author: JUSTICE BARRY JUSTICE HEIPLE,

text:
    THE PEOPLE ex rel. JIM EDGAR, Secretary of State, Plaintiff-Appellant, v. TIMOTHY L. PENCE, Defendant-Appellee.
    Third District
    No. 3—88—0398
    Opinion filed November 15, 1989.
    HEIPLE, J., dissenting.

      Neil F. Hartigan, Attorney General, of Springfield (Richard W. Merrill, Jr., Assistant Attorney General, of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Initially, we note that the defendant has not submitted an appellee’s brief. Nevertheless, where the record is simple and the court of review can easily decide the disputed errors without an appellee’s brief, the reviewing court may decide the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The appellant, the Secretary of State, appeals from an order of the trial court directing the Secretary to issue to the defendant, Timothy L. Pence, a judicial driving permit (Ill. Rev. Stat. 1987, ch. 95½, par. 6—206.1). We reverse.

The record shows that the defendant was arrested on October 11, 1982, for driving while under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501). On December 21, 1982, the defendant was placed on supervision for the offense. The defendant was again arrested on December 12, 1987, for DUI. At the time of his second arrest, he was given notice of the statutory summary suspension of his driving privileges pursuant to section 11—501.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 9572, par. 11—501.1). The Secretary subsequently confirmed the defendant’s statutory summary suspension, stating that because the defendant was not a first offender, the suspension would be in effect for a minimum of 12 months. On March 16, 1988, the defendant pled guilty to driving while under the influence, and the cause was set for sentencing on April 13, 1988. On April 13, 1988, the defendant petitioned the court for a judicial driving permit (JDP). On that date, the court placed the defendant on court supervision, fined him $450, and ordered the issuance of a JDP. Pursuant to section 6 — 206.1(B)(d) of the Code (Ill. Rev. Stat. 1987, ch. 9572, par. 6 — 206.1(B)(d)), the Secretary, after reviewing the order for the JDP, returned the order to the trial court. Following a second hearing, the court found that “it still appears [that the] defendant may be [a] first offender,” and resubmitted the order to the Secretary. The Secretary then brought the instant appeal.

The issue on appeal is whether, under the facts presented, the defendant was a first offender as defined in section 11—500 of the Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11—500) and therefore eligible for a judicial driving permit. Section 11—500 states in pertinent part that a first offender is “any person who has not had a previous conviction or court assigned supervision for violating Section 11—501, or a similar provision of a local ordinance, *** within the last 5 years.” (Ill. Rev. Stat. 1987, ch. 95½, par. 11—500.) In the instant case, the defendant was arrested for DUI within five years of his receiving court-assigned supervision for the previous DUI charge. All other proceedings, including the entry of his guilty plea on the DUI charge, the filing of the petition for a JDP, and the granting of that petition, occurred after the five-year statutory period had run. The question is whether an arrest within the five-year period is by itself sufficient to remove the defendant from the statutory definition of a first offender.

When ambiguity is found in the wording of a statute it is necessary to examine related statutory provisions for evidence of the intended meaning. (Amman Food & Liquor, Inc. v. Heritage Insurance Co. (1978), 65 Ill. App. 3d 140, 382 N.E.2d 562.) A cardinal rule of statutory construction ordains that sections in pari materia should be considered with reference to one another so that the sections may be given harmonious effect. (People v. Scheib (1979), 76 Ill. 2d 244, 390 N.E.2d 872.) In fact, it is presumed that statutes which relate to one subject are governed by one spirit and a single policy, and that the legislature intended the enactments to be consistent. People v. Maya (1985), 105 Ill. 2d 281, 473 N.E.2d 1287.

Judicial driving permits are issued only to those persons whose driving privileges have been summarily suspended. (Ill. Rev. Stat. 1987, ch. 95½, par. 6—206.1.) We therefore focus on those provisions dealing with statutory summary suspension to determine the meaning of a “first offender” as defined in section 11—500. Those provisions are sections 2—118.1, 6—206.1, 6—208.1, 11—500, and 11—501.1 of the Code (Ill. Rev. Stat. 1987, ch. 95½, pars. 2—118.1, 6—206.1, 6—208.1, 11—500, 11—501.1).

Initially, it must be remembered that the summary suspension of driving privileges is a statutory proceeding which is civil in nature (People v. Morrison (1987), 155 Ill. App. 3d 1088, 508 N.E.2d 1186) and operates without regard to the resolution of the companion DUI case (People v. Gerke (1988), 123 Ill. 2d 85, 525 N.E.2d 68). Notice of the statutory summary suspension of driving privileges is served immediately upon arrest, or by mail if based on a subsequent analysis of blood or urine collected at the time of the arrest, and takes effect on the 46th day following the date of notice. (Ill. Rev. Stat. 1987, ch. 95½, pars. 11—501.l(f— 1), (g).) After a first offender, as defined in section 11—500, receives notice of the summary suspension of his driving privileges, he may petition the circuit court for a judicial driving permit. (Ill. Rev. Stat. 1987, ch. 95½, par. 6—206.1(B)(a).) The definition of a first offender in section 11—500 is to be utilized for purposes of interpreting both section 6—206.1 and section 6—208.1. (Ill. Rev. Stat. 1987, ch. 95½, par. 11—500.) The following provision is contained in section 2—206.1(B): “Effective January 1, 1987, the following procedures shall apply whenever a first offender is arrested for any offense as defined in Section 11—501 or a similar provision of a local ordinance: ***.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 95½, par. 6—206.1(B).) Similarly, section 6—208.1(f) states in pertinent part that “subsequent to an arrest of a first offender, for any offense as defined in Section 11—501 or a similar provision of a local ordinance, following a statutory summary suspension of driving privileges pursuant to Section 11—501.1, for a first offender, the circuit court may issue a court order directing the Secretary of State to issue a judicial driving permit as provided in Section 6—206.1.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 95½, par. 6—208.1(f).

In looking at the statutory language as a whole, it appears that the date of arrest is the operative event in most actions taken under the provisions of the statutory summary suspension law. For the most part, the notice of the suspension is issued to the offender at the time of arrest. When the Secretary of State confirms the suspension, it appears that the Secretary looks to the date of the arrest to determine whether the offender is a first offender or a repeat offender. Section 6 — 206.1 sets forth the procedure for issuance of a JDP and states that that procedure is to be followed whenever a first offender is “arrested.” Therefore, viewing the definition of a first offender in light of the language used in the statutes governing the summary suspension of driving privileges, we conclude that the dispositive question is whether the second DUI arrest occurs within five years of the disposition of the offender’s previous DUI arrest.

In the instant case, the defendant was placed on supervision on December 21, 1982, and was again arrested for DUI on December 12, 1987. His second arrest for DUI occurred within five years of his receiving court-assigned supervision. He therefore was not a first offender as defined in section 11—500 and the circuit court had no authority to issue the driving permit. See People v. Pine, 129 Ill. 2d 88.

The judgment of the circuit court of Henderson County, insofar as it granted the defendant a judicial driving permit, is reversed; the remainder of the judgment is affirmed.

Reversed in part; affirmed in part.

STOUDER, J., concurs.

JUSTICE HEIPLE,

dissenting:

The sole question presented by this appeal is determining whether the defendant, Timothy L. Pence, was a first time offender under section 11—500 (Ill. Rev. Stat. 1987, ch. 95½, par. 11—500) and therefore eligible for a judicial driving permit. Contrary to the majority holding, since more than five years had elapsed between the defendant’s first and second offenses for driving under the influence of alcohol (DUI), the defendant was a first time offender within the meaning of the statute. Accordingly, I dissent.

Section 11 — 500 of the Illinois Vehicle Code provides in relevant part:

“For the purposes of interpreting Section 6—206.1 and 6—208.1 of this Code, ‘first offender’ shall mean any person who has not had a previous conviction or court assigned supervision for violating Section 11—501, *** within the last 5 years.” Ill. Rev. Stat. 1987, ch. 95½, par. 11—500.

Section 11—500 should be interpreted as pertaining to the dates of the violations themselves, not the dates of court orders or the dates of arrests. The dates of the actual DUI violations are the only dates of significance. These are the only events that are constant, certain and truly objective.

An arrest might occur at the- time of the violation or some time later. A trial later still. If the reasoning of the majority is applied, it will result in uncertain, disparate and capricious results. In this very case, for instance, even accepting the rationale of the majority, had the defendant pleaded guilty or been tried and found guilty for his first offense at any time between his first violation on October 11, 1982, and December 11, 1982, his second offense on December 12, 1987, would have found him to be outside the five-year statutory period. Since, however, the defendant was first sentenced on December 21, 1982, and then arrested for a second offense on December 12, 1987, the majority finds the defendant to be within the five-year period.

The key language in the statute reads, “for violating Section 11—501, *** within the last 5 years.” (Ill. Rev. Stat. 1987, ch. 95½, par. 11—500.) Here, the defendant’s first DUI violation occurred on October 11, 1982. The defendant’s second DUI violation then took place on December 12, 1987. Thus, a gap of more than five years existed between the two violations and the defendant was, within the definition of the statute, a first time offender when the second DUI violation occurred.


source: Caselaw Access Project

author: JUSTICE HEIPLE

license: Public Domain

text:
    JAMES TAYLOR, Petitioner-Appellant, v. MICHAEL P. LANE, Director, Department of Corrections, Respondents-Appellees.
    Third District
    No. 3—89—0304
    Opinion filed November 15, 1989.

      James Taylor, of Joliet, appellant pro se.

    Neil F. Hartigan, Attorney General, of Springfield (Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

The pro se petitioner, James Taylor, appeals from the trial court’s order dismissing his petition for a writ of habeas corpus. We affirm.

The record reveals that in October of 1976, the petitioner was sentenced to an indeterminate term of not less than 100 years nor more than 200 years in prison for the murder of an Illinois State police officer. In January of 1979, he was also sentenced to a concurrent term of not less than six years nor more than 20 years for kidnapping in connection with that murder.

On August 8, 1984, the petitioner first appeared before a three-member panel of the Prisoner Review Board (Board), which continued his parole determination to an en banc hearing before the Board. At the en banc hearing, the petitioner’s request for parole was denied. Thereafter, on a yearly basis the petitioner’s requests for parole were denied after en banc hearings by the Board. After denying the petitioner’s request at an August 1988 hearing, the Board continued the case until August of 1991, finding that the petitioner would not be granted parole if provided a hearing earlier than that date.

The petitioner subsequently filed a habeas corpus petition, alleging that changes in Illinois statutes regarding the awarding of good conduct credit, the provision for en banc parole hearings, and the allowance for three-year parole hearing continuances violated the ex post facto prohibitions of the United States and Illinois Constitutions (U.S. Const., art. I, §9; Ill. Const. 1970, art. I, §16). The respondents, Michael P. Lane, Director of the Illinois Department of Corrections (Department), and Paul J. Klincar, Chairman of the Illinois Prisoner Review Board, moved to dismiss the petition, contending that it failed to state a claim upon which relief could be granted. The trial court granted the respondents’ motion, finding that the changes in the law were procedural in nature and therefore did not violate the ex post facto prohibition.

Initially, we note that the respondents have raised the argument that a writ of habeas corpus is not the proper remedy here. A writ of habeas corpus is available only to obtain the release of a prisoner who has been incarcerated under a judgment of a court which lacked jurisdiction over the subject matter or the person, or where there has been some act, omission, or event which entitles the prisoner to release. (Ill. Rev. Stat. 1987, ch. 110, par. 10—101 et seq.; Newsome v. Hughes (1985), 131 Ill. App. 3d 872, 476 N.E.2d 478.) The respondents argue that the petitioner’s petition was properly dismissed because it did not allege any question pertaining to jurisdiction or any post-conviction event which would entitle him to release. We find the resolution of this argument inconsequential, since, in any event, section 10—121 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 10—121) provides for liberal amendment of pleadings in these cases.

Turning to the merits of this appeal, we note that two critical elements must be present for a criminal or penal law to. be ex post facto: (1) it must be retrospective, i.e., it must apply to events occurring before its enactment; and (2) it must disadvantage the defendant affected by it. (Weaver v. Graham (1981), 450 U.S. 24, 67 L. Ed. 2d 17, 101 S. Ct. 960.) Further, even though the law may work to the disadvantage of a defendant, a procedural change is not ex post facto. Dobbert v. Florida (1977), 432 U.S. 282, 53 L. Ed. 2d 344, 97 S. Ct. 2290.

The instant petitioner initially argues that sections 3—6—3(a) and 3—12—5 of the Uniform Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, pars. 1003—6—3(a), 1003—12—5), as amended in 1978, increase the length of his sentence and therefore violate the ex post facto prohibition. Prior to February 1, 1978, an inmate was eligible to receive statutory good-time credit at a progressive rate during his first six years of incarceration, until he reached an annual maximum of six months of good-time credit in the sixth year of his prison term. During the sixth year and each subsequent year of imprisonment, an inmate was eligible for a maximum of six months’ statutory good-time credit annually. (Ill. Rev. Stat. 1977, ch. 38, par. 1003—6—3.) Further, prisoners who performed work assignments or participated in other Department programs were eligible for compensatory good-time credits. Ill. Rev. Stat. 1977, ch. 38, par. 1003—12—5.

Effective February 1, 1978, however, the Illinois General Assembly amended sections 3—6—3 and 3—12—5 of the Code, thereby abolishing this statutory and compensatory credit system. Under amended section 3—6—3(a)(2), good-time credit is given on a day-for-day basis. (Ill. Rev. Stat. 1987, ch. 38, par. 1003—6—3(a)(2).) Therefore, for every day served in prison, the prisoner now receives one day of good-time credit. Further, section 3—6—3(a)(3) provides that the Director of the Department may award up to 90 days’ additional good conduct credit. (Ill. Rev. Stat. 1987, ch. 38, par. 1003—6—3(a)(3).) However, good conduct credit can no longer be given as compensation for performing a work assignment. (Ill. Rev. Stat. 1987, ch. 38, par. 1003—12—5.) Accordingly, the pre-1978 scheme was more beneficial for some prisoners.

In interpreting these amendments, the Illinois Supreme Court held in Johnson v. Franzen (1979), 77 I. 2d 513, 397 N.E.2d 825, that for prisoners sentenced after February 1, 1978, the current day-for-day system is to be used in computing their good-time credits. However, with regard to any prisoner sentenced prior to the effective date of the day-for-day system, the more beneficial of the two good conduct systems should be applied to the post-February 1, 1978, period of incarceration. (Williams v. Irving (1981), 98 Ill. App. 3d 323, 424 N.E.2d 381.) Further, in Lane v. Sklodowski (1983), 97 Ill. 2d 311, 454 N.E.2d 322, the Illinois Supreme Court held that the director may grant no more than a total of 90 days’ credit for meritorious service to each prisoner.

The instant petitioner was sentenced in 1976. We find, however, that he has failed to allege in what way he was disadvantaged by these statutory changes. In his petition, he merely claims that as a result of these changes he is serving a longer sentence. There is no indication in the record that the Department is applying a formula resulting in a longer period of incarceration for him. Accordingly, we find no merit to the petitioner’s contention. See Outlaw v. O’Leary (1987), 161 Ill. App. 3d 218, 514 N.E.2d 208.

The petitioner next challenges the constitutionality of amended sections 3—3—2 and 3—3—5 of the Code (Ill. Rev. Stat. 1987, ch. 38, pars. 1003—3—2, 1003—3—5), regarding en banc parole hearings. When the petitioner was sentenced in 1976, the Parole and Pardon Board (now known as the Prisoner Review Board) consisted of 10 persons and had the authority to meet and make decisions with panels of three or more members. The action of a majority of the panel constituted the action of the Board. Ill. Rev. Stat. 1975, ch. 38, par. 1003—3— 5(a).

Section 3 — 3—2(a)(2) was amended to provide in relevant part that “the decision to parole and the conditions of parole for all prisoners who were sentenced for murder or who received a minimum sentence of 20 years or more under the law in effect prior to February 1, 1978 shall be determined by a majority vote of the Prisoner Review Board.” (Ill. Rev. Stat. 1985, ch. 38, par. 1003—3—2(a)(2).) The Code was again amended effective January 1, 1987, increasing the size of the Board from 10 members to 12 members. Ill. Rev. Stat. 1987, ch. 38, par. 1003—3—l(b).

Therefore, whereas parole decisions could have been made by a majority vote of a three-member panel of the Board prior to these amendments, the determinations must now be made by a majority vote of the entire Board for those prisoners sentenced to murder or who received a minimum sentence of 20 years or more under the law in effect before February 1, 1978. The petitioner argues that these amendments violate the ex post facto prohibition because they decrease his chances for parole.

In Graham v. Klincar (1987), 163 Ill. App. 3d 1091, 517 N.E.2d 606, we held that this en banc hearing requirement is not disadvantageous to prisoners sentenced prior to its enactment. Further, we note that the increase in the number of Board members may actually increase the petitioner’s chances of parole. (Davis-El v. O’Leary (N.D. Ill. 1986), 626 F. Supp. 1037.) Therefore, in accordance with our decision in Graham, we find that these amendments were not disadvantageous to the instant petitioner.

Lastly, the petitioner argues that section 3—3—5(f) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1003— 3—5(f)), which provides for a three-year continuance for parole hearings, violates the ex post facto prohibition. In support of his argument, the petitioner notes that at the time he was sentenced, the law required that prisoners receive annual parole hearings (Ill. Rev. Stat. 1975, ch. 38, par. 1003— 3—5(f)).

The respondents note, however, that the law was amended effective January 1, 1988, to allow the Board to grant three-year continuances for prisoners sentenced between January 1, 1973, and September 30, 1977, if the Board determines that it is not reasonable to believe that parole will be granted at a hearing prior to the scheduled rehearing date. (Ill. Rev. Stat. 1987, ch. 38, par. 1003—3—5(f).) The respondents argue that the amendment was a procedural change that did not violate the ex post facto prohibition. We agree.

As noted, the statute allows for three-year continuances only if the Board finds that it is not reasonable to believe that parole may be granted at an earlier date. Consequently, the statute insures that the petitioner will not be incarcerated for a longer period than he would be if he received annual parole hearings. Section 3—3—5(f) therefore is not an ex post facto law, since it does not disadvantage prisoners. Further, the instant petitioner has failed to show that the Board’s determination that he will not be granted parole prior to his scheduled rehearing is unreasonable.

Based upon the above findings, we conclude that the trial court properly dismissed the petitioner’s petition for a writ of habeas corpus, because it did not state a cause of action for which relief could be granted.

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

Affirmed.

BARRY and SCOTT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL J. MONCKTON, Defendant-Appellant.
    Third District
    No. 3—89—0098
    Opinion filed November 22, 1989.

      Ronald Hanna, of Hamm & Hanna, Ltd., of Peoria, for appellant.
    Erik I. Blanc, State’s Attorney, of Pekin (Vicki L. Seidl, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The trial court convicted the defendant, Michael J. Monckton, of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501(a)(2)). The court subsequently sentenced him to a $300 fine. The defendant appeals.

The record shows that prior to trial the defendant filed a petition to rescind his statutory summary suspension. At the hearing on the petition, the defendant testified that on June 5, 1988, around 10:19 p.m., he was pulled over by Officer Mischa Ortega. The officer asked if the defendant had ever been arrested for driving under the influence, and the defendant replied that he had. After the officer conducted some field sobriety tests, he transported the defendant to the police station. While at the station, he read the standard motorist’s warning (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.1(c)) to the defendant and asked him if he wanted to take a breathalyzer test. The defendant said that his livelihood was at stake and he was uncertain about what to do. The officer replied that he could not advise the defendant. According to the defendant, he again expressed uncertainty, and the officer said: “If you cooperate and take the test, you can get a [judicial driving permit].” He allegedly also told the defendant that if he did not take the breathalyzer test he would lose his license for 12 months. The defendant said that he decided to take the test because he wanted to obtain a driving permit.

Officer Ortega testified that he had arrested the defendant on the night in question and had taken him to the county jail. After he gave him the standard warning, the defendant agreed to take the breathalyzer test. He registered a .17 breath-alcohol content.

On cross-examination, the officer stated that he did not recall discussing a judicial driving permit with the defendant. He recalled, however, the defendant’s stating that he had been previously arrested for driving under the influence of alcohol. The officer also did not recall whether the defendant had asked him if he should take the test. Officer Ortega testified that normally when a defendant asked such a question, he would reply that he was not an attorney and all he could do was read the standard warning.

The trial court accepted the defendant’s version of the facts. It then found that the officer’s statements had invalidated the warning to the defendant. Accordingly, the court rescinded the summary suspension.

The defendant later filed a motion to suppress the results of the breathalyzer test, alleging that he had been coerced into taking it. The trial court denied the motion without making any additional findings. A trial was then held in which the court found the defendant guilty of DUI and of driving with a blood-alcohol content of .10 or more (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501(a)(1)). The court entered a judgment of conviction only on the DUI count. In so doing, the judge noted that if the breathalyzer result had not been admitted into evidence, he would have found the defendant innocent of DUI.

The defendant argues on appeal that the trial court erred in denying his motion to suppress. He contends that Officer Ortega’s comments misled him and rendered his consent involuntary. The State replies that under this court’s holding in People v. Eaves (1988), 174 Ill. App. 3d 911, 529 N.E.2d 277, an involuntary breath test may be admitted into evidence in a DUI prosecution.

The standard for appellate review involving a motion to suppress is whether the trial court’s ruling was clearly erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 440 N.E.2d 869.) The Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 1—100 et seq.) provides that, after receiving the proper warnings, a driver may refuse to take a blood or breath test and instead incur an automatic six-month summary suspension of his license. (Ill. Rev. Stat. 1987, ch. 95½, pars. 6—208.1(a), 11—501.1(c).) The Code reflects the legislature’s desire to prohibit involuntary blood and breath tests and to allow a driver to make a knowing withdrawal of his implied consent, so long as he is willing to bear the penalty. See People v. Romano (1985), 139 Ill. App. 3d 999, 487 N.E.2d 785; People v. Frazier (1984), 123 Ill. App. 3d 563, 463 N.E.2d 165.

In the instant case, the defendant was misled by the officer’s. statements into consenting to a breathalyzer test. Admission of the result in either the summary suspension hearing or the DUI trial would defeat the legislature’s objective of allowing a defendant to make a knowing and voluntary decision regarding the test. It would also allow the State to profit from its deception. Accordingly, we hold that the trial court erred in denying the motion to suppress the breathalyzer result in the DUI trial. To the extent that Eaves can be read to the contrary, it is hereby overruled. Since the trial court further found that absent the breathalyzer result it would not have found the defendant guilty of DUI, we reverse the defendant’s conviction.

The judgment of the circuit court of Tazewell County denying the motion to suppress the breathalyzer result and finding the defendant guilty of driving under the influence of alcohol is reversed.

Reversed.

WOMBACHER, P.J., and SCOTT, J., concur.


author: JUSTICE SCOTT

text:
    JEFFREY S. FISHER, Plaintiff-Appellee, v. ROCK ISLAND COUNTY et al., Defendants-Appellants (Gordon Powell, Sheriff, Defendant).
    Third District
    No. 3—88—0372
    Opinion filed November 28, 1989.
    James T. Teros, State’s Attorney, and Klockau, McCarthy, Ellison & Marquis, P.C., both of Rock Island (Robert L. Ellison, of counsel), for appellants.
    Gerald J. Meehan, of Corny, Walker & Meehan, of Rock Island, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The circuit court of Rock Island County reversed, by order dated April 22, 1988, a decision of the Rock Island County Merit Commission (Merit Commission) rejecting plaintiff-appellee as a deputy sheriff applicant and remanded the cause to the Merit Commission with directions to add plaintiff to the then current eligibility list for a deputy sheriff position. Defendants-appellants appeal the circuit court’s order, alleging that the findings and decision of the circuit court were against the manifest weight of the evidence.

Plaintiff was a candidate for appointment as a Rock Island County deputy sheriff. After learning that testing for eligibility for the position was to be held, plaintiff took and passed a physical agility test. He was then furnished with written instructions on the conduct of the written examination which was characterized by its publisher, McCann Associates, Inc. (McCann Associates), as “How to Do Your Best on a McCann Associates, Inc. Deputy Sheriff (Form ESV—125) Written Test.” The first page of that document, admitted as exhibit 8, stated: “All questions have equal weight. Your score will be based on the number of questions which you have answered correctly.” Identical language appeared in the written test booklet.

On July 11, 1987, plaintiff took the examination with knowledge of the directions and how the test would be scored. McCann Associates scored the examination and recommended a total cut-off score of 77.6%, leaving 21 qualified applicants with plaintiff being among those qualified. Although plaintiff received an overall acceptable score, McCann Associates noted some subtest deficiencies in plaintiff’s examination regarding the areas of police aptitude and police public relations. Regarding subtest deficiencies in these two areas, McCann Associates stated the following in its report to the Merit Commission:

“A score of 18 or less on Subtest V — 2, Police Aptitude, suggests] that the candidate may have neither the overall aptitude for police work nor the interest and motivation toward police work that a candidate should have in order to acquire the knowledges, skills and abilities needed by a competent police officer. In the oral examination or interview, further probing should be done to provide additional evidence as to the candidate’s attitude and real motivation toward the position of police officer.
A score of 12 or less on Subtest V — 3, Police Public Relations, suggests] that the candidate may have real difficulty in dealing with citizens in the course of his/her law enforcement duties or that the candidate’s view of the role of police officer in society is not appropriate. It is possible, in either an oral examination or an interview, to ask questions which can provide you with further evidence to indicate whether or not this deficiency is sufficiently critical to justify not considering the candidate further for appointment.”

The Merit Commission met on August 5, 1987, for the purpose of reviewing the test scores and the written analysis provided by Mc-Cann Associates. By unanimous vote the Merit Commission determined “that the eligibility requirements be cut off at a raw score of 76% with 4 persons in that range being rejected for serious deficiencies in one or more areas.” Plaintiff was among those rejected for serious deficiencies in one or more areas and was informed by the Merit Commission that he had failed the test by letter dated August 5, 1987. Plaintiff’s subsequent requests to the Merit Commission for reconsideration were denied.

The Merit Commission is responsible for screening applicants pursuant to recognized principles of public employment. (Ill. Rev. Stat. 1987, ch. 125, par. 157.) The Merit Commission must also “formulate, adopt and put into effect, rules, regulations and procedures for its operation and *** shall set standards and qualifications for each class.” (Ill. Rev. Stat. 1987, ch. 125, par. 159.) Pursuant to statute, the Merit Commission adopted rules and regulations with regard to candidates for deputy sheriff which state, in pertinent part, that the applicant must:

“B.8. Successfully pass a written and/or oral examination to be administered by the Merit Commission.”

Plaintiff asserts that the Merit Commission further expressed its policy regarding examinations in a “Memo For Record” delivered to the sheriff’s office in 1982. The memo stated:

“In order to make it clear, to all concerned, the passing grade for both entry and promotion is a total overall score of 70%, i.e. the sum total or the weighted 70% assigned the written examination, the weighted 30% assigned the oral examination, plus the 5% added factor assigned only to the entrance qualification for honorably discharged veterans *** the minimum passing grade is 70% on both the written and oral examinations.”

Defendants contend, however, that the 1982 memo has no application to the 1987 test since the memo was not republished or included in revised rules adopted in 1986.

Captain Richard Fisher, plaintiff’s father, testified that for the 19 years of his service, the total test result had been the only basis for scoring the written examination. Sheriff Gordon Powell testified that he didn’t believe a candidate who passed the test as a whole should be disqualified for a deficiency in one category because the probationary period provides a better opportunity to judge performance. In fact, defendant has not disputed that the testing procedure, prior to 1987, was based on a total raw score on the written examination.

The trial court found that the Merit Commission’s determination that plaintiff had failed the written examination for deputy sheriff was against the manifest weight of the evidence. The court, therefore, remanded the cause to the Merit Commission with directions to: (1) reverse its 1987 rejection of plaintiff and enter on its records a finding that plaintiff passed the written examination; and (2) grant plaintiff an oral interview for the deputy sheriff position, and if he attains a passing grade, place him on the eligibility list for the entry level position.

Although neither party has raised the issue, we initially note that this court has jurisdiction based on our finding that the trial court’s order of April 22, 1988, is final and appealable because the circuit court’s order was specific in nature and left no discretion with the Merit Commission. There was nothing left for the Merit Commission to do except comply with the circuit court’s order or appeal. See Kvidera v. Board of Fire & Police Commissioners (1988), 168 Ill. App. 3d 380, 522 N.E.2d 757; Mitrenga v. Martin (1982), 110 Ill. App. 3d 1006, 443 N.E.2d 268; Robinson v. Cook County Police & Corrections Merit Board (1981), 93 Ill. App. 3d 1051, 418 N.E.2d 170.

Our responsibility on review is to consider the Merit Commission’s finding of fact as prima facie true and correct (Ill. Rev. Stat. 1987, ch. 110, par. 3—110) and reverse the agency’s finding only if it is against the manifest weight of the evidence. (Garland v. Department of Labor (1984), 104 Ill. 2d 383, 472 N.E.2d 434; Burke v. Board of Review (1985), 132 Ill. App. 3d 1094, 477 N.E.2d 1351) In other words, a different conclusion must be clearly evident from the record and the court must determine that no rational trier of fact could have agreed with the agency’s decision. (Service Employees International Local Union No. 316 v. Illinois Educational Labor Relations Board (1987), 153 Ill. App. 3d 744, 505 N.E.2d 418.) We concur with the trial court’s reversal of the Merit Commission’s finding.

Plaintiff presented unrebutted testimony that in previous years candidates passed or failed the written examination based solely on a total raw score, without separate evaluations of subtest scores. Although the Merit Commission’s rules and regulations regarding the tests are nonspecific, its custom and practice of interpreting its rules to base the written examination on a total raw score binds the agency as if the rule provided specific guidelines. (Hetzer v. State Police Merit Board (1977), 49 Ill. App. 3d 1045, 365 N.E.2d 261.) Moreover, McCann Associates did not recommend that plaintiff be excluded from candidacy based on his subtest deficiencies, but stated that these areas should be probed during the next stage of oral interviews. In fact, the Merit Commission’s own findings indicate that plaintiff received a passing raw score, and the defendant sheriff further indicated that the probationary period would be the proper place to screen plaintiff in these alleged deficiencies. The 1982 “Memo for Record” also evidences the method of scoring the Merit Commission used in the past, which corroborates the testimony of Captain Fisher.

The Merit Commission has the right to change its method of determining how to evaluate its written examination if, prior to the examination, it publicizes that the test will be scored in a manner different than that used in previous years. The booklets, however, indicated the tests would be scored based on the total number of questions answered correctly; a method consistent with its custom and practice. Individuals taking the examination had a right, for whatever it’s worth, to rely on this statement in taking the test.

We, therefore, affirm the decision of the trial court.

Affirmed.

WOMBACHER, P.J., and STOUDER, J., concur.


author: JUSTICE STOUDER

text:
    JOSEPH MERTEL et al., Plaintiffs-Appellants and Counterdefendants-Appellants, v. HOWARD JOHNSON COMPANY, INC., et al., Defendants-Appellees (Howard Johnson Company, Inc., et al., Counterplaintiffs-Appellees; Arthur Mertel, Counterdefendant).
    Third District
    No. 3—89—0038
    Opinion filed November 22, 1989.

      Charles W. Helmig III, of Peru, for appellants.
    Stephen C. Myers, of Myers, Daugherity, Berry & O’Conor, Ltd., of Streator, for appellee Howard Johnson Company, Inc.
    Joseph E. Lanuti, of Hupp, Lanuti, Irion & Martin, of Ottawa, for appellee Electrical Workers Benefit Association.
    Paul Perona, of Perona Law Offices, of Peru, for appellee Mariott, Inc.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs, Joseph Mertel and Anthony Mertel, filed a complaint for partition of a parcel of real estate they owned as tenants in common along with one of the defendants, Arthur Mertel. The other defendants are owners and lessees of an adjoining parcel. The defendants filed a countercomplaint for declaratory judgment seeking a determination as to the enforceability of a restrictive covenant contained in a deed to the parcel owned by the Mertels. The trial court held that the covenant was enforceable by the defendants, that it applied to the entire parcel owned by the plaintiffs and that it was not subject to partition. In addition, the trial court entered an order granting the plaintiffs’ request to partition their property. The court reiterated that the restrictive covenant applied to the entire parcel and was not subject to partition. The plaintiffs brought the instant appeal.

The record shows that in 1973 O’Hare International Bank (O’Hare) held as trustee a 10.440-acre parcel of real estate located in La Salle County. On July 31, 1973, O’Hare conveyed by trustee’s deed 7.307 acres of that parcel to Jerome Arendt. That same day, Arendt conveyed by quitclaim deed his interest in the property to the Chicago Title and Trust Company. Also on July 31, 1973, O’Hare conveyed an undivided one-half interest in the remaining 3.133 acres to Galesburg Motor Lodge, Inc. The deed to Galesburg Motor Lodge contained the following rider:

“This conveyance is made upon the express covenant and condition that the premises herein described shall not be used either for the conduct and operation of a restaurant facility or for conduct and operation of a motel or hotel or for providing meeting rooms, catering services or other uses provided by a usual and typical motel or hotel, which covenant and condition shall remain effective during the original terms and any extension of the terms of those two certain leases dated July 9, 1973, between CHICAGO TITLE AND TRUST COMPANY, as Trustee under Trust Number 62544, as Lessor, and HOWARD JOHNSON COMPANY (INC.), as lessee, and leasing premises included within all the real estate described on Exhibit A attached hereto and made a part hereof. The covenants and condition herein set forth shall be deemed to be a covenant running with the land and shall be binding upon the grantors and grantees hereof and their respective grantees, successors and assigns.
The restrictions shall be of no force and effect in the event that title to the real estate described on Echibit [sic] A shall vest in any bona fide first mortgagee as a result of foreclosure proceedings.”

The record shows that exhibit A is the legal description of the adjoining 7.307-acre plot.

The record also shows that on July 9, 1973, Chicago Title and Trust Company entered into a agreement with Howard Johnson Company, Inc., to lease the 7.307-acre parcel to Howard Johnson for the purpose of operating a motor lodge, restaurant and meeting facility. Thereafter, Chicago Title and Trust Company conveyed its interest in the parcel and assigned the lease to the Electrical Worker’s Benefit Association.

In 1981, Galesburg Motor Lodge, Inc’s undivided one-half interest in the 3.133-acre parcel was conveyed to the Mertel Investment Company. O’Hare conveyed its remaining interest in the parcel to the Mertel Investment Company in 1983. Thereafter, the Mertel Investment Company conveyed its interest to the Mertel brothers.

On appeal, the plaintiffs contend that the trial court erred in finding that the defendants have a right to enforce the covenant created by the deed between O’Hare and Galesburg Motor Lodge, Inc. In the alternative, the plaintiffs contend that if the defendants have a right to enforce the covenant, the covenant only applies to an undivided one-half of the 3.133-acre parcel.

Restrictive covenants are valid in Illinois if they are reasonable. (Sanni, Inc. v. Fiocchi (1982), 111 Ill. App. 3d 234, 443 N.E.2d 1108.) Covenants are to be interpreted so as to give effect to the actual intent of the parties determined from the whole document construed in connection with the circumstances surrounding its execution. (Amoco Realty Co. v. Montalbano (1985), 133 Ill. App. 3d 327, 478 N.E.2d 860.) The generalization that all doubts and ambiguities shall be resolved in favor of free use and against restrictions cannot be used to ignore or override specific language of a restrictive covenant. (Cordogan v. Union National Bank (1978), 64 Ill. App. 3d 248, 380 N.E.2d 1194.) The person in whose favor a restrictive covenant runs is prima facie entitled to its enforcement. Wier v. Isenberg (1981), 95 Ill. App. 3d 839, 420 N.E.2d 790.

The plaintiffs cite as support Hays v. St. Paul Methodist Episcopal Church (1902), 196 Ill. 633, 63 N.E. 1040. We find Hays to be distinguishable on its facts. In Hays, the court held that the complainant failed to show that a restriction imposed on an adjoining property was established for the benefit of the complainant’s lot. Although the two parcels derived from a common grantor, the conveyance to the complainant occurred over three years before the grantor conveyed the adjoining parcel to the defendant. The deed to the defendant restricted the construction of any building on the defendant’s property which would be “further east or nearer Ashland avenue [sic], than is the house or building immediately south of said property.” (196 Ill. at 634.) The court held that the language contained in the defendant’s deed did not express an intent to benefit the complainant’s parcel, or impose a restriction in favor of that parcel. The reference to the complainant’s property was utilized as a monument or point of reference. The court found that it did not appear from the terms of the deed that the restriction was imposed for the benefit of the complainant’s property.

In the instant case, it is clear that O’Hare conveyed the property interest to Galesburg Motor Lodge under the restrictive condition that the property not be used for a competing hotel/motel business so long as the leasing arrangement between Howard Johnson Company and Chicago Title and Trust Company, and their assigns, remained in effect. The conveyance of the two parcels took place on the same day. Howard Johnson and Chicago Title and Trust Company had already entered into a leasing arrangement regarding the property that Chicago Title and Trust Company was going to acquire. The inclusion in the covenant of the language concerning the lease demonstrates the grantor’s intent that the 3.133-acre parcel not be used in a manner which would compete with the business to be conducted on the adjoining parcel which the grantor was also conveying that day. The covenant was clearly meant to benefit the owner and lessee of the adjoining parcel. We find no merit to the plaintiffs’ argument that the restrictive covenant in this case could only be enforced by the named grantor and grantee and their assigns. The covenant was created to directly benefit the adjoining parcel and is enforceable by the defendants.

The trial court correctly held that the covenant applied to the entire 3.133 acres and not simply to the undivided one-half interest conveyed to Galesburg Motor Lodge, Inc. The covenant states that the restriction applies to the premises rather than the interest being conveyed. It also states that the covenant runs with the land and that it is binding upon both the grantor and the grantee and their assigns. The Mertel Investment Company, through which the Mertel brothers acquired their interest, was the assignee of both the grantor and the grantee. Therefore, there is no merit to the plaintiffs’ argument that the covenant applies only to an undivided one-half interest in the parcel. We also note that the plaintiffs cite no authority for the use of partition proceedings to remove a restrictive covenant or that such covenants are subject to partition. The covenant applies to the entire parcel and is not subject to partition.

Therefore, the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

WOMBACHER, P.J., and HEIPLE, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODNEY L. WILLIAMS, Defendant-Appellant.
    Third District
    No. 3—89—0154
    Opinion filed November 22, 1989.
    Mark D. Fisher, of State Appellate Defender's Office, of Ottawa, for appellant.
    Erik I. Blanc, State’s Attorney, of Pekin (Nancy Rink Carter, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

A jury convicted the defendant, Rodney L. Williams, of theft (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 16—1). At his sentencing hearing, the State introduced evidence showing that the defendant had a prior conviction for residential burglary. Based on that evidence, the trial court found that the defendant’s misdemeanor theft conviction was enhanced to a Class 4 felony (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 16—1(b)(2)). It thereafter sentenced him to 30 months’ imprisonment. The defendant appeals, arguing that the State was required to prove to the jury, not to the sentencing court, that he had committed a prior felony. The State merely argues on appeal that the defendant has waived this issue.

We find that both the defendant and the State have missed the mark with their arguments. The defendant’s argument is based on his belief that Public Act 85—1003 (Pub. Act 85—1003, eff. July 1, 1988) provided the relevant statutory guidelines for his prosecution. Public Act 85—1003 did not state when in the proceedings the State was expected to prove the defendant’s prior conviction. Accordingly, the defendant contends that under People v. Hicks (1987), 119 Ill. 2d 29, 518 N.E.2d 148, his prior conviction was an element of the offense, which the State had to prove to the jury.

The only evidence relevant to this appeal is that the defendant committed his offense on November 25, 1988. Public Act 85—1003 was passed by the General Assembly on November 6, 1987, approved on January 14, 1988, and scheduled to take effect on July 1, 1988. Subsequently, Public Act 85—1030 was passed and approved on June 30, 1988, and took effect in relevant part on July 1, 1988. Public Act 85—1030 expressly stated that the prior conviction was not an element of the offense of theft and could not be disclosed to the jury. In the case of irreconcilable conflicts between two acts dealing with the same subject, the act last acted upon by the General Assembly is controlling. (Ill. Rev. Stat. 1987, ch. 1, par. 1105; see People v. Bullard (1975), 61 Ill. 2d 277, 335 N.E.2d 465.) Accordingly, Public Act 85—1030 superseded Public Act 85 — 1003, and the State properly withheld the defendant’s prior felony conviction from the jury.

Further, before the defendant’s instant criminal act, but after Public Act 85—1003 and Public Act 85—1030 took effect, Public Act 85—1209 was approved and took effect. Public Act 85 — 1209, which was passed on July 1, 1988, approved on August 30, 1988, and took effect on August 30, 1988, also stated that a defendant’s prior conviction is not an element of the offense and may not be disclosed to the jury. Accordingly, even without the rule of statutory construction stated above, it is clear that Public Act 85—1003 was not the controlling statute. We also note that on January 10, 1989, the General Assembly passed Public Act 85—1440, which was approved and took effect on February 1, 1989. That act also stated that the prior conviction is not an element of the offense and may not be disclosed to the jury.

Based on our findings, we conclude that the State properly waited until sentencing to introduce evidence of the defendant’s residential burglary conviction. The defendant does not otherwise contest his conviction or sentence.

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

Affirmed.

WOMBACHER, P.J., and SCOTT, J., concur.


author: JUSTICE LORENZ

text:
    HAROLD PICK, Plaintiff-Appellant, v. ASSOCIATED INDEMNITY CORPORATION, Defendant-Appellee.
    First District (5th Division)
    No. 1—88—0380
    Opinion filed November 9, 1989.

      Mark D. DeBofsky, of DeBofsky & DeBofsky, of Chicago, for appellant.
    Gregory Glisich, of Leahy & Eisenberg, Ltd., of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Harold Pick, appeals from the entry of summary judgment (Ill. Rev. Stat. 1985, ch. 110, par. 2—1005) in favor of defendant, Associated Indemnity Corporation. We will consider the following two issues: (1) whether plaintiff’s action against defendant was barred by the limitation period in his insurance policy; and (2) whether it was proper to grant summary judgment on the issue of plaintiff’s compliance with certain policy provisions. For the following reasons, we reverse and remand.

On August 30, 1985, plaintiff filed a two-count complaint and alleged that defendant issued a homeowner’s insurance policy to plaintiff and his wife, Dolores Pick, covering their residence and its contents for the period of December 19, 1981, to December 19, 1982. The policy included coverage for theft and disappearance of personal property in the residence. The insured property included jewelry and art pieces.

On December 6, 1982, plaintiff discovered that some of the insured personal property was either missing or stolen. Plaintiff immediately contacted the local police and his insurance agent. On March 2, 1983, plaintiff submitted to defendant a sworn statement in proof of loss claiming $282,472 as a result of “thefts [or] mysterious disappearance.” Plaintiff submitted a revised proof of loss on December 27, 1983, reducing the claim to $253,362. Attached to both proofs of loss were lists of the items missing with their description and replacement value. On September 10, 1984, defendant denied plaintiff’s claim.

Plaintiff alleged that his estranged wife “precluded” herself from the claim and that any recovery under the policy should be plaintiff’s alone. Plaintiff and his wife were in the midst of divorce proceedings at this time. Plaintiff alleged that he complied with all the terms and conditions of the policy and sought judgment in the amount of $253,362.

In count II of the complaint, plaintiff alleged that because defendant’s conduct was willful and wanton, plaintiff was entitled to punitive damages and attorney fees.

The insurance policy issued by defendant was attached to plaintiff’s complaint and contained a provision limiting the time to bring suit against the insurance company to one year.

Defendant filed an answer denying the material allegations of the complaint and asserted three affirmative defenses alleging that plaintiff did not comply with certain provisions in the insurance policy. First, the policy required the insured to prepare an inventory of the personal property involved and attach bills, receipts, and related documents. Also, the insured was required to provide requested records and documents for photocopying. Second, the insured was required to submit to an examination under oath. And third, an action could only be brought against the insurance company if the insured complied with the policy provisions and the action was started within one year after the loss.

Defendant moved for summary judgment based on plaintiff’s failure to comply with the policy provisions. Attached to the motion was a letter dated April 6, 1983, from defendant to plaintiff requesting certain documents relating to the loss, including (1) personal Federal and State income tax returns from 1978 through 1982, (2) personal financial statements from 1980 through 1982, (3) receipts, cancelled checks, and related documents involving the property, (4) property settlement agreements from previous divorces, (5) photographs, films, and videotapes of the scene of the occurrence or the property involved, and (6) a list of prior insurance claims and related documents from 1967 to date.

In response to the motion, plaintiff filed his own affidavit and stated the following facts. Plaintiff was in the business of auctioneering and appraising fine art, and he acquired numerous objects of art and paintings which were stored in his basement. On December 6, 1982, he discovered the property was missing. He filed a proof of loss on March 2, 1983, which he revised on December 27, 1983. Plaintiff stated that many of the documents requested by defendant did not exist or if they did, they “were not capable of being produced because of the *** divorce proceedings.” There were no receipts or vouchers for the personal property which was the subject of the claim. His claim was denied on November 1, 1983, because he failed to produce documents and attend an examination under oath. Subsequently, defendant withdrew the denial of the claim. Due to “conflicting schedules,” plaintiff was not examined under oath until January 4, 1984, but the examination had to be adjourned about IV2 hours because his attorney had a time conflict. On September 10, 1984, his claim was denied a second time. Plaintiff stated defendant’s attorney told him that the claim would be reinstated when plaintiff’s divorce proceedings were resolved. In February of 1985, plaintiff told defendant’s attorney that his divorce proceedings were in “hiatus” and he would be available for an examination under oath. On March 8, 1985, defendant reaffirmed the denial of plaintiff’s claim.

Attached to defendant’s reply in support of its motion for summary judgment were numerous letters between defendant’s attorney and plaintiff’s attorney and the affidavit of John S.J. Kearney, who was senior property claims supervisor for defendant.

In his affidavit, Kearney stated that on April 6, 1983, defendant notified plaintiff to produce certain documents and submit to an examination under oath. Plaintiff did not comply, and defendant allowed “numerous requested extensions.” Because plaintiff still did not comply, defendant denied his claim on November 1, 1983. Subsequently, the parties reached an agreement that plaintiff would produce all requested documents and submit to an examination under oath. Defendant withdrew the denial of plaintiff’s claim. Plaintiff did not produce many of the documents requested, including tax returns, financial statements, and records of prior insurance claims. On January 4, 1984, plaintiff was examined under oath, but after V-k hours, the examination was concluded due to a time conflict with plaintiff’s attorney. The examination was rescheduled numerous times but was can-celled each time by plaintiff or his attorney. Plaintiff signed an authorization for defendant to obtain records relating to only one of plaintiff’s three prior insurance claims. Defendant continued in its demand for documents, from plaintiff. Kearney stated that defendant denied plaintiff’s claim again on September 10, 1984, for plaintiff’s failure to produce documents and to submit to an examination under oath.

In ruling on defendant’s motion for summary judgment, the trial judge applied section 143.1 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 755.1) and found that plaintiff’s suit was barred by the limitation period in the policy. Also, the judge found that the evidence submitted overwhelmingly established plaintiff did not comply with the policy provisions requiring plaintiff to produce documents and attend an examination under oath. Summary judgment was granted in defendant’s favor.

Plaintiff filed a motion to vacate the summary judgment, arguing for the first time that section 143.1 was inapplicable to the policy and that defendant’s conduct waived the policy limitation period. The motion to vacate was denied and plaintiff now appeals.

Opinion

Summary judgment should be granted if the pleadings, depositions, and affidavits “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ill. Rev. Stat. 1985, ch. 110, par. 2—1005(c).

I

The trial judge granted defendant’s motion for summary judgment based in part on his finding that plaintiff’s suit was barred by the one-year limitation period in the policy. In so ruling, the judge applied section 143.1 (Ill. Rev. Stat. 1985, ch. 73, par. 755.1), which provides that when an insurance policy limits the period within which the insured may file suit, that period is tolled from the date the proof of loss was filed until the date the claim was denied. The trial court found that even with the benefit of the tolled period, plaintiff’s claim was barred. On review of the entry of summary judgment, we must consider whether section 143.1 was applicable to plaintiff’s policy when the section did not become effective until after plaintiff’s policy was issued.

When an insurance policy is issued, applicable statute provisions in effect at the time are treated as part of the policy. (Weisberg v. Royal Insurance Co. (1984), 124 Ill. App. 3d 864, 464 N.E.2d 1170.) In Weisberg, defendant issued a homeowner’s insurance policy to plaintiffs on March 4, 1981, which provided that the insured must bring suit within one year of any occurrence. Plaintiffs filed suit against defendant more than one year after a theft occurred. The trial judge granted defendant’s motion to dismiss the action, finding that section 143.1 was inapplicable, and therefore, plaintiffs’ suit was barred for failure to file suit within the one-year limitation period. On appeal, this court affirmed and found that section 143.1 could not be applied retroactively to a policy issued prior to January 1, 1982, the effective date of section 143.1.

Similarly, in the present case, plaintiff’s insurance policy was issued on December 19, 1981, and contained a provision limiting the period of time within which to bring suit to one year. At the time the policy was issued, section 143.1 was not yet in effect, and therefore, the trial court erred when it applied the section to plaintiff’s policy. Accordingly, plaintiff was required to file suit within one year of the loss.

In an attempt to defeat summary judgment, plaintiff argues that although he did not file suit within one year, a question of fact was raised as to whether defendant’s conduct amounted to a waiver of the limitation provision.

When an insured’s complaint establishes a breach of a policy condition, he cannot rely on an argument that the policy condition was waived unless waiver was pled in his complaint. (Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 393 N.E.2d 1223.) In the present case, plaintiff’s complaint with the attached insurance policy established he failed to file suit within the limitation period but he did not allege defendant waived the requirement. Here, however, as in Florsheim, defendant has not objected at any time to plaintiff’s failure to plead the waiver issue in his complaint, and therefore, it has waived any objection.

Instead, defendant argues that this issue should not be considered on review because plaintiff did not raise the issue prior to the entry of summary judgment. Plaintiff raised the issue in his motion to vacate summary judgment. However, the facts supporting plaintiff’s claim of waiver were presented in both plaintiff’s and defendant’s affidavits which were filed prior to summary judgment, and for this reason, we will consider the issue.

Reasonable limitation periods in an insurance policy are enforceable unless the insurer waived the right to assert the defense. (Florsheim, 75 Ill. App. 3d 298, 393 N.E.2d 1223.) Waiver is the “intentional relinquishment of a known right” and is established by words or conduct inconsistent with an insurer’s right to rely on policy requirements. (Florsheim, 75 Ill. App. 3d at 304, 393 N.E.2d at 1229.) Whether an insurer’s conduct waived the limitation provision in the policy is generally a question of fact; however, if there is no factual support for waiver, the issue may be decided on summary judgment. Florsheim, 75 Ill. App. 3d 298, 393 N.E.2d 1223.

In this case, the evidence presented for the summary judgment motion established that the occurrence was discovered on December 6, 1982, and according to the limitation provision in the policy, plaintiff was required to file suit on or before December 6, 1983. Plaintiff did not file suit within that time period. Defendant conducted an examination under oath of plaintiff on January 4, 1984, which was one month after the limitation period expired. Also after the period expired, defendant’s counsel continued in his request for documents from plaintiff and sought a continued date for the examination under oath. Subsequently, defendant denied plaintiff’s claim on September 10, 1984, and March 8, 1985. These actions raise a question of fact as to whether defendant waived its right to assert the limitation period, and therefore, summary judgment was improperly granted.

II

Next, we must address whether the trial court properly granted summary judgment in defendant’s favor when it found the evidence presented established that plaintiff did not comply with the policy provisions.

In the event of a loss, the policy required plaintiff to supply defendant with certain documents and to submit to an examination under oath. Defendant requested from plaintiff numerous documents, including personal income tax returns, personal financial statements, receipts for the insured property, property settlement agreements from previous divorces, photographs of the scene of the occurrence or the property involved, and a list of prior insurance claims.

In response, plaintiff produced appraisals which defendant claims were previously submitted with his application for insurance, the docket number of a previous divorce case to obtain the property settlement agreement, photographs of the property, an authorization to obtain documents relating to one insurance claim, his homeowner’s insurance policy, copies of correspondence between plaintiff and defendant relating to the claim, and the sheriff’s report of the theft. Plaintiff also submitted two proofs of loss, and he was eventually examined under oath for V-k hours.

Whether the insured substantially complied with the provisions of the policy is a question of fact precluding summary judgment. (Piro v. Pekin Insurance Co. (1987), 162 Ill. App. 3d 225, 514 N.E.2d 1231.) In Piro, plaintiffs, Piro and a corporation,, filed an action to recover under their fire insurance policy when their business was destroyed by fire. The policy allowed the insurance company to examine and audit an insured’s books and records relating to the insured property and allowed the company to examine the insured under oath. Defendant inspected plaintiffs’ financial records, and Piro submitted to an examination under oath. Plaintiffs did not produce certain documents, such as Piro’s personal income tax returns and a contract for the sale of the business. Piro also refused to answer certain questions at the examination. Defendant denied plaintiffs’ claim. Plaintiffs filed suit, and defendant moved for summary judgment arguing that plaintiffs did not comply with the policy provisions. In response, plaintiffs filed documents that they contended contained the requested information. The trial judge granted summary judgment for defendant. On appeal, the court noted that in an action to recover under an insurance policy, an insured’s refusal to produce documents as required under the policy can support summary judgment for the insurance company, citing Horton v. Allstate Insurance Co. (1984), 125 Ill. App. 3d 1034, 467 N.E.2d 284. However, the court noted that plaintiffs were generally cooperative and held that whether plaintiffs substantially complied with the policy is a question of fact.

In the present case, defendant argues Piro is inapplicable and relies on Horton (125 Ill. App. 3d 1034, 467 N.E.2d 284), for its argument that summary judgment was properly granted. In Horton, plaintiff had a fire insurance policy on his home with defendant. The policy required that in the event of a claim, the insured must submit detailed proof of loss statements as well as certain other additional documentation relevant to the claim. As a condition precedent to filing suit, the insured must have complied with the terms of the policy. After a fire occurred, plaintiff submitted a proof of loss which defendant rejected. Defendant requested a more detailed proof of loss and other documentation. Plaintiff “made no attempt to comply” but rather, immediately filed suit against defendant. (Horton, 125 Ill. App. 3d at 1035, 467 N.E.2d at 284.) The trial judge granted defendant’s motion for summary judgment. On appeal, the court noted that the policy required plaintiff to produce certain documents as a condition precedent to filing suit against defendant. Summary judgment was affirmed because plaintiff forfeited his right to sue defendant when he made no attempt to produce those documents.

The situation presented in Horton can be distinguished from the case at bar. In Horton, plaintiff failed to resubmit a proof of loss and failed to produce any documents requested. With no attempt at compliance, the appellate court found that the matter could be resolved on summary judgment. Here, plaintiff has arguably made some attempt to comply with the policy. Although plaintiff may not have been as cooperative as the insured in Piro, he did produce certain documents and eventually appeared for an examination under oath, although it was not completed. These facts show plaintiff made some attempt to comply with the policy provisions, which is similar to the situation presented in Piro. Whether plaintiff’s actions amounted to substantial compliance with the policy is a question of fact, and therefore, summary judgment in defendant’s favor was improper.

Reversed and remanded.

MURRAY, RJ., and PINCHAM, J., concur.


author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAMONA HOOD, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—0423
    Opinion filed November 15, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Linda J. Seeley, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Sharon L. Heath, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

Defendant, Ramona Hood, was convicted of murder after a bench trial and was sentenced to 30 years’ imprisonment. She argues on appeal that (1) her murder conviction should be reversed because the State failed to offer proof that she did not act under provocation which supported a conviction only for voluntary manslaughter; (2) one of the two convictions for murder should be vacated because she was convicted of only one killing and a new sentence must be imposed on the remaining conviction; (3) her sentence should be vacated because of the victim impact evidence at the sentencing hearing; and (4) her 30-year sentence was excessive.

Ronald Wyatt testified for the State that on December 3, 1985, he was at his father’s house with his father and Wilbert Foster, the deceased. Foster was about 67 years old and was very intoxicated, and he could hardly stand up. Defendant arrived later, and Foster asked her several times to come to his apartment. Wyatt drove Foster and defendant to his building. Foster was unable to get out of the car because of his intoxication. After Wyatt helped Foster out of the car, he and defendant helped Foster into the building because he could hardly walk. Wyatt saw Foster and defendant enter the building, and Wyatt then left.

Detective John Dahlberg testified for the State that on Décember 31, 1985, he advised defendant of her rights and she stated that she understood them. She said that Foster asked her to come home with him, and she agreed to go there to have drinks. She had known Foster for about five years, and he paid to have sex with her. She assisted Foster into his apartment. They had drinks, and she then telephoned her boyfriend to say that she would be home soon. Foster asked her for sex, and she said that she did not have the time and he did not have any money anyway. She told Foster that she had to leave. He went to the bathroom and came out with his pants down, and he was fondling his penis. He came over to her and again asked for sex-. She again refused.

As defendant was preparing to leave, Foster picked up a broom and hit her in the shoulder with it-. She became angry and struggled over the broom. She knocked Foster down. She put on her coat, and Foster grabbed her from behind by putting his hand on her shoulder. She reached into her pocket for a knife and cut Foster on the leg. She then pushed him back towards the couch, and she stabbed him once in the abdomen. He fell to the couch. Defendant then left. She said she was not in fear for her life and that Foster was drunk and would not harm her.

Charles Head testified for the State that he was the building custodian for the Chicago Housing Authority senior citizen building where Foster lived in a neat apartment. On December 3, 1985, about 1 p.m., he observed Foster having trouble getting out of a car. Foster was intoxicated, and defendant was helping him. Foster encountered Head and Edna Townes in the lobby and he swore at Townes. When Foster was drunk, he was profane, belligerent, and argumentative. He found Foster’s body the next day in his bed. The apartment was ransacked and bloody.

It was stipulated that if called, Dr. Tae An would testify that he conducted a postmortem examination of Foster. Foster was 65½ inches tall and weighed 140 pounds. He had stab wounds in his chest, back, and leg, and numerous multiple lacerations, cutting wounds, bruises, and abrasions. The cause of death was multiple stab wounds and incised wounds. Foster’s blood tested positive for ethanol.

Defendant’s motion for a directed finding of not guilty was denied. Defendant was found guilty of- murder and armed violence, but the armed violence finding was vacated because there was “only one incident.” Defendant’s motion for a new trial was denied.

Leroy Grant testified for the State at the sentencing hearing that the death of his uncle had an emotional impact on him. Foster’s death was a shock to Foster’s brothers and sisters. Foster’s eldest sister’s heart condition was aggravated by the news of Foster’s death, and she was obtaining counseling. The court overruled an objection to the hearsay testimony.

Defendant objected to the introduction into evidence of Grant’s written victim impact statement on the basis that it was hearsay, that fairness dictated that defendant be permitted some opportunity for cross-examination, and that the statement was broad and generalized. Defendant also indicated that such a statement should not be considered unless there was some showing that the act had been intended to harm the victims. The trial court permitted the witness to testify about the victim impact. The trial court stated that it was a matter of what weight to be given victim impact statements.

Grant testified that Foster’s eldest sister was unable to travel because she was 80 years old and hospitalized. The other brothers and sisters of Foster were approximately 65, 75, 61, and 71 years old and lived out of State. One relative was an invalid who was unable to travel great distances. The relatives hesitated to come to Chicago because of the violent nature of the crime and because they feared for their safety.

The State introduced into evidence a certified copy of defendant’s prior 1980 conviction for robbery. Defendant had been placed on probation and had violated her probation.

Defendant’s mother, Clara Mae Ferguson, testified on behalf of defendant at the sentencing hearing that defendant had improved since her imprisonment. Defendant had talked to a psychiatrist and has takén Bible classes. Prior to the imprisonment, defendant had been involved with drugs. Ferguson had been taking care of defendant’s three children for over three years.

There was also evidence in mitigation that defendant wrote a letter to the judge stating that she was sorry and did not intend what she had done.

The order of sentence and commitment stated that she had been sentenced to 30 years’ imprisonment for two counts of murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9—1(a)(1), (a)(2)).

Defendant first argues that the State failed to offer proof that she did not act under provocation which supported a conviction- only for manslaughter. Defendant argues that she and the deceased engaged in mutual combat, that the deceased died as a result of a violent struggle, and that mutual combat or quarrel constitutes provocation.

A person who kills without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed. (Ill. Rev. Stat. 1985, ch. 38, par. 9—2(a)(l).) If a defendant presents sufficient evidence to reduce the charge from murder to voluntary manslaughter, then to prove murder the State must prove beyond a reasonable doubt that the voluntary manslaughter “defense” is meritless. People v. Reddick (1988), 123 Ill. 2d 184, 197, 526 N.E.2d 141.

Mutual combat in the context of serious provocation is defined as a fight in which both parties enter willingly or in which two persons upon a sudden quarrel and in hot blood mutually fight upon equal terms. (People v. Neal (1983), 112 Ill. App. 3d 964, 967, 446 N.E.2d 270.) Mere words are not sufficient provocation to establish voluntary manslaughter. (Neal, 112 Ill. App. 3d at 967.) The conduct must be sufficient to excite an intense passion in a reasonable person. (Neal, 112 Ill. App. 3d at 967.) The provocation must be proportionate to the manner in which defendant retaliated. (Neal, 112 Ill. App. 3d at 968.) The crime is murder when defendant attacked the deceased with violence out of proportion to the provocation. (Neal, 112 Ill. App. 3d at 968. ) Passion will not relieve defendant from liability for murder unless it was engendered by serious provocation. Neal, 112 Ill. App. 3d at 969.

Defendant’s murder conviction can be upheld on the basis that the provocation was not serious enough to incite intense passion in a reasonable person. Defendant was angered by the struggle with an elderly and extremely intoxicated man. Defendant’s multiple stabbing of the victim was out of proportion to the victim’s attacks on her, and the struggle was not on equal terms. The postmortem examination report stated that Mr. Foster had consumed more than enough alcohol to be considered intoxicated. His blood tested positive for ethanol at 138 milligrams. He was 67 years old, was 5 feet 5x/z inches tall and weighed only 140 lbs. Where the provocation is slight and the retaliation great, it has been held to be murder. People v. Dowdell (1980), 84 Ill. App. 3d 707, 709, 406 N.E.2d 123.

Defendant next argues that one of her two murder convictions (Ill. Rev. Stat. 1985, ch. 38, pars. 9—1(a)(1), (a)(2)) should be vacated because there was only one death. Defendant also argues that because her sentence was imposed on an invalid count, she must be resentenced. The State agrees that the mittimus should be amended to reflect one conviction for murder but argues that the error was technical and had no effect on the sentence.

There can be only one murder conviction and one sentence for one count of murder when there was only one death. (People v. Hosty (1986), 146 Ill. App. 3d 876, 886, 497 N.E.2d 334.) When there are multiple convictions for offenses arising out of a single act, the sentence is imposed on the most serious offense. (Hosty, 146 Ill. App. 3d at 886.) Intentional killing is a more serious crime than murder based upon knowledge of a strong probability of death or great bodily harm. (Hosty, 146 Ill. App. 3d at 886.) Defendant’s conviction under the second count involving section 9—1(a)(2) should be vacated.

Defendant need not be resentenced after one murder conviction is vacated if there is no indication in the record that the court was influenced by the second murder conviction in sentencing. (People v. Smith (1984), 124 Ill. App. 3d 805, 813, 465 N.E.2d 101.) People v. Bone (1982), 103 Ill. App. 3d 1066, 1070, 432 N.E.2d 329, upon which defendant relies, is distinguishable because it could not be determined how much weight the trial court had given to the multiple convictions in sentencing defendant. There is no indication in the instant case that the court was influenced by the second murder conviction in imposing sentence. After disposing of the armed violence conviction, the court stated, “there’s only one incident in this case, so only one finding remains.” Later, the court stated that because there was only one incident, only the “murder” conviction would remain. This indicated that the judge intended to sentence the defendant for only the offense of murder.

Defendant next argues that admission of oral and written victim impact evidence at the sentencing hearing violated her rights to due process and a fair sentencing hearing, the prohibition against cruel and unusual punishment, and the State constitutional provision that penalties are to be determined according to the seriousness of the offense and with the objective of restoring one to useful citizenship. Defendant also argues that the State statute allowing victim impact statements does not extend to nephews of the deceased.

The State argues that the issues now raised concerning victim impact evidence were waived because defendant only objected at the hearing on the basis that the statements were inadmissible as hearsay. Defendant also made arguments below that victim impact statements should not be considered unless there was a showing that the defendant’s act intended to harm the victim and that fairness dictated that defendant be allowed some opportunity for cross-examination. Defendant’s argument that the nephew of the victim was improperly permitted to testify was clearly not raised below and is therefore waived. However, even if the objections below were sufficient to preserve for review the issue of the constitutionality of the admission of the victim impact evidence, defendant’s argument is without merit.

The Supreme Court has held that the eighth amendment of the United States Constitution prohibits the jury’s consideration of a victim impact statement in the sentencing phase of a capital murder trial. (Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529.) However, the trial court’s consideration of victim impact evidence at the sentencing hearing in a noncapital case has been upheld by an Illinois appellate court. People v. Hines (1988), 165 Ill. App. 3d 289, 303, 518 N.E.2d 1362.

In People v. Scott (1989), 180 Ill. App. 3d 418, 424, 535 N.E.2d 1113, the court held that unlike the risk in Booth that the jury would impose the death penalty in an arbitrary and capricious manner, there was no basis there to conclude that the trial court was unduly influenced by the evidence in sentencing defendant. (Scott, 180 Ill. App. 3d at 424-25.) In addition, this court held in People v. Fountain (1989), 179 Ill. App. 3d 986, 1000, 534 N.E.2d 1303, that Booth only applied to death penalty cases, that the victim impact statement was properly considered, and that there was no evidence there that the trial court had been improperly influenced where it had set forth the factors it had considered.

Similarly, in the instant case there is no evidence that the trial court was unduly influenced by the victim impact statement. Defendant was not denied a fair sentencing hearing. In sentencing defendant, the court listed the factors it considered in imposing sentence. The court never stated it considered the victim impact evidence.

Defendant finally argues that the 30-year sentence was excessive because of her limited criminal history and rehabilitative potential. Defendant also points to her remorse, her family support, her three children, her involvement in religion, her writing ability, and the provocation of the victim.

Defendant was eligible for a sentence of 20 to 40 years’ imprisonment. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(1).) A mid-range sentence for the offense of murdering an intoxicated man whom defendant did not fear and whom she could have rebuffed without a knife is not an abuse of discretion.

The judgment of the circuit court is affirmed.

Affirmed and remanded.

FREEMAN, P.J., and WHITE, J., concur.


author: JUSTICE DUNN

text:
    AMORFINA BRAGADO, Plaintiff-Appellant, v. CHERRY ELECTRICAL PRODUCTS CORPORATION et al., Defendants-Appellees.
    Second District
    No. 2—89—0079
    Opinion filed November 17, 1989.

      G. Douglas Grimes, of Law Offices of G. Douglas Grimes, of Waukegan, for appellant.
    Carol L. VanHal and John P. Jacoby, both of Vedder, Price, Kaufman & Kammholz, and Barry L. Kroll, Lawrence K. Rynning, and Lloyd E. Williams, Jr., all of Williams & Montgomery, Ltd., both of Chicago, for appellee Scott Wetzel Services.
    Carol L. VanHal and John P. Jacoby, both of Vedder, Price, Kaufman & Kammholz, of Chicago, for appellee Cherry Electrical Products Corporation.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Amorfina Bragado, appeals from the order of the trial court dismissing her amended complaint for retaliatory discharge for failure to state a claim pursuant to motions brought under section 2— 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615). Plaintiff had filed a complaint alleging retaliatory discharge by defendant, Cherry Electrical Products Corporation (Cherry), her employer, and defendant Scott Wetzel Services, Inc. (Wetzel), its adjustment agent. Both defendants filed motions which argued that the complaint failed to state a cause of action and that her remedy was available exclusively under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.). Defendant Wetzel argues on appeal an additional reason that retaliatory discharge exists only against the employer and not against third parties where the third party was not the employer and did not discharge the employee. We affirm in part and reverse in part.

In her amended complaint, plaintiff alleged that she was an employee of Cherry and that on October 24, 1985, she was injured in the scope of her duties. Pursuant to the Act, Cherry, through the services of Wetzel, paid certain medical bills and temporary total disability benefits (TTD). On or about February 3, 1986, defendants stopped paying TTD benefits. Plaintiff alleged that this termination was improper as her treating physician had restricted her from performing her normal duties, although he released her for “light duty.” Nevertheless, plaintiff returned to full regular duties on February 25, 1986, until March 10, 1986, when she became physically unable to continue her duties. Her doctor imposed a restriction that she not return to regular duty until at least March 31, 1986. In the meantime, Cherry did not reinstate TTD benefits, and on March 25, 1986, Cherry terminated her employment. Prior to the date of termination, plaintiff had been scheduled for a physical examination by a physician of defendants’ choosing for April 4, 1986.

Plaintiff further alleged that defendants violated section 4(h) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.4(h)), which prohibits an employer from interfering with, restraining, or coercing an employee from her exercise of any right granted by the Act, or from discharging an employee for exercising her rights granted by the Act. She alleged that defendants violated public policy in requiring plaintiff to return to work against medical advice and in terminating her employment while she was medically restricted. She alleged that she suffered loss of TTD benefits, aggravation of her injury and pain and suffering. She prayed for monetary damages.

Plaintiff’s allegations against Wetzel were substantially the same. She also stated that Wetzel was a service or adjustment company and acted on behalf of Cherry to process her claim. She alleged that Wetzel was aware that Cherry was not treating her in accordance with her doctor’s orders, but that Wetzel still refused to pay her TTD benefits. She alleged that Cherry, acting in concert with Wetzel, terminated plaintiff’s employment.

Defendants did not answer the complaint but instead moved to dismiss it pursuant to section 2 — 615 for failure to state a cause of action. The trial court granted their motions, and this appeal followed. In reviewing the order of dismissal on appeal, this court will accept as true all well-pleaded facts and all reasonable inferences flowing from the complaint and must determine whether, as a matter of law, the complaint states a cause of action. (Spengler v. V & R Marathon, Inc. (1987), 162 Ill. App. 3d 715, 717, 516 N.E.2d 787, 788; see also Parton v. A.L. Randall Co. (1989), 180 Ill. App. 3d 856, 861, 534 N.E.2d 1077, 1081.) Under section 2—612 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—612), no pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim. Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 134, 421 N.E.2d 876, 880.

We address first defendants’ contention that the complaint was improper because the Act provides the exclusive remedy, making the complaint improper to the extent it seeks recovery for TTD benefits to compensate plaintiff for her work-related injury. (Robertson v. Travelers Insurance Co. (1983), 95 Ill. 2d 441, 449, 448 N.E.2d 866, 869; Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 241, 408 N.E.2d 198, 203.) Plaintiff concedes that she cannot receive TTD benefits as a result of this action. In fact, we note that the record reflects that she has filed a claim before the Industrial Commission to collect these benefits. However, plaintiff has also alleged that she suffered pain, suffering and aggravation of her injury when defendants coerced her to return to work prematurely by cutting off her TTD benefits. Thus, she prayed for monetary damages. For example, the plaintiff in Kelsay v. Motorola Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, the seminal case on this issue, was awarded monetary damages representing lost wages from the time she was terminated until the time she found a new job. Thus, the claim for monetary damages in this cause is appropriate. However, on remand, plaintiff’s complaint should be stricken to the extent that she prays for TTD benefits. The Industrial Commission is determining whether she was entitled to receive those benefits. In the circuit court, plaintiff is restricted to a claim for wrongful discharge and the damages resulting from the wrongful discharge, rather than for any claim for lost benefits which are to be compensated under the Act.

Defendants’ other argument is that the complaint was legally insufficient because it appears that no set of facts could be proved which would entitle plaintiff to recover. In particular, they state that plaintiff has failed to allege that her discharge was causally related to the filing of a claim under the Act and that because she was physically unable to perform her duties, defendants could justifiably discharge her.

A plaintiff states a valid claim for retaliatory discharge only if she alleges she was (1) discharged; (2) in retaliation for her activities; and (3) that the discharge violates a clear mandate of public policy. Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 529, 519 N.E.2d 909, 911.

There is no dispute that plaintiff was discharged. Defendants argue that plaintiff has not met the second element, which basically requires that a plaintiff allege a causal relationship between the employee’s activities and the discharge. (Hinthorn, 119 Ill. 2d at 532, 519 N.E.2d at 912; Slover v. Brown (1986), 140 Ill. App. 3d 618, 620, 488 N.E.2d 1103, 1105.) However, plaintiff’s complaint does spell out the course of events which led to her discharge. A fair reading of the complaint informs defendants that her discharge was triggered when she refused to work when she was disabled and made claims for TTD benefits under the Act and that defendants coerced her to forego her rights and return to work by terminating benefits before she was rehabilitated. (Hinthorn, 119 Ill. 2d at 532, 519 N.E.2d at 912.) The complaint also alleges that the discharge violated public policy. Hinthorn also makes it clear that retaliatory discharge can be alleged not only after the employee files a benefits claim, but after she asserts other rights such as seeking medical attention. (119 Ill. 2d at 534, 519 N.E.2d at 913.) The plaintiff has alleged that the defendants were well aware that she was asserting her rights under the Act. Thus, her complaint differs from that in Burgess v. Chicago Sun-Times (1985), 132 Ill. App. 3d 181, 185, 476 N.E.2d 1284, 1287 (no allegation that defendant was informed, or in any way found out, that plaintiff was pursuing any remedy under the Act), or Thomas v. Zamberletti (1985), 134 Ill. App. 3d 387, 390, 480 N.E.2d 869, 871 (no allegation that defendant knew of the reason for plaintiff’s failure to report to work). Moreover, plaintiff has alleged a prima facie case by alleging a short time span between the assertion of her rights and her employer’s adverse action. Hugo v. Tomaszewski (1987), 155 Ill. App. 3d 906, 910, 508 N.E.2d 1139, 1141.

Defendants also argued in their motion to dismiss that Cherry was justified in discharging plaintiff because she was unable to do the work. They take her allegation that she did not return to work because she was physically unable to perform her duties as an admission in support of their claim that Cherry discharged her for the reason that she was unable to perform her duties. They assert that this reason was not a pretextual basis for her discharge and thus the termination of her employment was justified. (See Lewis v. Zachary Confections Co. (1987), 153 Ill. App. 3d 311, 505 N.E.2d 1087.) However, defendants cannot take plaintiff’s allegations out of context. It is a fair inference from the allegations of plaintiff’s complaint that she was discharged for asserting her rights under the Act, not because she was unable to work. If defendants wish to raise the defense that an employer is justified in discharging an employee who was injured on the job, they must raise it in a proper motion supported by affidavit or at trial and prove Cherry had a valid reason to discharge plaintiff. However, they have not answered the complaint and may not raise the defense in a section 2 — 615 motion to dismiss. A motion to dismiss cannot evidence the employer’s intentions and cannot prove that the basis for discharge was valid and not a mere pretext for retaliation. (Hugo, 155 Ill. App. 3d at 910, 508 N.E.2d at 1141.) Although plaintiff may not ultimately prevail on her claim, she has stated a cause of action. Hinthorn, 119 Ill. 2d at 535, 519 N.E.2d at 913; Parton v. A.L. Randall Co. (1989), 180 Ill. App. 3d 856, 862, 534 N.E.2d 1077, 1081.

Furthermore, plaintiff did allege defendants acted under a pretext when she stated that the defendants used her doctor’s report restricting her to “light duty” work as a pretext for terminating TTD benefits and coercing plaintiff back to work. Since Cherry had no “light duty” jobs, plaintiff alleged that she was forced into performing heavy-duty work, which aggravated her original injury. Cherry’s actions in terminating plaintiff’s TTD benefits would be improper because the ability to do light-duty work does not preclude a finding of temporary total disability. (Ford Motor Co. v. Industrial Comm’n (1984), 126 Ill. App. 3d 739, 743, 467 N.E.2d 1018, 1021.) However, whether plaintiff was in fact entitled to TTD benefits and the related issue of whether defendants improperly used the doctor’s partial release as a pretext for terminating benefits are issues to be decided before the Industrial Commission in plaintiff’s claim for benefits. Whether defendants discharged plaintiff to retaliate for her assertion of her rights under the Act, in fact found a pretext to discharge her, or used the termination of benefits as a means of coercing her to forego her other rights are the issues raised by plaintiff’s complaint.

Defendant Wetzel also argues that count II of plaintiff’s complaint was correctly dismissed because an action for retaliatory discharge may only be brought against plaintiff’s employer. Plaintiff contends this issue should not be considered since it is raised for the first time on appeal. If it appears as a matter of law that plaintiff’s complaint does not state a cause of action, however, an objection to it may be raised for the first time on appeal. (Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 974, 447 N.E.2d 1358, 1366.) Since we believe as a matter of law that count II fails to state a cause of action, we will consider Wetzel’s argument.

The Appellate Court for the First District has held that a retaliatory discharge action may only be brought against the plaintiff’s former employer, not against his or her former supervisors. (See Morton v. Hartigan (1986), 145 Ill. App. 3d 417, 422, 495 N.E.2d 1159, 1162.) This court has recently declined to follow Morton, holding that a retaliatory discharge action may also be brought against plaintiff’s former supervisors. Fellhauer v. City of Geneva (1989), 190 Ill. App. 3d 592, 602.

In Fellhauer, this court supported its holding by stating that, under normal tort doctrine, if an agent’s acts render the principal liable, the agent is liable as well and that the purpose of deterring retaliatory discharges is better served if the active wrongdoer is held liable. (Fellhauer, 190 Ill. App. 3d at 602.) This court further stated, however, that the action may be brought against a supervisor, co-employee or agent of the employer “who commits the act of retaliatory discharge.” (Emphasis added.) (Fellhauer, 190 Ill. App. 3d at 602.) Thus, the action may only be brought against a supervisor, co-employee or agent of the employer if that party discharges plaintiff in retaliation for plaintiff’s activities if the discharge violates a clear public policy mandate. Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 529, 519 N.E.2d 909, 911.

Plaintiff’s complaint alleges that she was employed by Cherry, not Wetzel. Wetzel, according to the allegations of count II, was a service or adjustment company which acted on Cherry’s behalf with respect to the processing of plaintiff’s worker’s compensation claim. There are no facts alleged which would indicate that Wetzel had the authority or the ability to discharge plaintiff from her position with Cherry. Accordingly, plaintiff cannot state a cause of action for retaliatory discharge against Wetzel, and count II of the complaint was correctly dismissed.

The judgment of the circuit court of Lake County is affirmed in part and reversed in part, and the cause is remanded for further proceedings.

Affirmed in part; reversed in part and remanded.

UNVERZAGT, P.J., and INGLIS, J., concur.