d 777, 479 N.E.2d 500, more closely resemble the instant case in that certain nieces and nephews of the deceased testator sought to have a 1980 will, previously admitted to probate, declared ineffective and to declare binding a 1960 will made jointly with the testator’s brother who had died before testator. The published opinion in the Schwebel case does not consider the propriety of the petition. Presumably the parties did not raise the issue, and it was, therefore, waived. To the extent Schwebel is inconsistent with the rulings of the supreme court in Baughman and Marcucci, we consider the latter decisions to be controlling.

The order of the circuit court is affirmed.

Affirmed.

SLATER and HAASE, JJ., concur.


author: JUSTICE HAASE

text:
    EUGENE CRANE, as Trustee for the Estate of William E. Rooney, Inc., Plaintiff-Appellant, v. ERHARD CHORLE et al., Defendants-Appellees.
    Third District
    No. 3 — 90—0836
    Opinion filed August 23, 1991.
    Julie A. Correll, of Wildman, Harrold, Allen & Dixon, of Chicago (Roderick A. Palmore, of counsel), for appellant.
    William E Conlon and Robert H. Rhode, both of Sidley & Austin, of Chicago (Kathleen Roach, of counsel), for appellee Erhard Chorle.
    William J. Harte, David J. Walker, and Rebecca R. Garber, all of William J. Harte, Ltd., of Chicago, for appellee Cynthia Cacciatore.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, Eugene Crane, in his capacity as bankruptcy trustee for the estate of William E. Rooney, Inc., brought suit against the defendants, Erhard Chorle and Cynthia Cacciatore, individually and in their capacity as officials with the Secretary of State of Illinois, Securities Division. According to Crane, the defendants negligently failed to issue a cease and desist order against William E. Rooney, Inc., for 15 months after they acquired knowledge that Rooney was violating Illinois security laws. In response, the defendants filed a motion to dismiss the plaintiff’s complaint for failure to state a cause of action. The defendants contend they are immune from suit. The trial court agreed and ordered the plaintiff’s complaint dismissed. The plaintiff appeals. We affirm.

William E. Rooney conducted a “Ponzi” scheme to defraud investors and was convicted in June 1989 on both State and Federal charges arising from this scheme. Rooney sold promissory notes to investors representing that the funds from the sale of the notes would be used to finance consumer loans. In reality, Rooney used the money for his personal investment.

In 1986, Cynthia Cacciatore, an investigator with the Securities Division of the Secretary of State’s office, came across an advertisement for the sale of the Rooney notes. Cacciatore wrote a letter to Rooney in late 1986 requesting more information about the notes. In January 1987, the law firm of Jenner & Block responded to Cacciatore’s inquiry on behalf of Rooney. Cacciatore was apparently satisfied with the response and did not pursue the matter further until September of 1987. On September 21, 1987, Cacciatore issued a subpoena requesting all financial records from Rooney for the past three years. In response, Craig Bradley, an attorney with Jenner & Block, contacted Cacciatore on behalf of Rooney and obtained an extension of time in which to comply. Over the next couple of months, Cacciatore corresponded with several attorneys from Jenner & Block and visited the law firm several times to review Rooney documents. In November of 1987, Cacciatore advised Jenner & Block that the sale of the notes probably violated Illinois security laws. After several delays in scheduling further document productions, Jenner & Block withdrew from its representation of Rooney.

On February 2, 1989, the Secretary of State began administrative proceedings against Rooney. On March 3, 1989, the Secretary of State issued a cease and desist order forbidding Rooney from selling promissory notes in the State of Illinois.

The trial court ruled that since the plaintiff acknowledges in his complaint that a cease and desist order was actually entered against Rooney, the only negligence which could sustain the plaintiff’s claim relates to the interval of time between possible firsthand knowledge by the defendants of a violation of Illinois law by Rooney and the entry of a cease and desist order. The court ruled that decisions such as when and how to initiate and conduct a formal investigation, gather evidence, and seek a cease and desist order all involve elements of discretion. Inasmuch as the plaintiff’s complaint is devoid of any aliegations or inference that the defendants acted from corrupt or malicious motives, the court ruled the defendants are immune from suit. We agree.

Public officials are immune from suit for the performance of discretionary duties undertaken in good faith. (Mora v. State (1977), 68 Ill. 2d 223, 369 N.E.2d 868.) The plaintiff argues that once the Secretary of State makes a finding that a party has violated Illinois securities laws, the issuance of a cease and desist order is not discretionary. The plaintiff is correct. (See Ill. Rev. Stat. 1989, ch. 121½, par. 137.11(E).) The plaintiff goes astray, however, when he asserts that a finding under section 11 was made when Cacciatore informed Jenner & Block that the sale of the Rooney notes probably violated Illinois law. The subjective belief of an investigator for the Secretary of State does not constitute a finding under section 11(E). A finding under this section refers to a formal written finding made after an administrative hearing. See Ill. Rev. Stat. 1989, ch. 121Y2, par. 137.11(F)(1).

The trial court correctly determined that the plaintiffs, as governmental officials, are immune from suit for the performance of their discretionary duties undertaken in good faith. Decisions involving the initiation, scope, and timing of administrative proceedings necessarily involve such acts of discretion. Absent allegations that the delay between the initial investigation and the ultimate administrative proceeding was the product of fraud, bad faith, or corrupt motives, the plaintiff’s complaint fails to state a cause of action.

For the aforesaid reasons, the judgment of the Will County Circuit Court is affirmed.

Affirmed.

STOUDER, P.J., and BARRY, J., concur.


text:
    OAK GROVE FIRE PROTECTION DISTRICT, Petitioner-Appellant, v. THE VILLAGE OF BARTONVILLE, Respondent-Appellee.
    Third District
    No. 3 — 90—0906
    Opinion filed August 23, 1991.
    Leiter, Brady & Associates, of Peoria (William C. Connor, of counsel), for appellant.
    Roy G. Davis, of Keck, Mahin & Cate, of Peoria (Michael R. Seghetti, of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Petitioner, Oak Grove Fire Protection District (the District), appeals from the denial of its petition to prevent the automatic disconnection from the District of territory annexed by respondent, Village of Bartonville (the Village). Because we find the trial court failed to properly apply the statutory provision governing the disconnection of fire district territory, we reverse its denial of the petition.

The District is a municipal corporation in Peoria County created for the prevention and control of fire. The District owns neither property nor fire equipment. The District uses its tax revenue to contract with a neighboring fire district for protection. In 1990, the Village annexed parcels of property serviced by the District, leaving within the District only eight homes in two noncontiguous tracts.

This action was filed pursuant to section 20 of the Fire Protection District Act, which provides as follows:

“Any territory within a fire protection district that *** has been annexed to a *** village *** that provides fire protection for property within such *** village *** is, by operation of law, disconnected from the fire protection district *** after such territory is annexed ***. Such disconnection by operation of law does not occur if *** the fire protection district files *** a petition alleging *** that the loss of assessed valuation by reason of such disconnection will impair the ability of the district to render fully adequate fire protection service to the territory remaining with the district.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 127x/2, par. 38.3.

Following a hearing, the trial court found that the minimum cost to the District to provide protection to the eight remaining homes was $1,450 in fixed costs, plus contractual costs to the neighboring fire district for the actual protection. The trial court also found that disconnection of the annexed property would result in a loss of approximately 95% of the District’s assessed valuation. The court further found that expected tax revenue from the eight homes would be insufficient to meet the District’s costs of operation. The record additionally reflects that sufficient revenue could not be generated even if the District levied taxes at the maximum rate allowed.

The court determined that if disconnection of the annexed property occurred, and if the District dissolved, the eight homes not annexed could individually obtain protection at a reasonable cost with the neighboring fire district currently under contract with the District. The court concluded that to prevent disconnection under these circumstances would constitute a “disservice” to the affected property owners, and would only serve to perpetuate an “inefficient” and “impractical” fire protection service.

We find the trial court did not properly apply its findings to section 20 of the Act (Ill. Rev. Stat. 1989, ch. 1271/2, par. 38.3). In light of the statutory requirements of the Act, the trial court’s decision denying the petition was against the manifest weight of the evidence. The only conclusion we draw from the court’s findings is that the expected revenue shortfall upon disconnection would materially impair the District’s ability to render fully adequate fire protection service to its remaining territory. Under the Act, this is sufficient to prevent disconnection.

Regardless of whether disconnection would impair the District’s ability to provide protection, the Village contends that the District lost standing to bring this action when its territory was made noncontiguous by earlier annexations. The Village argues that automatic dissolution or disconnection occurs if annexations subsequent to the District’s formation destroy the contiguous nature of its territory. Without deciding the Village’s objection, we find that this argument was waived at the trial level. Lack of standing is an affirmative defense which will be waived if not raised in a timely fashion in the trial court. Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 508, 524 N.E.2d 561, 582.

We recognize that by preventing disconnection of the annexed territory we subject the District’s residents to a more costly fire protection service than their neighbors in the Village. Under the facts of this case, we have no choice but to apply the law as enacted by the legislature. The trial court’s decision was certainly fair and equitable. However, the case before us is not one in equity. Instead, it is a case of statutory mandate. Accordingly, the trial court decision must be reversed.

The judgment of the circuit court of Peoria County is reversed. Judgment is hereby entered in favor of the District.

Reversed.

BARRY and HAASE, JJ., concur.


text:
    THOMAS J. LAMBRECHT et al., as Trustees, et al., Plaintiffs-Appellants, v. THE COUNTY OF WILL, Defendant-Appellee (Thomas Reuttiger et al., Intervening Defendants-Appellees).
    Third District
    No. 3 — 90—0428
    Opinion filed August 20, 1991.

      Thomas R. Wilson, of Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet (Roger D. Rickmon, of counsel), for appellants.

      Edward Burmila, Jr., State’s Attorney, of Joliet (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellee County of Will.
    Richard T. Buck and Michael R. Lucas, both of McKeown, Fitzgerald, Zollner, Buck, Hutchison, & Ruttle, of Joliet, for other appellees.
   JUSTICE SLATER

delivered the opinion of the court:

This appeal arises out of defendant Will County’s denial of a special use permit sought by plaintiffs to allow them to operate a quarry. Plaintiffs Thomas J. Lambrecht and Paul A. Lambrecht, as trustees of the Brown and Lambrecht Earthmovers Inc., Employees Profit Sharing Trust (the Trust) own a 185.44-acre parcel of land (the subject property) located in unincorporated Will County, Illinois. Plaintiff Vulcan Materials Company (Vulcan) is engaged in the business of mining and quarrying and currently operates a quarry (the Chicago Street quarry) located approximately one mile south and east of the subject property. Vulcan has an interest in the subject property as a contract purchaser. The intervening defendants are owners of property adjoining or located near the subject property.

The subject property consists of farmland and is bounded on the south, east, and west by other farms. Immediately north of the property is a single-family residential subdivision containing some older homes and some vacant lots. There are also a number of residential subdivisions to the northeast and northwest, as well as a retirement complex. The property is currently zoned A-l for agricultural use. The Will County zoning ordinance allows for quarrying under such a classification if a special use permit is obtained. After plaintiffs’ application for a special use permit was denied by the county, plaintiffs filed suit for a declaratory judgment alleging that the zoning ordinance was arbitrary and unconstitutional as applied. The circuit court upheld the denial of the special use permit, finding that plaintiffs had not shown that the zoning ordinance was arbitrary, unreasonable and without a substantial relationship to the public health, safety, morals, or general welfare. The sole issue on appeal is whether the judgment of the trial court is contrary to the manifest weight of the evidence. We affirm.

“[A] zoning ordinance will be upheld if it bears any substantial relationship to the public health, safety, comfort or welfare. An ordinance will be presumed to be valid, and the one attacking an ordinance bears the burden of demonstrating its invalidity. The challenging party must establish by clear and convincing evidence that the ordinance, as applied, is arbitrary and unreasonable and bears no substantial relation to the public health, safety or welfare.” Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 179-80, 354 N.E.2d 899, 903.

The parties agree that the relevant factors in determining the validity of a zoning ordinance are: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of the property values of plaintiff promotes the health, safety, morals, or general welfare of the public; (4) the relative gain to the public as compared to the hardship imposed upon the property owner; (5) the suitability of the subject property for the zoned purposes; and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65.) Additional considerations include the degree of care which the community has taken to plan its land use development and any evidence of community need for the proposed use. (Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 167 N.E.2d 406.) No one factor is controlling. La Salle National Bank, 12 Ill. 2d 40, 145 N.E.2d 65.

The validity of a zoning ordinance is dependent upon the peculiar facts and circumstances of a given case. (La Salle National Bank, 12 Ill. 2d 40, 145 N.E.2d 65), and we will discuss the evidence presented here only as it relates to the factors mentioned above. With regard to the first factor, the trial court found the existing uses of nearby property to be residential and farmland, with the land located north of the property being predominantly residential. Roger Tibbie, a real estate appraiser, testified for defendants that the Honey Hill and Green Tree subdivisions are located to the east and northeast of the proposed quarry site. Sugar Creek and Sugar Creek Hills are located to the north and northwest. Preston Heights and Hawthorne Hills are located further to the west and northwest. In addition, there are several residences located north of the property and the Salem Village Nursing Home is located approximately three-quarters of a mile north. The remainder of the land to the east, west, and south is farmland.

Charles Southcomb, plaintiffs’ real estate appraiser, testified that the Honey Hill subdivision contains approximately 40 homes with an average value in the mid-$60,000 range. Green Tree subdivision contains approximately 100 homes with the highest value in the $80,000 to $90,000 range. Sugar Creek Hills contains about 40 homes with an average value of $90,000, with some homes valued at up to $150,000. Sugar Creek contains approximately 100 homes on large wooded sites valued at $90,000 to $175,000. Preston Heights, located one-half to one mile from the subject property, contains over 100 homes with a maximum value of $52,000. Hawthorne Hills, located about a mile from the proposed site, contains 30 homes valued at $90,000 to $100,000. The subdivision which abuts the northern property line of the proposed quarry site contains approximately 15 homes with an average value of $40,000 with some as high as $60,000. Although Southcomb did not know how many people lived in the Salem Towers and Salem Village retirement community, he agreed that a couple of hundred people was a fair estimate. He also agreed that the existing uses in the immediate area around the subject property are single-family residential and agricultural.

Plaintiffs contend that there is no basis in the record for the trial court’s characterization of the land adjacent and to the north of the proposed quarry as predominantly residential. Based on the testimony related above, we believe there was ample evidence to support such a finding.

The second factor to be considered is the extent to which property values are diminished by the particular zoning restriction. The trial court found that the value of the subject property was not diminished by the zoning restriction. Defendants’ real estate appraiser, Roger Tibbie, testified that the property as zoned had a value of $3,000 per acre. Tibbie did not state what the value of the property would be if quarrying were permitted. Charles Southcomb testified for plaintiffs that the value of the property was $2,500 per acre as zoned but that it would be worth $12,000 per acre if quarrying were permitted. Since Southcomb’s unrebutted testimony shows that the use of the property as a quarry would increase its value by $9,000 to $9,500 per acre, we find that the trial court’s determination that the value of the property was not diminished by the zoning restriction is against the manifest weight of the evidence. However, although the court erred in finding that the value of the property was not diminished, this factor is not controlling.

“ ‘That the property would be worth more if plaintiffs were free to develop it as they wish is not determinative of the validity of the zoning [citations], as that is true in almost any zoning dispute. The plaintiffs purchased this property fully aware of its zoning status. The financial disadvantage suffered from denial of the petition is a self-created one. [Citation.] That a business risk has been taken by the purchaser is a factor to consider in assessing the economic hardship imposed upon him.’ ” Meyer Material Co. v. County of Will (1977), 51 Ill. App. 3d 821, 828, 366 N.E.2d 1149, 1154, quoting First National Bank v. City of Springfield (1976), 42 Ill. App. 3d 566, 569, 356 N.E.2d 367, 370.

As defendants note, in this case any economic hardship visited upon plaintiffs is softened by the terms of the contract between the Trust and Vulcan. The record reveals that the Trust will receive, and Vulcan will pay, little more than the fair market value of the property as it is currently zoned. In addition, either party may terminate the contract if the special use permit is not obtained. More importantly:

“It is not the mere loss of value that is significant. Rather, the loss in value to the plaintiff must be considered in relation to the public welfare. Only when the public welfare does not require the restriction and resulting loss does the loss in value become significant.” La Grange State Bank v. County of Cook (1979), 75 Ill. 2d 301, 309, 388 N.E.2d 388, 391.

Any economic loss to plaintiffs must be evaluated, then, in relation to the third and fourth factors outlined in LaSalle National Bank. These factors are often considered together and require a court to weigh the effects of the zoning restriction as it promotes the health, safety, morals, or general welfare of the public against the hardship imposed upon the property owner. (St. Lucas Association v. City of Chicago (1991), 212 Ill. App. 3d 817, 571 N.E.2d 865.) The evidence adduced at trial relevant to this issue generally related to one of four categories: (1) the impact of the proposed quarry on the value of neighboring property; (2) the effects of blasting done at the quarry; (3) the effect of the quarry on groundwater; and (4) the general compatibility of the quarrying operation with surrounding land uses.

Plaintiffs’ real estate appraiser, Charles Southcomb, believed that a quarry would neither diminish nor enhance the value of the surrounding property. He noted that Sugar Creek, Sugar Creek Hills, Preston Heights, and Salem Towers were all within a mile of Vulcan’s existing Chicago Street quarry and they were developed after the quarry began operating. In addition, Hawthorne Hills is located across the street from the existing quarry and was also developed subsequent to existing quarrying operations. Southcomb admitted on cross-examination, however, that property in close proximity to the proposed quarry could suffer a diminution in value. Defendants’ real estate appraiser, Roger Tibbie, testified that the proposed quarry would have a substantial detrimental effect on established land uses. Tibbie used a matched pair analysis, in which sales of property close to an existing quarry were compared with sales of similar property outside the area. Tibbie stated that homes within the “impact zone” of the quarry took substantially longer to sell and suffered a significant loss in value compared to homes outside the impact zone. Tibbie admitted, however, that other variables could affect the value of a home and that he could not isolate what effect the quarry had versus the other variables.

Two expert witnesses testified for plaintiffs regarding the effects of blasting on neighboring property. Don Froedge stated that in his opinion blasting at the proposed site would not adversely affect the structures in the area. He was unable to say if there would be any damage to personal property such as dishes, however, and he admitted that his definition of damage did not include pictures or plates falling off a wall and breaking. David Glossbrenner testified that blasting at the proposed site would not adversely affect surrounding properties if good blasting practices were followed.

Christopher White, vice-president of Vulcan, testified that Vulcan would comply with county regulations regarding the handling of explosives, blasting, and maximum vibration emissions and that they had done so at the Chicago Street quarry. The county zoning ordinance requires blasting procedures to be designed so that the maximum ground vibration will not exceed 0.5 inches per second of ground particle velocity as recorded at the nearest existing building. While White stated that Vulcan makes a seismographic record of each blast, he acknowledged that the seismograph does not always work and that it is not always placed at the nearest property line. When questioned about various blast records which indicated vibration levels in excess of 0.5, White maintained that they did not necessarily demonstrate that the ordinance had been violated because he was unable to tell where the seismograph had been placed. White also agreed that nearby home owners would be able to hear and feel the blasting and that they might consider it a nuisance.

Gregory Zak, a technical adviser with the Illinois Environmental Protection Agency (the Agency), testified that the Agency received more complaints regarding blasting at the Vulcan operation than at any other quarry in Illinois. Zak stated that in 1980 he installed a seismograph on property bordering on the Chicago Street quarry for approximately six months. The seismograph recorded 52 blasts, 22 of which exceeded 0.5 inches per second of ground particle velocity, including one above 2.0. The seismograph was set to record blasts of moderate intensity and very low level blasts were not recorded. No complaint was ever filed by the Agency against Vulcan because at that time the Agency had no regulations limiting ground particle vibrations.

Several homeowners living near the Chicago Street quarry testified to cracks in walls and floors of their homes which they believed to be caused by blasting. Some also complained of dust and the presence of “flyrock” on their property. Flyrock is stone which is thrown into the air by blasting.

Both plaintiffs and defendants presented expert testimony regarding the effect of the proposed mining and quarrying operation on the area’s water supply. Richard Schowengerdt, a hydrologist, was hired by Vulcan to determine the impact of the proposed quarry. He visited the proposed site and the Chicago Street quarry and reviewed well logs and boring records kept on file with the State. In Schowengerdt’s opinion, the proposed quarrying activities would not have a substantial effect on the water supply.

Roberta Jennings, a hydrogeologist, testified for defendants that she reviewed the geology of the area, compiled a well log inventory, and she reviewed Schowengerdt’s evaluation. In her opinion, there could be a substantial negative impact on wells near the quarry and some impact to wells farther away. Jennings also believed that the proposed site might intersect with a buried bedrock valley, causing rapid dewatering of wells, but she was unable to pinpoint its location or confirm its existence due to a lack of available data. Jennings was also critical of the methodology and conclusions reached by Schowengerdt. On rebuttal Schowengerdt disagreed with Jennings’ opinion regarding the existence of a buried bedrock valley. In addition to the expert testimony presented, two homeowners living near the Chicago Street quarry testified that their wells had gone dry.

Plaintiffs’ expert planning consultant, Thomas Murphy, testified that the proposed quarrying operation was compatible with the county land use plan and the surrounding agricultural and residential uses. Murphy thought that a quarry would benefit both the immediate area and the general area south of Joliet. Real estate appraiser Southcomb also opined that a quarry was compatible with the surrounding area. Paul Gorte, director of planning for Will County, stated that he did not believe that the proposed quarry was compatible with the surrounding area. His expectations for the area included further residential development with some possible commercial use at intersections, although he did not foresee any additional development within the next five years. Gorte acknowledged that the county had approved a residential subdivision across the river from an operating quarry, but he believed that knowingly choosing to live near a quarry was a different situation than allowing a quarry in an existing residential area.

The trial court found that allowing the proposed use would detrimentally affect the existing uses of surrounding property, that the public substantially benefits from the zoning restriction, and that no significant hardship was imposed on the plaintiffs. It is well settled that it is the function of the trial court to weigh conflicting testimony and its findings will not be disturbed unless they are contrary to the manifest weight of the evidence. (La Salle National Bank, 12 Ill. 2d 40, 145 N.E.2d 65.) While this could fairly be characterized as a close case, we believe that the trial court’s findings are sufficiently supported by the evidence. In any event, we do not believe that the opposite conclusion is clearly evident.

Plaintiffs argue that the evidence relating to Vulcan’s blasting at the Chicago Street quarry is “little more than an improper attempt to defeat plaintiffs’ relief by impeaching the character of the plaintiff corporation.” We find nothing improper. Plaintiffs presented testimony that Vulcan would follow proper blasting procedures and conform to the county ordinance regarding ground particle velocity and that they had done so in the past. Evidence indicating that Vulcan may have violated the ordinance was clearly relevant to the issue of the believability of such testimony.

Plaintiffs also maintain that Gorte’s opinion that a quarry was not compatible with existing residential uses was based solely on his belief that it is improper to locate a quarry near existing homes because doing so destroys the expectations of the homeowners. Plaintiffs then hypothesize that the decision of the county denying the special use permit and the judgment of the trial court were also grounded solely on this basis. Plaintiffs then argue that those decisions were erroneous because “the use of property cannot be restricted or limited merely because neighboring property owners so desire, or because they think it might protect the value of their residences.” Regner v. County of McHenry (1956), 9 Ill. 2d 577, 582,138 N.E.2d 545, 547.

We agree that restrictions on the use of property cannot be justified by the mere desires of neighbors or their belief that property values will be affected. However, the diminution of property values within a neighborhood is a proper factor for the trial court to consider. (See La Grange State Bank, 75 Ill. 2d at 309, 388 N.E.2d at 391; Amalgamated Trust & Savings Bank v. County of Cook (1980), 82 Ill. App. 3d 370, 382, 402 N.E.2d 719, 727 (“[t]he rights of adjacent and abutting property owners are to be considered”).) Moreover, regardless of the merits of the distinction drawn by Gorte between people who build their homes near existing quarries and those who buy their homes and “then have a quarry put in [their] back yard,” there is nothing in the record to suggest that the trial court based its decision on, or was even influenced by, a similar concern.

The fifth factor to consider is the suitability of the subject property for the zoned purposes. There is no dispute that the property has been used as a farm and is suitable for that purpose. The limestone deposits beneath the surface and the access to highways and a drainage source also make the property suitable for a quarry. Vulcan’s vice-president agreed, however, that similar stone was available farther south and that Vulcan had not explored all possible alternative sites. The trial court made no specific finding with regard to this factor, and we do not believe that it favors either plaintiffs or defendants under the facts of this case.

The sixth factor is the length of time the property has been vacant as zoned considered in the context of land development in the area. Defendants note that since the property is zoned for agricultural use and is used for farming it cannot be considered vacant. Plaintiffs point out that there has been no development in the area in a number of years. Paul Gorte, the county planner, stated that he did not expect any development for another 10 to 15 years. We do not believe that this lack of development favors plaintiffs’ position, however. A party relying on the vacancy of the subject property must show that the property is vacant, unmarketable, or undeveloped because of the zoning classification. (St. Lucas Association, 212 Ill. App. 3d at 831-32, 571 N.E.2d at 874; Amalgamated Trust, 82 Ill. App. 3d at 384, 402 N.E.2d at 731.)

“Absent such proof, we would have no more reason to hold the vacancy of the property was occasioned by improper zoning than we would to hold that the vacancy occurred because no attempts were made to use or develop the property, or because other difficulties totally unrelated to zoning had been encountered.” Amalgamated Trust, 82 Ill. App. 3d at 384, 402 N.E.2d at 731.

Here the land was zoned for agriculture and was being used for that purpose. Under those circumstances, we do not view the lack of development as significant.

The next factor to consider is the degree of care which the community has taken to plan its land use development. The record before us contains the land use plan adopted by Will County in 1978. It is a document which, excluding the appendix, exceeds 100 pages of text, charts, and graphs. Three principal goals are outlined in the plan: (1) the promotion of compact and contiguous urban growth in areas where essential services and facilities are available; (2) the conservation of productive farmland; and (3) the promotion of limited rural development in areas which are not considered to be prime farmland. The plan also contains a series of objectives and policies designed to achieve these primary goals. Among those objectives are promoting the optimum use of mineral resources and discouraging the intrusion of incompatible uses in areas containing natural resources.

Although the land use plan is lengthy and fairly detailed, its limitations are obvious when it is applied to a situation such as the one presented in this case. Denial of the special use permit is consistent with the goal of conserving productive farmland but is inconsistent with making use of the available mineral resources. We find, therefore, that this factor favors neither plaintiffs nor defendants.

The final factor to consider is the community need for the proposed use. Vulcan’s vice-president, Christopher White, testified that Vulcan’s Chicago Street quarry produces and sells approximately one million tons of material per year. The proposed quarry is intended to replace the existing quarry, which is two to four years from exhaustion. In White’s opinion, if the proposed quarry was not approved, it would be very difficult for other quarries in the area to meet the demand for quarry products after the Chicago Street quarry ceased operation. White later stated that competitors would supply the lost production, but prices would rise $3 to $4 dollars per ton.

On cross-examination, White agreed that the market area for a quarry generally includes areas within a 15- to 20-mile radius. White then testified that a competitor’s quarry was within 15 to 18 miles of the Chicago Street quarry, and he also identified three other quarries within 20 to 25 miles.

We find that the evidence demonstrates some need for the proposed quarry and therefore weighs in plaintiffs’ favor. It is clear, however, that the community need for a quarry is not a compelling one given the existence of similar operations in the area. Under the circumstances, we can assign only minimal weight to this factor.

Our review of the relevant factors indicates that the trial court’s decision was not erroneous.

“[Zjoning is primarily a legislative function, subject to court review only for the purpose of determining whether the power, as exercised, involves an undue invasion of private constitutional rights without a reasonable justification in relation to the public welfare. [Citations.] Where it appears, from all the facts, that room exists for a difference of opinion concerning the reasonableness of a classification, the legislative judgment must be conclusive.” (La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 428, 312 N.E.2d 625.)

Given the evidence of the incompatibility of a quarry operation with surrounding land uses, the potential effect on the groundwater supply, the effects of blasting on nearby property, and the impact on the value of neighboring property, we agree with the trial court that plaintiffs have not proved by clear and convincing evidence that denial of the special use permit was arbitrary, unreasonable, and without a substantial relationship to the public health, safety, or general welfare. Cf. Meyer Material Co. v. County of Will (1977), 51 Ill. App. 3d 821, 366 N.E.2d 1149.

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

Affirmed.

STOUDER, P.J., and McCUSKEY, J., concur.


author: JUSTICE McCUSKEY PRESIDING JUSTICE STOUDER,

text:
    ERIE CASEIN COMPANY, INC., Plaintiff-Appellee, v. ANRIC CORPORATION, Defendant-Appellant.
    Third District
    No. 3 — 90—0377
    Opinion filed August 23, 1991.

      STOUDER, P.J., dissenting.
    Katz, McAndrews, Durkee, Lefstein & Fieweger, P.C., of Rock Island (Peter C. Fieweger, of counsel), for appellant.
    Ward, Murray, Pace & Johnson, P.C., of Sterling (John A. Guzzardo, of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Plaintiff, Erie Casein Company, Inc., is a buyer of casein for use as food and feed ingredients. Defendant, Anric Corporation, buys and resells casein on a wholesale basis. Defendant appeals from the trial court’s award of money damages to plaintiff for defendant’s breach of contracts to supply casein. The primary issue presented is whether plaintiff failed to mitigate damages by not timely obtaining substitute casein. The trial court found that plaintiff properly effected cover, and we affirm.

In January 1986, the parties entered into the first of three contracts for the sale of casein by defendant to plaintiff. In the first contract, plaintiff agreed to purchase 330,000 pounds of New Zealand casein from defendant at $0,805 per pound for delivery in March 1986 (Contract A). Although defendant eventually delivered all of the New Zealand casein contracted for, defendant was unable to meet the March 1986 delivery date.

In May 1986, plaintiff’s vice-president and plaintiff’s purchasing agent met with defendant’s president to discuss defendant’s failure to timely fulfill Contract A. Plaintiff declined defendant’s offer to supply a different type of casein, but advised defendant that continuing efforts should be made to fulfill Contract A with the New Zealand casein originally contracted for. Thereafter, the parties maintained telephone contact concerning defendant’s efforts to supply plaintiff with the Contract A casein.

In November and December 1986, defendant delivered approximately 126,000 pounds of Irish and New Zealand casein in partial fulfillment of Contract A, and received payment from plaintiff at the Contract A price.

With Contract A only partially completed, the parties entered into a second contract (Contract B) in February 1987 for 165,000 pounds of New Zealand casein at $1.0725 per pound for delivery not later than the end of March 1987.

In March 1987 the parties entered into a third and final contract (Contract C) for 80,000 pounds of Irish casein at $1.0975 per pound for delivery in the middle of March 1987.

During the first two weeks of March 1987, defendant delivered various quantities of casein sufficient to meet the remaining quantity called for under the terms of Contract A, and all but 10,802 pounds of the quantity called for in Contract C.

Plaintiff’s vice-president and defendant’s president met again in April 1987. Defendant’s president acknowledged that his company would not be able to supply any New Zealand casein at that time, but said the casein could be available in late 1987.

Following the March 1987 deliveries, defendant’s president had several telephone conversations with plaintiff’s purchasing agent concerning payment of the now outstanding invoices from those deliveries. The parties agreed that the invoices would be paid at the Contract A price, with additional quantities paid at the Contract C price. Upon plaintiff’s receipt from defendant of written confirmation of the modification, plaintiff wired payment to defendant’s bank.

Defendant still showed a deficiency of approximately $55,000 as a result of plaintiff’s payment at the Contract A price for defendant’s deliveries of casein originally intended to fulfill Contracts B and C. Following discussions by the parties, defendant’s president executed a promissory note in July 1987 in the principal amount of $54,927.43. The promissory note was in the exact amount of the deficiency resulting from plaintiff’s payment at the Contract A price for the Contract B and Contract C casein.

Defendant never delivered the remaining 10,802 pounds due under Contract C, nor any amounts due under Contract B. To fulfill its need for additional casein, plaintiff attempted to purchase casein on the open market. By the time comparable casein was available for purchase in August 1987, the price had risen to $1.45 per pound.

In November 1987, plaintiff filed a complaint to recover damages resulting from defendant’s failure to deliver the casein due under Contracts B and C. Defendant raised as an affirmative defense plaintiff’s failure to mitigate damages by not obtaining substitute casein without unreasonable delay. Defendant also counterclaimed for unpaid charges from casein delivered under Contracts B and C. The trial court, sitting without a jury, entered judgment in favor of plaintiff in the amount of $66,095.20, and against defendant on its counterclaim. Defendant appeals. We affirm.

Defendant presents three issues for review:

(1) Whether plaintiff failed to mitigate damages by not obtaining substitute casein;

(2) Whether the parties modified Contract A to include a rescission of part of the contract; and

(3) Whether defendant’s agreement to modify Contracts B and C resulted from economic duress imposed by plaintiff.

Defendant maintains that provisions of the Uniform Commercial Code (Code) (Ill. Rev. Stat. 1989, ch. 26, par. 1 — 101 et seq.) and Illinois case law require plaintiff to obtain substitute casein within a reasonable commercial time and without unreasonable delay. Defendant argues that plaintiff should have effected cover following the first meeting between the parties in May 1986.

A buyer effects cover, under the Uniform Commercial Code, by “making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller.” Ill. Rev. Stat. 1989, ch. 26, par. 2 — 712(1).

According to the official comment to section 2 — 712 of the Code, “[t]he requirement that the buyer must cover ‘without unreasonable delay’ is not intended to limit the time necessary for him to look around and decide as to how he may best effect cover. The test here is similar to that generally used in this Article as to reasonable time and seasonable action.” (Ill. Ann. Stat., ch. 26, par. 2 — 712, Uniform Commercial Code Comment 2, at 561 (Smith-Hurd 1963).) Section 1 — 204 of the Code states that “a reasonable time for taking any action depends on the nature, purpose and circumstances of such action,” and that “[a]n action is taken ‘seasonably’ when it is taken[,] *** if no time is agreedf,] within [a] reasonable time.” Ill. Rev. Stat. 1989, ch. 26, pars. 1 — 204(2), (3).

We agree with the trial court’s finding that plaintiff reasonably relied upon defendant’s continued assurances that the Contract A casein (originally scheduled to be supplied in March 1986) would eventually be delivered. The trial court properly found that plaintiff had no duty to effect cover prior to April 1987, when defendant first acknowledged at a meeting between the parties that it would be unable to deliver the casein. Upon being so informed, plaintiff made efforts to obtain substitute goods. Despite plaintiff’s attempts, sufficient casein was not available until August 1987 because of a market shortage. Under these circumstances, we do not find the delay unreasonable. We find, therefore, that the trial court properly awarded damages based upon the August 1987 market price of $1.45 per pound. See Lyntel Products, Inc. v. Alcan Aluminum Corp. (1981), 107 Ill. App. 3d 176, 437 N.E.2d 653.

Defendant cannot complain about the plaintiff effecting cover in a rising market, since plaintiff apparently experienced the same difficulties obtaining substitute casein that defendant did in first attempting to supply the Contract B and Contract C casein. Comment 2 to section 2— 712 of the Code provides “[t]he test of proper cover is whether at the time and place the buyer acted in good faith and in a reasonable manner, and it is immaterial that hindsight may later prove that the method of cover used was not the cheapest or most effective.” Ill. Ann. Stat., ch. 26, par. 2 — 712, Uniform Commercial Code Comment 2, at 561 (Smith-Hurd 1963).

Defendant argues the parties modified Contract A to provide that New Zealand casein need only be delivered if casein became available to defendant from its supplier. Defendant also argues the contract was rescinded following the partial deliveries in November and December 1986. Defendant maintains that from the parties’ meeting in May 1986, it was clear to both that defendant could not perform Contract A. However, the trial court specifically found it was not until April 1987 that defendant acknowledged its inability to obtain casein from its New Zealand supplier. The trial court also found the parties applied a portion of the March 1987 deliveries to complete Contract A. We agree with the trial court’s finding that the remaining terms of the contract continued in effect so that defendant was still obligated to provide all the casein originally contracted. We recognize the trial court heard conflicting testimony as to when and whether defendant repudiated Contract A or if the parties agreed to rescind part of the contract. Under circumstances where the trial court has heard and observed the witnesses and their testimony is contradictory, a reviewing court will not substitute its judgment for that of the trial court as to the credibility of witnesses. Nor will a reviewing court disturb the trial court’s findings unless they are manifestly against the weight of the evidence. Brown v. Zimmerman (1959), 18 Ill. 2d 94, 102,163 N.E.2d 518, 523.

Finally, we reject defendant’s contention that economic duress caused the application of the March deliveries to fulfill Contract A and the execution of a promissory note for the difference in price between Contract A and the invoiced deliveries. Defendant argues it was forced to execute the promissory note in order to receive any payment at all from plaintiff, and the payment actually received was at the lower Contract A rate. The theory of economic duress requires a party to show that he was induced to enter into a contract by some wrongful act of the other contracting party. (Herget National Bank v. Theede (1989), 181 Ill. App. 3d 1053,1057, 537 N.E.2d 1109, 1112.) The trial court properly found, under all the circumstances, that neither the parties’ agreement to write down the invoices by approximately $55,000 nor defendant’s execution of a note in the same amount was the result of economic duress. The multiple contracts and open communication between the parties reflect a continuous course of conduct between very skilled business people. The promissory note was prepared by defendant’s attorney at his office, executed by defendant’s president, and then mailed by defendant’s attorney to plaintiff. Such professional acts were not the result of duress. There is substantial evidence in the record to support the trial court’s findings.

The judgment of the trial court is affirmed.

Affirmed.

GORMAN, J., concurs.

PRESIDING JUSTICE STOUDER,

dissenting:

I must respectfully dissent from that portion of the opinion relating to the issue of damages. In Oloffson v. Coomer (1973), 11 Ill. App. 3d 918, 296 N.E.2d 871, this court clarified the rights and duties of a buyer confronted with a repudiating seller. In April of 1970, Coomer, a farmer, contracted with Oloffson, a grain dealer, to sell Oloffson 40,000 bushels of com at a price of $1,125 per bushel. Delivery of the first 20,000 bushels was to be made on or before October 30, 1970. The remaining 20,000 bushels were to be delivered on or before December 15, 1970. On June 3, 1970, because of an unusually wet spring, Coomer advised Oloffson that he was not going to plant com that season. On that date, the price of a bushel of com for future delivery was $1.16 per bushel. In September of 1970, Oloffson requested Coomer to deliver the com and Coomer replied that he would not be able to do so. Oloffson then purchased 20,000 bushels of com at $1.35 per bushel and 20,000 bushels at $1.49 per bushel to cover the com not delivered by Coomer. The trial court held, and we affirmed, that Oloffson was entitled to recover $1,500, the difference between the cost of com on June 3, 1970, the date that Coomer informed Oloffson that he was not going to supply the com, and the price of com under the parties’ contract.

Moreover, in affirming the trial court’s ruling, we noted that under section 2 — 610 of the Uniform Commercial Code — Sales (UCC) (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 610), after a party repudiates a contract, the aggrieved parly may for a commercially reasonable time period await performance by the repudiating party or resort to any remedy for breach under UCC section 2 — 711. (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 711.) As of June 3, 1970, Oloffson knew that if he didn’t cover the Coomer com contract he would be at risk to his vendees-third-parties and therefore he had a duty to proceed under sections 2 — 610 and 2 — 711(1) so as to effect cover. Therefore, because his damages were limited to the difference between the market price and the cost of cover goods obtained in good faith without unreasonable delay, he could not recover the excess damages claimed due to his waiting approximately four months to obtain the cover or substitute goods.

Similarly, the plaintiff in the instant case was fully aware in March of 1986, before and at the time of nondelivery of the casein, that the defendant could not and would not perform the contract. In May of 1986, when the plaintiff and the defendant discussed this very issue it was clear that the January 1986 contract was repudiated and was not to be performed in accordance with its terms. It was at this juncture that the defendant offered to purchase substitute casein at a loss of $7,000. Thus, I agree with the defendant’s contention that the buyer-plaintiff had a duty to mitigate damages by obtaining substitute cover within a commercially reasonable time period following repudiation of the contract of sale.

The plaintiff, however, waited 17 months after it knew the casein could not be delivered before it purchased substitute goods or “cover.” By awarding the plaintiff damages based on the difference between the market price of casein in August of 1987, $1.45 per pound, and the market prices of $.805 per pound in January 1986 and $1.0725 per pound in February 1987, which were the contract prices under the January 1986 contract and the February 1987 contract, the trial court ignored the applicable law. The majority opinion fails to adequately explain why the market prices for casein in January or March of 1986 were not used by the trial court to compute damages. It is not coincidence that the plaintiff conveniently cries foul when the market price for casein is extremely high. The plaintiff’s actions are devoid of good faith and should not be rewarded. Thus, I find the maximum damages recoverable by the plaintiff here to be $7,000.

I therefore must dissent from that portion of the opinion.


author: JUSTICE GORMAN

text:
    CHARLES EIBEN et al., Plaintiffs-Appellants, v. E.J. CATTANI AND SONS, INC., et al., Defendants-Appellees (David Sullivan, Bureau County Superintendent of Highways, Defendant).
    Third District
    Nos. 3 — 90—0686, 3 — 91—0094 cons.
    Opinion filed August 23, 1991.

      Peter F. Ferracuti, of Law Offices of Peter F. Ferracuti, P.C., of Ottawa (Mark A. Schindler, of counsel), for appellants.
    T. Donald Henson, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., of La Salle, and Karen C. Eiten, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., of Ottawa, for appellee Bureau County.
    Quinn, Johnston, Henderson & Pretorius, Chartered, of Peoria (Bradley W. Dunham, of counsel), for appellee E.J. Cattani & Sons, Inc.
   JUSTICE GORMAN

delivered the opinion of the court:

Plaintiffs appeal from two separate orders entered by the circuit court in regard to their personal injury action. In appeal 3 — 90—0686, plaintiffs Charles and Karen Eiben appeal from dismissal of the second count of their second amended complaint. That count was directed against defendant Bureau County and was dismissed on the basis that the county was immune from the liability alleged in that count. In appeal 3 — 91—0094, plaintiffs appeal from summary judgment entered in favor of defendant E.J. Cattani & Sons, Inc. (Cattani), on all counts of the third amended complaint which were directed against Cattani. We affirm both orders entered by the circuit court.

The facts of the incident that gave rise to the instant lawsuit are as follows. On November 12, 1987, Charles Eiben, a carpenter employed by Garland Construction Company (Garland), was working on a bridge construction project in Bureau County. Part of the bridge construction project involved pile driving. Garland owned the pile driver hammer and supporting tower that were being used. The pile driver and tower were attached to and were supported by a crane. Garland had leased the crane and two crane operators from Cattani.

Plaintiff climbed the tower and started the pile driver hammer. The hammer descended and began striking the sheet piling. The sheet piling then suddenly shifted on one side as a result of striking an underground object, later determined to be a tree root. Once the sheet piling and tower shifted, the hammer slid off, falling to the ground. When the hammer hit the ground, it shook the tower and Charles fell off the tower to the ground.

Charles and his wife, Karen, brought suit against Cattani, Bureau County and the Bureau County Highway Department. In count II of the second amended complaint, plaintiffs alleged that certain defendants, including Bureau County, were in charge of and responsible for the erection of the bridge. The fourth paragraph of this count stated as follows:

“4. Defendants BUREAU COUNTY, BUREAU COUNTY SUPERINTENDENT OF HIGHWAYS, DAVID SULLIVAN and their agents and employees solicited and approved plans, methods, techniques, and procedures which conformed to their specifications, made on site inspections of work in progress, and otherwise maintained supervision and control of the work in progress then being executed by the general contractor, Garland Construction Company.” (Emphasis added.)

Next were pleaded certain provisions of the Structural Work Act (Ill. Rev. Stat. 1989, ch. 48, par. 60 et seq.) requiring that cranes and other mechanical contrivances used in the erection of bridges be themselves erected or constructed as to give adequate protection for persons employed or engaged thereon.

The manner in which Bureau County was allegedly at fault was stated in the seventh paragraph of this count:

“7. The Defendant, Bureau County, by its agents and employees, was in charge of the pile driving operation and was aware that the Plaintiff would be required to climb the pile driver leads from time to time to perform various tasks including those herein above alleged and, despite such knowledge and with conscience [sic] indifference to the surrounding circumstances willfully and wantonly failed to assure that the pile driving hammer and leads were erected, constructed, placed and operated in a safe, suitable and proper manner as contemplated by the provisions of the Structural Work Act in the following respects:
(a) Failed to properly and adequately anchor the bottom of the leads into the ground before permitting the hammer to be started;
(b) Failed to inspect the ground underneath the leads and the piling for the presence of foreign objects which might obstruct the piling when the driving operation started;
(c) Failed to require persons working on or about the leads of the pile driver to wear a safety belt while aloft;
(d) Failed to maintain sufficient cable tension upon the pile driver so as to prevent it from tilting when the piling twisted;
(e) Operated the pile driver when it was not adequately equipped for the driving of sheet piling.”

Plaintiffs alleged that this conduct violated the Structural Work Act and that as a direct and proximate result of this “willful and wanton conduct” plaintiffs suffered specified types of damages.

As to defendant Cattani, plaintiffs alleged, inter alia, that Cattani, through its agents and employees, committed certain specified acts or omissions alleged to have been negligent, including the failure “to maintain sufficient cable tension upon the pile driver so as to prevent it from tilting when the piling twisted.” It was further alleged that as a direct and proximate result of these alleged acts and omissions plaintiffs suffered specified types of damages.

The trial court dismissed the count against Bureau County on the basis of section 3 — 108(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101 et seq.). That section states:

“Except as otherwise provided by this Act and subject to subdivision (b) neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property.” Ill. Rev. Stat. 1989, ch. 85, par. 3 — 108(a).

Plaintiffs raise the issue of whether the trial court erred in finding that this section provided immunity to Bureau County so as to bar plaintiffs’ causes of action against the county under the Structural Work Act.

In order to make allegations sufficient to bring the defendant Bureau County under the Structural Work Act, the plaintiffs allege Bureau County maintained supervision and control of the work. Despite that allegation, plaintiffs now maintain that “having charge of” a construction project for the purposes of the Structural Work Act does not include supervision of the activities at the jobsite. Clearly, one of the elements used to define whether a party has charge of a project for purposes of the Structural Work Act is whether that party maintained supervision or control over the work performed at the job-site.

Plaintiffs cannot have it both ways. If the county is alleged to have “had charge of” the project by virtue of having maintained supervision or control over the project, section 3 — 108 of the Tort Immunity Act applies. The trial court properly granted defendant Bureau County’s motion to dismiss.

We also affirm the trial court’s decision on the summary judgment for Cattani. In Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 116, 514 N.E.2d 188, 192, our supreme court stated:

“Necessary to any recovery based on negligence is the existence of a duty to conform to a certain standard of conduct for the protection of the plaintiff. [Citation.] Since the defendant had simply furnished the equipment and operators, however, he had no duty to take any of the actions suggested in the complaint to protect the plaintiff. The complaint does not allege May’s vicarious liability for negligent omissions by the operators, but even if it did the defendant would be entitled to summary judgment on this record because there is no evidence suggesting that the operators had independent authority to take any action.” (Emphasis added.)

Thus, although Puttman did not involve vicarious liability, the court’s holding controls this case as well. Affidavits made clear that the operator of the crane was subject to the complete control of Eiben’s employer, Garland. Accordingly, we find the case indistinguishable from Puttman and hold that Cattani owed no duty to the plaintiffs.

For the reasons listed above, the decisions of the circuit court of Bureau County are affirmed.

No. 3 — 90—0686, Affirmed.

No. 3 — 91—0094, Affirmed.

McCUSKEY and SLATER, JJ., concur.


author: JUSTICE DUNN

text:
    BEGHR WILLOWBROOK VENTURE et al., Plaintiffs-Appellants, v. THE VILLAGE OF WILLOWBROOK, Defendant-Appellee.
    Second District
    No. 2 — 90—0358
    Opinion filed February 6, 1991.
    Rehearing denied March 13,1991.

      Nandia P. Black and Richard F. Ehreneich, both of Vedder, Price, Kaufman & Kammholz, of Chicago (Donald W. Jenkins, of counsel), for appellants.
    Thomas W. Good, of Gorski & Good, of Wheaton (Gerald M. Gorski, of counsel), for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiffs, Beghr Willowbrook Venture et al., appeal from the trial court’s grant of a summary judgment motion in favor of the defendant, the Village of Willowbrook, on plaintiff’s claim that defendant improperly found the petition filed by the plaintiffs insufficient under the Special Services Area Tax Act (Ill. Rev. Stat. 1989, ch. 120, par. 1309). At issue in this case is whether petitioners may withdraw their signatures from an owners’ petition objecting to the creation of a special service area under the Special Services Area Tax Act after that petition has been filed in accordance with the Act. The trial court held petitioners could withdraw their names from the petition after it had been filed. We reverse.

The Special Services Area Tax Act (Act) (Ill. Rev. Stat. 1989, ch. 120, par. 1309) allows municipalities to create special service areas in order to provide residents and owners of property within that area with special services, meaning all forms of services pertaining to the government and affairs of the municipality or county. The Act permits the municipality to do so by levying special taxes on property located within the special service area.

Sections 3 through 8 of the Act set forth a comprehensive notice and hearing procedure to be followed by the municipality in creating such an area. Section 9 provides electors and owners in the area with a method of defeating the proposed special service area. The language of that section is as follows:

“If a petition signed by at least 51% of the electors residing within the special service area and by at least 51% of the owners of record of the land included within the boundaries of the special service area is filed with the municipal clerk or county clerk, as the case may be, within 60 days following the final adjournment of the public hearing objecting to the creation of the special service district *** no such district maybe created ***.” Ill. Rev. Stat. 1989, ch. 120, par. 1309.

Plaintiffs are owners of property located within the special service area created by the defendant, the Village of Willowbrook (Village). The public hearing creating the special service area held pursuant to the Act was adjourned on November 21, 1988. On or before January 18, 1989, 58 days after final adjournment of the public hearing, the property owners within the area filed a petition in opposition pursuant to section 9 containing the signatures of more than 51% of the electors and owners within the special service area.

On or before January 20, 1989, 60 days after final adjournment of the hearing, 10 of the signatories to the owners’ petition filed documents with the Village clerk declaring their intent to have their signatures withdrawn from the petition and requesting the clerk to do so. On February 6, 1989, the president and board of trustees of the Village held a specially called meeting and found the petition invalid based on the withdrawal of the 10 signatures.

Plaintiffs allege the Act does not contain any provision providing for the withdrawal of signatures after a petition, sufficient under section 9, objecting to the creation of the special service area has been filed. The plaintiffs contend the Village improperly under-counted the valid signatures appearing on the petitions of the owners of record filed on the 58th day after adjournment of the hearing and improperly found the petitions to be insufficient at law.

The Village argues that it properly found the owners’ petition to be insufficient at law because, in the absence of a statutory limitation, a signatory may withdraw his signature from the petition at any time prior to the February 6, 1989, meeting which addressed the sufficiency of the petition. In granting summary judgment in favor of the defendant, the trial court held the statute must permit potential objectors the full 60 days to consider the issue and file the appropriate objection. We disagree.

The issue in this case is basically one of statutory interpretation. Unfortunately, the Act is silent concerning the withdrawal of signatures. Now we must decide what the legislature intended. In Illinois, a long line of cases exists, dating back to 1902, dealing with the withdrawal of signatures from petitions. (See Irmegar v. County of Tazewell (1914), 264 Ill. 172; Commissioners of the Sny Island Levee Drainage District v. Dewell (1912), 256 Ill. 126; Boston v. Kickapoo Drainage District (1910), 244 Ill. 577; Commissioners of Highways v. Bear (1906), 224 Ill. 259; Mack v. Polecat Drainage District (1905), 216 Ill. 56; Kinsloe v. Pogue (1904), 213 Ill. 302; Littell v. Board of Supervisors (1902), 198 Ill. 205; Konald v. Board of Education of Community Unit School District 220 (1983), 114 Ill. App. 3d 512.) While each case dealt with a different statute, a general rule developed over time.

That rule was articulated by this court in Konald v. Board of Education of Community Unit School District 220 (1983), 114 Ill. App. 3d 512. The court stated:

“These cases evidence a strong reluctance to cut off the rights of petitioners to change their minds at any point before the acting tribunal has finally disposed of the matter and the petition in accordance with its proper powers. *** Final action has been construed liberally to mean the time at which an order is legally effective ***.” (114 Ill. App. 3d at 519.)

None of the cases cited above involve statutory requirements similar to those in section 9. Thus, to answer the question of whether petitioners are entitled to withdraw their signatures after the owners’ petition has been filed, this court must determine when final action takes place under section 9. The Village argues the veto cannot become effective until the Village itself determines the petition has satisfied the requirements set forth in the Act. We disagree.

The question of when final action takes place is one of statutory interpretation. When construing a statute, the best indicator of legislative intent is the statutory language itself. When that language is clear and unambiguous, courts will not read into the statute exceptions, limitations and conditions. (People v. Goins (1988), 119 Ill. 2d 259, 265.) When interpreting statutory language, the language should be given its plain and ordinary meaning. Hoffman v. Board of Fire & Police Commissioners (1988), 175 Ill. App. 3d 219, 224-25.

The language of section 9 is clear. If a petition signed by 51% of the electors and owners within the special service area is filed within 60 days after adjournment, no such area may be created. Furthermore, the statute states the subject matter of the petition may not be proposed again relative to any signatories of the petition for two years. (Ill. Rev. Stat. 1989, ch. 120, par. 1309.) It is clear from the language of the statute the legislature intended an owners’ petition satisfying the requirements set forth in section 9 to veto the creation of a special service area.

Accordingly, our supreme court has described section 9 as a “veto procedure.” (Coryn v. City of Moline (1978), 71 Ill. 2d 194, 202.) In Coryn, the court held that the veto procedure provided by section 9 of the Special Services Area Tax Act does not violate due process. (Coryn, 71 Ill. 2d at 202-03.) Similarly, section 9 was described as providing for the defeat of a special service project if its requirements are met. (See Andrews v. County of Madison (1977), 54 Ill. App. 3d 343, 354.) However, in the instant case, the trial court interpreted the language of section 9 as meaning the veto cannot occur until the full 60-day period has lapsed. Such an interpretation is against the plain and ordinary language of the Act.

The Act specifically states that if a petition is filed within 60 days following adjournment, no such district may be created. Once that petition is filed containing the signatures of 51% of the owners and electors, the legislative requirements for defeat have been met. The fact that 60 days are given within which to file the petition in objection does not mean the veto cannot be accomplished until the 60th day. The veto becomes effective on the day a satisfactory petition is filed.

To hold that signatures may be withdrawn until the Village determines the statutory requirements have been met, as defendant would have us do, would defeat the purpose of section 9. That section is designed to give residents and property owners within the special service area the opportunity to overrule the creation of the district. The requirements are straightforward: file a petition containing the signatures of 51% of the owners within the area and 51% of the electors within 60 days of final adjournment, and the special service area is defeated.

The section does not require an additional hearing by the Village after the petition has been filed to pass on the sufficiency of the petition, and we will not read such a requirement into the statute. To do so would give the Village the power to undermine the petition and would make the 60-day requirement a nullity. Those in opposition to the district would only have 60 days within which to object, but those in support of the district would be given a chance to defeat the petition up until the time the Village decides to pass on its sufficiency. The Village could do so at any time from the day the petition is filed until well past the 60-day time limit. This clearly defeats the intent of the legislature to provide residents and owners with a veto procedure.

Accordingly, we hold final action occurs at the time when the petition containing the sufficient amount of signatures is filed within the 60-day time limit. At that time, the statutory requirements for defeating the district have been met, and no such district may be created. In the instant case, final action took place on January 18, 1989, when the petition was filed and at that time the special service district was defeated.

The judgment of the circuit court is reversed.

Reversed.

REINHARD, P.J., and BOWMAN, J., concur.