author: PRESIDING JUSTICE INGLIS

text:
    La GRANGE STATE BANK, as Trustee, et al., Plaintiffs-Appellants, v. THE VILLAGE OF GLEN ELLYN, Defendant-Appellee.
    Second District
    No. 2—91—0436
    Opinion filed April 22, 1992.

      Altheimer & Gray, of Chicago (Jack M. Siegel, of counsel), for appellants.
    Mark A. Balkin, of Ancel, Glink, Diamond & Cope, P.C., of Chicago (Ronald S. Cope, of counsel), and O’Reilly, Cunningham, Norton & Mancini, of Wheaton (James L. DeAno, of counsel), for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Plaintiffs, La Grange State Bank, as trustee for Galvin and Ruth Ann Kennedy, appeal after the trial court granted defendant’s, Village of Glen Ellyn’s (Village’s), motion for judgment at the close of plaintiffs’ case. Plaintiffs sought a declaratory judgment stating that a Village zoning ordinance invalidly prevented plaintiffs from building a single-family residence on their property. Plaintiffs also sought damages and attorney fees under the Civil Rights Act (42 U.S.C. §1983 (1988)). The issues on appeal are whether: (1) the zoning ordinance allows residential construction on plaintiffs’ lot; (2) plaintiffs were entitled to a variation of the zoning ordinance; (3) the application of the zoning ordinance violated section 1983 of the Civil Rights Act; (4) the trial court erred in granting judgment for the defendant; and (5) plaintiffs were entitled to a judgment pursuant to Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)) for defendant’s failure to comply with discovery requests. We affirm.

The subject property is located at 147 Exmoor Avenue in Glen Ellyn, Illinois, and is part of the Roosevelt Gardens subdivision, which was platted in 1921. The lot is 50 feet wide and has an area of 6,250 square feet. In September 1973, the lot in question was purchased by a joint venture that included Galvin Kennedy. Kennedy testified that he made the purchase but was reimbursed by other participants in the joint venture. The property was put into trust. At the time of this purchase, the applicable Glen Ellyn zoning ordinance allowed construction of single-family houses on lots not less than 8,712 square feet with a lot width not less than 66 feet. The zoning ordinance also stated in another section:

“F. CONTROL OVER USE
No building or premises shall hereafter be used or occupied, and no building or structure, or part thereof, shall be erected, raised, moved, reconstructed, extended, enlarged or altered, except in conformity with the regulations herein specified for the district in which it is located, except that in Residence Districts a lot in an ownership which was of record in the Recorder’s office of Du Page County at the time of adoption of this ordinance, even though not meeting the requirements of this ordinance as to area and width, may be used for single-family residence purposes, provided the use conforms with all other regulations of the district in which it is located.” (Emphasis added.) Glen Ellyn, Ill., Zoning Ordinance 1319 (1967).

Problems within the joint venture resulted in litigation beginning in 1977. In 1986, the joint venture was ordered by the court to sell the lot and another lot owned by the group at a sheriff’s sale and to divide equally the net proceeds between Galvin Kennedy and the other members, the Millers. Galvin testified that the lot in question was purchased at the sale by him through a “nominee.” The lot was purchased for $30,000, and Galvin Kennedy received $11,477.63 back pursuant to the court order. Later in 1986 the lot was acquired by Mrs. Kennedy and placed in the current land trust with the Kennedys as beneficiaries. Galvin testified that he never paid real estate taxes on the property until the lot was put into the present trust in 1986. The zoning ordinance in effect at this time also required residential lots to be at least 66 feet wide and 8,712 square feet in area to be buildable.

In the summer of 1988, the Kennedys sought a building permit to construct a single-family residence on the property. The plan called for a house of approximately 2,000 square feet. They were told by the Village that the plans did not comply with the zoning ordinance and that they would have to apply for a variation. The Kennedys attempted to purchase 16 additional feet of property from neighboring property owners to comply with the 66-foot width requirement in the zoning ordinance. The Kennedys’ attempts were unsuccessful.

On or about December 14, 1988, the Kennedys also applied for a variation. After a hearing before the Zoning Board of Appeals, the Board recommended that a variation be denied. On April 10, 1989, Village officials adopted Ordinance No. 3610 denying the variation. The plaintiffs then brought this action on July 11, 1989, seeking a declaratory judgment that the zoning ordinance had been invalidly applied to plaintiffs’ property and claiming that the Village’s decision constituted a taking without just compensation in violation of section 1983 of the Civil Rights Act.

On March 13, 1991, defendant filed a motion to continue the trial. According to defendant’s motion, plaintiffs propounded their first set of interrogatories to defendant on January 31, 1991, six weeks before trial. Plaintiffs sought, among other things, copies of all ordinances granting variations from specific sections of the zoning ordinance and related Zoning Board of Appeals reports from October 1974 to the present. Defendant stated that it needed more time to procure the information to satisfy the discovery request. The trial record reflects that plaintiffs objected to the continuance and defendant’s motion was denied.

The trial commenced on March 18, 1991. Plaintiffs made a motion for judgment at the beginning of the trial based on defendant’s alleged failure to comply with discovery. Defendant acknowledged in its answers to interrogatories that 49 variations had been granted by the Village for lots less than 66 feet wide and 8,712 square feet in area, 45 of those in the Roosevelt Gardens subdivision. However, defendant only produced 16 of those ordinances, and only 10 from the Roosevelt Gardens subdivision. The trial court denied plaintiffs’ motion for judgment and the trial proceeded.

At the close of plaintiffs’ evidence on March 21, defendant made a motion for judgment pursuant to section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1110), which the trial court granted. Plaintiffs filed a timely notice of appeal.

As a preliminary matter, we address the defendant’s motion to strike portions of plaintiffs’ reply brief. Defendant argues that Supreme Court Rule 341(e)(7) provides that the arguments in a brief shall contain citations to the pages relied on in the record. (134 Ill. 2d R. 341(eX7).) Indeed, Supreme Court Rule 341(eX6) (134 Ill. 2d R. 341(eX6)) provides that the statement of facts shall contain appropriate references to the record. Also, Supreme Court Rule 341(g) (134 Ill. 2d R. 341(g)) provides that the reply brief shall be confined strictly to replying to the appellee’s arguments. We find the “Introduction” section in plaintiffs’ reply brief to be an attempt to recite the facts of the case. We grant defendant’s motion to strike this material pursuant to Supreme Court Rules 341(e)(6) and 341(g). 134 Ill. 2d Rules 341(eX6), (g); Finance American Commercial Corp. v. Econo Coach, Inc. (1981), 95 Ill. App. 3d 185, 186.

Plaintiffs first contend that the zoning ordinance as written allows them to build on their 50-foot-wide lot. They cite a clause in the amendment to Zoning Ordinance No. 1319, dated March 31, 1967, which states that an exception to the ordinance is recognized for lots “in an ownership which was of record in the Recorder’s office of Du

Page County at the time of adoption of this ordinance, even though not meeting the requirements of this ordinance.” Plaintiffs argue that since their lot was recorded as part of the subdivision in 1967, they come within the stated exception. They cite Lubershane v. Village of Glencoe (1978), 63 Ill. App. 3d 874, in support of their argument.

Plaintiffs’ argument is flawed due to their interpretation of the clause in question. The clause of the zoning ordinance will be analyzed in accordance with the rules of statutory construction. (See In re Application of the County Collector (1989), 132 Ill. 2d 64, 72.) Courts must give the language its plain and ordinary meaning, primarily considering the language itself. (People v. Madison (1988), 121 Ill. 2d 195, 200-01.) A primary rule of construction is to ascertain and give effect to the intent of the drafter. (People v. Bryant (1989), 128 Ill. 2d 448, 454-55.) Intent which can be ascertained by the language must be given effect without resorting to other methods of construction. Bryant, 128 Ill. 2d at 455.

The clause in the zoning ordinance clearly states that the ownership was to be recorded at the time the ordinance was adopted. Plaintiffs’ interpretation of the clause fails to consider the plain meaning of the word “ownership.” Plaintiffs were not owners of the lot at the time the ordinance was adopted. Thus, they do not come within the language of the clause.

Plaintiffs assert that the clause has no useful purpose if construed to allow the exception only for the party who owned the property in 1961, the time the original ordinance was adopted. We believe that the clause is useful as presently interpreted. Among other reasons, the “grandfather” clause allows parties who owned the property at the time the ordinance was adopted to be automatically exempt from compliance without seeking a variation.

Also, plaintiffs’ reliance on Lubershane v. Village of Glencoe is misplaced because the exception to the zoning ordinance was different in that case. The exception included lots which had “been duly recorded in a plat or deed prior to April 9, 1931.” (Lubershane, 63 Ill. App. 3d at 877.) The exception in the case at bar included lots in an ownership that was recorded at the time the ordinance was adopted. Although the Village of Glencoe argued for the same interpretation of the clause in Lubershane that we found in the clause here, the court there found that the intended meaning of the municipal legislators was not evident in the clear meaning of the ordinance. (63 Ill. App. 3d at 878.) Here, the clear meaning of the ordinance is to exempt record owners of the lot at the time the ordinance was adopted.

Finally, we note that plaintiffs base their argument on the assumption that they have owned the lot since 1973. We find this notion to be tenuous. The record owner of the property in 1973 was the joint venture which included Kennedy and the Millers. Kennedy testified that he purchased the lot for the joint venture, but was subsequently reimbursed by the Millers. The property was then put into trust. It was not until the sheriff’s sale in 1986 that the property was put into trust with the Kennedys as beneficiaries. The Kennedys did not pay taxes on the property until 1986.

“The key elements of ownership are control and the right to enjoy the benefits of the property.” (People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 489.) Illinois law recognizes that the owner of the property may not be holding the title to the property. (Chicago Title, 75 Ill. 2d at 493.) The party who is in control and benefitting from the property is the party responsible for paying real estate taxes. Chicago Title, 75 Ill. 2d at 489-90.

We find little evidence to support plaintiffs’ contention that they have owned the property since 1973. Of greatest significance to this court is the fact that the Kennedys did not pay real estate taxes on the lot until 1986. No other evidence is presented to show that the Kennedys controlled or benefitted from the property from 1973 until the sheriff’s sale was ordered. It was not until 1986 that the lot was placed in the Kennedys’ name. Thus, we will analyze plaintiffs’ remaining contentions only as they relate to the Kennedys’ ownership of the lot after the sheriff’s sale in 1986.

Plaintiffs’ second contention is that they were entitled to a variation even if the ordinance prevented construction of a single-family residence on their lot. Plaintiffs argue that they satisfied the factors enumerated in Welch v. City of Evanston (1978), 65 Ill. App. 3d 249, for determining whether the presumptive validity of the ordinance has been overcome. The factors listed in Welch are:

“(1) The existing uses and zoning of nearby property;
(2) the extent to which property values are diminished by the particular zoning restrictions;
(3) the extent to which the destruction of plaintiff’s property values promotes the health, safety, morals or general welfare of the public;
(4) the relative gain to the public as compared to the hardships imposed on the individual owner;
(5) the suitability of the subject property for the zoned purposes; and
(6) the length of time the property has been vacant as zoned considered in the context of land development of the area in the vicinity of the subject property.” (Welch, 65 Ill. App. 3d at 252-53.)

The factor of primary importance is the first factor: the existing uses and zoning of nearby property. (Glenview State Bank v. Village of Deerfield (1991), 213 Ill. App. 3d 747, 760.) The party challenging the ordinance has the burden to show by clear and convincing evidence that the application of the ordinance is unreasonable, arbitrary, and bears no substantial relation to public health, safety or welfare. Cosmopolitan National Bank v. County of Cook (1984), 103 Ill. 2d 302, 310.

We have reviewed the record in accordance with the factors above and find that plaintiffs failed to show by clear and convincing evidence that the zoning ordinance was unreasonably and arbitrarily applied to them.

The existing uses and zoning of nearby property factor favors the Village. William Hansen, a building and zoning official for the Village, testified that he found no variations granted for 50-foot-wide lots in the cul-de-sac streets north of Fairview Avenue, the neighborhood in which the subject lot is located. He further testified that the neighborhood north of Fairview and the neighborhood south of Fair-view, the area in which many of plaintiffs’ comparison lots and houses are located, are significantly different. Generally, the houses south of Fairview are smaller houses on the smaller, 50-foot-wide lots, whereas the houses north of Fairview are larger homes on larger lots. The houses on plaintiffs’ block are built on lots with widths of 150, 110, 100, 80, 70 and 60 feet. The 60-foot-wide lot is a corner lot in which the house faces the cross-street, Fairview Avenue.

It is reasonable for the Village to use a street as a line of demarcation when applying a zoning ordinance. (See Homeowners Organized to Protect the Environment, Inc. v. First National Bank (1988), 167 Ill. App. 3d 714, 726.) The complexion of the neighborhoods north and south of Fairview Avenue appears to be significantly different. We find Fairview Avenue to be a reasonable line of demarcation and find the first factor, the factor of primary importance, to favor the Village.

The second factor, the extent to which property values are diminished by the zoning restriction, does not clearly favor the plaintiffs. They argue that the lot is worth $85,000 if buildable and is “totally unusable and worthless” if unbuildable. They also posit that it is unlikely that anyone would buy the property if it is unbuildable. However, we note that one of the Kennedys’ neighbors made an inquiry about purchasing the property in response to the Kennedys’ offer to buy eight feet of the neighbor’s property.

Also, there is no evidence that the value of the property has diminished from the time plaintiffs purchased the lot. “[I]t is not determinative that the property would be worth more if the zoning were reclassified because this would be true in virtually all reclassification cases.” (Glenview State Bank, 213 Ill. App. 3d at 761.) Although this is not a reclassification case, the principle stated is applicable here. We find it significant that plaintiffs have only approximately $18,500 invested in this property — the $30,000 paid through the nominee minus the $11,477 paid to Kennedy pursuant to the court order. No evidence has been presented to show that the property is now worth less than the $18,500 plaintiffs have invested in the property. As such, we cannot say that plaintiffs have proven the second factor.

The remaining factors were either briefly discussed with no citation to any authority or were completely ignored by plaintiffs. However, we choose to address the remaining points we deem of particular relevance. Plaintiffs argue that there is no gain to the public as compared to the hardship imposed on them. However, we believe that the public does benefit from the zoning ordinance. Minimum lot area limitations may be imposed by municipalities. (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 13—1.) Minimum lot area and width limitations help to sustain neighboring property values and promote the health and welfare of the public by preventing overcrowding and overuse of public services such as sewer and water. Also, plaintiffs have failed to show the hardship imposed on them. They have not proven that the lot is worth less than they paid for it if subject to the zoning ordinance. In fact, an expert testifying on plaintiffs’ behalf estimated that the value of the property if unbuildable is approximately 25% of the $85,000 estimate as buildable property. This figure is nearly equivalent to the amount plaintiffs have invested in the lot. As such, we find no hardship imposed on plaintiffs because of the zoning ordinance. We fail to see the loss of a projected substantial profit as a hardship.

The cases relied upon by plaintiffs to support their argument for a variation are all distinguishable. In Wolfe v. Village of Riverside (1965), 60 Ill. App. 2d 164, Ziman v. Village of Glencoe (1971), 1 Ill. App. 3d 912, and Makel v. Zoning Board of Appeals (1971), 2 Ill. App. 3d 360, the courts had to determine whether a side-yard zoning restriction was validly applied to the respective property owners. These cases are distinguishable on their facts because the lots were all build-able lots. The only question presented in each case was the side-yard requirements. Here, not only might plaintiffs be violating the side-yard requirements, but also they would be violating the area and width requirements which are the principal restrictions that are challenged.

The cases of Gibson v. Village of Wilmette (1981), 97 Ill. App. 3d 1033, and Welch (65 Ill. App. 3d 249) both concern the issue of whether a lot is buildable, but are distinguishable because the property owners in each case purchased the land before the zoning ordinance was passed. Here, plaintiffs voluntarily purchased the lot in 1986 when they knew or should have known that the zoning restriction was applicable to that lot. Welch is also distinguishable because neighbors on the same block had built homes on lots with the same width as the Welch lot. This is not the case here.

Finally, the case most closely related factually, Hyndiuk v. City of Chicago (1973), 14 Ill. App. 3d 1057, is distinguishable because houses on the same side of the street and the same block were built on lots as wide as the lot owned by Hyndiuk. Also, three of those houses were constructed after the new ordinance was enacted. (Hyndiuk, 14 Ill. App. 3d at 1060.) Here, no variations had been given by the Village to property owners on cul-de-sac streets, and no houses on plaintiffs’ street or block, which is north of Fairview Avenue, are built on 50-foot-wide lots.

We find that plaintiffs failed to overcome the presumed validity of the zoning ordinance by clear and convincing evidence. A majority of the factors enumerated in Welch favored the actions of the Village. As such, plaintiffs failed to show that they were entitled to a variation from the zoning ordinance.

Plaintiffs’ third contention is that the application of the zoning ordinance to their property violates section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1988)). Plaintiffs rely principally on Nollan v. California Coastal Comm’n (1987), 483 U.S. 825, 97 L. Ed. 2d 677, 107 S. Ct. 3141, and First English Evangelical Lutheran Church v. County of Los Angeles (1987), 482 U.S. 304, 96 L. Ed. 2d 250, 107 S. Ct. 2378, to support their argument that there is a taking even if the land use regulation is validly applied to the property. Plaintiffs also argue that the Village’s refusal to grant a variation deprived them of their property without due process of law.

We find plaintiffs’ taking argument to be tenuous. When plaintiffs purchased the lot in 1986, the zoning ordinance stated that no residential construction could occur on a lot less than 66 feet wide. Plaintiffs did not fall under the exception for lots in an ownership recorded at the time the ordinance was adopted. Defendant correctly states that both the Nollan and First English cases are distinguishable because the parties bringing the actions owned the property at the time the land use restriction was adopted.

Further, plaintiffs’ claim that the Village violated their due process rights is unsupported by the evidence. A due process violation occurs when the governmental body, in this case the Zoning Board of Appeals, acts in an arbitrary and capricious manner in denying a variation. (See Sternaman v. County of McHenry (N.D. Ill. 1978), 454 F. Supp. 240, 245.) The standard to determine whether the presumption of the zoning ordinance’s validity has been overcome is the same basic standard to determine whether a due process violation has occurred. (Sternaman, 454 F. Supp. at 250.) We have already shown that plaintiffs failed to overcome the presumed validity of the zoning ordinance. Thus, we find that plaintiffs did not prove their case for damages under section 1983 of the Civil Rights Act.

Plaintiffs next contend that the trial court erred in granting judgment for defendant at the close of their case. Plaintiffs cite National Bank v. County of Will (1987), 151 Ill. App. 3d 957, as authority for the test to determine if a plaintiff has proven a prima facie case. In a zoning action, the test is whether plaintiffs have overcome the presumption, by clear and convincing evidence, that the ordinance promotes the health, safety, comfort, and general welfare of the public. (County of Will, 151 Ill. App. 3d at 960.) The trial court’s decision to direct a judgment will not be reversed unless it was against the manifest weight of the evidence. County of Will, 151 Ill. App. 3d at 960.

The test to determine whether a directed judgment should be entered is the same test to determine whether plaintiffs have proven their entitlement to a variation. Having already held that plaintiffs failed to overcome the presumption of the zoning ordinance’s validity, we hold that the trial court did not err in directing judgment for defendant.

Plaintiffs’ final contention is that their motion for judgment should have been granted because defendant failed to comply with discovery requests pursuant to Supreme Court Rule 219 (134 Ill. 2d R. 219). Defendant claims that they did not have enough time to gather the extensive information plaintiffs requested. Also, defendant claims that plaintiffs were dilatory by waiting until six weeks before trial and 18 months after their complaint was filed to file their first set of interrogatories.

Supreme Court Rule 219(c) provides that if a party unreasonably refuses to comply with discovery, the court may, among other remedies, grant a judgment by default against the offending party. (134 Ill. 2d R. 219(c).) Imposing sanctions is a matter within the trial court’s discretion and should not be disturbed on review unless the court abused its discretion. (Kubian v. Labinsky (1988), 178 Ill. App. 3d 191, 196.) The purpose of the sanctions is to effect discovery, not to punish the uncooperative party. Kubian, 178 Ill. App. 3d at 196.

We find that the trial court did not abuse its discretion in refusing to grant judgment for plaintiffs. Among other requests, plaintiffs asked the Village to state the number of lots in the Roosevelt Gardens subdivision that are less than 66 feet wide and of an area less than 8,712 square feet for which building permits have been granted. This required the Village to search through 70 years of documents since the subdivision plat was filed in 1921. We also find it significant that plaintiffs objected to defendant’s motion to continue the trial so the Village could continue its search for information. Defendant displayed good faith in attempting to satisfy plaintiffs’ discovery requests before trial.

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

Affirmed.

GEIGER and NICKELS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    LISA CHESTER, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant (Capital Holding Co., d/b/a Worldwide Insurance Group, Defendant).
    Second District
    No. 2—91—0909
    Opinion filed April 22, 1992.

      Myron J. Hall, of Myron J. Hall, Ltd., of Waukegan, for appellant.

      Barry Stewart Silver, of Northbrook, and Robert P. Pisani, of McKenna, Storer, Rowe, White & Farrug, of Chicago, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, Lisa Chester, filed a two-count complaint in the circuit court of Lake County naming as defendants State Farm Mutual Automobile Insurance Company (State Farm) and Capital Holding Company, d/b/a Worldwide Insurance Group (World-wide), and seeking a declaration that State Farm was a primary insurer and Worldwide an excess insurer as to the underinsured motorist provisions of their respective policies. After considering the arguments of the parties, the trial court found State Farm to be the primary insurer, Worldwide to be the excess insurer, State Farm to be liable to the plaintiff in the amount of $100,000 and Worldwide to be liable, after deduction of a $25,000 setoff, in the amount of $25,000. State Farm appeals, and Worldwide is not a party to this appeal.

State Farm raises the following issues on appeal: (1) whether the trial court erred in awarding a monetary judgment to the plaintiff where the plaintiff did not specifically ask for any money judgment in her pleadings; (2) whether the trial court erred in finding State Farm to be the primary insurer and Worldwide to be the excess insurer; and (3) whether the trial court erred in not applying a setoff in favor of State Farm based upon payments received by the plaintiff under a bodily injury liability policy.

The following facts are relevant to our disposition of this appeal. The plaintiff’s complaint alleges that on December 23, 1988, while she was a passenger in an automobile owned and operated by Jon Hiltibran, Hiltibran’s vehicle was involved in a collision with an automobile driven by John Lopez. The plaintiff suffered serious and permanent head and facial injuries and settled against John Lopez in the amount of $25,000. The total amount of damages allegedly sustained by the plaintiff are “IN EXCESS OF FORTY THOUSAND DOLLARS ($40,000) and will continue to rise.” It is also alleged that the value of the plaintiff’s claim exceeds the total limits of underinsured motorist coverage of both automobile liability insurance policies.

The complaint further alleges that State Farm had issued an automobile liability insurance policy to the plaintiff and Reed Chester which provided underinsured motorist coverage in the amount of $100,000 per person and $300,000 per accident. Worldwide also issued a policy of automobile liability insurance to Reed Chester which provided underinsured motorist coverage in the amount of $50,000 per person and $100,000 per accident. Count I asks the court to declare State Farm to be the primary insurer, and count II asks the court to declare Worldwide to be the excess insurer.

The prayers for relief in both counts ask the court to determine and adjudicate the liabilities and rights of the parties under the insurance policies. Each prayer also asks for a declaratory judgment in accordance with section 2 — 701 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 701) and for “such other and further relief as the court may deem just and proper.” Neither expressly asks for a money judgment against either defendant.

Attached to the complaint and identified as exhibit A is a copy of an insurance policy issued by State Farm and naming the plaintiff as an insured. The first page of that policy refers to various endorsements, one of which is entitled “6998U Amendatory Endorsement.” A copy of that endorsement is included with exhibit A and contains a provision captioned “If There Is Other Underinsured Motor Vehicle Coverage.” That provision states in pertinent part:

“2. If the insured sustains bodily injury while occupying a vehicle which is not your car, coverage under this policy applies:
a. as excess to any underinsured motorist coverage which applies to the vehicle as primary coverage, but
b. only in the amount by which it exceeds the primary coverage.”

Attached as exhibit B to the complaint is an insurance policy issued by Worldwide and naming Reed Chester as the insured. That policy appears complete except pages 13 and 14. Under “PART C-UNINSURED MOTORISTS COVERAGE” there is a subsection entitled “OTHER INSURANCE.” This subsection provides:

“If there is other applicable similar insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible insurance.”

State Farm filed an answer in which it admitted that it is obligated to pay a pro rata share of the plaintiff’s claim but only after a setoff for payments made under Lopez’s policy. Worldwide filed an answer and also filed an affirmative defense wherein it claimed it was entitled to a setoff for the entire amount paid to the plaintiff on behalf of Lopez.

After considering the written briefs submitted by the parties, the court entered its written order on July 11, 1991. The court found that State Farm’s policy is ambiguous, that it is the primary insurer, that it is liable to the plaintiff in the amount of $100,000, and that it is not entitled to any setoff. The court further ruled that Worldwide is an excess insurer and that it is liable in the amount of $25,000 after deducting a $25,000 setoff from its $50,000 policy limit.

On August 9, 1991, State Farm filed its notice of appeal. On August 26, 1991, State Farm filed its motion seeking an order approving its insurance policy as bond and staying enforcement of the judgment. On that same date, the court entered a written order denying State Farm’s motion and also denying the “plaintiff’s motion for sanctions.” The record does not indicate whether the plaintiff made an oral or written motion for sanctions or when such motion was made.

We first address the issue of whether the trial court properly entered a judgment awarding the plaintiff monetary damages. In that regard, State Farm contends that the plaintiff was not entitled to a money judgment because she did not ask for one in her pleadings and because its insurance policy required arbitration to determine the exact amount of underinsured coverage available to the plaintiff.

Section 2 — 701 of the Code of Civil Procedure provides, in pertinent part, that a “court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 701(a).) It is within the power of the trial court, in rendering declaratory relief, to grant the relief necessary and proper to the determination of the controversy before it. (Vinyard v. Vaught (1985), 138 Ill. App. 3d 641, 645-46.) Such relief may include the entry of a money judgment. (Burgard v. Mascoutah Lumber Co. (1955), 6 Ill. App. 2d 210, 218-19.) On the other hand, an issue not presented by the pleadings and not fully tried cannot be decided in a declaratory judgment action. (20 J. Appleman, Insurance Law & Practice §11379, at 483-84 (1980).) Issues for which no relief has been sought will generally not be considered. 20 J. Appleman, Insurance Law & Practice §11379, at 484 (1980).

In this case, the only allegation pertaining to the precise amount of the plaintiff’s damages states that the “total amount of damages by [the plaintiff] thus far are in excess of FORTY THOUSAND DOLLARS ($40,000.00) and will continue to rise.” The complaint also alleges that the value of the plaintiff’s claim is in excess of the total limits of liability for underinsured motorist coverage trader both of the defendants’ liability insurance policies. There are no other allegations pertaining to the extent of damages suffered by the plaintiff. Likewise, there is absolutely no evidence of the precise damages the plaintiff incurred as a result of the automobile accident. Any attempt at ascertaining the plaintiff’s damages would be nothing more than mere speculation.

Nevertheless, the trial court ruled that State Farm was “liable to plaintiff in the sum of $100,000.00” and that Worldwide was liable in the sum of $25,000.00 after taking a $25,000.00 set-off.” While the trial court clearly had the authority to declare the potential extent of State Farm’s coverage liability under its insurance policy, it lacked any basis to find the liability to be $100,000. There was simply no evidence establishing that the plaintiff suffered damages to the extent that State Farm would necessarily be liable for the entire amount of its coverage potential. While there may be certain circumstances in which it would be appropriate for the trial court to award money damages as part of a declaratory judgment, it is not proper where there is no evidence to substantiate what the precise extent of the money judgment should be. We must reverse, therefore, the order of the trial court to the extent it finds State Farm liable to the plaintiff for $100,000. That does not dispose of this case, however, as we must determine whether the trial court abused its discretion in ruling that State Farm had potential coverage of $100,000 as the primary insurer and was not entitled to a setoff.

As to the question of whether State Farm had potential coverage of $100,000 as the primary insurer, State Farm argues that the relevant provisions of its policy are not ambiguous. It further maintains that the policy expressly states it shall be excess to any primary coverage and that there is no language that can be construed as stating that it applies as primary coverage. The plaintiff responds that the State Farm policy is ambiguous and that State Farm is the only insurer that could possibly be considered primary under the circumstances.

Generally, if a provision of an insurance contract can reasonably be said to be ambiguous it will be construed in favor of the insured and against the insurer. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 4.) If the provisions of the insurance policy are clear and unambiguous, however, there is no need for construction, and the provisions will be applied as written. (Schnackenberg, 88 Ill. 2d at 4-5.) All of the provisions of an insurance contract should be read together to interpret it and to determine whether an ambiguity exists. (Schnackenberg, 88 Ill. 2d at 5.) The words in the policy should be given their plain and ordinary meaning, and the court should not search for an ambiguity where none exists. {Schnackenberg, 88 111. 2d at 5.) The construction of an insurance contract and the determination of the rights and obligations of the parties to the contract are questions of law, the determination of which rests exclusively with the court. (Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 58.) Such a determination is subject to our review de novo. Monsalud v. State Farm Mutual Automobile Insurance Co. (1991), 210 Ill. App. 3d 102,106.

Whether an insurance policy is primary or excess depends on the terms of the policy. (Putzbach v. Allstate Insurance Co. (1986), 143 Ill. App. 3d 1077, 1082.) In this regard, State Farm points to that part of its policy which provides that the policy is “excess to any underinsured motor vehicle coverage which applies to the vehicle as primary coverage.” (Emphasis added.) It is State Farm’s argument that this language is unambiguous, and therefore, because Worldwide’s policy provides underinsured coverage to the plaintiff, State Farm’s policy is excess rather than primary.

We agree with State Farm that this provision is unambiguous. It clearly renders the State Farm policy as excess coverage to any underinsured coverage applicable to the “vehicle” as primary coverage. The “vehicle” referred to is a vehicle occupied by the insured which is not the insured’s car. In this case, the “vehicle” is the one owned by Jon Hiltibran in which the plaintiff was a passenger at the time she received her injuries. Thus, the only way the State Farm policy could be excess coverage would be if there was underinsured motor vehicle coverage applicable to Jon Hiltibran’s vehicle. Moreover, under this clause the State Farm policy would only be excess to the primary underinsured coverage on Hiltibran’s vehicle and not to any other insurance coverage applicable to the plaintiff. Because there is no evidence in this record to show whether there was underinsured coverage applicable to Hiltibran’s vehicle, there is no basis to conclude that State Farm’s policy provided excess coverage. Thus, State Farm’s underinsured coverage was primary.

On the other hand, the “other insurance” portion of the Worldwide policy provides that “any insurance [Worldwide] provide[s] with respect to a vehicle you do not own shall be excess over any other collectible insurance.” The plaintiff did not own the vehicle in which she was riding when she was injured. Furthermore, State Farm, as primary insurer, was a source of collectible insurance. Consequently, the Worldwide policy was clearly excess under these circumstances. We therefore affirm the trial court’s ruling that State Farm was the primary insurer and Worldwide the excess insurer.

Lastly, we address the issue of whether the trial court properly applied the $25,000 setoff only to the excess coverage of Worldwide. Our research does not indicate any Illinois case directly addressing this issue. Nevertheless, we are able to resolve the issue based on our reading of section 143a — 2(3) of the Illinois Insurance Code (Code) (Ill. Rev. Stat. 1989, ch. 73, par. 755a — 2(3)).

When an insurance policy is issued, applicable statutory provisions in effect at the time are treated as part of the policy. (Pick v. Associated Indemnity Corp. (1989), 191 Ill. App. 3d 121, 125; see American Family Mutual Insurance Co. v. Baaske (1991), 213 Ill. App. 3d 683, 688.) Section 143a — 2(3) of the Code, in effect at the time both policies were issued, provides in pertinent part:

“(3) *** For the purpose of this Act the term ‘underinsured motor vehicle’ means a motor vehicle whose ownership, maintenance or use has resulted in bodily injury or death of the insured, as defined in the policy, and for which the sum of the limits of liability under all bodily injury liability insurance policies or under bonds or other security required to be maintained under Illinois law applicable to the driver or to the person or organization legally responsible for such vehicle and applicable to the vehicle, is less than the limits for underinsured coverage provided the insured as defined in the policy at the time of the accident. The limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recovered under the applicable bodily injury insurance policies, bonds or other security maintained on the underinsured motor vehicle.” Ill. Rev. Stat. 1989, ch. 73, par. 755a-2(3).

Pursuant to section 143a — 2(3), there can be no underinsured motorist coverage, notwithstanding the stated policy limit, if the insured recovers under a bodily injury liability insurance policy in an amount equal to or greater than the stated underinsured policy limit. More importantly, the particular limits of any underinsured motorist coverage are established by the difference between the amount recovered by the plaintiff from a bodily injury liability insurance policy and the stated limit for the underinsured motorist coverage. Ill. Rev. Stat. 1989, ch. 73, par. 755a — 2(3); Rutter v. Horace Mann Insurance Co. (1989), 190 Ill. App. 3d 467, 481-82.

Thus, in the present case, the limits of liability for the underinsured motorist coverage provided in State Farm’s policy would be the difference between the stated policy limit of $100,000 and the $25,000 the plaintiff recovered from Lopez’s bodily injury liability policy. Under these circumstances, the limit of the underinsured motorist coverage under State Farm’s policy is $75,000.

Such a result does not work an injustice against the plaintiff as she is simply receiving the benefit of the bargain in light of the statutes that existed at the time the policies were entered into. The limit of underinsured motorist coverage in a given policy of insurance, by its statutory nature, can only be defined at the time a particular insured recovers under an applicable bodily injury policy. In some instances the insured may recover nearly the entire amount of the underinsured coverage, and in other circumstances she will recover nothing. If a particular insured desires to create a greater likelihood of recovering under an underinsured motorist provision, she need only pay an increased premium and obtain a higher limit of coverage. Accordingly, we hold the trial court erred in failing to reduce State Farm’s coverage limit under the underinsured motorist provision by the $25,000 plaintiff received from Lopez’s bodily injury insurance policy.

For the foregoing reasons, we reverse that part of the order of the circuit court of Lake County finding State Farm liable in the amount of $100,000 and ruling that the limit of coverage under the underinsured motorist provision of the State Farm policy was $100,000. We affirm that part of the order finding State Farm to be the primary insurer.

Affirmed in part; reversed in part.

WOODWARD and DOYLE, JJ., concur.


author: JUSTICE GEIGER

text:
    THE CITY OF DE KALB, Plaintiff-Appellant, v. DAVID B. WHITE, Defendant-Appellee.
    Second District
    No. 2—91—0358
    Opinion filed April 27, 1992.

      Ronald G. Matekaitis, of De Kalb, for appellant.
    No brief filed for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiff, the City of De Kalb, appeals from a judgment of the circuit court of De Kalb County. It found the defendant, David B. White, guilty of violating a De Kalb municipal speeding ordinance (the ordinance) (De Kalb, Ill., Municipal Code, ch. 51, par. 51.02, as amended by De Kalb, Ill., Ordinance 90 — 65 (June 11, 1990)), but declared the minimum fine provision of the ordinance (De Kalb, Ill., Municipal Code, ch. 51, par. 51.025, as amended by De Kalb, Ill., Ordinance 90 — 65 (June 11, 1990)) to be both (1) in violation of the statewide statutory scheme for sentencing traffic violators in Illinois, as well as (2) a denial of the defendant’s equal protection and due process rights under the Illinois and United States Constitutions. While no appellee’s brief has been filed on this appeal, we reach the merits pursuant to the guidelines expressed in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128,133.

On January 20, 1991, David B. White was issued a citation by De Kalb patrolman Rodney Long for driving 43 miles per hour in a posted 30-miles-per-hour zone within the City of De Kalb. On February 8, 1991, the defendant appeared before the circuit court and entered a plea of not guilty. On March 5, after a bench trial, the defendant was found guilty of violating the ordinance, and the city requested the imposition of the minimum fine allowable under the ordinance plus court costs totaling $68.

The trial court set the total fine and costs at $58 and held the ordinance to be invalid. The trial court enunciated three reasons for its holding: (1) the ordinance violates the statutory scheme that the State intended to apply to all traffic offenses; (2) the home rule powers of the City of De Kalb cannot justify allowing De Kalb’s officers the discretion to cite a violator under the municipal ordinance or the State code; and (3) the ordinance violates the due process and equal protection clauses of the Illinois and United States Constitutions because a defendant who is arrested outside the city limits of De Kalb for the same violation would not be subjected to the city’s higher mandatory minimum fine.

Pursuant to article VII, section 6(a), of the Illinois Constitution (Ill. Const. 1970, art. VII, §6(a)), a home rule municipality may exercise any power or may legislate to protect the public health, safety and welfare of its community. (See also Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 208.) Furthermore, as a home rule unit, De Kalb may exercise power concurrently with the State “to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State’s exercise to be exclusive.” (Ill. Const. 1970, art. VII, §6(i).) However, the Illinois Vehicle Code shall be applicable and uniform throughout the State, and no municipality may enact or enforce any ordinance in conflict with its provisions. (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 207.) In determining if there is a conflict, the court shall look to whether the municipal ordinance infringes upon the spirit of the State law or is repugnant to the policy of the State. Village of Mundelein v. Hartnett (1983), 117 Ill. App. 3d 1011,1015.

The issue in this case is whether the minimum fine provision of the De Kalb ordinance conflicts with the Illinois Vehicle Code. Violation of the State speed regulation results in a penalty at the level of a petty offense; the fine imposed is within the discretion of the court, but may not exceed $500. (Ill. Rev. Stat. 1989, ch. 95^2, pars. 6— 601(b), 11 — 202.) The ordinance created by De Kalb, pursuant to its home rule powers, establishes a minimum fine of $34 to a maximum fine of $500 plus court costs. (De Kalb, Ill., Municipal Code, ch. 51, par. 51.025, as amended by De Kalb, Ill., Ordinance 90 — 65 (June 11, 1990).) A judicial decision disregarding the minimum sentence set by the State legislature in the Vehicle Code is an abuse of discretion and, therefore, reversible error. (See People v. Ullrich (1990), 135 Ill. 2d 477, 488.) This principle also applies to municipal ordinance minimum penalty provisions. City of Naperville v. Bernard (1985), 139 Ill. App. 3d 784, 785-86.

There is no requirement that the De Kalb ordinance by which De Kalb exercises concurrent jurisdiction with the State be identical to the State rule upon which it is modeled. (See Village of Mundelein, 117 Ill. App. 3d at 1015.) Nor are we aware of any statutory proscription of a minimum fine. The ordinance does not infringe upon the spirit of the State law, nor is it repugnant to the policy of the State. (117 Ill. App. 3d at 1015.) Therefore, we find that the ordinance does not conflict with the statutory scheme for sentencing traffic violators.

We do not find that the ordinance violates the equal protection or due process clauses of the Illinois or United States Constitutions. Additionally, we find no impropriety in the discretion of De Kalb’s police officers to cite a defendant under the State statute or under its ordinance because the final discretion properly rests with the City attorney. See Village of Wilmette v. Michels (1985), 137 Ill. App. 3d 1001, 1003.

For the above reasons, we reverse and remand this case with instructions to recalculate the fine and costs assessed against the defendant pursuant to the minimum fine provisions of the applicable De Kalb municipal ordinance. See Ullrich, 135 Ill. 2d at 488.

Reversed and remanded with instructions.

BOWMAN and WOODWARD, JJ., concur.


author: JUSTICE BOWMAN

text:
    KARL F. NAGEL, Petitioner-Appellee, v. LINDA C. KINDY, Respondent-Appellant (Barry MacLean et al., Respondents).
    Second District
    No. 2—91—1001
    Opinion filed April 27, 1992.

      Edward J. FitzSimons, of Chicago, and Charles W. Smith, of Rosing, Applehans & Smith, Ltd., of Waukegan, for appellant.
    Van J. Herrero, Assistant State’s Attorney, of Waukegan, and Joseph E. Doyle, Jeanine M. Jiganti, and Robert L. Byman, all of Jenner & Block, of Chicago, for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Respondent, Linda C. Kindy (Kindy), appeals from an order of the circuit court of Lake County which directed the Lake County clerk to certify petitioner, Karl F. Nagel (Nagel), as the winner of the election for the office of trustee for the Village of Mettawa (Village) for a term of four years. The sole issue raised on appeal is whether the circuit court correctly found invalid seven write-in ballots which were allegedly cast for Kindy.

An election was held on April 2, 1991, for the office of trustee of the Village of Mettawa. Three full four-year terms and one unexpired two-year term were to be filled. The printed ballot listed three candidates, Raymond G. Jordan, Barry L. MacLean and Karl F. Nagel, for the three-four-year terms. Raymond W. Welch was the only candidate listed for the unexpired two-year term.

A write-in campaign for the office of Village trustee was pursued by Ronald A. Pink (Pink) and Kindy. On March 8, 1991, Kindy filed a declaration of intent to be a write-in candidate, declaring her intention to be a candidate for the office of trustee for a full four-year term. Kindy was included on a list of declared write-in candidates which was sent to all election judges. This list stated that Kindy was a valid write-in candidate for the four-year Village trustee position and that Pink was a valid write-in candidate for the two-year Village trustee position. No other valid write-in candidates for these positions were listed.

Following the election, 71 write-in ballots were found valid and were counted for Kindy. Seventy votes were counted for Nagel. Kindy therefore won one of the four-year terms. Jordan and MacLean were the winners of the other two four-year terms, and Pink won the unexpired two-year term.

On April 26, 1991, Nagel filed a petition contesting the election for Village trustee. Kindy, MacLean, Jordan, Pink and the county clerk of Lake County, Linda Ianuzi Hess, were all named as respondents in the petition. Only Kindy, however, is a party to this appeal. Nagel alleged that seven of the write-in ballots counted for Kindy in precincts 216 and 159 were defective and void. He requested a recount of the votes cast in precincts 216 and 159 and an order declaring him the winner of the election.

Kindy filed a response to the petition on May 23, 1991, in which she denied that the challenged write-in ballots were defective and void. On June 24, 1991, Nagel filed an amended petition stating that a typographical error was made and that references to precinct 216 should have been references to precinct 219. He also amended the petition to allege that eight write-in ballots counted for Kindy in precincts 219,159 and 160 were defective and void.

Kindy filed a response to the amended petition. She alleged in her response that four write-in ballots found invalid by the election judges were improperly invalidated as each of the ballots expressed the voter’s clear intention to vote for Kindy. Kindy attached an “alternative cross complaint” (counterpetition) to her response. The counterpetition listed the four ballots that had been found invalid by the election judges but which she alleged should have been counted for her.

On July 8, 1991, a hearing was held regarding Nagel’s petition and Kindy’s counterpetition. Write-in ballots cast in the election and other exhibits were admitted into evidence. Kindy testified regarding her intensive campaign as a write-in candidate for a full four-year term as Village trustee. Memoranda of law were filed by the parties. Also, on July 8, 1991, Nagel filed a petition to strike Kindy’s counter-petition, arguing that the counterpetition was time barred and that Kindy had made a judicial admission in her first response that she had, at most, 71 votes.

On July 9, 1991, the court entered an order striking Kindy’s counterpetition as time barred. The court later issued a memorandum order on August 12, 1991. The court found that, of the eight write-in ballots challenged by Nagel, four were legally valid and four were legally defective and void. The court also found that the four ballots which Kindy claimed should have been counted were properly invalidated as legally defective. The court thus found that 70 valid votes were cast for Nagel and 67 valid votes were cast for Kindy. The order stated that “the County Clerk of the County of Lake is directed to certify Karl F. Nagel as the winner of the Election for Trustee in and for the Village of Mettawa, Lake County, Illinois, for a term of four (4) years and to issue to Karl F. Nagel a Certificate of Election to said Office.”

Both Pink and Kindy filed post-trial motions. A memorandum of law was filed in support of the motions, and a hearing was held on August 16, 1991. In response to argument by Kindy’s counsel and Pink’s counsel that the eight ballots found invalid should have been counted for Kindy because the office Kindy was seeking was stated on her declaration of intent, the court noted that “the declaration of intention does not convey the intent of the voter. It merely conveys the intent of the candidate.” The trial judge specifically stated that, although he had ruled on the counterpetition, he did consider the four ballots listed in Kindy’s counterpetition. The court then denied the post-trial motions. This timely appeal followed.

Kindy argues on appeal that the trial court’s ruling should be reversed. She contends that the court erred in finding invalid three of the four ballots which were found valid and were counted for her by the election judges and in finding invalid the four ballots challenged in her counterpetition. Seven write-in ballots are therefore in issue in this appeal. Kindy raises various arguments regarding the validity of the ballots. We will consider each argument in our discussion of the ballots in issue.

As a preliminary matter, we must address Nagel’s contention that the four ballots found invalid by the election judges and challenged in Kindy’s counterpetition should not be considered in this appeal. Nagel notes that Kindy’s counterpetition was filed more than 30 days after the election and that the trial court ruled that the counter-petition was time barred. Nagel asserts that this ruling was proper because section 23 — 20 of the Election Code (Code) provides that all election contests must be filed within 30 days of the date of the declaration of the winner of the election. (Ill. Rev. Stat. 1989, ch. 46, par. 23 — 20.) Citing Boyer v. Geisen (1978), 66 Ill. App. 3d 1044, Nagel contends that the 30-day limit applies to counterclaims as well.

Boyer is distinguishable, however, for a very obvious reason. In Boyer, there were eight candidates for three open township trustee positions. Within 30 days after three of the candidates were declared winners of the election, one of the unsuccessful candidates filed a complaint to contest the election. He later filed a motion to dismiss voluntarily his complaint which was allowed by the trial court. (Boyer, 66 Ill. App. 3d at 1045.) Subsequently, the four other unsuccessful candidates filed a motion to vacate the dismissal order and a motion for leave to file a counterclaim. The trial court allowed the motions but later dismissed the counterclaim as untimely. (Boyer, 66 Ill. App. 3d at 1045-46.) The appellate court agreed that the counterclaim was not timely as it was not filed within the time specified in section 23— 20 of the Code. Boyer, 66 Ill. App. 3d at 1048.

The obvious difference between Boyer and this cause is that there is no dispute that Kindy was declared the winner of the election. Unlike the unsuccessful candidates in Boyer, she had no reason to contest the election within 30 days. We note that in Pullen v. Mulligan (1990), 138 Ill. 2d 21, the court considered the counterclaim filed by Mulligan, the declared winner of the primary election, in response to the timely petition of election contest filed by her opponent. (See Pullen, 138 Ill. 2d at 31.) Nagel has not raised on appeal any other basis for disregarding the four ballots listed in Kindy’s counterpetition. We therefore consider as properly before us the question of the validity of these ballots.

Some general statements of the law recently set out by our supreme court in Pullen will be helpful to our determination of this cause. The court in Pullen stated:

“The purpose of our election laws is to obtain a correct expression of the intent of the voters. Our courts have repeatedly held that, where the intention of the voter can be ascertained with reasonable certainty from his ballot, that intention will be given effect even though the ballot is not strictly in conformity with the law.” (Pullen, 138 Ill. 2d at 79.)

In an election contest, therefore, a trial court should attempt to ascertain the intention of the voter (see Pullen, 138 Ill. 2d at 86; Fitzpatrick v. Carr (1991), 220 Ill. App. 3d 79, 84) and “should not, under the appearance of enforcing the election laws, defeat the very object which those laws are intended to achieve” (Pullen, 138 Ill. 2d at 80).

We now turn to a consideration of the seven ballots Kindy claims should have been counted for her. We will consider similar ballots together. The ballots used in this election consisted of a small cardboard sheet numbered 1 through 228 which could be punched to vote for candidates listed on the printed ballot. Attached to this sheet was another cardboard sheet of the same size which stated at the top “THIS SPACE IS FOR WRITE-IN VOTES.” Seven of these “write-in” ballots which have been detached from the other portion of the ballot are at issue in this cause. The ballot numbers referred to consist of the precinct number and an identifying number placed on each write-in ballot by the election judges. Ballot No. 160 — 73 and ballot No. 160— 75 both state:

“(X) Ronald A. Pink (X) Linda C. Kindy”

Ballot No. 219 — 261 states:

“Village of Mettawa Trustee
(X) Ronald A. Pink Village of Mettawa Trustee
(X) Linda C. Kindy”

Kindy argues that these three ballots should have been counted for her based upon her interpretation of two sections of the Code. Section 17 — 11 provides that a voter “shall prepare his ballot by making in the appropriate margin or place a cross (X) opposite the name of the candidate of his choice for each office to be filled, or by writing in the name of the candidate of his choice in a blank space on said ticket, making a cross (X) opposite thereto.” (Ill. Rev. Stat. 1989, ch. 46, par. 17 — 11.) Section 17 — 16.1 of the Code was amended, effective January 1, 1986, to provide that write-in votes shall be counted only for a person who has filed a timely, notarized declaration of intent to be a write-in candidate which specifies “the office for which the person seeks election.” (Ill. Rev. Stat. 1989, ch. 46, par. 17 — 16.1.) Kindy contends that, based upon the Code, there are only three mandatory requirements for a valid write-in vote: “(1) the name, (2) the ‘X’, and (3) since 1986 a valid Declaration of Intent.”

Kindy does acknowledge that the supreme court addressed a very similar situation in Page v. Kuykendall (1896), 161 Ill. 319. In Page, an election was held for the purpose of electing two school directors, one for a full three-year term and one for a one-year term to fill a vacancy. (Page, 161 Ill. at 320.) The court found that 31 ballots which just listed the names of two write-in candidates were not valid. The court determined that the ballot had to state which of the two persons the elector intended to vote for for the long term and which for the short term. (Page, 161 Ill. at 323.) The court stated that “when the ballot wholly fails to express the choice it is void and cannot be counted.” Page, 161 Ill. at 323.

Kindy has pointed out that the language of the statute at issue in Page was different from that of the statute at issue here. The statute in effect when Page was decided specially required a designation of the office on the ballot whether the name was written in or printed. {Page, 161 111. at 323-24.) That portion of section 17 — 11 of the Code regarding write-in ballots, however, refers only to the name of the candidate and a cross (X). The supreme court in Gulino v. Cerny (1958), 13 111. 2d 244, nevertheless cited the language of section 17— 11 of the Code and stated:

“Where the name of the candidate is written in on the ballot, the title of the office must be clearly designated, if there is more than one office on the ballot.” (Gulino, 13 Ill. 2d at 247, citing Page, 161 Ill. 319, and Kreitz v. Behrensmeyer (1888), 125 Ill. 141,192.)

Therefore, the court in Gulino recognized that, under the current statute, a write-in ballot must include a designation of the office or term voted for in order to be valid if more than one office or term is on the ballot.

The court in Gulino, however, determined that certain write-in ballots should have been counted. On those ballots, the name of the write-in candidate was written in on a printed line to the right of, and directly opposite and across from, the name of the candidate for the office which was printed on the ballot. (Gulino, 13 Ill. 2d at 247.) The court concluded that the office voted for could therefore be ascertained from the ballot. Gulino, 13 Ill. 2d at 247.

It cannot, however, be ascertained from the three ballots under discussion here whether the voters intended to vote for Kindy for the two-year term or for a four-year term. Kindy argues, however, that the 1986 amendment to section 17 — 16.1 which required the filing of a declaration of intent eliminated the requirement that voters designate the office or term voted for on the ballot. She contends that the intention of the voters to vote for her for the four-year term can be ascertained from the declaration of intent she filed.

We cannot agree that the statute relied upon has changed the requirement that the office or term voted for must be indicated, in some way, on the write-in ballot. We agree with the trial court that it is the intention of the voter which must be ascertained, not the intention of the candidate. The law is clear that, while the circumstances attending an election may be considered in ascertaining a voter’s intention, that intention must be ascertained from his or her ballot. (Gulino, 13 Ill. 2d at 247; see also Pullen, 138 Ill. 2d at 79.) We also find persuasive Nagel’s argument that the amendment of section 17 — 16.1 of the Code has merely added another requirement for a write-in candidate and was not intended to eliminate any previous requirements. Therefore, ballot No. 160 — 73, ballot No. 160— 75 and ballot No. 219 — 261 were properly found invalid by the trial court.

We next consider ballot No. 159 — 154. This ballot states:

“Village of Mettawa Trustee
2 year Unexpired Term (X) Ronald A. Pink Village of Mettawa Trustee
Full 2 year Term (X) Linda C. Kindy”

Kindy argues that this ballot should have been counted because the voter’s intention to vote for her for a full term as trustee is apparent from the ballot. She contends that the voter’s mistake regarding the length of a full term should not cause the ballot to be considered invalid. Citing Gulino (13 Ill. 2d at 248), she further asserts that a voter should not be deprived of his right to vote through inadvertence, mistake or ignorance where an honest intention may be ascertained from the ballot.

We agree. The voter’s intention to vote for Kindy for one of the full terms available is apparent from the ballot. This vote should have been counted for Kindy.

The final three ballots in issue are ballot No. 159 — 122, ballot No. 159 — 124 and ballot No. 219 — 260. Ballot No. 159 — 122 states:

“FOR TRUSTEE 4 Year Term (X) Kindy (X) Pink”

Ballot No. 159 — 124 states:

“Village of Mettawa Trustee 4 Year Term (X) Pink (X) Kindy”

And, ballot No. 219 — 260 states:

“(X) Ronald A. Pink (X) Linda C. Kindy Village/Mettawa Trustees Full 4 years”

The word “invalid” was written across Pink’s name by an election judge on this ballot.

Kindy argues that these three ballots should have been counted because they clearly indicate the voters’ intention to vote for Kindy for the full four-year term. She contends that, even if the ballots are invalid votes for Pink, they are valid votes for her. She further notes that, even if the voter had intended to vote for both Pink and Kindy for full terms, three full four-year terms were available. Therefore, these ballots did not create an invalid overvote.

Citing Smith v. Reid (1906), 223 Ill. 493, Nagel contends that these ballots are invalid because, when a voter votes for more than one candidate for one position, the votes cannot be counted for either. In Smith, however, a ballot was found invalid where the voter voted for two candidates for one available position. (Smith, 223 Ill. at 496.) Nagel nevertheless contends that these ballots created an overvote because the voters also cast votes for MacLean and Jordan for the four-year position. He concedes that it is “difficult to discern” this fact from the record. In fact, as the ballots in question are not attached to the “punch” portion of the ballot, it is impossible to discern from the record whether these voters cast other votes for the four-year term positions.

Therefore, as the voters’ intention to vote for Kindy for one of the available four-year terms as trustee can be ascertained from these three ballots, and, as the record does not show that an overvote occurred, the three ballots should have been counted for Kindy.

We have determined that four of the write-in ballots at issue in this appeal should have been counted for Kindy. Kindy therefore received 71 votes for the office of Village trustee. As Nagel received 70 votes, Kindy was the winner of the election. Accordingly, we reverse the judgment of the trial court regarding four of the write-in ballots and remand this cause with instructions to the trial court to declare Kindy elected as trustee of the Village of Mettawa for a full four-year term and to order the cancellation of Nagel’s certificate of election.

Reversed and remanded with directions.

DUNN and UNVERZAGT, JJ., concur.


author: JUSTICE NICKELS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OSCAR TORRES, Defendant-Appellant.
    Second District
    No. 2—90—0528
    Opinion filed April 29, 1992.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Kathleen T. Zellner, of Kathleen T. Zellner & Associates, of Naperville, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Marshall, M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NICKELS

delivered the opinion of the court:

Defendant, Oscar Torres, was convicted by a jury of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2(a)) based on a theory of accountability. Defendant appeals, asserting that the trial court’s response to an inquiry by the jury that the jury must reach unanimous agreement on the verdict improperly coerced a guilty verdict and that the State improperly introduced evidence and argument of defendant’s invocation of his right to remain silent. We affirm.

On September 21 and 22, 1988, two gas stations in the Rockford area of Winnebago County were robbed at gunpoint by Corey Hughes. Hughes was arrested on September 23, 1988, and eventually pleaded guilty to the second robbery. Hughes gave police a statement identifying defendant as the driver of the car used during the robberies. Hughes further testified at trial that defendant not only drove Hughes to each of the gas stations and waited outside while Hughes committed the robberies, but also provided the gun used in both robberies and received a share of the money stolen from, each gas station. However, none of the victims could identify either the car used or the driver.

Defendant was arrested later on September 23, 1988, and, after being taken to the Rockford police department, was advised of his rights, each of which he acknowledged. In response to the arresting officers’ indication that they were investigating the robberies, defendant volunteered that he did not have a gun. When the officers told defendant that Hughes had already implicated defendant, defendant admitted that he had given the gun to Hughes, driven the car used during each offense, and received an amount of money from each robbery that matched the amount in Hughes’ statement. However, defendant proclaimed that he had not entered either gas station and had in fact remained in his car the entire time, except to step outside briefly to relieve himself. Defendant agreed to sign a written statement to this effect, but when the statement was reduced to typewritten form, defendant said that he wanted to speak with an attorney. The officers testified that they then ceased all questioning, and defendant was placed in a holding cell while the officers contacted the State’s Attorney. Defendant objected to the officers’ testimony referring to the call to the State’s Attorney, but not to the reference to defendant's request for an attorney. That objection was overruled. Defendant was eventually charged with only the September 21, 1988, offense.

Defendant pleaded not guilty, and, although defendant exercised his privilege to remain silent and did not testify, defendant’s counsel argued that defendant’s not-guilty plea inherently denied that defendant provided the gun and participated in the offense. Rather, defendant’s counsel argued that the officers’ conduct had coerced defendant, who was only 17 years old and who had never before been arrested, to make the incriminating statements. He argued that despite the officers’ technical compliance with the dictates of Miranda, the officers failed to explain the significance of those rights to defendant, which defendant did not fully comprehend because of his youth. Defendant’s counsel asserted that the officers’ failure to affirmatively offer to allow defendant to call his parents or an attorney was calculated to take advantage of defendant’s youth, inexperience, and fears. However, defendant’s motion to suppress evidence of defendant’s statements based on the same argument had been denied prior to trial because the officers had correctly treated defendant as an adult. Ill. Rev. Stat. 1987, ch. 37, par. 805 — 3 (defining “minor” as under 17 years of age).

In addition to the officers’ recitation of defendant’s voluntary post-arrest statements, the State offered the testimony of Hughes to corroborate the officers’ testimony. Defendant attacked Hughes’ testimony as incredible and fabricated for the purpose of obtaining a reduced sentence. However, an assistant State’s Attorney testified that Hughes had neither been offered nor received a plea bargain. Hughes attempted to assert his fifth amendment privilege, which the court found inapplicable, to avoid testifying against defendant. Hughes also attempted to place a telephone call to defendant the evening before his testimony.

In closing argument, the State commented that “the first thing notable about what the defendant told [the officers] is not what he said, it’s what he didn’t say. He did not say it was a total surprise to me that this guy Corey had a gun. He did not say I didn’t really want to do these armed robberies but other people pushed me into it. He did not say Corey did the driving around and I just rode around in my car and I had given him the keys. He didn’t say anything like that.” Defendant, however, failed to object to these comments.

After 2 hours and 10 minutes of deliberations, the jury sent the trial court a note that read: “[pjlease advise of the rules based on a hung jury. We are not in total agreement; and, are having misunderstandings on the instruction of the law. We have an 8 to 4 split.” The court determined, however, that this inquiry did not indicate that the jury was deadlocked, and, therefore, a Prim instruction was not yet necessary. (People v. Prim (1972), 53 Ill. 2d 62, 72-76.) Rather, the court instructed the jury to refer to the court’s prior instructions and continue its deliberations and, expressly relying on Illinois Pattern Jury Instructions, Criminal, No. 26.01 (2d ed. 1981) (hereinafter IPI Criminal 2d), that “[yjour agreement on a verdict must be unanimous.”

Sometime later, the jury returned a guilty verdict. Defendant appeals and asserts that the officers’ testimony that defendant requested an attorney and the State’s argument of defendant’s failure in his voluntary statement to deny his purposeful involvement in the offenses impermissibly infringed defendant’s exercise of his fifth amendment right to remain silent. Defendant further asserts that the trial court’s direction to the jurors that they were required to reach unanimous agreement on the verdict coerced a guilty verdict.

Defendant raises three issues pertaining to the right to remain silent. First, defendant asserts his sixth amendment right to counsel was impaired by the testimony of the officers that, after giving a voluntary post-arrest statement, defendant requested an attorney. Initially, we note that the sixth amendment right to counsel does not attach until a defendant is indicted or arraigned. (People v. Thompkins (1988), 121 Ill. 2d 401, 433.) Thus, in this instance only the common-law prophylactic right to counsel necessary to protect a defendant’s constitutional right to remain silent was implicated. (Michigan v. Tucker (1974), 417 U.S. 433, 446, 41 L. Ed. 2d 182, 194, 94 S. Ct. 2357, 2364-65; McNeil v. Wisconsin (1991), 501 U.S. 171, 176, 115 L. Ed. 2d 158, 167, 111 S. Ct. 2204, 2208.) Defendant also contends that the State’s comments during closing argument on the omissions in defendant’s statements impermissibly impaired defendant’s right to remain silent. Specifically, the State argued that defendant’s failure to tell the officers that he was surprised when Hughes committed the robberies demonstrated defendant’s intent that the robberies occurred. Defendant neither objected to these alleged errors at trial nor raised them in his post-trial motion. Defendant’s final argument relative to his right to remain silent is that these two errors cumulatively denied him a fair trial.

The failure to object at trial or to raise an error in a post-trial motion waives such error. (People v. Enoch (1988), 122 Ill. 2d 176.) However, Supreme Court Rule 615(a) provides a limited exception to the waiver rule for plain error affecting substantial rights. (134 Ill. 2d R. 615(a).) Two occasions provide the basis for a finding of plain error. First, when the evidence is closely balanced, a reviewing court may consider an improperly preserved error to preclude the argument that an innocent person was wrongly convicted. (People v. Herrett (1990), 137 Ill. 2d 195, 209; People v. Gacho (1988), 122 Ill. 2d 221, 239.) Second, if an error is fundamental and of such magnitude that a defendant has been denied a fair trial, a court may consider the alleged error under the plain-error exception to the waiver doctrine. (Herrett, 137 Ill. 2d at 214; Gacho, 122 Ill. 2d at 239.) Thus, we first consider whether the evidence was so closely balanced that the jury’s verdict may have been influenced by these alleged errors.

Without considering the propriety of the challenged portion of the State’s argument, such comments were directed only to defendant’s intent and to rebut the defense theory that defendant’s presence had been inadvertent or unintentional. In light of the officers’ testimony of defendant’s voluntary post-arrest statements and Hughes’ testimony of defendant’s participation, the evidence is overwhelming that defendant committed the offense. Defendant provided the gun, drove the car, and received a share of the stolen money. In addition, evidence of defendant’s participation in a second identical robbery the next day rebutted any argument that defendant lacked the requisite intent.

Defendant’s counsel essentially argued that the officers had coerced defendant to make his statements, apparently based on Hughes’ perjured statement, to which he later testified and in exchange for which Hughes received a plea bargain. Such argument is belied by the lack of a plea bargain and Hughes’ attempts to evade testifying against defendant. The jury was free to reject such unfounded argument in evaluating the credibility of the officers and Hughes and instead base its verdict on its observation and assessment of the witnesses’ demeanors while testifying. (People v. Ellis (1978), 74 Ill. 2d 489, 496.) Thus, we conclude that the evidence was not closely balanced.

Nor do we find that defendant has demonstrated fundamental error prejudicing him and affecting a substantial right. A reviewing court may grant relief under this second exception only if the error is so prejudicial that the trial court could not have cured the error by the giving of an instruction after sustaining an objection. (Herrett, 137 Ill. 2d at 215.) Comment on an accused’s post-arrest silence, although generally improper, does not rise to the level of substantial and fundamental error of such magnitude so as to deprive a defendant of a fair trial where the evidence is not closely balanced. (Herrett, 137 Ill. 2d at 215; People v. Stewart (1984), 104 Ill. 2d 463, 488; People v. Lucas (1981), 88 Ill. 2d 245, 251-52.) Thus, the State’s reference to defendant’s silence does not rise to the level of plain error in this instance.

Defendant’s assertion of error in the admission of the officers’ testimony that defendant requested an attorney similarly fails to rise to the level of plain error. Such testimony merely completed the officers’ description of the events surrounding defendant’s statements and explained why defendant’s statements remained unsigned. Testimony that a defendant requested an attorney does not impair his prophylactic right in the presence of an attorney to protect the right to remain silent when such testimony is elicited to demonstrate the trustworthiness of a defendant’s preceding voluntary post-arrest statements. (People v. Chriswell (1985), 133 Ill. App. 3d 458, 463.) In the present instance, where defendant’s theory of defense explicitly asserted that his statements were the product of coercion, such explanation was warranted. (See People v. LeCour (1988), 172 Ill. App. 3d 878, 884-85 (nontestifying defendant’s silence admissible to rebut defense argument that defendant gave exculpatory statement); see also People v. Bradley (1989), 192 Ill. App. 3d 387, 392-93 (evidence of circumstances surrounding voluntary post-arrest statements is proper); People v. Foster (1990), 199 Ill. App. 3d 372, 380-82 (voluntary statement included defendant’s silence as to one offense and vehement denial of other offenses).) Thus, defendant has failed to demonstrate that these alleged errors, either separately or together, under either prong of our plain-error analysis rise to a level warranting such exception to the doctrine of waiver.

Defendant also contends, however, that the trial court improperly coerced the jury’s guilty verdict by responding to its inquiry on the rules for a hung jury by repeating IPI Criminal 2d No. 26.01 that its agreement on a verdict had to be unanimous. A court is required to instruct the jury that its verdict must be unanimous. (People v. Maxey (1976), 37 Ill. App. 3d 905, 908.) Such instruction does not impermissibly eliminate the possibility of a hung jury. (Maxey, 37 Ill. App. 3d at 908.) Although a court should not instruct a jury repeatedly on any facet, the giving of a repetitious but accurate instruction alone is not reversible error. People v. Smith (1949), 404 Ill. 125; People v. Vaughn (1945), 390 Ill. 360.

The trial court determined that a deadlock instruction was not necessary, which after only slightly more than two hours of deliberation was not an abuse of discretion. (People v. Cowan (1985), 105 Ill. 2d 324, 327-28.) When an instruction is not based on pattern instructions, the court’s response must be simple, brief, impartial, and free from argument (134 Ill. 2d R. 451(a); People v. Branch (1984), 123 Ill. App. 3d 245, 251) and may not coerce any member of the jury into changing his position merely to secure a verdict. (Branch, 123 Ill. App. 3d at 251.) The relevant inquiry when such non-IPI instruction is given, therefore, is whether under the totality of the circumstances the language used actually coerced or interfered with the deliberations of the jury to the prejudice of the defendant. People v. Gregory (1989), 184 Ill. App. 3d 676, 681.

However, in advising the jury that its agreement on the verdict must be unanimous, the trial court did no more than reiterate an approved IPI instruction already given and one which has expressly been found not to eliminate the possibility of a hung jury. (See Maxey, 37 Ill. App. 3d at 908.) Although it is advisable to avoid repeating any instruction and thereby lending added weight or emphasis to such instruction, mere repetition of an accurate instruction is not reversible error. (See Smith, 404 Ill. at 135.) Thus, in light of the trial court’s use of an approved IPI instruction to respond to the jury’s inquiry and the recognized propriety of such instruction as a proper statement of the law not eliminating the possibility of a hung jury, we find no reversible error in the response of the trial court to the jury’s inquiry.

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

Affirmed.

DUNN and McLAREN, JJ., concur.


author: JUSTICE GEIGER PRESIDING JUSTICE INGLIS,

text:
    ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v. VICTOR PENA, Defendant-Appellant.
    Second District
    No. 2—91—0299
    Opinion filed April 29, 1992.
    INGLIS, P.J., dissenting.
    Paul W. Casbarian, of Law Offices of Paul W. Casbarian, Ltd., of Schaumburg, for appellant.
    No brief filed for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Victor Pena, appeals from the trial court’s order striking his notice of rejection of an arbitration panel award favoring the plaintiff, Allstate Insurance Company (the company). We reverse and remand.

After the company filed a complaint against the defendant, the matter was set for an arbitration hearing. The defendant was served with a notice to produce and appear, pursuant to Supreme Court Rule 237 (134 Ill. 2d R. 237). At the hearing, the defendant was represented by counsel, but did not appear personally. The arbitration panel found for the company and ordered the defendant to pay damages of $13,591.23.

Pursuant to Supreme Court Rule 93 (134 Ill. 2d R. 93) the defendant filed his notice of rejection of the arbitration award with the trial court. The company moved to strike that notice of rejection. Following a hearing, the court found that because the defendant had not personally appeared at the arbitration hearing, he had waived his right to reject the arbitration award. It struck the notice of rejection and this appeal followed.

On appeal, the defendant relies on Weisenburn v. Smith (1991), 214 Ill. App. 3d 160. That case considered whether the defendant had waived his right to reject an arbitration award because he had not appeared personally at an arbitration proceeding. The defendant offers no extended argument, but asserts that this case is essentially identical to the Weisenburn case and that on its strength we should reverse the court’s order that rejected the arbitration award and remand for trial. The company has filed no appellee brief, but we decide the case trader the authority of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.

The Weisenburn court thoroughly analyzed the interplay of Supreme Court Rules 86, 90, 91, 93, and 237. (134 Ill. 2d Rules 86, 90, 91, 93, 237.) It concluded that a party may be required to attend an arbitration proceeding pursuant to Supreme Court Rule 237 and that sanctions may be imposed for his failure to attend. (Weisenburn, 214 Ill. App. 3d at 164.) However, particularly considering the dictates of Rules 91 and 93, it found that because the defendant’s counsel had appeared at the arbitration hearing, the defendant had preserved his right to reject the arbitration award. (214 Ill. App. 3d at 164.) It reversed the trial court’s entry of judgment on the arbitration award and remanded for further proceedings.

The essential facts here are identical to those in Weisenburn. Although the defendant did not attend the arbitration proceedings, he was represented there by counsel. We conclude, as did the court in Weisenburn, that the defendant did not waive his right to reject the arbitration award.

Based on the foregoing, we reverse the judgment of the circuit court of Du Page County and remand the cause for further proceedings.

Reversed and remanded.

UNVERZAGT, J., concurs.

PRESIDING JUSTICE INGLIS,

dissenting:

While I acknowledge the majority is following the recent precedent of Weisenburn v. Smith (1991), 214 Ill. App. 3d 160,1 respectfully dissent.

The supreme court pursuant to its rule-making authority has adopted mandatory arbitration. (134 Ill. 2d R. 86.) This forward-looking, progressive approach to dispute resolution is an important and significant step in reducing court backlog and delay. Elinois courts have a duty to encourage programs mandated by the supreme court.

Parties should not be allowed to simply ignore the supreme court rules. Defendant should have appeared after having been properly served with a notice to produce and appear pursuant to Supreme Court Rule 237 (134 Ill. 2d R. 237). To overlook this important rule in mandatory arbitration depreciates the importance of this form of alternate dispute resolution and weakens an otherwise legitimate and important program whose time has come. Rules adopted by the supreme court are rules of procedure and not suggestions. (People v. Wilk (1988), 124 Ill. 2d 93, 103.) Although Wilk involves a criminal matter, I believe that supreme court rules are not suggestions in court-mandated arbitration. Sanctions are properly applied for violation of Supreme Court Rule 237.

The rejection of an award pursuant to Supreme Court Rule 93 is an entirely separate question from a violation of Supreme Court Rule 237. Defendant may have preserved his right to reject the award under Supreme Court Rule 93(a) by the appearance of his attorney, but, in my opinion, it was a reasonable sanction on him to lose the right for violating Supreme Court Rule 237.

A party has the right to present the best case possible and to use Supreme Court Rule 237 if needed. That right should not be taken away by another party’s efforts to frustrate mandatory arbitration. The appellate court should support trial judges who are endeavoring to properly control mandatory arbitration, a needed and important weapon in the court’s arsenal against delay and backlog. The impact of the majority’s position clearly undermines mandatory arbitration. I would affirm the trial court.


text:
    THE VILLAGE OF LAKE IN THE HILLS, Plaintiff-Appellant, v. SCOTT T. LLOYD, Defendant-Appellee.
    Second District
    No. 2—91—1035
    Opinion filed April 29, 1992.
    William R Stanton, of Zukowski, Rogers, Flood & McArdle, of Crystal Lake, for appellant.
    Kevin M. McCarty, of McCuaig, Haeger, Bolz, McCarty & Baudin, of West Dundee, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Defendant, Scott T. Lloyd, was charged by traffic citation with the offense of driving with a revoked driver’s license in violation of a Village of Lake in the Hills (Village) ordinance. Defendant filed a motion to quash his arrest and suppress evidence, which the trial court granted. The Village filed a certificate of impairment and a timely notice of appeal pursuant to Supreme Court Rule 604(a) (134 Ill. 2d R. 604(a)). The sole issue on appeal is whether the trial court’s granting of defendant’s motion to quash his arrest and suppress evidence was manifestly erroneous. We reverse and remand.

The only facts relevant to this issue are contained in a report prepared by the arresting officer on the date of defendant’s arrest. The report was stipulated to by the parties and tendered to the court for consideration at the hearing on defendant’s motion. No other evidence was introduced or considered by the court in deciding defendant’s motion.

The report is handwritten and is signed by the arresting officer. It states that the arresting officer, while on routine patrol, observed defendant’s vehicle traveling westbound on Algonquin Road. The arresting officer then ran a “random registration check on the vehicle through the mobile data terminal.” That check indicated that the owner of the vehicle had a revoked driver’s license. The arresting officer stopped the vehicle and asked the driver for his driver’s license. The owner, who was also the driver, was later identified as defendant. Defendant advised the arresting officer that his driver’s license was revoked. After confirming via radio that defendant had a revoked driver’s license, the officer arrested him for driving with a revoked driver’s license.

The Village contends that the information that the vehicle’s owner had a revoked driver’s license provided the reasonable suspicion necessary to stop defendant’s vehicle for the purpose of ascertaining the status of the license of the driver. The Village relies on People v. Barnes (1987), 152 Ill. App. 3d 1004, in support of its contention that the stop of defendant’s vehicle was permissible under the fourth amendment.

The United States Supreme Court in Delaware v. Prouse (1979), 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391, addressed the constitutional propriety of a police officer conducting a purely random stop of a motor vehicle for the purpose of checking the status of the license of the driver and the vehicle registration. The Prouse Court held that “except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.” (Prouse, 440 U.S. at 663, 59 L. Ed. 2d at 673, 99 S. Ct. at 1401.) The Court added that when there is no probable cause to believe that a driver is violating the law, “or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered,” it could not conceive of any legitimate basis upon which a police officer could decide that stopping a particular driver would be more productive than stopping any other driver. Prouse, 440 U.S. at 661, 59 L. Ed. 2d at 672, 99 S. Ct. at 1400.

In the present case, the officer did not stop defendant’s vehicle completely at random, but only did so after ascertaining that the vehicle’s owner had a revoked driver’s license. The officer, however, did not otherwise attempt to ascertain whether the owner, who had the revoked driver’s license, was in fact the driver of the vehicle. Thus, the dispositive issue is whether an officer’s knowledge that an owner of a particular vehicle has a revoked license alone is sufficient to give the officer a reasonable suspicion that the driver of that vehicle has a revoked driver’s license. Put another way, is it reasonable for the officer to conclude, absent any other information, that the owner of a vehicle is in fact its driver at any given time?

In People v. Barnes (1987), 152 Ill. App. 3d 1004, the appellate court concluded that an articulable basis existed to stop a vehicle to check the driving status of the driver based only on the information that the vehicle’s owner had a suspended license. (Barnes, 152 Ill. App. 3d at 1006.) In reaching that result, the court utilized a “reasonable inference” that a vehicle’s owner is the one driving the vehicle. (Barnes, 152 Ill. App. 3d at 1006.) The court further explained that although other people may drive an owner’s vehicle, it is clear that the owner will do the vast amount of driving. Barnes, 152 Ill. App. 3d at 1006.

There is also a presumption in civil cases that a vehicle has been driven by its owner. (See Robinson v. Workman (1956), 9 Ill. 2d 420, 427-28; People v. Jendrzejak (1968), 98 Ill. App. 2d 313, 319.) Legal presumptions are inferences that common sense draws from known facts or events. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 517.) Based on such common sense, we conclude that an officer may reasonably presume that the owner of a vehicle is also the driver.

There may be situations in which it may be equally reasonable for an officer to conclude that someone other than the owner, such as a family member, is operating the vehicle. However, the crucial inquiry is not whether other conclusions are also reasonable, but rather whether it is reasonable to conclude that the owner is the driver of the vehicle. Although many vehicles in our society are co-owned, such co-ownership merely makes it equally reasonable to believe that either one owner or the other may in fact be driving a car. Thus, in this instance, the officer had a reasonable suspicion that the driver was in fact the owner and, therefore, that the driver was driving with a revoked license.

Police knowledge that an owner of a vehicle has a revoked driver’s license provides a reasonable suspicion to stop the owner’s vehicle for the purpose of ascertaining the status of the license of the driver. Common sense dictates that such information, even alone, is enough to provide a constitutional basis for stopping a vehicle or its occupants. The order of the circuit court quashing defendant’s arrest and suppressing the evidence was manifestly erroneous.

For the foregoing reasons, the order of the circuit court of McHenry County is reversed, and the cause is remanded for trial.

Reversed and remanded.

INGLIS, P.J., and DUNN, J., concur.