author: JUSTICE DUNN

text:
    STATE FARM FIRE AND CASUALTY COMPANY, as Subrogee of John J. Kurkjian et al., Plaintiff-Appellee, v. MILLER ELECTRIC COMPANY, a Division of Carol Cable Company, Inc., Defendant-Appellant. — KEITH CONSAGO, Plaintiff-Appellee, v. MILLER ELECTRIC COMPANY, a Division of Carol Cable Company, Inc., Defendant-Appellant.
    Second District
    No. 2—91—1249
    Opinion filed July 7, 1992.

      Geroge E. Krippner and Kathleen K. Watson, both of Clancy & Krippner, of St. Charles, for appellant.
    Louis A. Varchetto, of Wylie, Mulhern, Rehfeldt & Varchetto, of Wheaton, and Michael D. Fabing, of Warsawsky & Fabing, of Chicago, for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Miller Electric Company, a division of Carol Cable Company, Inc., appeals from the circuit court’s order of September 30, 1991, denying its request for attorney fees and litigation expenses as recoverable costs pursuant to sections 5—108 and 5—109 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, pars. 5— 108, 5—109) and section 2310(d)(2) of the Federal Magnuson-Moss Warranty—Federal Trade Commission Improvement Act (MagnusonMoss Act or Act) (15 U.S.C.A. §2310(d)(2) (West 1982)). We affirm the judgment and impose sanctions against defendant.

In its original action against defendant, plaintiffs’ subrogee, State Farm Fire and Casualty Company, filed a four-count complaint, alleging, among other things, that, on June 26, 1985, a defective extension cord manufactured by defendant caused a fire to the Kurkjians’ home. Count IV of the complaint was premised on defendant’s alleged breach of an implied warranty in violation of the Magnuson-Moss Act (15 U.S.C.A. §2301 et seq. (West 1982)). The detailed facts of the case are sufficiently recounted in the direct appeal (State Farm Fire & Casualty Co. v. Miller Electric Co. (1990), 204 Ill. App. 3d 52) and need not be recited here. Suffice it to say, the jury’s general verdict for plaintiff was overturned on appeal because of an inconsistent answer to a special interrogatory.

Following its successful appeal, defendant petitioned for attorney fees and costs in the trial court. Defendant sought $1,245.50 in “court costs” which included the cost of depositions, an appearance fee, an appellate court appearance fee and the preparation of the appellate court record.

In addition, defendant sought other “litigation expenses” totalling $32,665.02 which included $26,965 in attorney fees, $702.31 in miscellaneous litigation expenses; $2,783.61 in expert fees; $2,208.60 for appellate court transcripts; and another transcript in the amount of $5.50. Expenses in the trial court appear to be intermingled with those incurred on appeal.

The trial court awarded defendant the costs amounting to $1,245.50 only and denied costs and attorney fees pursuant to the Magnuson-Moss Act and section 5 — 108 of the Code. Except for the written order, the record sheds no light on what transpired at the hearing on fees and costs, and we are unable to ascertain what evidence was considered by the trial court in making its award. Section 5 — 108 of the Code permits successful plaintiffs to “recover costs against the defendant *** and the same shall be recovered and enforced as other judgments for the payment of money.” Ill. Rev. Stat. 1991, ch. 110, par. 5-108.

On appeal, defendant argues that a defendant who successfully defends a claim under the Federal Magnuson-Moss Act should be entitled to recover his costs and attorney fees pursuant to the Act and section 5—109 of the Illinois Code. Section 5—109, the current State statute on costs, provides in pertinent part:

“Defendant to recover costs. If any person sues in any court of this state, in any action, wherein the plaintiff may have costs in case judgment is entered in favor of the plaintiff and *** judgment is entered against the plaintiff, then judgment shall be entered in favor of defendant to recover defendant’s costs against the plaintiff *** to be taxed, and the costs shall be recovered of the plaintiff, by like process as the plaintiff may have had against the defendant, in case judgment had been entered for such plaintiff.” Ill. Rev. Stat. 1991, ch. 110, par. 5—109.

This statute merely provides that a defendant may obtain its costs, when authorized by law, by a legal “process” similar to that available to the plaintiff. In its ordinary legal meaning, “process” has been defined as “ ‘any means used by the court to acquire or to exercise its jurisdiction over a person or over specific property.’ ” (Austin Liquor Mart, Inc. v. Department of Revenue (1974), 18 Ill. App. 3d 894, 905, quoting Holiday Magic, Inc. v. Scott (1972), 4 Ill. App. 3d 962, 968.) Nothing in defendant’s brief persuades us that section 5—109 creates an automatic right to attorney fees and costs in all cases where a plaintiff may have been entitled to them.

Subsection 2310(d)(2) of the Federal Act states in pertinent part:

“If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys’ fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys’ fees would be inappropriate.” (Emphasis added.) (15 U.S.C.A. §2310(d)(2) (West 1982).)

Paragraph one of the subsection referred to above provides that “a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages.” (Emphasis added.) 15 U.S.C.A. §2310(d)(1) (West 1982).

Defendant, a manufacturer, concedes that the Illinois rule is that attorney fees and litigation expenses cannot be recovered except when expressly authorized by statute or by agreement of the parties (In re Marriage of Justema (1981), 95 Ill. App. 3d 483, 486). Nevertheless, defendant ignores the clear language of the above-cited provisions enacted for the benefit of consumers (and clearly not for the benefit of defendant-manufacturers) and argues that the Federal Act “expressly provides that a Plaintiff who prevails in an action brought under the Act may recover Attorney’s fees and litigation expenses as costs”; defendant further argues that, when read together with section 5 — 109 of the Illinois Code, defendant is entitled to attorney fees and costs. Defendant cites no case law for this latter proposition.

The fee-shifting provisions of the Magnuson-Moss Act were enacted to vindicate the rights of a consumer who was injured by a party such as defendant and were intended to encourage consumers to pursue their legal remedies by providing them with access to legal assistance. (Vieweg v. Friedman (1988), 173 Ill. App. 3d 471, 475-76.) Without such assistance, consumers would frequently be unable to vindicate their warranty rights accorded by law. (Ventura v. Ford Motor Corp. (1981), 180 N.J. Super. 45, 54, 59, 433 A.2d 801, 808, 812.) Defendant mischaracterizes the clear intent of the Magnuson-Moss Act in construing it to benefit any and all prevailing parties by reading it into our State costs statutes. Defendant also ignores the well-established and long-standing distinction in this State between costs and attorney fees.

There is no common-law principle allowing attorney fees either as costs or damages. (Qazi v. Ismail (1977), 50 Ill. App. 3d 271, 273.) In the absence of a legislative enactment, the “American” rule consistently followed in Illinois is that a successful litigant is not entitled to recover attorney fees and the ordinary expenses of litigation and trial preparation. (House of Vision, Inc. v. Hiyane (1969), 42 Ill. 2d 45, 51-52; Naiditch v. Shaf Home Builders, Inc. (1987), 160 Ill. App. 3d 245, 268.) The rule is so ingrained in our system of jurisprudence that our supreme court has repeatedly refused to change the rule even when constitutional grounds have been argued. See Hiyane, 42 Ill. 2d at 51-52.

Only those items of costs designated by statute may be allowed as costs, and attorney fees are “not of that character.” (Meyer v. Marshall (1976), 62 Ill. 2d 435, 442, citing Ritter v. Ritter (1943), 381 Ill. 549; see Ryerson v. Apland (1941), 378 Ill. 472, 477; see also O’Hare v. Moniak (1969), 110 Ill. App. 2d 327, 328 (statutory costs did not include attorney fees).) Furthermore, statutes which provide for the award of attorney fees to a successful litigant do so only in specific language. Qazi, 50 Ill. App. 3d at 273; see also Saltzman, A Brief Look at Statutory Attorneys’ Fees in Illinois, 73 Ill. B.J. 266 (1985) (noting at least 88 statutes allowing attorney fees).

Defendant’s brief and conclusory arguments also state that the law should not favor plaintiffs over defendants based on fundamental considerations of equal rights and due process; these arguments are unsupported by specific references to case law; defendant merely cites an incorrect citation to the Illinois Constitution. Similar constitutionally grounded arguments have previously been rejected by our supreme court. (See, e.g., Hiyane, 42 Ill. 2d at 51.) Fee-shifting statutes are enacted to encourage certain classes of persons to assert their rights. See Stephens, The Fees Stop Here: Statutory Purposes Limit Awards to Defendants, 36 De Paul L. Rev. 489, 497 (1987).

SANCTIONS

Pursuant to Supreme Court Rule 375(b) (134 Ill. 2d R. 375(b)) and citing Kennedy v. Miller (1990), 197 Ill. App. 3d 785, plaintiff, State Farm Fire and Casualty Company, as subrogee, has requested that this court impose sanctions for defendant’s prosecution of a frivolous appeal because there is no arguable basis in law supporting defendant’s position, and no reasonable argument has been advanced or exists for the modification of existing law. In support of its request, plaintiff has provided an affidavit showing that the sum of $1,072.50 (14.3 hours at $75 per hour) has been expended in attorney fees in defending this appeal. We agree with plaintiff’s position, and our review of defendant’s reply brief has not persuaded us otherwise.

As stated in the supreme court rule, an appeal will be deemed frivolous where it is not reasonably well grounded in fact and not warranted by existing law or a good-faith argument for the extension, modification or reversal of existing law. (134 Ill. 2d R. 375(b).) Otherwise stated, an appeal will be deemed frivolous if a reasonable, prudent attorney would not in good faith have brought such an appeal. Kennedy, 197 Ill. App. 3d at 791; accord Dreisilker Electric Motors, Inc. v. Rainbow Electric Co. (1990), 203 Ill. App. 3d 304, 312.

In the case at bar, defendant has (1) ignored the plain language of the Magnuson-Moss Act which permits recovery of fees by consumers and not by manufacturers such as defendant; (2) has failed to provide any authority or a good-faith argument for a construction of that act to the contrary; (3) has failed to show any facts that it may be deemed a consumer; (4) has ignored long-standing precedent by our supreme court stating that fees and costs may only be awarded when provided for by specific statute and has ignored the distinctions between these types of awards; (5) has failed to advance any new and supportable reason why the well-established law of this State regarding fees and costs should be modified; and (6) has ignored the plain meaning of the cost statutes upon which it relies. We believe that a reasonable, prudent attorney would not in good faith have brought such an appeal. This conclusion is also supported by the fact that defendant has failed to cite sufficient and specific, relevant authority to support its arguments in the 21/2-page argument section of its brief.

We deem this appeal frivolous pursuant to Rule 375(b), and we order defendant, Miller Electric Company, and its attorneys to pay plaintiffs’ subrogee, State Farm Fire and Casualty Company, the sum of $1,072.50 as a sanction for bringing this frivolous appeal. Defendant and its attorneys shall be jointly and severally liable for the payment of this amount.

The judgment of the circuit court is affirmed with sanctions.

Affirmed with sanctions.

INGLIS, P.J., and McLAREN, J., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    CHARLES HAUSMANN, JR., Plaintiff and Counterdefendant-Appellant and Cross-Appellee, v. GEORGE HAUSMANN, Defendant and Counterplaintiff-Appellee and Cross-Appellant.
    Fifth District
    No. 5—91—0180
    Opinion filed July 13, 1992.

      John Long, of Troy, for appellant.
    David L. Miller, of Vandalia, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Charles Hausmann, the plaintiff, filed suit against his uncle, George Hausmann, the defendant, concerning real estate in which Charles held a remainder interest following George’s life estate. In the first of two counts, Charles alleged that George had committed waste by failing to pay the 1986 real estate taxes due on the land and asked for a declaration of the parties’ rights, an order directing future payment of taxes, and a reimbursement to Charles for the amount he had paid to redeem the property from sale for delinquent taxes. In count II, Charles alleged that his uncle’s failure to pay the taxes was intentional and was done in order to deprive Charles of his interest by having George’s stepson purchase the land at the tax sale. Charles prayed for compensatory and punitive damages.

George Hausmann filed a counterclaim alleging that Charles had not repaid a loan of $5,000 on an unwritten agreement. George also claimed that Charles owed him an amount for rental and storage of personal property on the land in issue.

After a bench trial the court entered judgment for Charles on count I of his complaint and awarded him $1,671.20 plus interest of $194.33. On count II the court awarded Charles $7,500 in punitive damages.

On the counterclaim the court found for George and against Charles for the $5,000 claimed but found for Charles on the amount allegedly due for rental and storage.

On appeal Charles Hausmann contends that the trial court’s award of the $5,000 was contrary to the manifest weight of the evidence and that the trial court erred in not entering an injunction against the defendant requiring him to pay real estate taxes on the land in the future. The defendant cross-appeals alleging the trial court erred in reconstituting the plaintiff’s amended complaint, in granting punitive damages, in failing to find that the plaintiff’s redemption of the 1986 taxes was a voluntary act, in stifling an attempted impeachment, and in entering judgment for Charles on the rental-and-storage issue. We affirm.

Esther Buckley, the plaintiff’s grandmother, and the mother of the defendant, deeded her son, George Hausmann, a life estate interest in the property involved with a remainder upon George’s death to her grandson, Charles Hausmann. George operated an asphalt business on this land from 1958 until January 1, 1988, when he sold the business to his wife, Ruby Hausmann, for $10.

In 1982 the plaintiff started a roofing business in the building located on the disputed land, and sometime that year George hired Charles to repair the roof on that building. Six months later 25% of the roof blew off, and Charles repaired it at an additional cost of $2,000. George testified that Charles at that time promised if the roof blew off again to repair it free of cost.

George testified that the roof was again damaged on the morning of April 22, 1984. According to George, Charles acknowledged that he had promised to repair the roof but claimed that he required an additional $5,000 for materials and insurance. George stated that he loaned Charles the $5,000 and Charles then repaired the roof. Charles, however, testified that he had borrowed the $5,000 on April 25 to finance an independent project, that the damage to the roof did not occur until April 27, and that the defendant agreed to forgive the $5,000 loan in exchange for Charles’ repair of the roof.

On March 23, 1987, George Hausmann, through his attorney of over 20 years, Martin Corbell, proposed a plan to buy plaintiff’s interest in the property. George would deposit a certain amount of money in escrow for Charles, who would in turn allow the land to pass through a tax sale. Ultimately George would regain the unencumbered title by tax deed. The proposal was rejected by Charles.

In the fall of 1987 George Hausmann, allegedly acting on the advice of his attorney, did not pay the real estate taxes for the property in question. On October 26, 1987, the premises were subjected to sale for delinquent taxes. Prior to the sale, Stacy Stewart, the defendant’s 19-year-old stepson, arranged to purchase the premises at the sale. For this purpose Stewart enlisted the aid of Roberta Quandt, a secretary in the firm of Martin Corbell, long-time attorney for the defendant. Quandt testified that she attended the sale and acquired the property for Stacy Stewart for $771.02 at a 0% interest rate.

On January 6, 1988, the defendant sent Charles a letter terminating his use of the premises and demanding rental of $5 a day for plaintiff’s personal property not thereafter removed.

On January 26, 1988, Charles Hausmann redeemed the premises by paying $778.02 on the still delinquent 1986 real estate taxes.

Defendant did not pay the 1987 real estate taxes on the land when due in 1988, and when the premises were sold for delinquent taxes, Charles bid them in at 0% for $893.18 on November 21,1988.

On February 18, 1988, plaintiff filed his original complaint.

We first address the issue of the $5,000 loan. Plaintiff claims the trial court’s judgment awarding defendant the $5,000 was against the manifest weight of the evidence and should be reversed. Where the trial court sits without a jury, its findings will not be disturbed unless they are contrary to the manifest weight of the evidence. (Harris Trust & Savings Bank v. Village of Barrington Hills (1989), 133 Ill. 2d 146, 157, 549 N.E.2d 578, 582.) The plaintiff makes much of the fact that the defendant never specifically stated that the plaintiff had obligated himself to repair the roof at no further cost to the defendant. However, this is easily inferred by the wording of the counterclaim, the circumstances testified to by George, and the fact that he consistently referred to the $5,000 as a loan, one which had not been repaid or forgiven. The plaintiff also proposes that the defendant’s subsequent conduct, that is, his failure to demand payment, belied his testimony that the $5,000 was a loan and had never been repaid. Given the fact that the parties were closely related, often interacted in social and business matters, and shared usage of the property, such a delay, however surprising, cannot be said to be conclusively inconsistent with a loan. Similarly, plaintiff states that defendant’s testimony concerning the tax sale was so improbable as to be obviously and willfully false; thus, the trial court could have rejected all of defendant’s uncorroborated testimony. (McDonald v. Industrial Comm’n (1968), 39 Ill. 2d 396, 403, 235 N.E.2d 824, 828.) Since, however, questions as to the credibility of witnesses are ordinarily best left in the hands of those who see and hear them testify, and since rejection of defendant’s testimony was at the trial court’s discretion, we see no reason to rule otherwise. This being said, we cannot say that the holding of the trial court on this issue was contrary to the manifest weight of the evidence; therefore, we affirm the trial court’s ruling on the $5,000-loan issue.

The plaintiff also contends that, after finding the defendant committed waste on the land in question, the trial court erred by not entering an injunction against the defendant compelling him to pay future real estate taxes. Defendant counters that the trial court incorrectly recognized a cause of action on this count in that no Illinois court has ever found failure to pay real estate taxes to equal waste; thus, this was not an equity matter and an equitable remedy such as an injunction would be improper.

We address first the defendant’s contention as to whether or not there was a valid cause of action. Defendant correctly points out that no statute or case exists in Illinois specifically declaring the failure of a life tenant to pay property taxes to constitute waste. It has long been accepted, however, that a life tenant has a duty to pay real estate taxes assessed against the land during his life tenancy. (Huston v. Tribbetts (1898), 171 Ill. 547, 550, 49 N.E. 711, 711.) The issue then becomes, can a breach of this duty give rise to an action in waste?

Breach of this duty has been held in other jurisdictions to constitute waste. In Thayer v. Shorey (1934), 287 Mass. 76, 81, 191 N.E. 435, 437, the supreme court of Massachusetts, citing Wade v. Malloy, 16 Hun. (N.Y.) 226, held that when a life tenant fails in his- duty to pay taxes, an action of waste will lie against him. The Missouri Supreme Court in Farmers Mutual Fire & Lightning Insurance Co. v. Crowley (1945), 354 Mo. 649, 190 S.W.2d 250, stated that a life tenant has a duty to pay taxes, make ordinary repairs, and keep down interest on encumbrances and his failure to perform these duties falls under the extension of the rule which prohibits waste.

In Bond v. Lockwood, the Illinois Supreme Court cited the English common law definition of waste:

“Any act or omission which diminished the value of the estate or its income, or increased the burdens upon it or impaired the evidence of title thereto, was considered waste.” (Bond v. Lockwood (1864), 33 Ill. 212, 221.)

More recently:

“Waste occurs when someone who lawfully has possession of real estate destroys it, misuses it, alters it or neglects it so that the interest of persons having a subsequent right to possession is prejudiced in some way or there is a diminution in the value of the land being wasted.” Pasulka v. Koob (1988), 170 Ill. App. 3d 191, 209, 524 N.E.2d 1227, 1239, citing 78 Am. Jur. 2d Waste §1 (1975).

Plaintiff argues that a life tenant’s failure to perform his duty to pay the real estate taxes levied upon the land in which he holds his life tenancy, thereby subjecting the land to possible sale for delinquent taxes, may increase the burden upon the land, impair evidence of title, and prejudice the interests of persons with a subsequent right to possession, thereby giving rise to a cause of action in waste.

Defendant, on the other hand, asserts that such a finding is not particularly logical when considering the lengthy and detailed procedures, provided by the Revenue Act of 1939, which must be fulfilled before a divestiture of title in favor of a tax purchaser can occur. (Ill. Rev. Stat. 1989, ch. 120, pars. 705 through 752.1.) Waste, however, is more often a process, a series of acts or omissions, rather than a singular event. A structure need not completely collapse before a cause of action in waste will be found to exist. To hold otherwise would be to deny an adequate remedy until after the waste was completed, or nearly so. Such a ruling would belie the very nature of equity, which is fairness. Waste, when possible, should be arrested rather than allowed to run its full course.

Defendant also points out that waste is generally limited to physical damage to the property. (Metropolitan Life Insurance Co. v. W.T. Grant Co. (1944), 321 Ill. App. 487, 501, 53 N.E.2d 255, 262.) This, however, is merely an historical observation rather than a rule of law.

We hold that failure to pay real estate taxes on a life estate by the life tenant may give rise to a cause of action in waste. As such, an injunction would not be an improper remedy against said waste. (Wise v. Potomac National Bank (1946), 393 Ill. 357, 361, 65 N.E.2d 767, 769.) We disagree, however, with plaintiffs argument that Wise suggests that where damages have been awarded against a life tenant for waste an injunction should be entered as a matter of course. Wise merely describes an injunction under these circumstances as an appropriate remedy which may be granted. Absent a showing of an abuse of discretion on the trial court’s part, we will not second-guess its decision not to enter an injunction on behalf of the plaintiff. Given that defendant was subjected to both actual and punitive damages, the trial court may have decided that an injunction was simply unnecessary. We find no abuse of discretion in the trial court’s failure to issue an injunction against the defendant.

We now address the defendant’s issues on cross-appeal. Defendant first alleges that the trial court erred in reconstituting count II of plaintiff’s amended complaint. After defendant had moved to dismiss count II, Judge Eberspacher entered a written order striking language relating to a conspiracy theory and reconstituting count II into an allegation relating to a cause of action for waste. Under the circumstances, the most suitable approach would have been for Judge Eberspacher to dismiss count II and grant plaintiff leave to file an amended count II. However, in view of our holding on the waste issue and in view of the fact that defendant cites no authority on this point, we do not find it an adequate ground for reversal.

The defendant continues that the trial court erred in granting plaintiff the punitive damages prayed for in count II of plaintiff’s complaint. Most of defendant’s argument relates count II’s alleged failure to state a cause of action which we have already addressed. Defendant also claims punitive damages were improper in that defendant acted in good faith and upon advice of counsel. This, however, is not borne out by the record. Defendant’s attorney, Martin Corbell, expressly testified that at no time did he tell George Hausmann not to pay his taxes. In fact, the record tends to suggest that, contrary to George’s claims of good faith, his failure to pay the taxes was little more than a thinly veiled attempt to divest the plaintiff of his interest in the land. Defendant’s story that his 19-year-old stepson endeavored to gain title to the property with the aid of Quandt, an employee of defendant’s attorney for over 38 years, without any help or encouragement from the defendant is at best improbable. Punitive damages may be awarded when tortious acts are committed with fraud, or when defendant acts willfully or with such gross negligence as to indicate a wanton disregard for the rights of others. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 186, 384 N.E.2d 353, 359.) We find no error in the trial court’s award of punitive damages. Where punitive damages are assessed, it is in the nature of punishment and as a warning and example to deter the defendant and others from committing like offenses in the future. Kelsay, 74 Ill. 2d at 186, 384 N.E.2d at 459.

Defendant alleges that Charles’ redemption of the 1986 real estate taxes was a voluntary act taken under no compulsion and did not, in and of itself, give rise to a legally enforceable cause of action against George. We find this contention completely without merit. It has already been established that the defendant had a duty to pay the real estate taxes, and that failure to do so gave rise to a valid cause of action for waste on behalf of the plaintiff. To suggest that the plaintiff, who took action to protect his interests and rights, was a volunteer whose actions liberated the defendant of all duties and obligations is untenable. The defendant failed in his duty. The plaintiff was compelled to act or risk possible divestment. The plaintiff is entitled to compensation. We refuse to hold that an individual must wait until the last possible moment, before moving to protect his rights, to avoid being labeled a volunteer.

Defendant claims that the trial court erred when it interjected inquiry on matters dealing with the $5,000 loan, thereby stifling an attempted impeachment or attack on plaintiff’s credibility. At the outset we would point out that, since we have affirmed the trial court’s ruling on the $5,000 in favor of the defendant, any interjection by the trial court was, at least on that issue, harmless. Defendant suggests, however, that the trial court placed great emphasis on the credibility of both parties in reaching its findings and thus denied defendant the opportunity to fully attack plaintiff’s overall credibility by its interruption. A trial judge has the right to question witnesses in order to elicit the truth or to increase enlightenment on material issues which seem obscure. (People v. Palmer (1963), 27 Ill. 2d 311, 314, 189 N.E.2d 265, 267-68.) The propriety of such examination must be determined by the circumstances of each case and rests largely in the discretion of the trial court, especially where the cause is tried, as here, without a jury and the danger of prejudice is lessened. (Palmer, 27 Ill. 2d at 315, 189 N.E.2d at 268.) Given that the trial court found for the defendant on this particular issue, coupled with the reality that the $5,000 loan was factually unrelated to the other issue of waste, we find the circumstances do not warrant a reversal.

Finally, the defendant claims that the trial court erred in entering judgment for plaintiff and against defendant on defendant’s counterclaim for rental and storage. At trial defendant admitted that the $5-per-day rent figure demanded of plaintiff had no basis in actuality. When pressed further, defendant suggested that $2 a day, in his opinion, would be more reasonable. The claimant carries the burden of proving damages to a reasonable degree of certainty, and evidence of damages cannot be remote, speculative or uncertain. (In re Estate of Halas (1991), 209 Ill. App. 3d 333, 349, 568 N.E.2d 170, 181.) On appeal following a bench trial, a reviewing court will not reverse the trial judge’s determination of damages unless that determination is against the manifest weight of the evidence. (Halas, 209 Ill. App. 3d at 349, 568 N.E.2d at 181.) Defendant’s estimation of rental and storage damages was at best speculative and admittedly uncertain. Absent any other evidence establishing these alleged damages, we cannot say that the trial judge’s determination was against the manifest weight of the evidence.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

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


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRYAN WATTERS, Defendant-Appellant.
    Fifth District
    No. 5—90—0719
    Opinion filed July 9, 1992.

      Clyde L. Kuehn, of Kuehn & Trentman, of Belleville, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

“Lennie said, ‘Tell how it’s gonna be.’

George had been listening to the distant sounds. For a moment he was business-like. ‘Look acrost the river, Lennie, and I’ll tell you so you can almost see it.’

* * *

‘Go on,’ said Lennie. ‘How’s it gonna be. We gonna get a little place.’

‘We’ll have a cow,’ said George. ‘An’ we’ll have maybe a pig an’ chickens *** an’ down the flat we’ll have a *** little piece alfalfa — ’

‘For the rabbits,’ Lennie shouted.

‘For the rabbits,’ George repeated.

‘And I get to tend the rabbits.’

‘An’ you get to tend the rabbits.’

Lennie giggled with happiness, ‘An’ live on the fatta the lan’.’

Lennie turned his head.

‘No, Lennie. Look down there acrost the river, like you can almost see the place.’

* * *

Lennie said, ‘I thought you was mad at me, George.’

‘No,’ said George. ‘No, Lennie. I ain’t mad. I never been mad, an’

I ain’t now. That’s a thing I want ya to know.’

* * *

Lennie begged, ‘Let’s do it now. Let’s get that place now.’

‘Sure, right now. I gotta. We gotta.’

And George raised the gun and steadied it, and he brought the muzzle of it close to the back of Lennie’s head. The hand shook violently, but his face set and his hand steadied. He pulled the trigger. The crash of the shot rolled up the hills and rolled down again. Lennie jarred, and then settled slowly forward to the sand, and he lay without quivering.”

Steinbeck’s story is a familiar one; Lennie with his giant’s strength and damaged brain; George, small and sharp, but caring for Lennie and their dream of a place of their own where Lennie could care for the rabbits. Lennie’s brain did not differentiate between the death of the little mice he petted too hard and the broken neck of Curley’s wife with the long blond curls. George chose not to let Lennie die at the hands of the mob led by Curley. George’s sentence was approved by Slim, the jerkline skinner, in a few simple words, “You hadda George. I swear you hadda.”

In this case we are asked to review a minimum six-year sentence on a Class X crime. The trial court specifically found that the defendant would be eligible for probation and stated, “Because of all the factors that I have enumerated *** the court should grant *** leniency as much as can be given,” but it concluded that mandatory sentencing provisions of section 5—5—3(c)(2)(C) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3(c)(2)(C)) precluded a sentence of probation. We reverse and remand.

While examining the law in this case we are drawn to review the history of punishment in general and the development of probation as a viable concept in our system of penology.

“Punishment” has been defined in terms of five elements:
“(i) It must involve pain or other consequences normally considered unpleasant.
(ii) It must be for an offence against legal rules.
(iii) It must be of an actual or supposed offender for his of-fence.
(iv) It must be intentionally administered by human beings other than the offender.
(v) It must be imposed and administered by an authority constituted by a legal system against which the offence is committed.” H.L.A. Hart, Punishment and the Elimination of Responsibility 5 (1968).

Corporal punishment and imprisonment were the sentences of choice in early America for those convicted of crime. Instruments such as the stocks, pillory, scarlet letter, and other devices for torture and debasement were used regularly. (A. Wood & J. Waite, Crime and Its Treatment 462-63 (1941).) The Quakers were instrumental in implementing reforms in the early criminal code. For instance in 1682, under the guidance of William Penn, “imprisonment at hard labor in ‘houses of correction’ was substituted for death for all crimes except murder, and for the barbarous corporal punishments.” (Crime and Its Treatment, at 492.) When Quaker rule came to an end in 1718, their reform efforts were curtailed. Accounts are told of the institution of 13 capital offenses, with whipping, branding and mutilation for lesser crimes. In the late 18th century, the ideas of humane penology idealized by William Penn were adopted by “The Philadelphia Society for Relieving Distressed Prisoners,” which is said to be the first prison association in America. (Crime and Its Treatment, at 493.) The society advocated the separation of hardened criminals from first offenders, chapel services for prisoners, the separation of witnesses awaiting trial from convicts, the separation of the sexes in prison, and other reforms. (Crime and Its Treatment, at 494.) Efforts at improvement were slow. Massachusetts was the first State to enact a provision for probation in 1878. (Crime and Its Treatment, at 632.) During probation’s development as a recognized sentencing alternative, the United States Supreme Court opined, “Probation is the attempted saving of a man who has taken one wrong step and whom the judge thinks to be a brand who can be plucked from the burning at the time of the imposition of the sentence.” (United States v. Murray (1928), 275 U.S. 347, 358, 72 L. Ed. 309, 313, 48 S. Ct. 146, 149.) Probation involves the supervision of the convicted offender in the community in lieu of his having to serve a sentence in a penal institution. (Crime and Its Treatment, at 630.) By 1938, statutes authorizing probation for adults had been enacted in 37 States. Crime and Its Treatment, at 633.

That the punishment should fit the offender and not merely the crime became the prevalent philosophy of penology.

“The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender. This whole country has traveled far from the period in which the death sentence was an automatic and commonplace result of convictions — even for offenses today deemed trivial. Today’s philosophy of individualizing sentences makes sharp distinctions for example between first and repeated offenders. Indeterminate sentences, the ultimate termination of which are sometimes decided by non-judicial agencies have to a large extent taken the place of the old rigidly fixed punishments. The practice of probation which relies heavily on non-judicial implementation has been accepted as a wise policy.” (Williams v. New York (1949), 337 U.S. 241, 247-48, 93 L. Ed. 1337, 1343, 69 S. Ct. 1079, 1083-84.)

Today the concept of individualized sentencing treatment is an important factor in our system of penology. People v. Boclair (1989), 129 Ill. 2d 458, 494, 544 N.E.2d 715, 731; Lockett v. Ohio (1978), 438 U.S. 586, 605, 57 L. Ed. 2d 973, 990, 98 S. Ct. 2954, 2965.

While there has been some recognition of the benefits of the individualization of sentencing, our society is only beginning to understand the plight of the mentally retarded.

“The more severely retarded have often been warehoused because traditional prejudments have left their potential unrecognized. [Citation.] Even today many severely retarded persons are placed in remote state institutions where they receive mere custodial care.” (Rizzo, Beyond Youngberg: Protecting the Fundamental Rights of the Mentally Retarded, 51 Fordham L. Rev. 1064, 1064 n.7 (1983).)

What is done to offenders against custom or law, and why it is done, are aspects of the state of culture of a given social group. (Crime and Its Treatment, at 445.) Hopefully we have come further than the summary disposition of mentally disabled criminal defendants like Steinbeck’s Lennie. J. Steinbeck, Of Mice and Men (1937).

Defendant Bryan Watters appeals his sentence of imprisonment from a judgment of guilty but mentally ill on a charge of aggravated criminal sexual assault, a Class X felony. He contends that, under the circumstances of his case, the mandatory prison provisions for Class X offenses should not apply.

On or about September 16, 1988, Bryan Watters and three neighbor children engaged in various sexual acts and photographed one another in the process of such conduct. Defendant took the film to Smith’s Pharmacy for development, the store called the police department, and defendant was indicted on three counts of child pornography (Ill. Rev. Stat. 1987, ch. 38, par. 11—20.1(a)(4)) and three counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12-14(b)(l)).

The court conducted a hearing to determine defendant’s fitness to stand trial, and on January 5,1990, the court entered an order

“that despite the defendant’s diagnosis of [m]ild [mjental [r]etardation, he is able to understand the nature and purpose of the proceedings against him, and can, within a limited range, assist in his defense, even though he may not be able to plan a defense or thoroughly understand all of the complexities of a defense or thoroughly understand all of the complexities of a trial or possible legal issues or theories that may be raised.”

The court further ordered that the following special procedures would be observed during the course of the trial:

“1. The Court may limit the State in asking leading questions of the defendant in cross[-]examination should defendant elect to testify.
2. Defense counsel shall be allowed sufficient recesses during the course of the trial to confer with defendant concerning defendant’s ability to understand each phase of the trial. Only at defense counsel’s request, the [cjourt would participate in any such conferences.
3. If during the course of the trial or any conference regarding defendant’s ability to understand the proceedings defense counsel believes defendant is unable to understand the proceedings, or should defendant’s anxiety level cause him to so decompensate that he becomes unable to assist in his defense or understand the proceedings, then, at the request of defense counsel, the [c]ourt will consider the appointment of Dr. Daniel J. Cuneo to assist defendant in understanding the proceedings pursuant to Hlinois Revised Statutes Chapter 38, Section 104 — 22 [sic].”

On May 11, 1990, the trial court amended paragraph three of its January 5, 1990, order and allowed defendant to have an expert assist him during the course of proceedings commensurate with the court’s previous order and section 104 — 22.

A stipulated bench trial was held July 3, 1990, on count VI of the indictment. All other counts were dismissed.

At the stipulated bench trial, the State submitted that if a trial were held the State would be prepared to present evidence to support a conviction against the defendant. The State was prepared to call the owner of Smith’s Pharmacy who, on October 1, 1988, contacted the police department and advised them that a customer, Bryan Watters, brought in a roll of film for developing which contained photographs of nude and semi-nude children posing in sexually explicit positions. The police arrested defendant when he came to pick up the photographs on October 1, 1988.

The State informed the court that defendant gave a statement to the police wherein defendant indicated that two weeks prior to his arrest three neighborhood children, two boys and a young girl, were at his house. Defendant disrobed and had the children undress as well. Defendant admitted to knowing that the children were under 10 years of age. He advised the police that he had been photographing them for four to six weeks. The photographs were confiscated by the police and depicted, among other things, the young girl in sexually explicit positions with the defendant. Three of the photographs depicting the girl and defendant were admitted into evidence.

The State advised the court that if a trial was held it would call Jane (an assumed name for purposes of this appeal), the young girl depicted in defendant’s photographs. The State would also call Tish LaRock, a nurse at Cardinal Glennon Hospital in St. Louis, who would testify that she interviewed Jane and was advised by her that Bryan Watters had placed his penis in her vagina. Jane’s brothers, the two boys defendant photographed, would testify that they saw Jane engage in sexual contact with the defendant. Dr. James Monteleone, a physician and expert in the field of child abuse, would testify that he examined Jane and in his expert opinion Jane was the victim of chronic sexual abuse. At the time of the offense Jane was four years of age. Her brothers were seven and eight years old. The defendant’s date of birth is July 6,1960.

Finally, the State was prepared to call Dr. Michael Armour, a clinical psychologist, who would give his opinion that the defendant was legally sane at the time of the offense and understood the wrongfulness of his actions. It was also Dr. Armour’s opinion, based on defendant’s mild retardation, that defendant was mentally ill but not insane at the time of the offense.

Defendant’s attorney advised the court that in the event of a trial the defendant was prepared to call as an expert Dr. Daniel Cuneo, a clinical psychologist, to develop the mental and social history of Bryan Watters. In particular, the defense was prepared to demonstrate that defendant has always had an IQ in the range of 64 to 67; that he functioned with certain limitations throughout life; that he has lived a major portion of his life with his mother; that he has had experiences with a girl friend; that during the recent past he has been employed at the Ben Franklin store in Belleville; and that he otherwise functions normally within his day-to-day life notwithstanding his mental deficiency. Counsel for the defendant further argued that Dr. Cuneo would testify that in his expert opinion defendant did not appreciate that the acts he was committing were of a criminal nature at the time of the offense. Defendant’s attorney concluded that basically his defense would be that defendant suffered from a mental illness and was not capable of understanding the wrongfulness of his behavior.

The trial court found Bryan Watters to be guilty but mentally ill of aggravated criminal sexual assault. On September 26, 1990, a sentencing hearing was held. The State presented no evidence. The defendant called several witnesses in mitigation.

Dr. Michael Armor testified that he was called upon by the St. Clair County State’s Attorney’s office to conduct an evaluation of Bryan Watters’ sanity at the time of the alleged offense. He testified that he was familiar with the Illinois law of guilty but mentally ill and the legal definitions of mental illness. Dr. Armor concluded that at the time of the alleged offense Bryan Watters was not legally insane, but that he was mentally ill due to his mental retardation. The doctor further testified that the defendant presents himself as a very passive individual who is very dependent upon others. Dr. Armor was of the opinion that the defendant would be easily led or intimidated by others. When asked whether he believed that prison would be a dangerous place for the defendant, Dr. Armor testified, “I think that he would be an easy victim in any kind of prison — in the prison population where he would be subject to being victimized. *** I think due to his intellectual limitations and his passivity, he would be an easy target for ridicule and physical intimidation.”

John Conkright, the owner of the Ben Franklin store where defendant has worked for six years, testified that he has known the defendant and his family since defendant was about 10 years old. Conkright described defendant’s job at the Ben Franklin store as follows:

“He is my stock man, my stock boy. He comes in and sweeps the store up every morning, busted [sic] the boxes up. He’s got a morning routine that he goes through which quite honestly we have to keep it pretty much on a routine basis. *** He basically can handle one or two assignments at a time. Not something where you give Bryan a day[’]s assignment at one time. You give him one or two at the most. When he gets that done, he comes back to you and you give him more.”

Conkright testified that Bryan is “very dependable, very honest.” He testified that shortly after defendant was arrested, Conkright spoke with him. Conkright testified that Bryan was dumbfounded and did not understand what he had done and he did not understand how serious it was. When Conkright was asked by defense counsel whether he believed that defendant would repeat his conduct, Conkright testified, “There is no question in my mind that at this point Bryan understands that he was wrong and that in his terms he did bad and that he would not do this.” Conkright also testified that he would continue to keep defendant as an employee if defendant were not sent to prison.

Bryan’s mother, Doris Watters, was called to testify. She testified that except for a two-year period when Bryan lived in a trailer, he has lived with her. Doris Watters testified that her son has never been a behavioral problem and would never intentionally harm anyone. The defendant’s father, Allen Lee Watters, testified that Bryan has always done what he was asked or told to do, and that he would not hurt anything.

Finally, Dr. Daniel Cuneo, director of research at the Chester Mental Health Center, Illinois’ maximum security hospital, testified that he first met the defendant in 1988 when he was asked to determine whether the defendant would be an appropriate candidate for the facility’s outpatient sexual offender treatment program. Cuneo testified that an evaluation was performed on Bryan Watters and he was accepted into the program. Cuneo testified that Bryan Waiter’s school records indicated that the defendant’s IQ was consistently in the 60’s range. Dr. Cuneo opined that the defendant’s mental capacity affected his judgment about the conduct that he is charged with in this case. Cuneo testified, “he knew it was wrong but he knew it was like a 10 year old steals [sic] that Playboy and leafs through it in the bathroom. You know it is wrong but you don’t know it is criminal.”

Dr. Cuneo describes the defendant as passive, dependent, easily led and easily influenced. When asked whether he feels that Bryan Watters is likely to repeat the sort of conduct with which he is charged, Dr. Cuneo testified:

“In the current situation he is in, no. *** If Bryan is sent to prison, I would think the likelihood of him repeating the crime is high. If he continues in treatment, I would say it is low.
* * *
Bryan Watters is going to end up because Bryan Watters is who he is, the way he is going to survive in prison, he is either going to be made a punk or put under somebody’s control and in doing so, what is going to happen is he is going to learn all kinds of stuff.”

On September 28, 1990, the trial court sentenced Bryan Watters to six years’ imprisonment. The court stated, “although I believe you would otherwise be eligible for probation, I do not believe that the Court can grant probation under the law as it now exists.” The court remanded defendant to the Department of Mental Health and Developmental Disabilities and ordered that a hearing be conducted pursuant to the provisions of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1989, ch. 911/2, par. 1—100 et seq.).

On October 26, 1990, a hearing was held regarding civil commitment. Bonnie Walbran, a registered psychologist with specific expertise in the diagnosis and treatment of persons with developmental disabilities, testified that she evaluated Bryan Watters and assessed his adaptive behavior skills using the Inventory for Client and Agency Planning. Bryan’s scores on this inventory established his behavioral age equivalency at nine years eight months. His maladaptive behavior falls within the range of a normal person his age. Dr. Walbran testified that maladaptive behavior refers to “whether you hurt other people, whether you are socially offensive, whether you engage in disruptive behavior.” Dr. Walbran described two incidents which occurred while the defendant was at the Alton Mental Health and Developmental Center:

“Bryan’s mother brought him a radio and a TV over the weekend. When I came in on Monday it was reported to me that he had not used those. The first time I really got back to the unit was late on Monday, and I spoke to Bryan about why it was that he hadn’t used the radio or the TV that his mother had brought, and he told me, when I asked, that there was no electricity in his room, and inadvertently the circuit breaker had been turned off on the electricity to his room. He had been that way for two or three days and hadn’t said anything to anyone about it.
Another one of the professionals asked him several days later whether he *** had had a soda, and he said, no, he hadn’t had any. She asked him why. He said he had a $10 bill and he didn’t want to ask anyone for change. And now at this point he’s been there almost a week and he hasn’t asked anyone could he change his ten dollar bill. So it seems to me that unless someone came and asked him directly did this happen to you, that he would not be likely to tell somebody. That’s been— that was our experience that he did not tell us anything unless we asked him directly what happened.”

Dr. Walbran further testified that because she does not believe Bryan Watters is likely to inflict serious harm on himself or on anyone else, and because he is able to care for himself, he does not meet the criteria for civil commitment to the Department of Mental Health.

Following the hearing, the trial court determined that Bryan Watters did not fit the criteria for civil commitment, denied defendant’s motion to reconsider the sentence, and permitted the defendant to remain on bail pending appeal, provided he had no contact with the victims and continued the course of counseling that he was undergoing with Dr. Cuneo. Defendant appeals.

The sole issue on appeal is whether the trial court erred in finding that it was required to impose a sentence of imprisonment under section 5—5—3(c)(2)(C) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3(c)(2)(C)). Defendant argues that the trial court erroneously interpreted that section to preclude a sentence of probation where a defendant was suffering from a disability and was tried under section 104—26(c)(1) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 104—26(c)(1)). Defendant contends that mandatory imprisonment for Class X offenses may yield to section 104—26(c)(1) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 104-26(c)(1)).

The fundamental rule of statutory construction is to give effect to the intent of the legislature. (Illinois v. Mikusch (1990), 138 Ill. 2d 242, 247, 562 N.E.2d 168, 170.) Courts, when interpreting a statute, should look first to the statutory language as the best indication of the drafters’ intent. County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 151, 485 N.E.2d 1076, 1079.

Section 5—5—3(c)(2)(C) of the Unified Code of Corrections provides:

“A period of probation, a term of periodic imprisonment or conditional discharge shall not be imposed for the following offenses. The court shall sentence the offender to not less than the minimum term of imprisonment set forth in this Code for the following offenses, and may order a fine or restitution or both in conjunction with such term of imprisonment:
* * *
(C) A Class X felony.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3(c)(2)(C).

On the other hand, section 104 — 26(cXl) of the Code of Criminal Procedure of 1963 provides as follows:

“(c) A defendant convicted following a trial under Section 104 — 22 shall be sentenced according to the procedures and dispositions authorized under the Unified Code of Corrections, as now or hereafter amended, subject to the following provisions:
(1) The court shall not impose a sentence of imprisonment upon the offender if the court believes that because of his disability a sentence of imprisonment would not serve the ends of justice and the interests of society and the offender or that because of his disability a sentence of imprisonment would subject the offender to excessive hardship. In addition to any other conditions of a sentence of conditional discharge or probation the court may require that the offender undergo treatment appropriate to his mental or physical condition.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 104 — 26(c)(1).

The State argues that the emphasized language of section 5—5— 3(c)(2)(C) clearly denotes the legislature’s intent that a person convicted of a Class X felony is to be sentenced to not less than a minimum term of imprisonment. The State contends that no discretionary authority was delegated to the judge as evidenced by the statute’s mandatory language.

Defendant maintains that it is clear that the legislature was mindful when it adopted section 104—26(c)(1) that certain dispositions for certain crimes carry mandatory imprisonment under the Unified Code of Corrections. Defendant contends that the legislature was also aware that circumstances might arise, due to a mental disability of an offender who was not quite unfit for prosecution, that would render mandatory imprisonment unjust and abusive. Defendant argues that section 104—26(c)(1) was adopted as an escape hatch for that narrowly circumscribed class of cases where the offender suffers a disability that does not render him totally incompetent and beyond the power of criminal prosecution but does set him apart from most criminal defendants. To construe section 104—26(c)(1) to apply only to probationable offenses, defendant argues, not only ignores the plain language of the statute but renders it superfluous.

Whether a statutory provision is interpreted as mandatory or discretionary depends upon the intent of the legislature. (People v. Porter (1988), 122 Ill. 2d 64, 82, 521 N.E.2d 1158, 1165.) Generally, the word “shall” is indicative of a mandatory intent, but such a construction is not absolute and intent can be determined from the purpose and context of the provision. (122 Ill. 2d at 82, 521 N.E.2d at 1165.) In construing statutory provisions, the court should consider not only the language of the statute but also the reason for the law, the evils to be remedied, and the objects and the purposes to be attained. (Faheem-El v. Klincar (1988), 123 Ill. 2d 291, 298, 527 N.E.2d 307, 310.) While the language of section 5—5—3(c)(2)(C), on its face, appears to leave no room for discretion under any circumstances, we are mindful that the entire criminal code and each of its sections must be considered in determining legislative intent. (People v. Hairston (1970), 46 Ill. 2d 348, 356, 263 N.E.2d 840, 846.) Generally, statutes which relate to one subject are governed by one spirit and a single policy, and the legislature intended the enactments to be consistent and harmonious. (People v. Maya (1985), 105 Ill. 2d 281, 286-87, 473 N.E.2d 1287, 1290.) Therefore, in order to determine whether section 5—5—3(c)(2)(C) mandates imprisonment in this case, we must examine that statute in conjunction with section 104 — 26(c)(1).

We find the legislative history of Public Act 81—1217, which includes section 104 — 26(cXl), of particular significance. (See Pub. Act 81—1217, eff. Dec. 28, 1979.) Public Act 81—1217 consisted of a package of legislation designed to deal with the criminal defendant who was unfit to stand trial.

“Senate Bill 133 is a result of the case involving one Donald Lang and some of you may have seen the series on television called, ‘The Dummy’, which dealt with Donald Lang and his inability to be brought to trial in the State of Illinois because of the glaring gap in the present statutory framework of our criminal justice system as it relates to unfit defendants. Senate Bill 133 provides a comprehensive system for dealing with defendants who are found unfit to stand trial and it is my belief that it sets forth a rational system to deal with this type of defendant. *** All treatment is directed towards bringing the defendant to a condition where he may be found to fit [sic] trial ... to stand trial. *** The Bill *** has been carefully scrutinized by the Commission on Revision of the Mental Health Code and it has been intensely scrutinized by the staff of both Members of the House and the Senate.” (81st Ill. Gen. Assem., House Proceedings, June 19, 1979, at 75-76 (statements of Representative Daniels).)

After studying the legislative history, we conclude that the Act’s sponsors intended that special provisions be made for unfit defendants within the criminal process. The Donald Lang case, to which Representative Daniels referred in his remarks to the legislature, provides insight into the nature of the problems faced by the developmentally and physically disabled within a criminal justice system. Because the Donald Lang case was apparently the impetus for the passage of Public Act 81—1217, we will briefly review that case.

Donald Lang is a visually impaired, illiterate deaf-mute, who was indicted November 1965 for the murder of a woman. (People v. Lang (1967), 37 Ill. 2d 75, 224 N.E.2d 838.) He was civilly committed to the Department of Mental Health after being found unfit to stand trial. (37 Ill. 2d at 80-81, 224 N.E.2d at 841.) Subsequently the indictment was dismissed due to the death of a principal witness, and in February 1971 defendant was released from custody. In July of 1971, Lang was indicted for the murder of a second woman. (See People v. Lang (1984), 127 Ill. App. 3d 313, 468 N.E.2d 1303.) Although Lang is a deaf-mute who was never taught to read or write or to use sign language and is unable to communicate with anyone, he was nevertheless tried by a jury and convicted of the murder of Earline Brown. (People v. Lang (1975), 26 Ill. App. 3d 648, 325 N.E.2d 305.) The appellate court reversed, holding that Lang’s conviction was the result of trial procedures which could not effectively compensate for his disabilities; the cause was remanded for a determination of Lang’s fitness to stand trial. (26 Ill. App. 3d at 655, 325 N.E.2d at 312.) After a fitness hearing, the trial court found Lang unfit and remanded him to the Illinois Department of Mental Health and Developmental Disabilities (Department) for a hearing into his need for hospitalization.

Lang did not meet the requirements for involuntary commitment. The trial court, thereupon, directed that the Department create and implement an adequate and humane care and treatment program for the defendant. The appellate court vacated the trial court’s order because the trial court had no authority to order the Department to collaborate in the development of a program to render the defendant fit to stand trial. The appellate court concluded that the trial court had gone beyond the directive of the statute and urged that the legislature remedy the situation by implementing statutory guidelines for hospitalization to authorize treatment for the conditions which underlie or cause a defendant’s unfitness to stand trial. People v. Lang (1978), 62 Ill. App. 3d 688, 712, 378 N.E.2d 1106, 1120, affirmed as to this issue (1979), 76 Ill. 2d 311, 391 N.E.2d 350.

The case of Donald Lang brought to the fore the dilemma of criminal defendants who are unfit to stand trial yet are not in need of mental treatment. With Lang came the recognition that the number of unfit defendants not in need of mental treatment was sufficient to compel consideration of alternatives to the legislation in existence at that time. (Fitzpatrick, Unfit to Stand Trial: The Dilemma and a Proposal, 60 Chicago Bar Rec. 226, 229 (1979).) Illinois’ statutory scheme prior to the enactment of Public Act 81—1217 allowed for an unfit defendant to be confined. While confined, however, the defendant would not receive any special treatment to assist him in becoming fit, which suspended both the defendant and the resolution of the criminal case.

Included within Public Act 81—1217 is section 104—26 (Ill. Rev. Stat. 1989, ch. 38, par. 104—26), which addresses the sentencing of persons who are tried under section 104—22 (Ill. Rev. Stat. 1989, ch. 38, par. 104—22). At least one analyst has interpreted section 104—26 as presuming that persons tried under section 104—22 should not receive a sentence of imprisonment and should instead be sentenced to treatment. (See Paull, S.B. 133: The Near Resolution of a Major Problem: Fitness in the Criminal Law, 56 Chi. Kent L. Rev. 1107, 1120 (1980).) The language of section 104 — 26(c)(1) provides the trial court with discretion to either impose a sentence of imprisonment or forego such if a “sentence of imprisonment would not serve the ends of justice and the interests of society and the offender or that because of his disability a sentence of imprisonment would subject the offender to excessive hardship.” Ill. Rev. Stat. 1989, ch. 38, par. 104—26(c)(1).

The issue here is the appropriateness of a mandatory penal disposition of an offender in the unique circumstances of this case in Anew of his crime and his characteristics, measured against the criteria of the governing aims and premises of the criminal law. (See S. Kadish, Blame and Punishment 253 (1987).) Considering the legislative history behind Public Act 81—1217, and the special guidelines of section 104—26(c)(1), along Avith the admitted ewls to be remedied and the purposes to be attained by the legislature in enacting legislation Avith the developmental^ or mentally disabled in mind, we conclude that the trial court had discretionary authority in sentencing the defendant under section 5—5—3(c)(2)(C). Keeping in mind the purpose behind the legislature’s recognition of the developmentally disabled, and the language used in section 104—26, the sentencing scheme intended by the legislature becomes clear. We believe that it was the intention of the legislature that section 104—26(c)(1) give the sentencing judge discretion when sentencing a defendant under section 5—5— 3(c)(2)(C).

In recent years the question of whether capital punishment should be inflicted upon the developmentally disabled criminal defendant has been debated. Penry v. Lynaugh (1989), 492 U.S. 302, 106 L. Ed. 2d 256, 109 S. Ct. 2934, is the first case in which the United States Supreme Court has directed its attention to the specific issue of whether mentally retarded defendants should be excepted from the death penalty. (Dick-Hurwitz, Penry v. Lynaugh: The Supreme Court Deals A Fatal Blow To Mentally Retarded Capital Defendants, 51 U. Pitt. L. Rev. 699, 707 (1990).) In that case the court stated that imposing the death sentence on a mentally retarded defendant is not per se cruel and unusual punishment and thus does not violate the eighth amendment. (Penry, 492 U.S. at 334-35, 106 L. Ed. 2d at 288-89, 109 S. Ct. at 2955.) The Penry Court, however, held the Texas sentencing statute at issue unconstitutional because it did not allow the jury to consider mental retardation as a mitigating factor in sentencing. (492 U.S. at 319-28, 106 L. Ed. 2d at 278-84, 109 S. Ct. at 2947-52.) While Penry dealt specifically with capital punishment, we find the Court’s requirement that mental retardation be included as a mitigating factor in determining the appropriateness of the death penalty significant in the case at bar.

“Underlying Lockett and Eddings is the principle that punishment should be directly related to the personal culpability of the criminal defendant. *** [I]t is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence. ***
* * *
*** Personal culpability is not solely a function of a defendant’s capacity to act ‘deliberately.’ A rational juror at the penalty phase of the trial could have concluded, in light of Penry’s confession, that he deliberately killed Pamela Carpenter to escape detection. Because Penry was mentally retarded, however, and thus less able than a normal adult to control his impulses or to evaluate the consequences of his conduct, and because of his history of childhood abuse, that same juror could also conclude that Penry was less morally ‘culpable than defendants who have no such excuse,’ but who acted ‘deliberately’ as that term is commonly understood.” (Emphasis added.) (Penry, 492 U.S. at 319-23, 106 L. Ed. 2d at 278-81, 109 S. Ct. at 2947-49.)

While the Supreme Court did not mandate a special exception for the developmental^ disabled who are candidates for capital punishment, it did recognize the significance of their disability as a mitigating factor in sentencing.

Like the Supreme Court’s pronouncement in Penry, section 104— 26(c)(1) (Ill. Rev. Stat. 1989, ch. 38, par. 104 — 26(c)(1)) directs the courts to take the defendant’s developmental disability into account in sentencing, and it appears to be specifically designed to safeguard against inappropriate punishment for the developmentally disabled criminal defendant. When it is considered in conjunction with section 5—5—3(c)(2)(C) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 5—5—3(c)(2)(C)), we conclude that it gives the sentencing authority discretion to tailor an appropriate sentence for the criminal defendant who qualifies under its provisions. This conclusion is consistent with the observations of one Federal court:

“Mentally retarded persons meet with unremitting hardships in prison. ***
* * *
*** [Tjheir usual lot is abuse, exploitation, and frequent punishment. ***
* * *
*** Their special habilitation needs are practically unrecognized *** and they are subjected to a living environment which they cannot understand and in which they cannot succeed.” Ruiz v. Estelle (S.D. Tex 1980), 503 F. Supp. 1265, 1344-46.

While the criminal acts of a mentally disabled person are not per se excused, our society has evolved to an understanding that because of a disability a sentence of imprisonment may “not serve the ends of justice and the interests of society and the offender” (Ill. Rev. Stat. 1989, ch. 38, par. 104—26(c)(1)). Legislatively created exceptions to mandatory imprisonment, when viewed in light of the special capacities of one with a mental disability, are not so much “excuses” but are the makings of a moral code. (S. Kadish, Blame and Punishment 87 (1987).) The scholar Hart recognized four reasons which are usually mentioned as justifying punishment: deterrence, retribution, vengeance and reform. (H.L.A. Hart, Punishment and the Elimination of Responsibility 8 (1968).) He wrote:

“The moral justification for punishment lies in its effects — in its contribution to the prevention of crime and the social readjustment of the criminal. It is essentially forward-looking: it considers the future good we can do to society including the criminal.” (Punishment and the Elimination of Responsibility, at 159.)

Under the circumstances of this case, it is possible that not one of the four reasons mentioned as justifying punishment would be furthered if the defendant were sent to prison. The legislature’s apparent act of individualization of punishment in the context of the offender who is convicted following a trial under section 104—22 (Ill. Rev. Stat. 1989, ch. 38, pars. 104—22, 104— 26(c)(1)) would be thwarted were we to ignore the discretion given to the sentencing authority by section 104— 26.

Additionally, under the current statutory scheme a “least restrictive alternative” approach to sentencing exists as part of Public Act No. 80 — 1099, Illinois’ determinate sentencing law. (Schuwerk, Illinois’ Experience With Determinate Sentencing: A Critical Reappraisal Part 2: Efforts to Impose Substantive Limitations on the Exercise of Judicial Sentencing Discretion, 34 DePaul L. Rev. 241, 244 nn.1, 3 (1985), citing “An Act in relation to the Criminal Justice System in Illinois” (Pub. Act No. 80-1099, eff. Dec. 28, 1977 (1977 Ill. Laws 3264-3318)).) (Pub. Act No. 80-1099, eff. Dec. 28, 1977 (1977 Ill. Laws 3264-3318)).) The determinate sentencing law has been described as “structuring rather than limiting the exercise of discretion.” (34 DePaul L. Rev. at 247.) Section 5—6—1(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005—6—1(a)), codified by Public Act No. 80—1099 (Pub. Act No. 80—1099, §3, eff. February 1, 1978), adopted a “least restrictive alternative” approach to sentencing in which probation became the preferred disposition of all offenses for which it was authorized. This reversed prior law under which probation was to be denied unless certain conditions were satisfied. See Ill. Rev. Stat. 1977, ch. 38, par. 1005—6—1(a).

Section 5—6—1(a) of the Unified Code of Corrections currently provides:

“(a) Except where specifically prohibited by other provisions of this Code, the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstance of the offense, and to the history, character and condition of the offender, the court is of the opinion that:
(1) his imprisonment or periodic imprisonment is necessary for the protection of the public; or
(2) probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005—6—1(a).)

Notwithstanding minor amendments since its codification in 1977, this version of the statute maintains the “least restrictive alternative” approach in that probation is deemed to be the presumptively appropriate sentence when available.

“This elevation of probation to a preferred disposition for all probationable offenses reversed prior Illinois law in that regard, but its significance extends far beyond that fact. When that reversal is read in conjunction with the Act’s preference for shorter regular terms sentences and its failure to mandate either extended term or consecutive sentences for any offenders other than three-time class X felons, the conclusion is inescapable that in adopting the Act the General Assembly embraced the principles of ‘least restrictive alternative’ sentencing.
* * *
*** This clear legislative preference for shorter rather than longer sentences when probation was inappropriate is consistent with the principle of ‘least restrictive alternative’ sentencing. When considered in conjunction with the preeminent position given to probation in the Act’s overall sentencing scheme, this provision manifests a legislative intent that sentencing judges move upwards from the least restrictive (nonincarcerative) sanctions available to more and more restrictive penalties, and select the least restrictive alternative commensurate with the circumstances at hand.” (34 DePaul L. Rev. at 253-54.)

The “least restrictive alternative” approach and its apparent underpinnings in the statutory framework support our conclusion that the trial court erred in ruling that it had no discretion in sentencing the defendant to probation under section 104 — 26.

Finally, while not necessarily authoritative, we find our decision in this case to be consistent with the guidelines set forth by the Illinois Planning Council on Developmental Disabilities. (See Ill. Rev. Stat. 1989, ch. 911/2, par. 100— 48.1 et seq.)

“In setting forth the assertion that individuals with developmental disabilities are accountable for offenses which they commit, the Illinois Planning Council on Developmental Disabilities also strongly advocates for the courts to consider the disability in setting appropriate sentences for those individuals convicted. *** The Illinois Planning Council on Developmental Disabilities also supports the equal availability of the least restrictive sentencing option consistent with public safety, combined with a coordinated habilitative program. The Illinois Planning Council on Developmental Disabilities recognizes that there are offenders with a developmental disability who should be incarcerated for the safety of the community and themselves. *** The development of programs should be promoted which provide more appropriate sentencing options for the courts when dealing with offenders with disabilities. An increase in the capacity of existing sanctions (or penalties) should be promoted to appropriately respond to the offender with developmental disabilities.” (Emphasis added.) Policy Statements of the Illinois Planning Council on Developmental Disabilities, 2 — 3 (June 1991).

In conclusion, we vacate the sentence imposed upon Bryan Watters and remand this cause for a new sentencing hearing consistent with this opinion. By our reversal we do not mean to mandate the type of sentence the trial court should impose. We do, however, wish to make it clear that the court has the discretion to choose the alternative disposition of probation in this case even though the defendant has been convicted of a Class X felony. As the conviction is not being challenged on appeal, the conviction is affirmed.

Affirmed in part; vacated in part and remanded.

H. LEWIS and RARICK, JJ., concur.

      J. Steinbeck, Of Mice and Men (1937).

      Four states reacted to the court’s decision by passing legislation explicitly exempting these individuals from the death penalty. See Cohen, Exempting the Mentally Retarded From the Death Penalty: A Comment on Florida’s Proposed Legislation, 19 Fla. St. U. L. Rev. 457, 457 (1991).


author: JUSTICE GORMAN

text:
    A.O. SMITH CORPORATION, Plaintiff and Counterdefendant-Appellant, v. KAUFMAN GRAIN COMPANY et al., Defendants and Counterplaintiffs-Appellees.
    Third District
    No. 3—91—0540
    Opinion filed May 18, 1992.
    — Modified on denial of rehearing July 31, 1992.

      Keck, Mahin & Cate, of Peoria (J. Reed Roesler, of counsel), for appellant.
    Blanke, Norden, Barmann, Kramer & Bohlen, P.C., of Kankakee (Christopher W. Bohlen, of counsel), for appellees.
   JUSTICE GORMAN

delivered the opinion of the court:

This case arises from a landlord-tenant dispute. The landlord seeks unpaid rent and recovery for damage to the leased premises. The tenant counterclaimed for damage to property that it had stored at the premises. A bench trial was held and the court found that the tenant was entitled to damages in the amount of $306,558.61 on its counterclaim. This amount was offset by a judgment in favor of the landlord for $1,600 for damage to the warehouse. It is from this order that the landlord appeals.

Kaufman Grain Company operates a grain elevator business in Kankakee. For purposes of this litigation, the position of Kaufman Grain and Kaufman, Inc., is the same. Accordingly, they will be collectively referred to as “Kaufman Grain” or “tenant.”

In 1986, due to an exceptionally good harvest, Kaufman Grain needed additional grain storage space. Through a local realtor, Kaufman Grain contacted the A.O. Smith Corporation.

A.O. Smith operated a large manufacturing complex in Kankakee. It built water heaters in part of this facility. The completed units were then stored in cardboard cartons in an adjacent warehouse. A.O. Smith was in the process of relocating its manufacturing plant and so was interested in selling or leasing the empty buildings.

Calvin Kaufman and Kevin Kaufman, Kaufman Grain’s principals, visited the warehouse. At that time, it was still being used to store water heaters and only a small part had actually been emptied. The two men spent about one half of an hour walking through the building to determine if it would be suitable for grain storage. Sometime later, they returned and drove a semi-truck through the building to insure that grain trucks could be maneuvered through its interior.

On September 27, 1986, A.O. Smith and Kaufman Grain entered into a one-year lease agreement, with an option for a second year. The lease provided, in pertinent part:

“4. EXPENSES *** Tenant shall pay all other expenses of the Property. Such expenses include the cost of operating and maintaining the Property, including without limitation, adequate pest protection, snow removal, security, utilities, fire protection systems, landscaping, rubbish removal, foundations, walls, roofs, streets, rail tracks and switches. Notwithstanding the above, the Landlord shall repair any roof leaks up to an aggregate cost of $25,000 ***.
* * *
6. REPAIR. By taking possession, Tenant accepts the Premises as being in good order and repair, and in the condition which the Landlord is obligated to deliver the premises. Tenant shall maintain the Premises and the surrounding real estate, promptly making all necessary repairs and replacements, whether ordinary or extraordinary ***.”

Kaufman Grain took possession on September 29 and literally began moving in grain while A.O. Smith was moving water heaters out. Over the next six weeks, Kaufman Grain brought in over 1.4 million bushels of corn and over one-quarter million bushels of soybeans.

In October of 1986, Kevin Kaufman noticed a number of pinholes in the roof at the west end of the building. When notified, A.O. Smith repaired the roof at its own expense.

In November, a downspout was found to be leaking along the north perimeter. The roofs drainage system consisted of a series of downspouts, some of which ran through the interior of the building along structural beams. Water was channeled through these downspouts into a drain tile beneath the building’s floor. A.O. Smith also repaired this leak.

In December of 1986 and then again in January of 1987, other leaky downspouts were discovered. Sometime in mid-January, Kevin Kaufman climbed onto the roof and plugged the holes in the gutters which served the downspouts extending through the building’s interior. This, for the most part, ended the roof/downspout problem. Kaufman Grain did report one more leak in June of 1987 and A.O. Smith repaired it.

The grain was also subjected to another source of water which caused damage. The warehouse contained a sprinkler system. The lease provided that:

“In maintaining its own building insurance, Tenant, with its insurer’s written permission and acknowledgment to Landlord, may shut off the sprinkler system in the Premises.”

Pursuant to this provision, A.O. Smith, at Kaufman Grain’s request, shut off the sprinkler system at the valve houses. Because the building was unheated, these valve houses were equipped with heating devices to assure that the valves would not freeze.

During the course of the lease period, Kaufman Grain shut off several of the warehouse’s electrical circuits. This cut off the electricity to the valve houses, thus deactivating the heating devices. As a result, a valve froze causing a pipe to burst and leak water onto the grain in February of 1987. A.O. Smith repaired that valve.

Despite these ongoing problems, Kaufman Grain exercised its option in February of 1987 and extended the lease through October 30, 1988.

Relations between the two parties deteriorated. In late 1987, A.O. Smith briefly locked Kaufman Grain out in a dispute over the alterations Kevin Kaufman had made to the roof’s drainage system.

In November of 1987, Kaufman Grain ran a separate electrical service into the building, as had been contemplated in the lease. Kaufman Grain then cut off all electrical circuits in the building and activated only enough of its own lines to run the aeration fans.

In January of 1988, a second sprinkler valve froze. Another pipe burst, which left the beans standing in two feet of water. The valve was not subsequently repaired, but A.O. Smith shut off the water supply at a remote location.

On March 2, 1988, A.O. Smith filed a forcible entry and detainer action. The parties subsequently stipulated that the lease would terminate on June 1, 1988, even though it was scheduled to run through October 30, 1988. The circuit court entered an order on this stipulation, granting possession to A.O. Smith effective June 1, 1988. Kaufman Grain, however, did not actually vacate until February 4, 1989. Further, it stopped making rent payments after July 1988.

A.O. Smith eventually filed an amended complaint, seeking to recover for unpaid rent and for damage to the leased building. Kaufman Grain filed a three-count counterclaim, seeking recovery for damage to the grain and additional expenses incurred as a result of the water damage. A.O. Smith answered, setting up an affirmative defense against two of the counts. A.O. Smith claimed that count II failed to state a cause of action. It further averred that, under count III, there was no duty to reveal latent defects which a reasonable examination would reveal. A third affirmative defense, failure to mitigate damages, was later added.

The trial court found in favor of Kaufman Grain on its counterclaim and in favor of A.O. Smith on its claim for damage to leased premises. The trial court rejected A.O. Smith’s claim for unpaid rent.

On appeal, the first issue is whether A.O. Smith had a duty to provide a dry building, or at a minimum, to disclose alleged latent defects.

In Illinois, the general rule is that, apart from the lease, there is no duty on the landlord to maintain the premises or repair the roof. (Zion Industries, Inc. v. Loy (1977), 46 Ill. App. 3d 902, 361 N.E.2d 605.) As a result, the landlord is not liable for injury to the property of a tenant caused by defects in the demised premises absent an express warranty as to the condition of the premises or a covenant to repair. (Wanland v. Beavers (1985), 130 Ill. App. 3d 731, 474 N.E.2d 1327. ) Moreover, on a lease of premises to be used for a specific purpose, there is no implied covenant that the premises are fit for that purpose. Eskin v. Freedman (1964), 53 Ill. App. 2d 144, 203 N.E.2d 24.

Thus, the doctrine of caveat emptor is generally applicable to lease agreements. (Wanland, 130 Ill. App. 3d at 732, 474 N.E.2d at 1328. ) The duty to inspect the premises and determine their safety and suitability falls on the tenant. Greenlee v. First National Bank (1988), 175 Ill. App. 3d 236, 529 N.E.2d 723.

Accordingly, we must first look to the lease to determine whether A.O. Smith has assumed any duty to repair the roof, and if so, whether it breached that duty.

Kaufman Grain points to A.O. Smith’s obligation to repair any roof leaks up to an aggregate cost of $25,000. This clause, according to the tenant, confers a duty to repair on A.O. Smith and makes the landlord liable for the resulting damage. Kaufman Grain also argues that since the landlord knew of the intended use, it assumed a duty to provide a dry budding.

There is nothing in the lease whereby A.O. Smith expressly warrants the conditions of the building. Additionally, there is no express general covenant to repair. To the contrary, the lease provides that the tenant shall make all repairs, ordinary and extraordinary.

We therefore disagree with the trial court’s finding that A.O. Smith had an obligation to provide a dry building. A.O. Smith’s knowledge of the intended use is irrelevant to this issue. As noted above, on a lease of premises to be used for a specific purpose, there is no implied covenant that the premises are fit for that purpose. Eskin v. Freedman (1964), 53 Ill. App. 2d 144, 203 N.E.2d 24.

The record also shows that A.O. Smith repaired the roof and the downspouts each time it was notified of a specific problem. The record does not show that A.O. Smith was negligent in these repairs. None of the downspouts which the landlord replaced caused any further problems. Therefore, A.O. Smith has satisfied its duty to repair under the lease.

Alternatively, Kaufman Grain claims that A.O. Smith knew or should have known of the problems with the downspouts and failed to disclose them. A.O. Smith argues that these defects were not known, and even if they were, Kaufman failed to make a reasonable examination of the premises.

It is generally the tenant’s duty to inspect the premises to determine their safety and suitability. (Greenlee v. First National Bank (1988), 175 Ill. App. 3d 236, 529 N.E.2d 723.) Where a lease contains a clause making the lessee generally responsible for repairs, the expense of repairing subsequently discovered defects falls upon the lessee. Mandelke v. International House of Pancakes, Inc. (1985), 131 Ill. App. 3d 1076, 477 N.E.2d 9.

An exception to this rule exists where the landlord knows or should know of a latent defect and where the defect could not have been discovered upon a reasonable examination of the premises by the tenant, the landlord will be held liable for damage to the property of the tenant occasioned by the latent defect. Wanland, 130 Ill. App. 3d at 732, 474 N.E.2d at 1328.

Initially, we note that A.O. Smith had no duty to disclose the pinholes in the roof. These are not alleged to have contributed to the grain’s damage and are thus immaterial to the case at hand.

As to the downspouts, A.O. Smith was aware that there had been prior problems -with some of the downspouts and had replaced them on an as-needed basis. There is no evidence that A.O. Smith was aware of any problems with any of the existing dowmspouts. Kaufman Grain concedes that none of the replaced downspouts caused any damage.

We find that these alleged defects are not the type which would justify an exception to the general rule. Kaufman Grain had experience in the grain storage business and knew what type of facility would be required and had inspected the warehouse. It knew these facilities had not been designed for grain storage. Nevertheless, it rented the warehouse, accepting it basically “as is.” Therefore, A.O. Smith is not liable for failing to disclose.

The next claimed source of damage to the grain came from the bursting sprinkler pipes. The trial court accepted Kaufman Grain’s argument that the lease imposed a duty on the landlord to disable the sprinkler system. It reasoned that Smith knew how the system functioned and was in the best position to prevent the problem.

This argument, however, contradicts the express language of the lease which makes it the tenant’s duty to maintain and repair the sprinkler system. The tenant also was given the right to disconnect the system, should it so desire. Moreover, Kaufman Grain leased the entire building and exerted complete control over it, even to the point of rewiring it. There is nothing in the lease which would give rise to a duty on the part of A.O. Smith to insure that the sprinkler system would not cause damage to the stored grain.

Nevertheless, despite the lack of a duty, A.O. Smith did undertake to turn off the system. By so doing, it assumed a duty to carry out the task in a nonnegligent manner.

A.O. Smith disabled the fire protection system by turning it off at the valve houses. After the sprinkler burst, the system was turned off at a remote location. Kaufman Grain alleges that A.O. Smith should have disconnected the system at the remote location initially and drained the pipes. Had that been done, there would have been no water in the pipes and they would not have frozen and burst.

We hold that even though A.O. Smith did not have a duty under the lease, it assumed that duty by attempting to disable the sprinkler system. The question then becomes whether it was reasonable for a person in A.O. Smith’s position to have merely disconnected the system at the valves.

A.O. Smith knew that Kaufman Grain needed a dry building. A.O. Smith also knew that Kaufman Grain intended to do extensive rewiring which might affect the existing fixtures, including the heating devices for the valves. Based on this knowledge, a reasonable person in A.O. Smith’s position would have disconnected the system at a remote point and drained the pipes. We therefore find that A.O. Smith breached its duty by not turning off the system at a remote location which would have prevented any water from entering the building. As a result of this negligence, the pipes burst, causing damage to the stored grain. A.O. Smith is liable for the damage caused by the bursting pipes.

Our review of the record fails to reveal what percentage of the damage is attributable to the burst pipes as opposed to the problems with the roof and downspouts. Accordingly, we vacate the judgment in favor of Kaufman Grain and remand this issue so that Kaufman Grain can prove what portion of the damages is a result of the broken sprinkler pipes.

The final issue is whether A.O. Smith is entitled to recover unpaid rent. The lease was scheduled to expire by its own terms on October 30, 1988. Due to the problems, the parties stipulated that- it would end June 1, 1988, and the trial court entered an order granting A.O. Smith possession as of that date. Kaufman Grain did not vacate at that time but did pay rent for June and July. It then ceased paying rent but did not actually vacate until after February 4, 1989. The trial court found that the holdover was caused by A.O. Smith’s conduct and denied recovery.

The general rule is that the obligation to pay rent and the covenant to make repairs are separate and independent covenants and that the failure to make promised repairs does not discharge the obligation to pay rent. (Poulos v. Reda (1987), 165 Ill. App. 3d 793, 520 N.E.2d 816.) It is equally well established that the obligation to pay rent is dispensed where the landlord evicts the tenant. (Zion Industries, Inc. v. Loy (1977), 46 Ill. App. 3d 902, 361 N.E.2d 605.) Such an eviction can be total, partial or constructive.

Here, Kaufman Grain made no claim that it was evicted. Even if such a claim were made, it would fail because Kaufman Grain remained in possession of the premises. As long as the tenant continues to occupy the premises, the obligation to pay rent is not suspended. Zion Industries, 46 Ill. App. 3d at 908, 361 N.E.2d at 609.

Nor has Kaufman Grain made any claim that the rental value of the property was decreased by the problems. (Cf. 64 East Walton, Inc. v. Chicago Title & Trust Co. (1979), 69 Ill. App. 3d 635, 387 N.E.2d 751.) If it had, the proper remedy would have been to continue paying rent and sue for damages. That was not done.

Kaufman Grain is therefore liable for unpaid rent which accrued from August 1, 1988, through February 4, 1989. The resulting question is the amount owed.

Under Illinois law, a tenant who remains in possession after his lease expires becomes a tenant at sufferance. (General Parking Corp. v. Kimmel (1979), 79 Ill. App. 3d 883, 398 N.E.2d 1104.) At the sole option of the landlord, a tenant at sufferance may be evicted as a trespasser or treated as a holdover tenant. (Brach v. Amoco Oil Co. (N.D. Ill. 1983), 570 F. Supp. 1437.) A holdover tenancy is created when a landlord elects to treat a tenant, after the expiration of his lease, as tenant for another term upon the same provisions contained in the original lease. (Bismarck Hotel Co. v. Sutherland (1980), 92 Ill. App. 3d 167, 415 N.E.2d 517.) While the landlord’s acceptance of rent for the month following the expiration of the lease may by itself indicate the landlord’s election to treat the tenant as a holdover, other facts and circumstances bearing on the landlord’s intent should be considered as well. Bismarck Hotel, 92 Ill. App. 3d at 171, 415 N.E.2d at 520.

Here, it was clearly not A.O. Smith’s intent to bind Kaufman Grain to another year’s term. In fact, A.O. Smith does not even make such a claim. Thus, there is no holdover tenancy.

Nevertheless, even when a holdover tenancy is not shown, the conduct of the parties can create a month-to-month tenancy. Acceptance of monthly rental payments by the landlord will generally create a month-to-month tenancy. (Dobsons, Inc. v. Oak Park National Bank (1980), 86 Ill. App. 3d 200, 407 N.E.2d 1107.) A month-to-month tenancy is similar to a holdover tenancy in that both are governed by the terms of the original lease. The difference lies in the duration. A holdover tenancy will last as long as the original lease term. A month-to-month tenancy can last indefinitely, but can be terminated on 30 days’ notice.

The original lease terminated by stipulation on June 1, 1988. Kaufman Grain remained in possession thereafter and paid rent for June and July. A.O. Smith accepted these payments. Thus a month-to-month tenancy was created and A.O. Smith is entitled to rental payments for this period.

The monthly rent on the building was $19,894. In addition to this amount, A.O. Smith seeks interest on the past-due payments at a rate of 2% per month from the due date.

Prejudgment interest is not recoverable absent a statute or agreement of the parties providing for it. (Richman v. Chicago Bears Football Club, Inc. (1984), 127 Ill. App. 3d 75, 468 N.E.2d 487.) Here, the lease expressly provides for a 2% interest rate on all past-due amounts. Since the month-to-month tenancy is governed by the terms of the prior lease, A.O. Smith is entitled to recover this amount. We find that the interest due should be calculated from the date each payment was due, and should cease to accrue on May 10, 1991, the date judgment was entered in the circuit court.

A.O. Smith further contends that it is entitled to 200% of the rent due for all dates after October 30, 1988. The lease provided that the tenant shall pay that amount for each day the tenant remained in possession after the termination date. Since the lease would have terminated under its own terms on October 30th, A.O. Smith argues that the 200% holdover provision comes into effect as of that date. This lease provision is in accord with the forcible entry and detainer statute, which also allows for the collection of double rent upon a willful holdover. Ill. Rev. Stat. 1989, ch. 110, par. 9—202.

We decline, however, to apply this clause. In October of 1988, A.O. Smith attempted to execute on its judgment of possession. Kaufman Grain moved for and received a temporary injunction, barring A.O. Smith from taking possession. The trial court found that a month-to-month tenancy had been created by the actions of the parties.

After the trial court denied A.O. Smith’s motion to vacate the injunction, A.O. Smith filed a notice of appeal with this court. That appeal was ultimately dismissed by the appellant without a ruling by this court. Therefore, the trial court’s finding of a month-to-month tenancy becomes the law of the case and A.O. Smith cannot now challenge that ruling. (Wolfe v. Illini Federal Savings & Loan Association (1987), 158 Ill. App. 3d 321, 511 N.E.2d 828; Emerson Electric Co. v. Sherman (1986), 150 Ill. App. 3d 832, 502 N.E.2d 414.) There is nothing to indicate that the relationship between the parties changed from that point through the time when Kaufman Grain vacated the premises. As a result, the month-to-month tenancy was not severed and the holdover provision never came into play.

Therefore, even though the landlord is not entitled to double rent, it is entitled to the normal monthly rent for this period. The record reveals that Kaufman Grain initially paid a $10,000 security deposit, which A.O. Smith still retains. Crediting that amount against the August 1988 rent, our calculations show that the amount owed, including simple interest at 2% per month through the date of judgment, is $180,557.71. Accordingly, we enter judgment in favor of A.O. Smith in that amount.

In summary, we vacate the trial court’s entry of judgment of $306,558.61 in favor of Kaufman Grain on its claim for damage to the stored grain and remand for a determination of what percentage was caused by the broken pipes. We affirm the trial court’s entry of judgment of $1,600 in favor of A.O. Smith for damage to the leased facilities. We reverse the trial court’s ruling on the unpaid rent and enter judgment in favor of A.O. Smith in the amount of $180,557.71.

Affirmed in part; reversed in part; vacated in part and remanded.

SLATER and HAASE, JJ., concur.