author: JUSTICE McCUSKEY

text:
    JEFFREY D. BERNABEI, Plaintiff-Appellant, v. THE COUNTY OF LA SALLE et al., Defendants-Appellees (The Township of Troy Grove et al., Defendants).
    Third District
    No. 3—92—0050
    Opinion filed October 14, 1992.

      Louis E. Olivero & Associates, of Peru (Louis E. Olivero, of counsel), for appellant.
    Elizabeth A. Knight and Sarah Hansen Sotos, both of Knight, Hoppe, Fanning & Knight, Ltd., of Des Plaines (Anita J. Comerford, of counsel), for appellees.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Plaintiff, Jeffrey D. Bernabei, brought an action against several units of local government to recover damages for injuries he received when his Jeep struck a guardrail on a public highway.

Two of the defendants, La Salle County and Bill Keith, La Salle County superintendent of highways, filed a motion to dismiss plaintiff’s amended complaint for failure to state a cause of action. The trial court granted defendants’ motion, and plaintiff appeals, We affirm because we find (1) defendants did not owe plaintiff a duty; (2) any act or omission by defendants did not proximately cause plaintiff’s injuries; and (3) defendants are immunized from liability by the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1991, ch. 85, par. 1 — 101 et seq.).

Plaintiff alleged that on August 18, 1990, he was traveling east in La Salle County on North 37th Road in Troy Grove Township. The accident occurred approximately six-tenths of a mile west of the highway’s intersection with State route 251. At that point, the highway meets a bridge spanning Spring Creek. At the west end of the bridge was “an abrupt descent adjacent to the roadway.” A guardrail abutted the end of the bridge and ran along the north side of the highway, allegedly to prevent vehicles from leaving the shoulder and entering the creek.

Plaintiff alleged that as he approached the bridge, his Jeep

“left the paved portion of the highway and into the soft dirt near the edge of the highway where its course could not be controlled by plaintiff, it came in contact with and went through the guardrail located at said place, traveled into the ditch and came to rest in the creek.”

Plaintiff alleged that defendants were negligent in violating sections 5 — 205.1, 5 — 205.3, and 6 — 407 of the Illinois Highway Code (Ill. Rev. Stat. 1991, ch. 121, pars. 5-205.1, 5-205.3, 6-407) (Highway Code). Plaintiff alleged membership in “the class of persons *** meant to [be] protected]” by these provisions. Plaintiff alleged the cited sections were

“designed for the purpose of constructing, maintaining and operating public highways and bridges within the County of La Salle to the end that the safety and convenience of highway traffic will be promoted.”

Defendants moved to dismiss counts I and II of the amended complaint pursuant to sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, pars. 2 — 615, 2 — 619). Defendants argued the statutes did not impose a duty, and the site of the accident was not controlled by defendants. The trial court granted defendants’ motion, and plaintiff appeals.

Plaintiff’s multiple allegations of negligence can be reduced to four. Plaintiff alleged in his amended complaint that defendants violated the Highway Code by failing to: (1) design and construct a safe bridge and guardrail; (2) provide a safe barrier; (3) provide warning signs; and (4) maintain the road and bridge. Plaintiff argues that the units of local government are responsible for the design and supervision of construction of the bridges and highways within their boundaries. Plaintiff also argues that violations of sections 5 — 205.1, 5— 205.3, and 6 — 407 of the Highway Code proximately caused plaintiff’s injuries.

Plaintiff further contends that we should not consider the defendants’ arguments concerning lack of proximate cause and immunity under the Tort Immunity Act because they were not presented to the trial court in the defendants’ motion to dismiss. We disagree. The dismissal of a complaint may be upheld on appeal by any argument and on any basis appearing in the record (including a failure to state a cause of action) which demonstrates that the trial court’s judgment was correct. Falk v. Martel (1991), 210 Ill. App. 3d 557, 562, 569 N.E.2d 248, 252; Sandberg v. American Machining Co. (1975), 31 Ill. App. 3d 449, 451-52, 334 N.E.2d 246, 248.

Plaintiff argues that sections 5 — 205.1, 5 — 205.3, and 6 — 407 of the Highway Code collectively impose a duty on the defendants to design, construct and repair bridges and highways within county boundaries. Although plaintiff concedes the purposes of the statutes are not expressly stated, he contends, without any authority, that the statutes are “intended for *** the health, safety and general welfare of the public.” (Emphasis added.) Plaintiff argues the statutes were promulgated for the safety of highway users and that defendants’ negligent violation of the statutes proximately caused the plaintiff’s injuries. We disagree.

We recognize that the violation of a statute designed to protect human life or property is prima facie evidence of negligence, and the injured party has a cause of action, provided he comes within the purview of the statute and the injury has a direct and proximate connection with the violation. (Dini v. Naiditch (1960), 20 Ill. 2d 406, 417-18, 170 N.E.2d 881, 886.) We find nothing in the clear language of these statutes which imposes a duty upon the defendants which extends to the plaintiff. In addition, none of these statutes create private causes of action against the county or its superintendent of highways for the benefit of highway users.

Sections 5 — 205.1, 5 — 205.3, and 6 — 407 clearly are not safety measures enacted for the benefit of the public. Rather, each section provides a mechanism for empowering counties to construct and maintain a statewide network of highways. Section 5 — 205.1 directs the county superintendent of highways to prepare plans, specifications and estimates for bridges and culverts, and to supervise their construction. (Ill. Rev. Stat. 1991, ch. 121, par. 5 — 205.1.) Section 5— 205.3 directs the superintendent to advise and direct highway commissioners of county road districts regarding the best methods of construction, repair or maintenance of township and district roads. The statute further provides that the grades of roads in the district shall be constructed according to plans approved by the superintendent. The statute grants the county superintendent of highways the power to direct the township highway commissioners concerning the proper maintenance of township roads. (Ill. Rev. Stat. 1991, ch. 121, par. 5 — 205.3.) Finally, section 6 — 407 allows the highway commissioner in a road district to contract for the construction and repair of roads and bridges within district boundaries. The commissioner must obtain approval from the county superintendent of highways for expenditures exceeding $5,000. Ill. Rev. Stat. 1991, ch. 121, par. 6 — 407.

We conclude these statutes merely provide a guideline or framework in which county and township officials are allowed to carry out the functions of their offices. Plaintiff’s amended complaint does not contain any allegations which would make the statutes relevant to the imposition of a duty upon the defendants.

The intent of the legislature in enacting the Highway Code is set forth in section 1 — 102. (Ill. Rev. Stat. 1991, ch. 121, par. 1 — 102.) The legislature’s “intent and declared policy” states an “integrated system of highways and streets is essential to the general welfare.” The legislature expressed its commitment to “provide for improvement of highways.” The legislature further declared that “a system with efficient management, operation, and control, and the elimination of congestion, accident reduction, and safety is an urgent problem and the proper objective of highway legislation.” The legislature stated that development of the State’s highway transportation system “requires the cooperation of State, county, township, and municipal highway agencies and coordination of their activities *** and the legislature intends such cooperative relationships to accomplish this purpose.” Ill. Rev. Stat. 1991, ch. 121, par. 1-102.

The legislative purposes' stated in section 1 — 102 are fulfilled through the framework of responsibilities set forth in the remaining provisions of the Highway Code, including the three sections cited by plaintiff. Plaintiff’s implication that a tort duty is consistent with the express purposes of the Highway Code is misplaced. Therefore, we find that plaintiff’s amended complaint fails to allege a tort duty owed him by defendants. Also, we have concluded that the Highway Code provisions are not safety statutes. Accordingly, a violation of these statutes cannot give rise to a private cause of action.

Plaintiff’s amended complaint also fails to establish that defendants’ conduct was the proximate cause of his injury. Plaintiff alleged in his amended complaint that prior to his vehicle striking the guardrail, it “left the paved portion of the highway and [entered] the soft dirt near the edge of the highway where its course could not be controlled by plaintiff.” (Emphasis added.) Defendant argues, and we agree, that plaintiff’s loss of control relieves the defendants of any liability for their alleged negligent conduct.

Loss of control of a vehicle can operate as an independent act to relieve a defendant of liability for negligence and statutory violations. Bogovich v. Nalco Chemical Co. (1991), 213 Ill. App. 3d 439, 572 N.E.2d 1043, affirmed a grant of summary judgment for the owner of a parked semitrailer truck struck by plaintiff’s decedent. The court determined that the truck owner’s negligence and statutory violations in parking on a median strip were not the proximate cause of the accident when plaintiff lost consciousness and control of his vehicle prior to striking the parked truck. Bogovich, 213 Ill. App. 3d at 443-44, 572 N.E.2d at 1046.

Young v. Texas Eastern Transmission Corp. (1985), 137 Ill. App. 3d 35, 484 N.E.2d 325, affirmed a grant of summary judgment for the defendant truck driver in an action arising out of a collision with a vehicle operated by plaintiff’s decedent. A tire on decedent’s vehicle apparently “blew out,” causing the decedent to lose control of his vehicle and cross into defendant’s lane. The court concluded, in light of decedent’s loss of control of his vehicle, that defendant’s failure to execute a different evasive action was not the proximate cause of the collision. “Had decedent failed to cross the center line, no collision would have occurred.” Young, 137 Ill. App. 3d at 39, 484 N.E.2d at 328.

We agree with the analysis and reasoning set forth in Bogovich and Young. In the instant appeal, plaintiff has not alleged that any of the defendants’ acts caused him to lose control of his vehicle. We find that the proximate cause of plaintiff’s injuries was his initial loss of control of his motor vehicle. In the absence of any allegation defendants caused plaintiff to lose control of the vehicle, we conclude his loss of control was an independent act which relieves defendants of liability.

Finally, we determine that section 3 — 104 of the Tort Immunity Act immunizes defendants from liability for their alleged misconduct in maintaining a barrier on the bridge or in failing to provide warning signs. Plaintiff alleged that defendants “[flailed to erect [a] *** warning sign or signal *** warning motorists of the dangerous condition” and “[flailed to erect a safe barrier to protect the traveling public using North 37th Road from being injured by a defectively installed guardrail.”

Section 3 — 104 of the Tort Immunity Act absolutely immunizes defendants from liability for these claims of negligence. Section 3 — 104 specifically immunizes municipal defendants for liability “for an injury caused by the failure to initially provide *** any *** warning sign, device or marking *** or barriers.” Ill. Rev. Stat. 1991, ch. 85, par. 3— 104; Milder v. Van Alstine (1992), 230 Ill. App. 3d 869, 872, 595 N.E.2d 693, 695; West v. Kirkham (1992), 147 Ill. 2d 1, 7, 588 N.E.2d 1104, 1107.

For the reasons indicated, the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

BARRY, P.J., and GORMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    GERTRUDE M. BART, Plaintiff-Appellant, v. UNION OIL COMPANY et al., Defendants (Occidental Fire and Casualty Company of North Carolina, Intervenor-Appellee).
    Third District
    No. 3—91—0964
    Opinion filed October 21, 1992.
    Rehearing denied December 3, 1992.
    Clancy & Krippner, of St. Charles (Maureen A. Hill and Wendell W. Clancy, of counsel), for appellant.
    Thomas H. Fegan and Mindy Kallus, both of Johnson & Bell, Ltd., of Chicago (Michael B. Gunzburg, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff-appellant, Gertrude M. Bart, appeals from a judgment in favor of the intervenor-appellee, the Occidental Fire & Casualty Company of North Carolina. The trial court held that Occidental’s workers’ compensation lien attached to the entire amount of a settlement obtained by Gertrude.

In 1984, Gertrude’s husband, Alex Bart, was killed in an explosion at a Lemont, Illinois, refinery operated by the defendant, the Union Oil Company of California. Bart was employed by Industrial Patrol Service Corporation as a security guard at the refinery. Occidental was Industrial Patrol Service’s workers’ compensation carrier.

Soon after Alex Bart’s death, Occidental began paying death benefits pursuant to the Illinois Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1983, ch. 48, par. 138.7). Gertrude brought a personal injury and wrongful death action against Union Oil. On August 2, 1985, Occidental filed a petition to intervene in the action in order to protect its lien rights under section 5(b) of the Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.5(b)).

A jury returned a verdict of $3 million in July of 1987. The trial court granted a remittitur of $1.2 million from the $2.2 million jury award for loss of love, affection and guidance. The court entered a judgment for $1.8 million.

On appeal, this court affirmed in part, reversed in part and remanded for further proceedings. (Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64, 540 N.E.2d 770.) We held, inter alia, there was no support in the record for the $700,000 verdict for conscious pain and suffering. We found there was no evidence the decedent survived the initial explosion and suffered pain prior to his death. Further, we held the record did not support the $1 million award for loss of consortium. We did not comment on the jury verdicts for loss of services ($80,000), loss of wages ($16,000) and funeral expenses ($4,000).

On remand, Gertrude filed a motion to adjudicate Occidental’s lien. Prior to a hearing on this motion, a settlement agreement was reached between Gertrude and Union Oil. The settlement apparently did not allocate the proceeds among the various claims in the suit. In the order approving the settlement, the court held that pursuit to an endorsement in the workers’ compensation insurance policy, Occidental had waived its right to a lien on the proceeds of the settlement.

Subsequently, this finding of waiver was vacated on Occidental’s motion for reconsideration, and the cause proceeded to a hearing on adjudication of the lien. Upon the granting of the motion for reconsideration, Occidental ceased paying death benefits. Gertrude filed a motion requesting that Occidental be ordered to continue payments.

On February 13, 1991, the trial court held the lien attached to the entire amount of the settlement. The court also held it had no jurisdiction to determine Gertrude’s right to future benefits in that no award or decision had been entered by the Illinois Industrial Commission. The court found the lien attached to the settlement proceeds to the extent of the $47,449.97 in workers’ compensation benefits already paid by Occidental less statutory attorney fees of $11,862.49. In a subsequent order this amount was further reduced by $3,202.28. This amount represented Occidental’s share of litigation costs.

On appeal, Gertrude argues the trial court erred in finding Occidental’s lien attached to the entire amount of the settlement.

Section 5(b) of the Act grants a right of reimbursement to the payor of workers’ compensation benefits out of the amount received by an employee in any action brought by that employee or his personal representative equal to the amount of the workers’ compensation benefits previously paid to the employee or his personal representative. (Ill. Rev. Stat. 1983, ch. 48, par. 138.5(b); Page v. Hibbard (1987), 119 Ill. 2d 41, 518 N.E.2d 69.) However, an action for loss of consortium is not a derivative claim brought by the spouse as the personal representative of the employee, but is an independent action to recover for injuries the spouse has suffered, such as loss of support and loss of society. (Page v. Hibbard (1987), 119 Ill. 2d 41, 518 N.E.2d 69.) A trial court has the authority to determine to which of several claims a settlement amount is attributable. (See McDaniel v. Hoge (1983), 120 Ill. App. 3d 913, 458 N.E.2d 1063; Gramse v. Royal Crest Enterprises, Inc. (1981), 100 Ill. App. 3d 100, 426 N.E.2d 614.) The amount allocated for loss of consortium must be fair and reasonable in light of the total settlement, and must take into account the importance of protecting the section 5(b) lien rights. Porro v. M.W. Powell Co. (1991), 224 Ill. App. 3d 175, 586 N.E.2d 458; Blagg v. Illinois F.W.D. Truck & Equipment Co. (1991), 143 Ill. 2d 188, 572 N.E.2d 920.

In the instant case, there was no attempt by the trial court to allocate the settlement proceeds among Gertrude’s various claims. In light of this court’s earlier finding on the issue of the pain and suffering claim, it is difficult to reconcile an apparent finding that the settlement amount was totally attributable to the nonconsortium claims. Nor is there any authority for such allocation. Therefore, the cause must be remanded with directions that there be a fair and reasonable apportionment among the various claims.

Gertrude also contends the trial court had jurisdiction to hear her motion on continuing death benefits. We note there is no dispute as to Occidental’s liability or the time period over which these benefits will be paid (see Ill. Rev. Stat. 1983, ch. 48, par. 138.7). The only question is what amount of these benefits will be offset by the settlement. This depends on the determination of what portion of the settlement, if any, is subject to the lien. After this determination is made on remand, it can then be determined when Occidental will be obligated to recommence payments to Gertrude. We see no reason why the trial court cannot declare the prospective effect of its apportionment determination. The amount of the settlement subject to the lien will be determinative of the period of time over which Occidental may suspend paying benefits.

On remand, the trial court will also review the effect, if any, its determination has on the amount of statutory attorney fees.

For the foregoing reasons, the judgment of the circuit court of Will County is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded with directions.

BARRY, P.J., and GORMAN, J., concur.


author: PRESIDING JUSTICE BARRY

text:
    PATRICIA LONG, Plaintiff-Appellant, v. TAZEWELL/PEKIN CONSOLIDATED COMMUNICATIONS CENTER et al., Defendants-Appellees.
    Third District
    No. 3—91—0895
    Opinion filed October 22, 1992.

      G. Edward Murphy, of Reynolds, Murphy & Associates, of Peoria (Patrick W. Hayes, of counsel), for appellant.
    Valerie M. Umholtz, of Moehle, Swearingen & Associates, of Pekin, for appellee Tazewell/Pekin Consolidated Communications Center.
    Stewart J. Umholtz, Assistant State’s Attorney, of Pekin, for other appellees.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Plaintiff, Patricia Long, appeals a second time from the dismissal of her complaint for wrongful termination of employment by defendant Tazewell/Pekin Consolidated Communications Center (T/P CCC), a not-for-profit, joint public safety corporation of the City of Pekin and the County of Tazewell. Plaintiff sought damages and reinstatement to her position as a telecommunications operator/police dispatcher. In addition to her employer, the city and the county, plaintiff named as defendants four individual directors of the not-for-profit corporation.

Defendants initially jointly moved to dismiss the complaint on the ground that plaintiff was an at-will employee without contractual rights. The circuit court of Tazewell County granted defendants’ motion, and that ruling was reversed on appeal to this court. (Long v. Tazewell/Pekin Consolidated Communication Center (1991), 215 Ill. App. 3d 134, 574 N.E.2d 1191.) On remand, defendants jointly moved for summary judgment and for dismissal of the complaint on the ground of laches. After a hearing, the court granted defendants’ motion to dismiss, and plaintiff brought this appeal. For reasons that follow, we reverse.

According to the allegations' in her complaint, plaintiff was employed by T/P CCC from January 1979 until her termination on September 13, 1988. Reasons given for her discharge included: (1) sleeping on duty; (2) failing to dispatch a call; (3) unprofessional conduct; (4) failing to maintain a home telephone; and (5) improper interdepartmental communications. On September 16, 1988, plaintiff appealed her termination pursuant to the T/P CCC employee manual of rules and regulations. Her appeal was heard by the T/P CCC board of directors on October 21, 1988. It was denied on October 24, 1988.

Plaintiff concurrently pursued her right to unemployment compensation, and on October 27, 1988, she received a favorable decision from the referee for the Illinois Department of Employment Security. According to the referee’s decision, plaintiff was terminated for reasons not connected with her work. T/P CCC, in turn, appealed this decision to the Board of Review of the Illinois Department of Employment Security. The Board’s decision was handed down on April 14, 1989, confirming the finding of the referee in favor of plaintiff. Plaintiff filed this complaint for wrongful termination in the circuit court on August 28, 1989.

In its order of dismissal, the court found: (1) that plaintiff’s cause of action accrued on October 24, 1988; (2) that plaintiff’s 10-month delay in filing the complaint was “based upon unrelated, noncontrolling, separate legal issues” and that, therefore, plaintiff had offered no reasonable cause for delay; and (3) that defendant T/P CCC had been prejudiced in fact by the delay. In this appeal, plaintiff takes issue with each of the court’s findings of fact and further argues that the court’s dismissal was an abuse of discretion because defendants did not assert the defense of laches until 23 months after plaintiff’s complaint was filed.

By case law, a six-month per se laches rule has been developed specifically for causes of action such as this seeking reinstatement and back pay following an alleged wrongful termination in the public employment sector. That is, a delay in filing suit of more than six months from the date of discharge is per se unreasonable and will justify time-barring on the ground of laches “unless a reasonable explanation can be given for the delay.” (Radon v. Board of Fire & Police Commissioners (1964), 45 Ill. App. 2d 425, 430, 195 N.E.2d 751, 754.) Application of the rule, as most recently summarized in Coleman v. O’Grady (1990), 207 Ill. App. 3d 43, 565 N.E.2d 253, requires a two-pronged analysis addressing first, whether the delay prejudiced the employer, and second, whether plaintiff has shown a reasonable excuse for the delay. Generally, prejudice to the public employer will be found where the employer would have to pay both a replacement worker’s salary and a successful plaintiff’s back wages during the period of delay. However, notwithstanding such inherent prejudice to the public' employer, a discharged plaintiff may nonetheless prevail in the face of a laches defense if the plaintiff shows a valid excuse for the delayed court action.

Initially, we do not find convincing plaintiff’s argument that she did not become aware of the facts upon which her cause of action was based until April 14, 1989. The facts upon which plaintiff relied in her pursuit of unemployment compensation benefits were essentially the same as those needed to pursue this suit for wrongful termination. On October 27, 1988, plaintiff learned that she had successfully presented her position to the unemployment compensation referee. The only additional fact that plaintiff gleaned on April 14, 1989, was that the referee’s determination was upheld on appeal. The decision of the Board of Review reciting its rationale did not add any crucial fact needed to pursue the instant cause of action. Plaintiff may not have known the legal sufficiency of the facts within her knowledge, but she cannot seriously deny that she had adequate notice of the grounds being alleged by her employer for her discharge and the procedural context of her termination on October 24, 1988. Thus, we find no error in the circuit court’s factual determination that plaintiff’s cause of action accrued on October 24, 1988, when her appeal before the T/P CCC board of directors was denied.

Similarly, with respect to the issue of prejudice to the public employer defendant, we hold that the circuit court was not in error. Plaintiff does not dispute that defendants hired a replacement for her position on October 30, 1988, within a week of the decision of the board of directors upholding plaintiff’s discharge. Given the public safety nature of plaintiff’s position, defendants cannot be faulted for their prompt hiring of a replacement, and the fact that they have done so is sufficient to establish prejudice.

This leads us to the second prong of the laches analysis — whether, notwithstanding prejudice to the employer, plaintiff’s excuse for the 10-month delay in bringing suit is nonetheless sufficient to avoid dismissal on the equitable ground of laches. Defendants argue, and the circuit court reasoned, that plaintiff’s unemployment compensation was not “related, controlling litigation” of the legal issues underlying the complaint for wrongful termination. Such was the basis upon which the court in People ex rel. Casey v. Health & Hospitals Governing Comm’n (1977), 69 Ill. 2d 108, 370 N.E.2d 499, determined that the delay in that case was excusable.

In Casey, plaintiffs brought their suit for reinstatement as hospital employees 23 months after they were terminated pursuant to a mandatory retirement policy. In another, prior action other institutional employees had challenged the compulsory retirement program. That suit was decided by the appellate court in the employees’ favor three months before the Casey plaintiffs filed their action. The court ruled, accordingly, that based on the allegations in the complaint setting forth the history of the prior litigation, “it is a reasonable and logical inference that all relators at bar were awaiting the outcome of the prior, controlling litigation. Therefore, the mandamus complaints sufficiently demonstrated why there had not been an earlier institution of the action.” 69 Ill. 2d at 114-15, 370 N.E.2d at 502.

In this case, of course, the pursuit of unemployment compensation benefits and the instant action for reinstatement and back pay are brought in entirely separate fora and do not involve identical issues. Therefore, unlike Casey, it cannot be said that the unemployment compensation action was “controlling” litigation. But that does not end the inquiry. The question is whether it was reasonable for plaintiff to have awaited the outcome of defendants’ appeal of the unemployment compensation claim before pursuing her common law action in court.

This is not a case like Coleman v. O’Grady (1990), 207 Ill. App. 3d 43, 565 N.E.2d 253, in which plaintiff simply sat on his right to administrative review of his termination. In Coleman, plaintiff, a deputy sheriff, knew that he was entitled to a hearing before the Cook County Sheriff’s Merit Board before he could be properly discharged for his alleged misconduct. He was discharged by the sheriff without having been given a hearing on April 27, 1987, but did nothing to pursue his rights until he filed suit for wrongful termination in August 1988. In rejecting plaintiff’s argument that his delay was reasonable because he was awaiting the hearing to which he was entitled, the court noted that nothing the sheriff or his agents had said or done induced plaintiff into believing that he would be given a hearing before the merit board. By contrast, in this case, plaintiff and her employer were in continuous controversy over the question of whether plaintiff’s termination was justified from September 16, 1988, three days after plaintiff’s discharge, until April 14, 1989, when the Board of Review of the Department of Employment Security denied T/P CCC’s appeal.

Contrary to defendants’ position, we find that plaintiff’s pursuit of unemployment compensation benefits in this case is closely related to the instant action for wrongful termination. Certainly, the disputed issue in the administrative appeal, i.e., whether plaintiff was discharged for misconduct related to her employment or for other, nonspeeified reasons, is relevant to her charge of wrongful termination. Further, we do not believe it unreasonable for a litigant to resist the impulse to pursue multiple claims involving a related issue simultaneously. Moreover, it would not be unreasonable for a plaintiff to await a favorable determination by the State agency and then to attempt to negotiate a settlement with the employer without incurring the expense of courtroom litigation.

Finally, for purposes of determining whether equity would require a dismissal of the suit, it is noteworthy that the delay between October 27, 1988, and April 18, 1989, was occasioned by defendants’, not plaintiff’s, pursuit of administrative appeal rights. Defendants had every legal right to exhaust their rights before the Department of Employment Security, and plaintiff had no legal impediment to embroiling her employer in a lawsuit during the pendency of the appeal. However, to permit defendants to apply the nearly six-month delay involved in that appeal against a laches time clock running against plaintiff does not bespeak equity.

•In sum, we find that plaintiff has set forth a reasonable excuse for her failure to file suit during the period of the unemployment compensation appeal. Since plaintiff filed her suit little more than four months after the termination of the administrative action, we hold that plaintiff is not guilty of laches. Having so found, we do not reach plaintiff’s argument that defendants should be estopped from defending on the ground of laches because of their own delay in raising the defense.

For the foregoing reasons, the judgment of the circuit court of Tazewell County is reversed, and we remand this cause for further proceedings.

Reversed; cause remanded.

STOUDER and SLATER, JJ., concur.


author: JUSTICE SLATER

text:
    MILWAUKEE GUARDIAN INSURANCE, INC., Plaintiff-Appellee, v. JOHN J. TARASKA, Defendant-Appellant.
    Third District
    No. 3—92—0142
    Opinion filed October 7, 1992.
    Joseph R. Napoli, Ltd., of Peoria (Joseph R. Napoli, of counsel), for appellant.
    Westervelt, Johnson, Nicoll & Keller, of Peoria (Jeremy H. Heiple, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant John Taraska was allegedly injured in a collision involving an uninsured taxicab while defendant was in the Bahamas. Taraska initiated arbitration proceedings seeking recovery under the uninsured motorist provision of his insurance policy with plaintiff Milwaukee Guardian Insurance, Inc. Plaintiff then sought a declaratory judgment that defendant’s claim was excluded under the territorial limitation provision contained in the policy. The trial court granted summary judgment for plaintiff and defendant appeals. We affirm.

The subject of the dispute in this case is a territorial limitation provision which appears in the insurance policy under the heading “General Provisions” and states:

“POLICY PERIOD TERRITORY
This policy applies only to accidents, occurrences, and losses during the policy period shown in the Declarations while the car is within the United States, its territories or possessions, or Canada or between their ports.” (Emphasis added.)

The insurance company contends, and the trial court found, that “the car” means any vehicle which would trigger coverage under any of the policy provisions. Under such an interpretation, the car in this case would be the uninsured taxicab, thereby precluding coverage because it was located in the Bahamas. The insured claims that “the car” should be read as “the insured car,” thereby providing coverage for the accident because the insured car was in the United States when the accident occurred. Alternatively, the insured contends that the policy is ambiguous and must be construed in his favor.

A court’s function in construing an insurance policy is to ascertain and enforce the intention of the parties as expressed in the agreement, and the construction given the policy should be a natural and reasonable one. (De Los Reyes v. Travelers Insurance Cos. (1990), 135 Ill. 2d 353, 553 N.E.2d 301.) While ambiguities in an insurance policy will be construed in favor of the insured, the mere absence of a definition does not necessarily render a policy term ambiguous, nor is an ambiguity created simply because the parties disagree about the meaning of the policy language. (A. Miller & Co. v. Cincinnati Insurance Co. (1991), 217 Ill. App. 3d 572, 577 N.E.2d 885.) All the provisions of an insurance policy should be read together to interpret it and to determine whether an ambiguity exists. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 429 N.E.2d 1203.) A provision in an insurance policy is ambiguous if, considering the policy as a whole, it is subject to more than one reasonable interpretation. Dolan v. Welch (1984), 123 Ill. App. 3d 277, 462 N.E.2d 794.

After examining the entire insurance policy, we believe that the only reasonable interpretation of the territorial limitation provision is that it applies to the vehicle which triggers coverage in a given case. The first and second pages of the policy define various terms used throughout the policy, including “your insured car,” “private passenger car” and “utility car.” The term “the car” is not defined. The remainder of the policy is divided into five parts. Part A provides for liability coverage for bodily injury or property damage arising out of the ownership, maintenance or use of a car or utility trailer by an insured person. In explaining who an “insured person” is under the policy, this section uses the term “your insured car” three times. In addition, this section lists various exclusions in which the term “your insured car” is used four times. Parts B, C, D and E of the policy refer to expenses for medical services, uninsured motorist coverage, car damage coverage and general provisions. These sections use the term “your insured car” 28 times. It is thus obvious that when the insurance company intended a provision to apply only to the insured car it used the term “your insured car.” When viewed in this context, defendant’s interpretation of the term “the car” as “the insured car” is clearly unreasonable.

What then, does the term “the car” mean? It may have any number of meanings when viewed in isolation, but as indicated earlier, the provisions of an insurance policy should be read and interpreted as an integrated whole, not as isolated parts. (See United States Fire Insurance Co., 88 Ill. 2d 1, 429 N.E.2d 1203.) The territorial limitation provision is contained in part E of the policy under the heading “General Provisions.” As such it applies to the entire policy, but its meaning and effect will vary depending upon the type of coverage at issue. For example, in the context of liability coverage, “the car” means the vehicle which gave rise to the potential liability. Under defendant’s interpretation, however, liability coverage would extend to a rental car in Japan or a borrowed car in Australia, so long as the insured car remained in the United States.

While further examples could be offered (see, e.g., Kvalheim v. Farm Bureau Mutual Insurance Co. (Iowa 1972), 195 N.W.2d 726, 730), we believe that the unreasonableness of defendant’s position is evident. The territorial limitation provision must be construed in relation to the coverage at issue. In the context of the uninsured motorist coverage at issue here, “the car” means the uninsured taxicab located in the Bahamas. The location of the insured car is simply irrelevant in such a factual scenario. As our supreme court stated in a different context:

“In our judgment, defendant’s interpretation could not have been reasonably contemplated by the parties at the time they entered into a contract, and we should not impose such open-ended coverage when the geographic limits of the policy are clear.” United States Fire Insurance Co., 88 Ill. 2d at 8, 429 N.E.2d at 1207.

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

Affirmed.

GORMAN and HAASE, JJ., concur.


text:
    SUSAN L. STEHL, Plaintiff-Appellant, v. BROWN’S SPORTING GOODS, INC., et al., Defendants-Appellees.
    Third District
    No. 3—91—0682
    Opinion filed October 5, 1992.
    Rehearing denied December 4, 1992.

      Roger B. Gomien, of Gomien, Root & Rigazio, of Morris, and Armstrong & Surin, of Ottawa (Craig M. Armstrong, of counsel), for appellant.
    Karen L. Kendall and Bradley S. McMillan, both of Heyl, Royster, Voelker & Allen, of Peoria, and Heyl, Royster, Voelker & Allen, of Rockford (Richard K. Hunsaker, of counsel), for appellees.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Plaintiff, Susan L. Stehl, appeals (1) the trial court’s grant of summary judgment in favor of defendants Brown’s Sporting Goods, Inc. (Brown’s), and Darien Raiter, and (2) the denial of her motion for leave to further amend her complaint.

We conclude that the defendants were entitled to judgment as a matter of law and that the trial court did not abuse its discretion in denying plaintiff’s motion to amend. Accordingly, we affirm.

Plaintiff injured her right leg and knee while downhill skiing. Plaintiff’s ski equipment was rented from Brown’s and had been fitted by their employee, Darien Raiter. Plaintiff alleged that Raiter had improperly adjusted the bindings so they would not release when she fell while skiing.

Plaintiff’s initial six counts for negligence and breach of contract were dismissed because of an exculpatory clause in the equipment rental agreement. Plaintiff then added four new counts, which alleged causes of action against Brown’s and Raiter for willful and wanton conduct, and against Brown’s only for consumer fraud and products liability. These are the only counts at issue in this appeal.

The trial court granted the defendants’ motion for summary judgment. The court found that the defendants’ conduct did not rise to a level of willful and wanton conduct. The court also found that any misrepresentation sufficient to support a claim of consumer fraud had not been relied upon by the plaintiff. Additionally, the court found that Baiter’s act of adjusting the ski bindings did not constitute an alteration, modification or change to the product. Therefore, the court disallowed plaintiff’s claim for products liability. The court also found that the plaintiff had failed to present any evidence which showed a proximate cause between the defendants’ conduct and the plaintiff’s injury. Following entry of summary judgment for the defendants, the court denied the plaintiff’s motion for leave to file three additional counts for willful and wanton breach of contract and fraud. Plaintiff appeals both orders.

The plaintiff first contends that the court erred in its entry of summary judgment. To resolve this issue, we must determine whether the trial court correctly found that no genuine issues of material fact existed and whether summary judgment was correctly entered for the defendants as a matter of law. (Zale Construction Co. v. Hoffman (1986), 145 Ill. App. 3d 235, 241, 494 N.E.2d 830, 834.) Our review of the record includes an examination of the discovery depositions of the plaintiff and Darien Baiter.

Baiter had worked in Brown’s field and stream department for three years. His training included participation in equipment demonstrations and attendance at a meeting on fitting ski equipment. He stated he was familiar with the manufacturer’s specifications for ski binding settings, and that he had examined manuals and videotapes provided by Brown’s regarding the sale and rental of skis.

The skis the plaintiff rented had a quick-release Look binding. Based upon the plaintiff’s height and weight (5 feet 2 inches tall, 160 pounds), Baiter adjusted the setting on the binding to “four.” Baiter stated that he had determined the proper binding setting based upon information provided by the plaintiff. Baiter stated that the binding setting was consistent with the manufacturer’s specifications.

Plaintiff testified in her discovery deposition that she had skied on only one other occasion prior to renting the skis from Brown’s. She stated she understood that the skis were to break away from the boot when pressure was applied to both the boot and ski.

She stated that while she was being fitted for the skis, Baiter told her to put pressure on her toe and lift her heel. Plaintiff testified that she physically could not cause the ski binding to release. Thereafter, Baiter twice adjusted the binding before the plaintiff’s husband took her hand and pulled her until the ski binding popped open. The plaintiff realized that she did not have enough strength in her legs to release the ski binding in the store. However, we note from the record that the plaintiff believed the ski binding would “pop” from her weight if she fell on the slopes.

Prior to the accident, the plaintiff fell about 10 times on the tow rope slope. Her skis did not release from the bindings. However, she was able to manually release the ski bindings each time by depressing the release mechanism with her pole. After three hours on the tow rope slope, she attempted to snow plow down the shortest slope. About one-third down the slope, her skis crossed and she fell. She injured her right leg and knee when her skis did not release from the bindings.

Plaintiff alleged in the willful and wanton counts of her fourth amended complaint (1) that Brown’s and Raiter knowingly adjusted the bindings so that she was unable to pull the boots out of the bindings using the strength of her own muscles; and (2) that the defendants willfully and intentionally informed her that the bindings had been properly adjusted when, in fact, the defendants knew that the bindings were too tight.

Defendants argue that the alleged conduct of Darien Raiter did not rise to the level of an intentional act and, therefore, at most constituted only negligence. Defendants further argue that Raiter’s conduct did not exhibit a reckless disregard for plaintiff’s safety. Defendants finally argue that the plaintiff submitted no evidentiary facts in support of her claim of willful and wanton conduct.

In distinguishing willful and wanton conduct from negligence, our supreme court has determined that willful and wanton conduct is conduct that is either intentional or done with a conscious disregard or indifference for the consequences when the known safety of other persons is involved. (Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 451, 593 N.E.2d 522, 532.) Our supreme court has approved the Restatement’s qualitative difference between negligence and willful and wanton conduct. (Burke, 148 Ill. 2d at 450, 593 N.E.2d at 531.) According to section 500 of the Restatement (Second) of Torts:

“ ‘[Willful and wanton conduct] requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man. *** [T]he actor *** must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent.’ ” Burke, 148 Ill. 2d at 449, 593 N.E.2d at 531, quoting Restatement (Second) of Torts §500, Comment g, at 590 (1965).

Raiter’s discovery deposition does not disclose any predisposition which would subject the plaintiff to serious danger. Raiter’s training and experience in fitting skis also argue against a conscious disregard or indifference for plaintiff’s safety. Neither deposition reveals any evidence of intentional conduct. At most, plaintiff stated a cause of action for negligence. Accordingly, we conclude that the defendants’ conduct did not rise above mere negligent behavior.

Plaintiff next appeals the trial court’s grant of summary judgment on plaintiff’s consumer fraud count. The plaintiff alleged in count IX of her fourth amended complaint that Brown’s violated section 2 of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1991, ch. 1211/2, par. 262) (Consumer Fraud Act). The plaintiff alleged that Brown’s

“held itself out to the public as having on its staff *** employees who were appropriately trained and possessed the necessary expertise to:
A. Advise potential skiers as to appropriate and proper equipment for their age, physical attributes and degree of expertise;
B. Fit and adjust rental equipment for the age, physical attributes and degree of expertise of the renter; [and]
C. Properly instruct the renter in the safe use of ski equipment[.]”

The • plaintiff further alleged that Brown’s misrepresented Darien Raiter “to be a person adequately trained and experienced to adjust ski equipment for rental customers and to advise on its safe use.” The plaintiff additionally alleged that Raiter:

“A. [H]ad inadequate training to qualify him to adjust ski equipment for rental customer’s [sic] safe use of such equipment; [and]
B. [W]as a person who had never skied and had no practical experience in the selection, adjustment or instruction in the safe use or to instruct renters in the safe use of ski rental equipment.”

Finally, the plaintiff concluded that Brown’s violated section 2 of the Consumer Fraud Act by misrepresenting “that Darien Raiter was a person appropriately trained with sufficient expertise to properly adjust skiing equipment for safe use and to instruct renters in its safe use.”

The trial court found no evidence to support the plaintiff’s claim of consumer fraud. Even assuming a misrepresentation, the trial court noted that any reliance the plaintiff may have placed upon Baiter’s statements regarding the release of the ski bindings was “wholly unreasonable” given the fact that the plaintiff fell on 10 prior occasions without the bindings releasing. We agree with the trial court’s analysis.

The trial court also found that the plaintiff failed to present evidence which established that any misrepresentation by the defendants had proximately caused the plaintiff’s injury. A plaintiff can recover damages under the Consumer Fraud Act only when his injury is a direct and proximate result of an alleged violation of the Act. (Petrauskas v. Wexenthaller Realty Management, Inc. (1989), 186 Ill. App. 3d 820, 832, 542 N.E.2d 902, 909.) Even assuming a violation of the Consumer Fraud Act, we agree with the trial court’s finding that the plaintiff had failed to show the necessary proximate causation between the defendants’ alleged misrepresentation and plaintiff’s accident.

Plaintiff next contends that the trial court erred in granting summary judgment in favor of Brown’s on the plaintiff’s products liability claim. The plaintiff alleged in count X of her fourth amended complaint that Brown’s “create[d] a customized ski and binding unit for use by Plaintiff” through its practice of adjusting the individual ski bindings. Plaintiff alleged that the ski and binding unit was in an unreasonably dangerous and defective condition because the ski binding would not release during operation. Plaintiff further alleged that Brown’s had failed to warn her of the unreasonably dangerous condition of the ski and binding unit. Plaintiff finally alleged that as a result of the defective condition of the ski and binding unit, her right ski failed to release when she fell, thereby causing the injury to her right leg.

Brown’s contended in its motion for summary judgment that the ski bindings were designed by the manufacturer to be adjustable. The necessary adjustments depended upon the different physical characteristics of Brown’s customers. Brown’s also maintained that the ski bindings had not been materially altered by its employees after receipt from the manufacturer. The trial court granted Brown’s summary judgment on count X. The trial court found that Brown’s act of adjusting the ski bindings did not constitute an alteration, modification or change sufficient to allow plaintiff’s claim for products liability.

We find that the trial court correctly granted summary judgment as to count X. To state an adequate cause of action for strict products liability, plaintiff must allege facts which show: (1) her injuries or damages resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time it left the manufacturer’s control. Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 623, 210 N.E.2d 182, 188.

We do not accept plaintiff’s contention that the adjustable binding constituted an unreasonably dangerous condition sufficient to subject Brown’s to strict products liability. The plaintiff has failed to present the necessary evidentiary facts sufficient to support her claim that Brown’s had altered or modified the binding. We note that the binding in question was intended by the manufacturer to be adjusted for the physical characteristics of different users.

Plaintiff’s final contention is that the trial court abused its discretion when it denied her motion to further amend the complaint. We disagree. The plaintiff sought to add additional causes of action for willful and wanton breach of contract and fraud. The plaintiff’s initial complaint set forth three counts alleging negligence. The plaintiff was then allowed to amend the complaint to add counts IV through VI. After the defendants’ motion to dismiss counts I through VI was granted, the plaintiff was allowed to file a further amended complaint which added counts VII and VIII. All but two allegations of willful and wanton conduct in those counts were later dismissed. Thereafter, the plaintiff was allowed a third time to amend her complaint to add count IX which alleged a violation of the Consumer Fraud.Act. Finally, the plaintiff amended her complaint a fourth and final time to add a count in products liability.

Whether an amendment to a pleading is granted or denied is within the sound discretion of the trial court. The trial court’s decision to deny a motion to amend will not be reversed on appeal absent an abuse of discretion. (Martin v. Yellow Cab Co. (1990), 208 Ill. App. 3d 572, 576, 567 N.E.2d 461, 464-65.) Among the factors to be considered in deciding whether discretion was properly exercised is whether plaintiff had been afforded previous opportunities to amend the pleadings. (B.C. v. J.C. Penney Co. (1990), 205 Ill. App. 3d 5, 16, 562 N.E.2d 533, 540.) Further, plaintiff does not have a right to file unlimited amendments. (Metzger v. New Century Oil & Gas Supply Corp. Income & Development Program—1982 (1992), 230 Ill. App. 3d 679, 700, 594 N.E.2d 1218, 1233 (trial court’s order denying motion for leave to file fourth amended complaint affirmed).) Based upon the record in this case, we conclude that the trial court did not abuse its discretion in denying plaintiff’s motion to amend where the plaintiff had already amended her complaint on four prior occasions.

We affirm the trial court’s grant of summary judgment in favor of defendants, and the court’s denial of plaintiff’s motion to amend.

Affirmed.

GORMAN and STOUDER, JJ., concur.


author: JUSTICE SLATER JUSTICE HAASE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TAMMY HERNANDEZ, Defendant-Appellant.
    Third District
    No. 3—91—0829
    Opinion filed September 29, 1992.
    HAASE, J., specially concurring.
    Appeal from the Circuit Court of Henry County; the Hon. John Donald O’Shea and the Hon. James J. Mesich, Judges, presiding.
    Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.

      Larry VanDerSnick, State’s Attorney, of Cambridge (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Pursuant to a partially negotiated plea of guilty to two counts of theft of property not exceeding $300 in value (Ill. Rev. Stat. 1991, ch. 38, par. 16 — 1), the defendant, Tammy Hernandez, was sentenced to six months of incarceration in the county jail, one year of probation, and payment of $4,500 in restitution. She appeals the amount of restitution ordered. We vacate the restitution order and remand this cause for further proceedings consistent with our decision.

The record shows that, in addition to the two counts of theft, the defendant was also charged with two counts of residential burglary. The burglary charges alleged that she knowingly and without authority entered the dwellings of Angela Haga and Jamee Staton with the intent to commit thefts therein. The theft charges alleged that she knowingly exerted unauthorized control over some of the property taken in the burglaries.

The record from the plea agreement hearing shows that under the terms of the agreement the defendant would plead guilty to the theft charges in exchange for the dismissal of the residential burglary charges. In addition, the parties agreed that the defendant, who had no prior record, would serve a one-year term of probation and six months in the county jail. She would also make restitution in an amount to be agreed upon by the parties.

The factual basis for the plea showed that the State would establish that the defendant had possessed several of the items stolen in the burglaries. Regarding the burglary charges, the State conceded that it did not have any proof that the defendant actually went into the residences in question.

Based on this evidence, the trial court accepted the defendant’s plea and imposed the sentence agreed upon by the parties. It also ordered that a restitution hearing would be held if the parties were unable to reach an agreement.

Thereafter, a restitution hearing was held because the parties could not agree on the amount of restitution. At the hearing, it was determined that the victims of the residential burglaries had a combined loss of property valued at $4,500. As such, the trial court ordered the defendant to pay that amount in restitution.

On appeal, the defendant argues that the trial court erred in ordering her to pay $4,500 in restitution. She notes that the amount ordered reflects the value of the property taken in the burglaries and not the value of the property involved in the thefts. She contends that since she was not convicted of the burglaries and the State admitted it could not prove she had committed them, she should not have been ordered to pay restitution on those charges.

In response, the State argues that in the agreement the defendant agreed she would pay for the property stolen in the burglaries. Accordingly, it contends that the amount ordered was proper.

We disagree with the State. Based on our review of the record, we find that the defendant never agreed to pay restitution on the burglary charges. The record only shows that she and the State agreed they would negotiate a specific amount of restitution. Nowhere in the plea agreement does it state that the defendant was agreeing to pay restitution on the burglary charges. As such, we reject the State’s argument that the defendant agreed to pay for the losses sustained in the burglaries.

The State also argues that the amount of restitution was proper since a trial court may properly consider all the losses sustained by victims as a result not only of the charges to which the defendant pled guilty but also of the charges that were dismissed pursuant to a plea agreement. It contends that the restitution statute authorizes a court to consider all the losses suffered by the victims, as long as the losses were proximately caused by the same criminal conduct of the defendant. Ill. Rev. Stat. 1991, ch. 38, par. 1005—5—6; see also In re V.L.F. (1988), 174 Ill. App. 3d 930, 529 N.E.2d 312.

While it is true that a trial court may order restitution in cases like the above, it cannot order restitution of sums extraneous to the charges before it. See People v. Mahle (1974), 57 Ill. 2d 279, 312 N.E.2d 267; People v. Thompson (1990), 200 Ill. App. 3d 23, 557 N.E.2d 1008.

The facts of this case clearly established that the State could not link the defendant to the burglaries. Since the charges could not be proved, we find that they were extraneous to the theft convictions before the trial court.

We also note that in this case no evidence was presented showing that all the losses were proximately caused by the conduct for which the defendant was convicted. Although the factual basis presented at the plea proceeding indicated that the defendant received stolen property, it did not indicate that she committed the burglaries. We therefore reject the State’s claim that all of the items taken from the residences in question were lost as a result of the defendant’s conduct.

Accordingly, the judgment of the circuit court of Henry County finding the defendant guilty of two counts of theft is affirmed. The court’s restitution order is vacated, and the cause is remanded for a new hearing to determine the amount of restitution owed on the theft convictions.

Affirmed in part; vacated in part and remanded.

GORMAN, J., concurs.

JUSTICE HAASE,

specially concurring:

Although I agree and concur in the decision reached by the court in this case, the result is very unfortunate and troubling to me. This case started out as two counts of residential burglary and two counts of misdemeanor theft. It was subsequently plea bargained for a plea to the two counts of misdemeanor theft in return for a dismissal of the two felony charges. In addition, it was agreed by the parties that the defendant, who had no prior record, would serve a one-year term of probation, serve six months in the county jail and make restitution in an amount to be agreed upon by the parties within 30 days. The State conceded that it did not have any proof that the defendant actually entered the residences in question in the two residential burglaries.

After the partially negotiated plea, when the parties could not agree on the amount of restitution, a restitution hearing was held in which the trial judge determined that the victims of the residential burglaries had a combined loss of property valued at $4,500. It appears from a review of the record and briefs in this case that it was contemplated that the defendant would pay more in restitution than the minimum amount of stolen property found in her possession at the time of her arrest.

However, the failure of the prosecutor and defense lawyer to have an agreement at the time of the plea created the situation that we have before us. It seems to this writer that the better procedure would have been for the prosecutor and the defense lawyer to have a complete agreement on all issues prior to the time of the plea. At the very least, there should have been an agreement by the parties that some portion of the burglary proceeds were to be paid as restitution in a subsequent proceeding. Likewise, it is this writer’s opinion that the trial judge should not have accepted the plea without a clearer understanding by all parties with regards to the restitution. The net result of the procedure followed here is that a defendant pleads down two residential burglaries to misdemeanor theft with an understanding that she will pay restitution, when in fact she will pay no restitution other than amounts in her possession at the time of her arrest. Finally, it would seem that if the prosecution has no proof of the felony, they should not use the plea process to obtain restitution for it.

While the result is unfortunate, the court’s opinion is correct on the law and I concur in it.


author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JASON D. SCHEPERLE, Defendant-Appellee.
    Third District
    No. 3—92—0061
    Opinion filed November 17, 1992.
    Rehearing denied December 3, 1992.

      David W. Neal, State’s Attorney, of Morris (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Kenneth D. Brown, of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

The defendant, Jason D. Scheperle, was charged with driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 501). Thereafter, he received notice that his license would be summarily suspended. The defendant subsequently filed a petition to rescind (Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 501.1) alleging that he had not been properly arrested. The trial court agreed and rescinded the statutory summary suspension. The State appeals the trial court’s order. We reverse.

At the hearing on the petition, the parties stipulated to the following facts: About 4:17 p.m. on October 18, 1991, State Trooper Scambelluri discovered the defendant’s unoccupied car in the ditch alongside Interstate 55. While Scambelluri was investigating the car, the defendant arrived at the scene and admitted that he had driven the car into the ditch. Because Seambelluri’s observations of the defendant led him to believe that the defendant had been drinking, he asked the defendant to submit to field sobriety tests.

The defendant failed all the standard tests, including the horizontal gaze nystagmus test, the walk and turn test, the one-leg stand test, the finger to nose test, and the recitation of the alphabet test. The defendant’s failure of a preliminary breath test further led Scambelluri to believe that the defendant had been driving under the influence of alcohol.

Scambelluri transported the defendant to the Grundy County sheriff’s office. Upon their arrival, Scambelluri read the defendant the “Warning to Motorist” and watched him for more than 20 minutes. Scambelluri then administered a breath test to the defendant. The result was .10.

Scambelluri could not recall if he issued and served a uniform traffic citation for DUI to the defendant either before or after requesting him to submit to a breathalyzer test. The defendant believed that Scambelluri did not issue and serve the uniform traffic citation until after he had submitted to the breath test.

Following the close of evidence, the trial court found that the defendant had not been properly arrested for DUI as evidenced by the timely issuance of a uniform traffic citation. In so ruling, the trial court relied on this court’s decision in People v. Mannon (1991), 217 Ill. App. 3d 381, 577 N.E.2d 532. Accordingly, it rescinded the suspension.

On appeal, the State contends that the defendant was properly placed under arrest prior to being asked to submit to chemical tests for alcohol as required by section 11 — 501.1(a) of the Illinois Vehicle Code (the Vehicle Code) (Ill. Rev. Stat. 1991, ch. 951/2, par. 11— 501.1(a)). We agree.

We find that our decision in People v. Bahnfleth (1992), 233 Ill. App. 3d 289, is dispositive of the instant issue. We note that we decided Bahnfleth subsequent to Mannon.

In Bahnfleth we noted that the refusal to take a chemical test must be preceded by an arrest for DUI in order for such refusal to be admissible in summary suspension proceedings under section 11— 501.1 of the Vehicle Code. (See also People v. Jones (1990), 198 Ill. App. 3d 572, 555 N.E.2d 1143.) However, we held that the issuance and service of a written citation is not a prerequisite for a valid arrest for DUI. Rather, the standard for determining if and when an arrest has occurred is whether a reasonable man, innocent of any crime, would have concluded that he was not free to leave considering the surrounding circumstances. It is this standard that applies in the instant case.

We further note that in Bahnfleth we also held that the portion of our decision in Mannon which interpreted section 11 — 501.1(a) of the Vehicle Code as requiring the issuance and service of a written citation as a prerequisite for a valid arrest for DUI to be dicta, and declined to follow it. Therefore, Mannon is not applicable in the instant case.

In the case at hand, Scambelluri requested the defendant to perform tests which are designed to give an indication of a subject’s sobriety. The defendant voluntarily performed the field sobriety tests and failed them. He also failed a preliminary breathalyzer test. Officer Scambelluri then transported the defendant to the sheriff’s office. At this point, we find that a reasonable person in the defendant’s position would have concluded that he was not free to leave. Therefore, the defendant was under arrest for purposes of the summary suspension proceedings. It was after this point that Scambelluri read the “Warning to Motorist” to the defendant and asked him to submit to a breathalyzer test. The fact that the ticket may not have been issued to the defendant until after he took the test is immaterial.

For the foregoing reasons, the judgment of the circuit court of Grundy County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

SLATER and HAASE, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT MOORE, Defendant-Appellant.
    Second District
    Nos. 2—90—1083, 2—90—1085 cons.
    Opinion filed September 30, 1992.
    G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Scott Moore, entered guilty pleas to residential burglary and theft (Ill. Rev. Stat. 1989, ch. 38, pars. 19 — 3(a), 16(a)(4)(A)). The trial court sentenced defendant to concurrent prison terms of 13 years and 5 years. Within 30 days of sentencing, defendant filed, inter alia, a motion to reconsider these sentences. After the trial court refused to hear the motion, defendant appealed, contending such refusal was error. We reverse and remand.

In circuit court No. 90 — CF—758, defendant was charged with residential burglary, possession of burglary tools, theft, unlawful possession of a license plate, and possession of firearm ammunition with no firearm owner’s identification card. In circuit court No. 90 — CF—773, defendant was charged with an unrelated theft. Defendant was also charged with additional unrelated offenses in circuit court Nos. 90— CF — 768 and 90-CF-812.

Pursuant to an agreement with the State, defendant pleaded guilty to residential burglary in No. 90 — CF—758 and theft in No. 90 — CF—773, and all other charges were dismissed. The trial court sentenced defendant to 13 years’ imprisonment for residential burglary and 5 years’ imprisonment for theft, both sentences to run concurrently. Defendant thereafter filed a motion to withdraw his guilty pleas and a motion to reconsider his sentences. At the scheduled hearing on the motions, defendant requested, and was granted, leave to withdraw his motion to withdraw his guilty pleas. Regarding defendant’s motion to reconsider, the court stated:

“The only thing we have left on file is the defendant has filed a motion to reconsider. Considering what was available as the possible penalties, the negotiation, which was conditionally accepted, and then finally accepted by the court, the court, in the exercise of its discretion declines to allow a hearing on the motion to reconsider, and declines to reconsider the case.
* * *
I’m not denying the motion, I am not allowing a hearing on the motion.”

The State argues that defendant’s appeal should be dismissed because defendant failed to file a motion to withdraw his guilty plea pursuant to Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)). The State contends that, in order to perfect appellate jurisdiction over the sentence entered, a defendant whose plea is a negotiated one should be required to move to withdraw his plea, and not merely to move to reconsider the sentence. We disagree.

In People v. Stacey (1977), 68 Ill. 2d 261, the court interpreted Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)) as requiring all criminal defendants who wish to appeal after entering pleas of guilty to first present motions to withdraw their guilty pleas to the trial court even if they only sought to challenge the sentence that was imposed. (Stacey, 68 Ill. 2d at 265-67.) More recently, however, our supreme court held that a motion to withdraw a guilty plea is not required as a prerequisite for an appeal if a defendant had presented a motion to reconsider his sentence and was only challenging the sentence on appeal. (People v. Wilk (1988), 124 Ill. 2d 93, 110.) The court noted in Wilk that the trial judge “had the opportunity to reconsider the appropriateness of the sentence imposed and to correct errors made, if any.” (Wilk, 124 Ill. 2d at 110.) The court also stated that since the two defendants in question “were not appealing their guilty pleas, it was not necessary for them to file a Rule 604(d) motion.” 124 Ill. 2d at 110.

Relying on Wilk, our supreme court determined that, in the instant circumstances, a motion to reconsider the sentence imposed is a prerequisite for an appeal challenging the sentence. (People v. Wallace (1991) , 143 Ill. 2d 59, 61.) The court cited Wilk for the proposition that such a motion is necessary to enable the trial court to correct any sentencing errors. Wallace, 143 Ill. 2d at 61.

The trial court’s refusal to hear defendant’s motion to reconsider is completely inconsistent with Wilk and Wallace, which are premised upon the theory that trial courts should have the opportunity to correct any potential errors in sentencing before an appeal is taken. The trial court’s refusal to hear defendant’s motion deprived it of any such opportunity.

This court recently addressed this identical issue in People v. Soles (1992), 226 Ill. App. 3d 944. In ruling that trial courts must consider the merits of a motion to reconsider a criminal sentence, we stated:

“Additionally, section 5 — 8—1(c) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(c)) states that ‘[a] motion to reduce a sentence may be made *** within 30 days after the sentence is imposed.’ This provision further states that if such a motion is timely filed and the movant diligently seeks a ruling, ‘the court shall thereafter decide such motion within a reasonable time.’ (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(c).) The word ‘shall’ in a statute denotes a mandatory obligation unless the context in which the word appears indicates otherwise. (People v. Richardson (1984), 104 Ill. 2d 8, 15.) Because the language of section 5 — 8—1(c) does not indicate otherwise, we conclude that it requires trial courts to consider the merits of motions to reconsider and reduce sentences which are timely filed if the movants are diligent in seeking rulings. In so holding we agree with the statement of the court in People v. Chestnut (1973), 15 Ill. App. 3d 188, that ‘[a] motion made in orderly fashion by counsel for defendant should be given consideration and the court should rule upon it.’ Chestnut, 15 Ill. App. 3d at 190.” Soles, 226 Ill. App. 3d at 947.

Nevertheless, the State contends that remand in this case would be inappropriate because defendant filed his motion to reconsider merely as a procedural strategy to perfect appellate jurisdiction and not as a valid request to reweigh possible mitigating sentencing factors. The State points out that defendant’s motion did not specify any particular grounds for reduction of defendant’s sentence and that the defendant’s appellate counsel first mentioned these grounds in defendant’s appellate brief.

We disagree with the State’s contention. Although defendant’s written motion to reconsider did not specify the particular mitigating factors sought to be reviewed, there is nothing to indicate that defendant would not have presented these specific matters during a hearing on the motion. By declining to hear the motion, the court denied defendant the opportunity to argue the merits of his motion.

Additionally, defendant points out that he pleaded guilty to one count of residential burglary and one count of theft, in circuit court No. 90 — CF—758 and No. 90 — CF—773, respectively. According to the plea agreement, all other charges, including those in circuit court No. 90 — CF—768, would be dismissed. However, the judgment and sentence order states that defendant is to serve five years’ imprisonment in case No. 90 — CF—773 concurrent with a sentence in case No. 90 — CF—768. Likewise, the judgment and sentence order in circuit court No. 90 — CF—758 provides that defendant is to serve 13 years’ imprisonment concurrent with the term in 90 — CF—768. It is fundamental that a judgment order which falsely reflects a conviction for a crime must be amended. People v. Valentine (1965), 60 Ill. App. 2d 339, 350-51.

For the above reasons, the order of the circuit court of Lake County refusing to consider the merits of defendant’s motion to reconsider is reversed, and the cause is remanded with directions to the circuit court to allow defendant to present his motion to reconsider and to rule on the merits of the motion. Additionally, this cause is remanded with directions to amend the judgment and sentence orders reflecting that defendant is convicted only in case Nos. 90 — CF—758 and 90 — CF—773.

Reversed and remanded with directions.

WOODWARD and McLAREN, JJ., concur.


author: JUSTICE HARRISON

text:
    HOME RENTALS CORPORATION, Plaintiff and Counterdefendant-Appellant, v. CHRIS CURTIS et al., Defendants and Counterplaintiffs-Appellees.
    Fifth District
    No. 5—91—0483
    Opinion filed October 28, 1992.

      Gregory A. Veach and Craig R Reeves, both of Barrett, Twomey, Morris, Broom & Hughes, of Carbondale, for appellant.
    No brief filed for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Home Rentals Corporation (Home Rentals), appeals from a judgment of the circuit court of Jackson County which denied its claim for money damages for breach of a residential lease and awarded defendants, Chris Curtis, Ed Domaracki, Mike Fraser, and Carson Flugstad, the sum of $1,980 plus costs on their counterclaim for constructive eviction. We affirm.

The record, when viewed in the light most favorable to defendants, the prevailing parties, established that Home Rentals owns approximately 300 rental properties, including a single-family residence located at 512 S. Beveridge near Southern Illinois University in Carbondale. Home Rentals agreed to rent the Beveridge house to the four defendants in this action, each of whom was a student at SIU. The terms of the agreement were governed by a written lease signed on behalf of Home Rentals by its president, Henry Fisher, in February of 1989. The lease was to commence on August 17, 1989, and to expire on August 13, 1990. Rent was fixed at $740 per month, and a $500 damage deposit was required. By payments made in April, May and June, defendants gave Home Rentals a total of $1,980 to cover the damage deposit plus advance rent for the last two months of the lease term.

Under the lease defendants were to receive the premises “in good order and repair.” While there is no dispute that the house was in acceptable condition when the lease was signed in February, the record established that the situation had changed drastically by the time defendants attempted to take possession six months later. The first to reach the scene was Mike Fraser, who arrived in Carbondale from his home in northern Illinois on August 15. At that time the electricity had not yet been turned on, and he was not able to view the premises during daylight hours until Wednesday, August 16. What Fraser found then was a house that was not fit for human habitation.

. Roaches had overrun the rooms. The kitchen was so filthy and so infested by bugs that food could not be stored there. The living room carpet smelled, and one could actually see outside through holes in the wall around the frame of the front door. The bathrooms were unsanitary, and when the water was turned on the following day, August 17, Fraser discovered that not one of the toilets in the building worked. He also discovered that one of the bathtubs did not drain at all, while another drained only slowly, and that bathroom waste water drained directly onto the floor of the basement. In attempting to explain this open drain at trial, Henry Fisher tried to assert that it was simply part of the washing machine hookup. As evidence that this was laundry-related, he pointed to white matter on the basement floor by the drain which he claimed was spilled laundry detergent. Other evidence indicated, however, that the white matter was, in fact, a mass of roach eggs.

As the remaining defendants began to arrive for the start of school, they found the same conditions discovered by Fraser. They and their friends described those conditions to the court at trial, and photographs depicting the squalid conditions were admitted into evidence. Fraser testified that he spoke with Fisher at Home Rentals on the 16th and told him that the place was uninhabitable because of the filth and the roaches. Fisher’s response was to suggest that the students buy roach bombs and cleaning supplies to take care of the problems themselves, although he did offer to reimburse them for those items and represented that he would arrange to have an exterminator spray.

Fraser contacted Home Rentals again the following day after discovering the plumbing problems. Fraser notified the company of those problems, complained again about the overall dirtiness of the house, and reported that the roach problem was even more severe than originally thought. This time he was told by the secretary that someone would be sent to “check it out.” By the time the lease term commenced the following day, however, defendants were still waiting for a Home Rentals representative to visit.

Hopeful that the situation might somehow be salvaged, defendants spent several days attempting on their own to make the house liveable. Although an exterminator finally appeared on Friday, August 18, or Saturday, August 19, the problem of roach infestation continued, and Home Rentals did nothing about the dirt or plumbing problems. The condition of the house was so bad that defendants were never able to spend the night there. Henry Fisher himself admitted that he would not have moved in either, at least not until after the. exterminator had sprayed and the dead roaches were removed. The closest defendants came to occupying the premises was when they unloaded some of their personal property from the rental truck they were using so that the truck could be returned on time.

On Monday, August 21, defendants finally gave up. They packed up their property and sought housing elsewhere. While this was happening, someone from Home Rentals appeared at last with a plunger, presumably to work on the toilets, but by this time defendants’ patience was exhausted. They went to the Home Rentals office, advised that they would not be living in the house, and returned the keys. They also reported the condition of the house to the City of Carbon-dale’s Code Enforcement Division.

Following an inspection on August 23, 1989, the Code Enforcement Division notified Home Rentals that it had found numerous violations of the city’s codes and ordinances. These included open sewers in the basement, the open waste water drain from the upstairs bathroom, unclean and unsanitary conditions in the first- and second-floor kitchens and bathrooms, severe roach infestation, a “stopped up” lavatory basin, no smoke detectors, a broken window, a large hole in the wall, a structurally unsound handrail by the steps to the second floor, and various exterior surfaces which were in need of painting. The notice of violations, dated August 25, 1989, warned Home Rentals that “due to the severe nature of the violations *** and the potential hazard they create to the health, safety and welfare of anyone occupying the structure in its present condition,” the house would be deemed “unfit for human habitation” pursuant to the Carbondale Revised Code and would be posted “occupancy prohibited” unless all cited violations were corrected within 72 hours.

By August 28, 1989, 11 days after defendants’ lease was to have commenced, Home Rentals finally remedied all of the violations found by the city, with the exception of the exterior painting. Although the city apparently then withdrew its threat to prohibit further occupancy, Home Rentals did not rent the property out to anyone else. Instead, it brought this action against defendants for breach of the lease. For its damages, Home Rentals claimed the sum of $6,900, representing the rent due for all 12 months under the lease, less the two months’ advance rent defendants had already paid as part of their deposit. Home Rentals also asked for its costs and attorney fees of $2,300.

Defendants denied Home Rentals’ allegations and raised as affirmative defenses breach of implied warranty of habitability and constructive eviction. Based on the theory of constructive eviction, they also asserted a counterclaim seeking return of the $500 damage deposit and $1,480 in advance rent they had previously paid to Home Rentals. These matters were tried to the court, sitting without a jury. As we noted at the outset of this disposition, the court ultimately ruled against Home Rentals on its damage claim and in favor of defendants on their counterclaim. Following denial of its post-trial motion, Home Rentals now appeals.

The primary argument advanced by Home Rentals is that the circuit court’s judgment cannot be sustained on the theory of breach of implied warranty of habitability. As we have just indicated, however, breach of implied warranty of habitability was only one of defendants’ affirmative defenses. Defendants also raised the defense of constructive eviction, and constructive eviction, not breach of implied warranty of habitability, was the basis for their successful counterclaim.

A constructive eviction occurs where a landlord has done “something of a grave and permanent character with the intention of depriving the tenant of enjoyment of the premises.” (Applegate v. Inland Real Estate Corp. (1982), 109 Ill. App. 3d 986, 989, 441 N.E.2d 379, 382.) Because persons are presumed to intend the natural and probable consequences of their acts, constructive eviction does not require a finding that the landlord had the express intention to compel a tenant to leave the demised premises or to deprive him of their beneficial enjoyment. All that is necessary is that the landlord committed acts or omissions which rendered the leased premises useless to the tenant or deprived the tenant of the possession and enjoyment of the premises, in whole or part, making it necessary for the tenant to move. Whether there has been a constructive eviction is a question of fact, and the decision of the trier of fact will not be reversed unless it is against the manifest weight of the evidence. (Applegate, 109 Ill. App. 3d at 989, 441 N.E.2d at 382; John Munic Meat Co. v. H. Gartenberg & Co. (1977), 51 Ill. App. 3d 413, 416-17, 366 N.E.2d 617, 620.) In this case, there was ample support for the circuit court’s judgment.

At oral argument, counsel for Home Rentals asserted that defendants did what they did simply because “the premises did not meet their expectations.” The inference, of course, was that defendants were overly particular and that their expectations were unrealistic. It is scarcely unreasonable, however, for tenants paying $740 per month to expect flushing toilets, sewage-free basements, and kitchens that are not overrun with roaches. These are things that Home Rentals failed to provide. What Home Rentals did provide was a house that was clearly and unquestionably unfit for people to live in. As a result, defendants had no alternative but to vacate the premises.

Home Rentals correctly points out that a tenant may not abandon premises under the theory of constructive eviction without first affording the lessor a reasonable opportunity to correct the defects in the property (Applegate, 109 Ill. App. 3d at 990, 441 N.E.2d at 383), but such an opportunity existed here. Home Rentals’ president, Henry Fisher, admitted that he actually inspected the premises as early as August 13. While he denied having seen anything wrong, the circuit court could certainly have concluded that the problems found by the defendants and then the City of Carbondale were already in existence at that time, that Fisher was aware of them (or at least of the non-plumbing problems) and that Fisher’s protestations to the contrary were simply not credible. In any case, the record is clear that defendants had notified Home Rentals of all their complaints by August 17, when the lease term was scheduled to commence. This was four full days before they finally gave up and moved.

Considering the magnitude of the problems, four days were opportunity enough for Home Rentals to act. Constructive eviction has been found in analogous circumstances where an even shorter period was involved. (See Applegate, 109 Ill. App. 3d at 988, 441 N.E.2d at 381-82 (tenant moved in on October 29 and moved out October 31 because of roaches, filth and disrepair).) We note, moreover, that there is no indication that giving Home Rentals additional time would have made any difference. In the four days before defendants left, the only action the company took at all was to send someone out to spray for bugs, which did not work, and to dispatch a man with a plunger. In the end, it was only because of the intervention by the City of Carbondale that Home Rentals implemented the necessary remedial measures.

Home Rentals argues that defendants are precluded from complaining about the condition of the house because they made an oral agreement with Home Rentals “to repair any defective conditions which existed upon the premises when the lease term was to begin.” Putting aside the fact that the lease expressly stated that “the entire provisions and conditions of [the parties’] agreement” were contained in the written lease and that “all verbal or oral representations or promises by either party *** are hereby declared to be null and void and of no effect,” Home Rentals’ claim of an oral agreement is devoid of evidentiary support. Although defendants did decide to follow the suggestion of Home Rentals’ president that they buy supplies to try to clean up the filth and combat the roaches themselves, it is clear under any fair reading of the evidence that they did so merely because, at the time, they had no alternative if they hoped to make the house liveable. At no time did they give Home Rentals any cause to believe that it would be excused from ultimate responsibility for correcting these problems, and it is apparent that Home Rentals itself never believed that it was being excused from those responsibilities. After all, Home Rentals did eventually send an exterminator and a man with a plunger to the house, and it later undertook to correct the deficiencies cited by the Code Enforcement Division at its own expense. It surely would not have done so if the repairs were, in fact, understood to be defendants’ responsibility.

Finally, Home Rentals argues that even if a constructive eviction took place, defendants were not entitled to the damages awarded by the circuit court. This contention is also untenable. Fourteen hundred and eighty dollars of the sum awarded here represented the advance rent paid by defendants for the last two months of the lease term, a period which followed the eviction. Because a constructive eviction relieves a tenant of any duty to pay rent for the period after the eviction (Applegate, 109 Ill. App. 3d at 991, 441 N.E.2d at 384), Home Rentals can have no legitimate claim to this sum. The remaining $500 was for the damage deposit. Home Rentals claims a contractual right to this deposit, but under the express terms of the lease, the company was entitled to keep the money only to the extent necessary for “paying damages occasioned by occupancy of the premises by the [defendants], or any of them, or occurring during the occupancy of said premises by the [defendants], or any of them, unpaid rental, reasonable cleaning charges, or other expenses occasioned by any of the aforesaid damages.” None of these conditions was present here. All of the damage already existed when the lease was to have commenced, and Home Rentals was entitled to no rent. The circuit court was therefore correct in ordering the damage deposit refunded to defendants in full.

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

Affirmed.

W.A. LEWIS and H. LEWIS, JJ., concur.