text:
    PAUL NORTH, Plaintiff-Appellant, v. De WITT COUNTY SHERIFF’S DEPARTMENT MERIT COMMISSION et al., Defendants-Appellees.
    Fourth District
    No. 4 — 90—0300
    Opinion filed October 25, 1990.

      Stanley H. Jakala, of Berwyn, for appellant.

      Richard E. Goff, State’s Attorney, of Clinton, for appellees DeWitt County Sheriff’s Department Merit Commission and Herman A. Gardner.
    Thomas F. McQuire & Associates, Ltd., of Long Grove, for appellee Thomas L. Farris.
   JUSTICE LUND

delivered the opinion of the court:

The De Witt County Sheriff’s Department Merit Commission (Commission) ordered Sergeant Paul North discharged from the sheriff’s department. North filed a complaint pursuant to the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.), seeking to set aside that decision. Plaintiff appeals from the circuit court’s affirmance of the Commission’s decision. We affirm the judgment of the circuit court.

In September 1987, the De Witt County sheriff filed a complaint alleging that plaintiff had violated the following rules and regulations of the sheriff’s department:

“Article VII, A32
On/Ojf Duty Conduct — Moral[e]/Efficiency/Image/Public Confidence
Engaging in conduct, on or off duty, which adversely affects the morale or efficiency of the Department, or in the alternative, engaging in conduct, on or off duty, which has a tendency to destroy public respect for the employee and/or the Department and/ or destroy confidence in the operation of the County service.
Article VII, A35
Insubordination
Insubordination *** shall include, but [is] not necessarily limited to, any failure [or] deliberate refusal to obey a lawful order given by a superior, or any disrespectful, mutinous, insolent, or abusive language or action toward a superior, whether in or out of the presence of the superior.
Article VII, A8
Cooperation with Police Investigations
Failure to fully cooperate with a police investigation.
Article VII, A24
Truthfulness/Cooperation
Testifying, making reports, or conducting police business in a less than truthful and/or cooperative manner.”

The cause proceeded to a hearing before the Commission. Jerry Ishmael, an Illinois Department of Conservation officer, testified that in the early morning hours of September 6, 1987, he encountered a group of eight or nine loud, unruly campers in Mascoutin Park. He called the De Witt County sheriff’s department to request assistance. Deputy Sheriff John Brannan, a part-time employee, was the first to arrive on the scene. The plaintiff arrived shortly thereafter. Ishmael testified that plaintiff insisted that “he would not throw any people out of the campground if they were intoxicated because he would not jeopardize getting ten days off from his job if they happen to go out and get in a wreck.” Plaintiff then tinned to Deputy Brannan and said, “You know, some deputies would sell their soul[s] to keep their jobs.” Plaintiff also discussed the shortcomings of fellow De Witt County sheriff’s department officers, stating that Lieutenant Trammel and Sheriff Farris were both “too immature for their jobs” and that Sergeant Birk, a friend of Officer Ishmael, “had no business running for *** the sheriff’s office.” Ishmael stated that he was “dumbfounded” by plaintiff’s conduct and “didn't feel like [he] could count on him to do his job.”

Sheriff Farris testified that he conducted an administrative interview with the plaintiff on September 27, 1987. A transcript of the interview, which contains the plaintiff’s testimony, was submitted to the Commission. Plaintiff testified that when he arrived at the scene, Ishmael advised him that he was going to remove a group of drunk and disorderly campers from the park. Plaintiff stated that he “questioned whether we should put drunks out on the roadway.” He then asked Ishmael if he had authority to remove anyone from the park. Ishmael was uncertain of his authority. Plaintiff stated that he, Ishmael, and Deputy Brannan agreed not to take action until a State Police officer, who was en route from McLean County, arrived.

Some time later, a State Police officer arrived with a Farmer City police officer who had directed him there at the plaintiff’s request. The five officers then proceeded to the campsite. Ishmael and the State Police officer told the campers they could stay in the park for the remainder of the evening if they would remain quiet, clean up their campsite, and leave in the morning.

In response to Sheriff Farris’ questions, plaintiff admitted stating that Sergeant Birk had no business running for or being sheriff. Plaintiff denied stating that Sheriff Farris and Lieutenant Trammel were too immature for their jobs and that some deputies would sell their souls to keep a job. Plaintiff also denied making a statement to the effect that “I am not going to take any action due to the fact that I do not want to get another ten (10) days off for bull shit.” Plaintiff explained, “I told [Ishmael] that I had to be careful and be sure of what I did or I was subject to receiving another ten days[’] suspension.”

Sheriff Farris submitted records of prior disciplinary action taken against the plaintiff to be considered in aggravation if the plaintiff was found guilty. The record reveals that plaintiff had received disciplinary suspensions on three prior occasions in 1987 for offenses ranging from neglect of duty to damaging departmental property due to negligence or inattention. Additionally, plaintiff received a written reprimand in 1987 for failing to answer radio calls while on duly.

On October 23, 1987, the Commission issued a written order reciting the following findings. Plaintiff “did state that Sheriff Farris and Lieutenant Trummel were too immature for their jobs, that Sergeant Birk had no business running for or being sheriff, that he, Sergeant North, would not eject people from the campground because he did not want another ten days off work, and that some part-time deputies would sell their soul[s] for a job.” The Commission held that the foregoing comments were not matters of public concern, impaired the administration and operation of the sheriff’s department, and violated articles VII A32 (on/off duty conduct), and VII A35 (insubordination) of the sheriff’s department rules and regulations. Further, the Commission found that the plaintiff falsely denied that “he made the comments regarding Sheriff Farris, Lieutenant Trummel, attempting to avoid ten days’ suspension, and part-time deputies.” These false denials were held to constitute violations of articles VII A8 (failure to cooperate with a police investigation), and VII A24 (testifying in a less than truthful and/or cooperative manner) of the departmental rules and regulations. Accordingly, the Commission ordered the plaintiff discharged for “cause” pursuant to section 14 of the Sheriff’s Merit System Act (Ill. October 25, 1990.Rev. Stat. 1987, ch. 125, par. 164).

Plaintiff subsequently filed a complaint for administrative review in the circuit court of De Witt County. The circuit court affirmed the Commission’s decision.

Plaintiff raises three major contentions on appeal: (1) the Commission’s finding that plaintiff violated the sheriff’s department rules and regulations is against the manifest weight of the evidence; (2) even if the Commission correctly found that plaintiff violated the sheriff’s department rules and regulations, he cannot be punished because his statements are protected by the first and fourteenth amendments; and (3) plaintiff’s actions did not provide the Commission with sufficient cause to justify his discharge.

Review of an administrative agency’s decision to discharge an employee is a two-step process. First, the court must determine if the agency’s findings of fact are contrary to the manifest weight of the evidence. Second, the court must determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for discharge does or does not exist. Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 550-51, 426 N.E.2d 885, 887; Batley v. Kendall County Sheriffs Department Merit Comm’n (1981), 99 Ill. App. 3d 622, 626, 425 N.E.2d 1201, 1205.

Plaintiff first contends that the Commission’s finding that he violated the sheriff’s department rules and regulations is against the manifest weight of the evidence. We disagree. Rule VII A32 prohibits an officer from “[e]ngaging in conduct, on or off duty, which adversely affects the morale or efficiency of the Department, or in the alternative *** has a tendency to destroy public respect for the employee and/or the Department and/or destroy confidence in the operation of the County service.” The plaintiff’s tirade against his colleagues included a statement to Deputy Brannan to the effect that “some deputies would sell their soul[s] to keep a job.” Taken in context, the statement can only be viewed as a personal affront to Deputy Brannan. The Commission properly concluded that, by insulting other officers while on duty, the plaintiff adversely affected the morale of the department.

Additionally, the record is sufficient to support the conclusion that plaintiff’s statements to Officer Ishmael, a member of another law-enforcement agency, tended to destroy public respect for the plaintiff and destroy confidence in the operation of the county service. Officer Ishmael stated that, after hearing the plaintiff’s remarks, he “didn’t feel like [he] could count on him to do his job.” Plaintiff’s comments regarding the immaturity of Sheriff Farris and Lieutenant Trammel also constituted an act of insubordination as it is defined in article VIIA35.

Finally, the record supports the Commission’s conclusion that, by falsely denying several of the remarks he made to Officer Ishmael, plaintiff violated articles VII A8 and VII A24, which provide that an officer must fully cooperate with a police investigation and must testify in a truthful and cooperative manner. These findings are a result of the Commission’s choice to believe Officer Ishmael’s testimony rather than the plaintiff’s. However, a mere conflict between the testimony of witnesses will not justify setting aside the findings of an administrative agency. (Oster v. Police Board (1974), 22 Ill. App. 3d 403, 408, 318 N.E.2d 34, 37.) This court cannot substitute its judgment for that of the Commission, which was in a better position to judge the credibility of the witnesses. Albert v. Board of Fire & Police Comm’n (1981), 99 Ill. App. 3d 688, 691, 425 N.E.2d 1158, 1161.

Plaintiff alternatively argues that, even if the Commission correctly found that his statements violated the sheriff’s department rules and regulations, any punishment for these remarks violates the first and fourteenth amendments of the United States Constitution. (U.S. Const., amends. I, XIV.) Plaintiff raises three constitutional challenges to his dismissal.

First, plaintiff asserts that his employer did not make the required showing that his statements had an adverse impact upon the morale or efficiency of the sheriff’s department. A police officer may exercise his right to free speech, as long as he does not impair the administration of the public service in which he is engaged. (Schafer v. Board of Fire & Police Commissioners (1979), 69 Ill. App. 3d 677, 680, 387 N.E.2d 976, 979.) Thus, when it is sought to discipline a police officer for exercising his right to free speech, the public interest and the individual interest of the employee must be balanced against the interest of the department or employer. (Pickering v. Board of Education of Township High School District 205 (1968), 391 U.S. 563, 568, 20 L. Ed. 2d 811, 817, 88 S. Ct. 1731, 1734-35.) Generally, the public employer has the burden of proving that the employee’s exercise of his right to free speech has rendered him unfit to continue in the public service, or that the employee’s communication has substantially affected the administration of the public service involved. (Dendor v. Board of Fire & Police Commissioners (1973), 11 Ill. App. 3d 582, 589, 297 N.E.2d 316, 321.) However, the State’s burden in justifying a particular discharge varies with the nature of the employee’s expression. The courts must reach the most appropriate possible balance of competing interests. Connick v. Myers (1983), 461 U.S. 138, 150, 75 L. Ed. 2d 708, 722, 103 S. Ct. 1684, 1691-92.

The United States Supreme Court has historically recognized the government’s legitimate purpose in promoting efficiency and integrity in the discharge of official duties and to maintain proper discipline in the public service. (Connick, 461 U.S. at 151, 75 L. Ed. 2d at 722-23, 103 S. Ct. at 1692.)

“ ‘To this end, the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch. Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work place, foster disharmony, and ultimately impair the efficiency of an office or agency.’ ” Connick, 461 U.S. at 151, 75 L. Ed. 2d at 722-23, 103 S. Ct. at 1692, quoting Arnett v. Kennedy (1974) 416 U.S. 134, 168, 40 L. Ed. 2d 15, 41, 94 S. Ct. 1633, 1651 (Powell, J., concurring in part).

Morale is undermined and the administration of the public service is impaired when a police officer chooses to inveigh against his fellow officers and superiors while on duty. This is equally true when an officer obstructs a disciplinary investigation by falsely denying certain statements. It is not necessary for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships are manifest before taking action. Connick, 461 U.S. at 152, 75 L. Ed. 2d at 723, 103 S. Ct. at 1692-93.

A public employer may sometimes be required to make a stronger showing of detrimental impact to the public service if the employee’s speech substantially involves matters of public concern. (Connick, 461 U.S. at 152, 75 L. Ed. 2d at 723, 103 S. Ct. at 1692-93.) However, this is not such a case. The statements plaintiff made to Officer Ishmael are devoid of factual content and could accurately be characterized as the angry grumblings of an employee who has grown familiar to the point of contempt with the departmental disciplinary process. His statements regarding his fellow officers were patently abrasive and of very limited, if any, public interest. As such, the sheriff’s department made a sufficient showing of adverse impact on the department.

Plaintiff next contends that he cannot be punished for any statements he made during the administrative interview with the sheriff. Plaintiff reasons: “[T]he order directing the plaintiff-appellant to submit to an administrative interview relating to the plaintiff-appellant’s right to speak freely was an illegal order, since it was an infringement upon the plaintiff-appellant’s right to address matters of public concern without being subjected to such an interview; therefore, any alleged false statements made during this interview should be held for naught because the interview was illegal from its inception.”

In the course of a disciplinary hearing, a public employer may require the employee to discuss information reasonably related to his fitness for continued employment. (Kammerer v. Board of Fire & Police Commissioners (1970), 44 Ill. 2d 500, 506, 256 N.E.2d 12, 16.) The employee may be fired either on the basis of his answers or for refusing to answer. (Blunier v. Board of Fire & Police Commissioners (1989), 190 Ill. App. 3d 92, 108, 545 N.E.2d 1363, 1373.) As the foregoing discussion of plaintiff’s remarks indicates, his statements bore a close relationship to his fitness for continued employment. The first amendment provides no shield against punishment for providing untruthful answers to the Commission’s questions regarding those statements.

In plaintiff’s third constitutional challenge, he asserts that article YII A35, which prohibits acts of insubordination, is unconstitutional on its face. As this contention has been raised only in plaintiff’s reply brief, it is waived on appellate review. In re White (1982), 103 Ill. App. 3d 105. 109. 429 N.E.2d 1383, 1387-88.

Finally, plaintiff contends that his statements did not provide the Commission with sufficient cause to justify his discharge. The Commission’s power to discharge is derived from the statutory standard of “cause” set forth in section 14 of the Sheriff’s Merit System Act. (Ill. Rev. Stat. 1987, ch. 125, par. 164.) “Cause” has been judicially defined as a substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position. (Fantozzi v. Board of Fire & Police Commissioners (1963), 27 Ill. 2d 357, 360, 189 N.E.2d 275, 277; Collins v. Board of Fire & Police Commissioners (1980), 84 Ill. App. 3d 516, 521, 405 N.E.2d 877, 881.) When, as here, an officer is charged with multiple violations, a single valid finding is sufficient to constitute the basis for entering the order of dismissal. (Reich v. Board of Fire & Police Commissioners (1973), 13 Ill. App. 3d 1031, 1033, 301 N.E.2d 501, 503.) An agency’s decision as to cause for discharge will not be reversed unless it is arbitrary, unreasonable, or unrelated to the requirements of service. Batley, 99 Ill. App. 3d at 628, 425 N.E.2d at 1207.

In addition to finding the plaintiff guilty of the rule violations at issue in this case, the Commission considered three prior disciplinary suspensions and a written reprimand, all of which were issued in 1987, as factors in aggravation. Although the Commission’s finding of cause was amply supported by the plaintiff’s extensive disciplinary record, plaintiff now contends that the Commission improperly considered a written reprimand for failing to answer radio calls as an aggravating factor. While prior disciplinary charges may not be used to establish that the plaintiff was guilty of the present charge (Stanton v. Board of Fire & Police Commissioners (1976), 37 Ill. App. 3d 108, Ill. 345 N.E.2d 822, 825), we know of no authority which states that such charges may not be considered as aggravating factors. The plaintiffs prior reprimand was properly considered in the Commission’s finding of cause for discharge.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN CHARLES THOMAS, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0068
    Opinion filed October 31, 1990.

      Daniel D. Yuhas and M. Jeffrey Bergschneider, both of State Appellate Defender’s Officer, of Springfield, for appellant.
    Richard L. Broch, State’s Attorney, of Tuscola (Kenneth R. Boyle, Robert J. Biderman, and Beth McGann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On October 30, 1989, the circuit court of Douglas County entered judgment on a jury verdict finding defendant John Charles Thomas guilty of residential burglary. On December 19, 1989, the court placed defendant on five years’ probation pursuant to sections 10 — 101 and 10 — 102 of the Illinois Alcoholism and Other Drug Dependency Act (Act) (Ill. Rev. Stat. 1989, ch. llUA, pars. 6360 — 1, 6360 — 2). The probation order contained 11 conditions. Defendant appeals the probation order, contending the conditions are beyond the authority of the court. The State concedes several of the conditions were improper. We affirm in part, reverse in part and remand.

No case is directly on point as to what conditions, if any, of probation may be properly imposed upon a probationer under the Act. Section 10 — 102 of the Act. includes, among the matters which a circuit court must admonish a defendant seeking to be “placed on probation and under the supervision of the designated program,” the following:

“(c) [I]f he adheres to the requirements of the designated program and fulfills the other conditions of probation, he will be discharged, but any failure to adhere to the requirements of the designated program is a breach of probation.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. HV-k, par. 6360 — 2.

Subsequently, section 10 — 102 states:

“Failure of an individual placed on probation and under the supervision of a designated program to observe the requirements set down by the designated program shall be considered a probation violation. Such failure shall be reported by the designated program to the probation officer in charge of the individual and treated in accordance with probation regulations.” Ill. Rev. Stat. 1989, ch. HV-k, par. 6360 — 2.

The Act makes no explicit direction as to who determines “the requirements of the designated program.” That responsibility appears to be placed by the Act in the Illinois Department of Alcoholism and Substance Abuse (Department) by section 4 — 101(c) of the Act, which empowers and directs the Department “[t]o establish comprehensive and coordinated programs and activities for the provision of intervention, treatment, rehabilitation, prevention and education services.” (Ill. Rev. Stat. 1989, ch. HV-k, par. 6354 — 1(c).) The Act makes no reference whatsoever as to who prescribes the “other conditions of probation” described in section 10 — 102 of the Act.

Historical precedent indicates we may not look to the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1001 — 1— 1 et seq.) to determine who prescribes the “other conditions of probation,” or what those conditions may be. The Act was preceded by the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1971, ch. 911/2, par. 120.1 et seq.) and the Alcoholism and Substance Abuse Act (Ill. Rev. Stat. 1985, ch. HV-k, par. 6301 et seq.), which had very similar provisions. As with the Act, neither made reference to the Code.

In People v. Teschner (1980), 81 Ill. 2d 187, 407 N.E.2d 49, the question arose as to whether a defendant, ineligible for probation under section 5 — 5—3 of the Code (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 5—3) because he was convicted of a Class 2 or greater felony, was eligible for “treatment” under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1977, ch. 91V2, par. 120.8). A divided supreme court stated that reference to “[probation,” as described in that legislation, was “merely descriptive of the status of the individual when and if he is accepted for treatment.” (Teschner, 81 Ill. 2d at 192, 407 N.E.2d at 52.) That court then held the limitations of the Code did not control the eligibility of that defendant for probation under the Dangerous Drug Abuse Act. The Teschner court also pointed out that in People v. Phillips (1977), 66 Ill. 2d 412, 416, 362 N.E.2d 1037, 1039, it had described dispositions under the Dangerous Drug Abuse Act as alternatives to sentences under the Code.

In 1979, section 10 of the Dangerous Drug Abuse Act was amended by Public Act 81 — 851 (Pub. Act 81 — 851, §1, eff. Sept. 20, 1979 (Ill. Rev. Stat. 1979, ch. 9IV2, par. 120.10)), so that a defendant ineligible for probation under section 5 — 6—1(a) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—1(a)) was not eligible for the alternative of the Dangerous Drug Abuse Act. That legislation was then amended again in 1981 by Public Act 82 — 519 (Pub. Act 82 — 519, eff. Jan. 1, 1982 (Ill. Rev. Stat. 1981, ch. 9U/2, par. 120.10 (repealed by Illinois Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1987, ch. IIIV2, par. 6360 — 1 et seq.)))), deleting reference to the Code. Thereafter, the Third District Appellate Court, relying on Teschner, held that a person on probation under the Dangerous Drug Abuse Act could not be required to pay court costs and make restitution. (People v. Caldwell (1983), 118 Ill. App. 3d 1027, 455 N.E.2d 893.) Then, after the enactment of the Alcoholism and Substance Abuse Act, that court held that before denying relief under that legislation to a defendant, the circuit court was required to make findings required by that legislation rather than relying upon the provisions of the Code to determine whether probation should be granted. One justice, specially concurring, remarked that the various legislative changes brought the state of the legislation “back to the ruling in Teschner.” People v. Cattaneo (1986), 147 Ill. App. 3d 198, 202, 497 N.E.2d 1363, 1366 (Heiple, J., specially concurring).

The Cattaneo court concluded the evidence could not support a determination that defendant was ineligible for probation under the Alcoholism and Substance Abuse Act. That court ordered the defendant was entitled to probation and treatment under that statute. However, the Cattaneo court affirmed the portion of the circuit court judgment which required the defendant to make restitution to the victim of the underlying offense. The restitution order was apparently not attacked on the basis that the Alcoholism and Substance Abuse Act did not authorize such an order.

We conclude we cannot rely on provisions of the Code for sustaining the validity of any of the conditions of probation imposed here. These conditions were that defendant (1) not violate any criminal statutes, (2) report to the probation officer as directed, (3) permit the probation officer to visit him, (4) contribute to the support of those for whom he is legally responsible, (5) pay restitution of $180, court costs of $168, and a Violent Crime Victims Assistance Act penalty of $25 (see Ill. Rev. Stat. 1989, ch. 70, pars. 501 through 511), (6) not possess any type of firearm, (7) maintain either employment or enrollment in an approved school, (8) keep the probation officer advised of his place of residence and employment, (9) not leave the State without the court’s consent, (10) serve a six-month term of incarceration in the Douglas County jail, and (11) participate in a course of treatment as prescribed by the Treatment Alternative to Street Crimes program.

The State agrees with our analysis and confesses that the defendant cannot be required to (1) pay restitution and costs, (2) pay the Violent Crime Victims Assistance Act penalty, and (3) serve a jail term. We agree with the State’s analysis. We recognize that the defendant agrees the jail sentence has been served, and thus, the question of its propriety is moot. However, because of the short nature of a sentence of imprisonment likely to be imposed, if permitted, the propriety of such a sentence will almost always be a moot question by the time an appeal from the sentence can be decided. Accordingly, we elect to decide this moot question for the purpose of aiding public officials in enforcement of the Act. Sosna v. Iowa (1975), 419 U.S. 393, 399-400, 42 L. Ed. 2d 532, 540-41, 95 S. Ct. 553, 557-58; People ex rel. Wallace v. Labrenz (1952), 411 Ill. 2d 618, 104 N.E.2d 769.

The only inherent power of courts to incarcerate is that in connection with its contempt power. That is not involved here. All other power arises from legislation. Under Teschner, and its progeny, the Code gave the court no power to order incarceration here. The Act did not do so nor does any other legislation. Accordingly, we hold that incarceration may not be imposed as a condition of probation under the Act.

The defendant asserts that incarceration as a condition of the probation here would be inconsistent with section 10 — 102 of the Act, which states that a defendant is not qualified for treatment under the Act if “his imprisonment or periodic imprisonment is necessary for the protection of the public.” (Ill. Rev. Stat. 1989, ch. lll1^, par. 6360 — 2.) However, a case where a defendant is not dangerous but is in need of short punishment to deter him from continued criminal conduct is very likely to exist. Indeed, this is the reason for most incarceration which is imposed as a condition of probation under the Code. A dangerous person should not ordinarily be given probation even after short incarceration.

As we previously indicated, the Act seems to provide for the circuit court to impose some conditions of probation which are consistent with the treatment purposes of the Act and the program requirements imposed by the Department. The remaining conditions of probation meet that criterion. Accordingly, we reverse those portions of the judgment on appeal which require defendant to (1) pay restitution and costs, (2) pay the Violent Crime Victims Assistance Act penalty, and (3) serve a jail term. The balance of the judgment is affirmed. The cause is remanded to the circuit court of Douglas County with- directions to order that the sum of $373 paid by defendant pursuant to the judgment on appeal be repaid to him subject to any rights under a bond assignment which defendant may have made.

Affirmed in part; reversed in part and remanded with directions.

SPITZ and McCULLOUGH, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD L. HOOD, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0118
    Opinion filed October 31, 1990.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant’s sentence of 30 months’ probation for aggravated battery was revoked after the trial court found defendant refused to submit to random drug testing while incarcerated, a condition of his probation. Defendant argues (1) the trial court abused its discretion in revoking his probation; and (2) he is entitled to credit against his three-year sentence of imprisonment for the time he served in jail while on probation. We affirm in part and remand with directions.

On June 22, 1989, defendant was sentenced to 30 months’ probation for aggravated battery. Defendant was also ordered to serve a term of periodic imprisonment in the Adams County jail while on probation. On December 28, 1989, a petition to revoke defendant’s probation was filed, alleging defendant failed to submit to a urine test on December 19, 1989, at the request of Adams County jail officials. On January 10, 1990, the trial court denied the petition, finding the condition that defendant submit to random drug testing while incarcerated was not made clear to defendant when he was sentenced to probation. The trial judge told defendant in open court that his sentence of probation was “modified to include random urinalysis at the discretion of the probation department and the Adams county jail” as a condition of probation.

On January 12, 1990, a second petition to revoke defendant’s probation was filed, alleging that defendant, on January 11, 1990, refused to submit to a urine test at the request of his probation officer. At a hearing on the petition on January 25, 1990, the State presented the testimony of defendant’s probation officer, Dan Brink. Brink testified he first asked defendant to submit to urinalysis at 3 p.m. on January 11. Defendant told Brink he could not perform the test at that time. Brink took defendant to a rest room in the police station, gave him the proper receptacle, and again asked defendant to submit to the test. Brink’s second request for defendant to submit to the test occurred between 3:25 and 3:30 p.m. Brink stated he then gave defendant some liquid to drink and, between 4:05 and 4:15 p.m., asked defendant again to submit to testing. Defendant again stated he could not perform the test. Brink again asked defendant to submit to testing between 7:05 and 7:15 p.m. on the evening of January 11, and defendant again stated he could not do the test. Brink asked defendant at 8:15 a.m. on January 12, 1990, to perform the test, and defendant again stated he could not perform the test.

On cross-examination, Brink testified defendant submitted to testing on January 10, 1990, just prior to being released from jail after a two-week period of incarceration. Brink requested another test on January 11, 1990, when defendant returned to the Adams County jail from a two-hour work release. Brink stated that since defendant was out of jail and had an opportunity to use drugs, he (Brink) wanted another urine test for drugs.

Following the hearing, the trial judge revoked defendant’s probation. Noting a condition of defendant’s probation was that he submit to random testing, the trial judge determined the probation department had given defendant more than adequate opportunity to comply with the request for a urine test.

On appeal, defendant argues the State’s evidence failed to establish by a preponderance of the evidence that he refused to submit to urinalysis. Defendant maintains the State had to show, with medical evidence, that he could have performed the test but refused. Defendant speculates that conditions beyond his control, such as an inability to urinate on demand while nervous, could have been the actual reason why defendant could not perform the test.

Section 5 — 6—4(c) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(c)) states the State must prove a violation of probation by a preponderance of the evidence. A trial court’s decision to revoke probation will not be disturbed on review absent a finding of abuse of discretion. People v. Cozad (1987), 158 Ill. App. 3d 664, 669, 511 N.E.2d 211, 215, cert. denied (1988), 485 U.S. 964, 99 L. Ed. 2d 432, 108 S. Ct. 1233.

We find defendant’s argument wholly without merit. The evidence showed defendant was given four opportunities to submit to testing on January 11, 1990, through January 12, 1990. The evidence further established defendant had no problem submitting to testing on demand on January 10, 1990. Defendant cites no relevant case authority for his proposition that the State had to present medical evidence of defendant’s ability to perform the test. In fact, defendant’s own actions on January 10, 1990, established defendant had no problem performing the urine test under conditions substantially similar to those existing on January 11, 1990, and January 12, 1990. Defendant’s assertion that he may have been nervous on January 11, 1990, and January 12, 1990, and, thus, unable to perform the test, is mere speculation, unsupported by any facts. We find no abuse of discretion in the trial court’s order revoking defendant’s probation.

Defendant also argues, and the State concedes, that he is entitled to credit pursuant to section 5 — 7—2(c) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 7—2(c)) against his three-year prison sentence for time served in jail while on probation. At sentencing, the trial judge stated defendant “will be given credit for time *** spent in jail since *** probation was revoked and given no credit for time spent on probation.”

Section 5 — 7—2(c) of the Code provides that after revocation, a defendant is entitled to credit for time served under a sentence of periodic imprisonment. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 7— 2(c).) The record establishes the trial judge disallowed any credit for time served on probation but stated defendant would be given credit for time he spent in jail after revocation. Defendant is entitled to credit for time served in periodic imprisonment. (People v. Reznick (1986), 141 Ill. App. 3d 593, 600, 491 N.E.2d 444, 448.) The record does not show the number of days defendant was incarcerated under periodic imprisonment or on straight incarceration. A remand is required for an accurate determination of defendant’s credit against his three-year sentence.

For the foregoing reasons, we affirm the trial court’s decision revoking defendant’s probation and remand this cause for determination of the credit defendant is entitled to against his sentence of imprisonment for aggravated battery.

Affirmed in part and remanded with directions.

KNECHT, P.J., and STEIGMANN, J., concur.


author: JUSTICE SPITZ

text:
    DONNA STUTZ et al., Plaintiffs-Appellants, v. PEARL A. KAMM et al., Defendants-Appellees.— JOHN B. WARNES, Indiv. and as Ex’r of the Estate of Sandra S. Warnes, Deceased, Plaintiff-Appellant, v. CHAMPAIGN ASPHALT COMPANY et al., Defendants-Appellees.
    Fourth District
    Nos. 4 — 90—0221, 4 — 90—0276 cons.
    Opinion filed October 31, 1990.

      Johnson, Frank, Frederick & Walsh, of Urbana, for appellants Donna Stutz and William Stutz.
    Phebus, Tummelson, Bryan & Knox, of Urbana, for appellant John B. Warnes.
    Thomas, Mamer & Haughey, of Champaign, for appellee First National Bank of Champaign.
    Edward M. Wagner and Matthew A. Kirsh, both of Heyl, Royster, Voelker & Allen, of Urbana, for appellee Champaign Asphalt Company.
   JUSTICE SPITZ

delivered the opinion of the court:

This consolidated appeal involves two separate actions resulting from an accident on August 26, 1988. The facts surrounding the accident are these. On August 26, 1988, Pearl Kamm, age 77, took a driver’s license examination at the Illinois Secretary of State driver service facility in Tuscola, Illinois. Driver’s license examiner Mary Jo Fitzjarrald was in Kamm’s automobile as the testing began. Kamm backed her vehicle out of a parking space, located immediately east of the entrance to the facility and the waiting room, and drove it off the rear edge of the parking lot. In response to driving off the rear edge of the lot, Kamm placed the car in forward, accelerated, and drove the vehicle into the driver service facility. The collision killed Sandra S. Warnes and seriously injured Donna Stutz, both of whom were in the waiting area of the facility.

In case No. 4 — 90—0276, plaintiff John Warnes brought suit, individually and as executor of the estate of Sandra S. Warnes, deceased, in the circuit court of Champaign County, Illinois, seeking to recover damages for the wrongful death of his wife, Sandra S. Warnes. Warnes’ suit also included survival and loss of consortium counts. Warnes named as defendants Champaign Asphalt Company; the First National Bank in Champaign, as trustee under trust agreement dated January 12, 1988, and known as trust No. 1518; George R. Rouse and Joseph F. Lamb, beneficiaries of trust No. 1518; Mary Jo Fitzjarrald; and Jim Edgar as Secretary of State. Plaintiff Warnes settled with Kamm and her insurance company. The trial court dismissed Mary Jo Fitzjarrald and Jim Edgar as Secretary of State from the action.

In case No. 4 — 90—0221, plaintiffs Donna and William Stutz brought suit in the circuit court of Champaign County to recover damages resulting from the accident. Donna Stutz sought to recover for personal injuries sustained as a result of the accident, and William Stutz sought to recover for loss of consortium. In addition to the defendants named in plaintiff Warnes’ complaint, the Stutzes named Pearl A. Kamm as a defendant, but did not name Jim Edgar, Secretary of State, as a defendant. The trial court dismissed Fitzjarrald from the Stutzes’ action.

Plaintiffs in both cases raised the same question in their pleadings. The only difference in the plaintiffs’ actions relates to the underlying cause of action and the type of damages claimed. The following appeal involves only defendants Champaign Asphalt (defendant contractor); and the First National Bank in Champaign, as trustee under trust agreement dated January 12, 1988, and known as trust No. 1518, and George R. Rouse and Joseph F. Lamb, beneficiaries of trust No. 1518 (defendant owners).

The plaintiffs’ separate amended complaints alleged the following: (1) defendant contractor performed work on the parking lot of the driver services facility in question; (2) defendant contractor had a duty to perform work on the parking lot according to a lease, plans, and/or specifications in a workmanlike manner, or alternatively, that dangerous conditions resulting from following the lease, plans, and/or specifications were so obviously dangerous that no one would have performed them; (3) defendant contractor breached a duty to plaintiffs; and (4) this breach of duty was a direct and proximate cause of the damages sustained. The Stutzes’ complaint also alleged that defendant contractor knew or should have known that drivers of questionable ability could cause danger to those in the building.

Plaintiffs further alleged defendant contractor negligently and carelessly (1) failed to provide bumpers or other stops to prevent automobiles from driving into the driver services facility; (2) failed to properly stripe the parking lot for parking; (3) constructed the parking lot at an improper elevation to the sidewalk edge so that the sidewalk edge would not act as a stop, thereby allowing automobiles to move forward into the driver services facility; (4) constructed the parking lot and striped the lot for improper traffic flow; (5) constructed the parking lot so as to allow for a drop-off along the easterly edge of the parking lot at the south end of the parking lot adjacent to the striped parking spaces; (6) constructed the parking lot in such a manner as to overlay pavement, which reduced the effectiveness of an asphalt bumper located at the easterly edge of the parking lot at the south end, adjacent to striped parking spaces; (7) allowed a drop-off to exist along the portion of the parking lot located adjacent to the space used by Kamm so when Kamm backed out of the space, her vehicle was allowed to back off the parking surface and become stuck; (8) improperly constructed rolled curbing located adjacent to the striped parking space used by Kamm; and (9) constructed the parking lot of insufficient width so as to provide inadequate backing space on the paved surface in the southwest area of the parking lot.

Plaintiffs’ complaints against defendant owners alleged (1) defendant owners entered into a lease agreement with the Secretary of State; (2) the lease promised to provide a parking lot with certain improvements; (3) the owners had work done on the parking lot; (4) the owners- knew or should have known that drivers of questionable ability could cause danger to those in the building; (5) the owners had a duty to persons on the premises to exercise ordinary care and maintain the parking lot in a reasonably safe condition; and (6) the owners breached this duty and as a proximate result the accident occurred.

In addition to the same nine alleged negligent acts or omissions of the contractor, plaintiffs further alleged that the owners negligently and carelessly (1) failed to properly maintain the parking lot in violation of the lease agreement, (2) had a parking lot of insufficient width so as to provide inadequate backing space on the paved surface in the southwest area of the parking lot, and (3) provided a waiting room in a location adjacent to a parking area when they knew or should have known that vehicles might enter the waiting room and strike persons therein.

Plaintiffs attached a copy of the lease between the defendant owners and the Secretary of State to their complaints. The lease between the owners and the Secretary of State called for the owners to provide certain parking lot improvements, including. (1) an asphalt or concrete parking lot with appropriate ingress-egress driveways and parking spaces, (2) parking blocks (stops), curbs, et cetera, and (3) striped parking places to accommodate 12 to 15 parking spaces.

Defendants filed separate motions to dismiss plaintiffs’ amended complaints pursuant to section 2 — 619 of the Code of Civil Procedure as failing to state a claim upon which relief can be granted. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619.) Defendant contractor also filed a motion to dismiss pursuant to section 2 — 615 for failing to plead facts with specificity or sufficient factual allegations to assert that the resurfacing was obviously dangerous.

The trial court granted defendants’ motions to dismiss and concluded:

“Insofar as foreseeability is an element of duty in the premises, foreseeability as inferred from the facts alleged in the amended complaint is too remote to give rise to a duty owed and breached. Public policy does not require a contrary view. Furthermore, the conduct or omission of these defendants is not a proximate cause of the damage claimed. The action as to said defendants is dismissed with prejudice ***.”

The court found pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) no just reason for delaying enforcement of or appeal from its order, and plaintiffs filed a timely notice of appeal.

On appeal, plaintiffs argue that a duty existed on the part of defendants to prevent this type of occurrence, the court erred in determining proximate cause not to exist as a matter of law, and their claims were legally sufficient to state a duty and withstand defendants’ motion to dismiss. We find no duty to exist in the instant case and affirm the trial court’s dismissals.

On a motion to dismiss, all well-pleaded facts should be regarded as true and all reasonable inferences should be construed in plaintiff’s favor. A complaint will not be dismissed unless it clearly appears from the pleadings that no set of facts can be proved which would entitle the plaintiff to recover. Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 82-83, 523 N.E.2d 594, 597.

To be legally sufficient, a claim for negligence must allege facts that establish (1) the existence of a duty owed by defendant to the plaintiff, (2) a breach of that duty, and (3) an injury proximately caused by that breach. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387, 395-96, cert. denied (1988), 485 U.S. 905, 99 L. Ed. 2d 236, 108 S. Ct. 1077.) Whether a duty exists is a matter of law for the trial court to determine in each particular case. (Kirk, 117 Ill. 2d at 525, 513 N.E.2d at 396.) Factors relevant in determining whether a duty exists are (1) foreseeability of the injury, (2) magnitude of the burden of guarding against the injury, and (3) desirability or consequence of placing the burden upon the defendant. Kirk, 117 Ill. 2d at 526, 513 N.E.2d at 396.

There exists on the part of a premises owner a duty to invitees of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 141, 554 N.E.2d 223, 227; Ill. Rev. Stat. 1987, ch. 80, par. 301 et seq.) A duty exists if the injury is caused by a condition of the land and the owner (1) knows, or in the exercise of reasonable care should have known, that the condition involves an unreasonable risk of harm to its invitees, (2) expects that the invitee will not discover it or protect himself against the condition, and (3) fails to exercise reasonable care to protect against the danger. Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 468, 343 N.E.2d 465, 472, citing Restatement (Second) of Torts §343 (1965).

An independent contractor must perform its work in accordance with the plans and specifications in a good workmanlike manner. If a contractor breaches this duty, there is a cause of action. (Bednar v. Venture Stores, Inc. (1982), 106 Ill. App. 3d 454, 458, 436 N.E.2d 46, 48.) A contractor may also be liable in negligence for harm if it follows plans and specifications which are so obviously dangerous that no competent contractor would follow them. Hunt v. Blasius (1978), 74 Ill. 2d 203, 209, 384 N.E.2d 368, 371.

Plaintiffs first argue that a duty existed to prevent this type of harm. Plaintiffs believe the accident was reasonably foreseeable because the owners knew or should have known the premises were being used for a driver’s license examining facility where inexperienced drivers, or drivers of questionable driving ability, would perform driving maneuvers and tests. There were no barriers or stops to prevent cars from leaving the parking lot surface when backing up and moving forward. Plaintiffs believe it was foreseeable for an inexperienced, elderly person to react as Kamm did and lose control of an automobile. It was also equally foreseeable, plaintiffs argue, that those inside the building were at risk of serious injury.

Plaintiffs believe the burden on defendant owners to guard against this type of harm is minimal, as the cost of providing safeguards such as curbing, proper slope, prior backup space, and a proper traffic flow are slight when compared with the injuries that occurred. Plaintiffs also believe it would cost no more to place the waiting area away from glass windows and the parking lot where inexperienced and incompetent drivers perform their driving maneuvers without curbs.

Plaintiffs conclude here by arguing that it is desirable to place this burden on the defendant owners. Public policy dictates that those coming to a driver’s license examining facility, and who are thus necessarily exposed to the dangers of incompetent drivers, be provided with a safe waiting room. Plaintiffs further note that this policy is consistent with the contractual undertaking of defendant owners and the facility operator to provide proper parking lot maintenance, including parking blocks, curbs, and to perform construction work on the lot in accordance with construction standards.

Plaintiffs support their argument with several cases. Plaintiffs believe two Illinois cases, Ray v. Cock Robin, Inc. (1974), 57 Ill. 2d 19, 310 N.E.2d 9, and Marquardt v. Cernocky (1958), 18 Ill. App. 2d 135, 151 N.E.2d 109, are similar to the instant case and are controlling. Ray involved an accident at an ice-cream stand at the comer of two intersecting roads. The ice-cream building was near the rear of the property while an open area containing a bicycle rack and several picnic tables was in the front. No curbing or other obstruction separated an adjoining street from the picnic area. The brakes and power steering of a vehicle traveling down the adjoining street failed, and the car went into the picnic area, hitting the bicycle rack and a picnic table. Several children were injured, one fatally. The trial court prevented a police officer from testifying at trial that he had warned an employee of the defendants’ about a prior accident where an automobile had run into the picnic area. The appellate court in Ray held that the officer’s testimony should have been allowed because it gave rise to the possibility that the accident was reasonably foreseeable.

In Marquardt, defendant owners operated a picnic ground and parked cars on a hill adjacent to the picnic area. There was no barricade preventing cars parked on the hill from rolling into the picnic area below. A car rolled down the hill after a child disengaged the parking gear and injured plaintiff. The court in Marquardt found a duty to exist and held that a jury could find that the owners of the park should have reasonably foreseen the resulting injuries as a natural and probable consequence of their failure to construct safety barriers for the picnic area.

We believe, however, that the instant case is more similar to Simmons v. Aldi-Brenner Co. (1987), 162 Ill. App. 3d 238, 515 N.E.2d 403. Simmons did not involve a vehicle rolling into a building or striking an individual in an open area, but a driver who lost control of her vehicle and drove through the wall of a grocery store. The driver in Simmons turned her vehicle into the grocery’s parking lot, continued through the lot, went up on the curb, and through the glass wall of the store. The vehicle completely entered the store. The driver of the vehicle had “blacked out” and lost consciousness.

The issue in Simmons was whether the store owners had a duty to prevent cars from entering the store. The appellate court noted that while in Ray and Marquardt the facts presented questions of whether the accidents were foreseeable, foreseeability is not the only test of the existence of legal duty. After considering all the factors in the case, the court held there was no duty to guard against this type of harm. The court emphasized that experts testified it would be mere speculation to say that certain recommended safety features would have prevented the entry of the car. The court also noted that it would take extensive studies and testing to determine what would have stopped the vehicle, and even a frame or concrete block partial wall may not have stopped the car. The court concluded that placing a duty on the store to protect against this type of accident would be an unreasonable burden, and that the type of harm which occurred was not foreseeable as a matter of law. A contrary opinion would have placed a duty on every store near a street or parking lot to construct barriers.

After considering all the factors present in plaintiffs’ complaints, we hold that a duty did not legally exist requiring defendants to prevent the type of harm which occurred. It would be mere speculation to say the accident would have been prevented if defendants had performed the omissions or not performed the negligent acts which plaintiffs allege in their complaints. Moreover, extensive testing would be required to determine what structural barriers could have prevented such an occurrence. Placing a duty upon defendant owners or the defendant contractor in this case to guard against this type of harm would be an unreasonable burden. While it can be argued that everything is foreseeable, we hold foreseeability as a matter of law was not present in this case. See Simmons, at 162 Ill. App. 3d at 244, 515 N.E.2d at 407-08.

We also are not inclined to make an exception for such accidents occurring at a driver’s examining station. While plaintiffs argue that such an occurrence is more likely to occur at a driver’s examining station, it may also be argued that drivers at the facility use more care than usual while performing tests and that, as a result, such an incident is less likely to occur.

Plaintiffs attempt to distinguish the Simmons decision and make several arguments. Plaintiffs first argue that defendant owners undertook a duty to prevent this type of harm in their lease with the State. Defendant owners promised to make certain improvements on the lot, which improvements allegedly were not made. This argument is without merit because the purpose of the improvements was to facilitate parking, and not to prevent this type of harm from occurring. In the same respect, it cannot be said that defendant contractor undertook a duty to guard against this type of harm by agreeing to perform work on the lot according to any lease, plans, and/or specifications. The purpose of any work performed by defendant contractor would be to facilitate parking, and not to prevent a vehicle from entering the building.

Plaintiffs also argue that alleged defects in the lot, specifically the lack of curbing, allowed Kamm to back off the lot, causing her to become alarmed and accelerate into the building. This argument is also without merit because we do not believe the placement of curbs or other improvements would have prevented Kamm from reacting as she did. It is just as likely that Kamm would have become alarmed after backing into a curb, causing her to accelerate into the building, as it would for her to do the same after backing off the pavement.

We conclude by noting that plaintiffs have cited cases from other jurisdictions, with facts similar to the instant case, where courts have found a duty to exist. (See McAllen Kentucky Fried Chicken No. 1, Inc. v. Leal (Tex. Ct. App. 1981), 627 S.W.2d 480; Zippy Properties, Inc. v. Boyd (Tex. Ct. App. 1984), 667 S.W.2d 312; Denisewich v. Pappas (1964), 97 R.I. 432, 198 A.2d 144.) We note, however, that other jurisdictions have declined to find a duty in similar cases (see Glick v. Prince Italian Foods of Saugus, Inc. (1987), 25 Mass. App. Ct. 901, 514 N.E.2d 100; Mack v. McGrath (1967), 276 Minn. 419, 150 N.W.2d 681), and the only case in Illinois involving similar facts, Simmons, found no duty to exist.

Because we find no duty to exist, we need not address plaintiffs’ other contentions. We believe that no set of facts can be proved which would entitle plaintiffs to recover here. Accordingly, the trial court is affirmed.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


author: JUSTICE STEIGMANN

text:
    JOEL F. WARD, JR., Plaintiff-Appellee, v. JACK M. ROSENFELD, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0152
    Opinion filed October 31, 1990.
    Rehearing denied December 4, 1990.

      Morris W. Ellis and Phyllis Ellis Rosenfeld, both of Ellis & Ellis, of Chicago, for appellant.
    Terry S. Prillaman, Jr., of Prillaman, Prillaman & Savage, Ltd., of Urbana, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Jack M. Rosenfeld, appeals from the circuit court’s denial of his motion to vacate a default judgment rendered against him and in favor of the plaintiff, Joel F. Ward. Defendant makes the following arguments: (1) the trial court erred by entering a default judgment in favor of the plaintiff in an amount greater than that specified in the ad damnum clause of his complaint; (2) the trial court erred by granting defendant’s motion to vacate default judgment premised upon the condition that defendant pay $107 for plaintiff’s attorney fees and court costs; and (3) the reinstatement of the default judgment on January 4, 1990, against defendant, who had filed his motion to vacate the default judgment as a poor person, was unreasonable.

We disagree and affirm.

I. Facts

Plaintiff and defendant entered into a lease agreement on August 24, 1988, for an apartment in Champaign, Illinois. Rent was fixed at $159 per month, plus $10 per month for various utilities. The lease was to expire on August 14, 1989.

On August 4, 1989, plaintiff filed a complaint requesting the following relief:

“$199.55 for past due rent, late charges, and utility bills, for any and all rent, late charges, due subsequent to August 14, 1989, for any and all additional utility bills, for any and all damages and expenses to the premises, as yet unknown, for reasonable attorney’s fees, costs, and expenses, and for such other and further relief as this court deems just and appropriate.”

A summons was issued on the same day. Because of an inability to serve defendant, an alias summons was issued on September 15, 1989, and served on October 5,1989.

The defendant failed to appear in court on October 23, 1989, as directed by the summons. On that date, plaintiff filed an affidavit specifying that the amount owed to plaintiff was $469.56 plus costs. Plaintiff reserved his claim to attorney fees and withdrew his claim for possession. (Defendant had apparently already abandoned the premises.) At plaintiffs request, the court entered a default judgment against defendant for $469.56 plus costs.

A citation to discover assets was filed by plaintiff and served on defendant on October 27, 1989. On that same day, defendant filed a pro se application to sue or defend as a poor person so that he could file a pro se motion to set aside the default judgment. His application was allowed, and he filed that motion.

On November 13, 1989, defendant’s motion to vacate the default judgment was granted, conditioned upon defendant’s paying plaintiff’s counsel $107 for attorney fees and court costs on or before December 29, 1989. The case was then allotted for docket call on January 4,1990. The $107 was never paid.

On January 4, 1990, defendant (through counsel) filed a second motion to vacate the default judgment. The court denied this motion, vacated its conditional order of November 13, 1989, granting defendant’s motion to vacate the default judgment, and reinstated the October 23, 1989, default judgment for $469.56 plus costs. On January 29, 1990, the trial court heard defendant’s motion to reconsider its previous orders denying defendant’s requests to vacate the default judgment. That motion was also denied.

II. The Amount Of The Default Judgment

Defendant’s first argument is that the trial court erred in entering the original default judgment for $469.56 because it exceeds the ad damnum clause of plaintiff’s complaint. We reject this claim because defendant had adequate notice of the extent of plaintiff’s claims and the judgment entered was reasonable in light of the relief requested in plaintiff’s complaint.

Section 2 — 1301(d) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1301(d)) states that “[¡Judgment by default may be entered for want of an appearance, or for failure to plead, but the court may in either case, require proof of the allegations of the pleadings upon which relief is sought.” Plaintiff’s complaint explicitly sought relief not only for rent due, but also for incidental expenses and fees associated with this action. While this amount had not been specifically determined as of the date plaintiff filed his complaint, the affidavit he filed on October 23, 1989, in support of the damages he claimed, fulfilled section 2 — 1301(d)’s requirement for proof (if the court so orders) of the allegations in the pleadings. The trial court appropriately received this affidavit as proof of the relief sought by plaintiff; however, we note that the affidavit did not itemize the costs that made up the $469.56 total. The better practice for the trial courts would be to require such affidavits to be more precise, specifying the particular grounds in support of each claim which, when added together, total the sum claimed.

Defendant claims that he was not afforded proper notice of the amounts claimed against him and relies on Supreme Court Rule 105(a) (107 Ill. 2d R. 105(a)) and section 2 — 604 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 604). In Kaput v. Hoey (1988), 124 Ill. 2d 370, 530 N.E.2d 230, the Illinois Supreme Court rejected a similar argument, finding a request for damages “in excess of $15,000” for personal injuries to be clear notice that more than $15,000 was being sought. (Kaput, 124 Ill. 2d at 382, 530 N.E.2d at 235-36.) The plaintiff was eventually awarded nearly $30,000 in damages, a result the court determined to be fair “in view of the nature of the action pleaded, the notice in the complaint that damages in excess of $15,000 were being sought, and the size of the final award.” Kaput, 124 Ill. 2d at 382, 530 N.E.2d at 235-36.

A similar result was reached in Joseph A. Thorsen Co. v. Evans (1980), 82 Ill. App. 3d 1119, 1124, 403 N.E.2d 666, 670, where that court rejected the defaulted defendant’s argument that he did not have adequate notice of the extent of damages that might be imposed. The court concluded that the damages ultimately awarded were “fully within the prayer of plaintiffs’ complaint.” Thorsen, 82 Ill. App. 3d at 1125, 403 N.E.2d at 670.

In the present case, the court’s default judgment in the amount of $469.56 was not unreasonable in view of defendant’s notice from the pleadings that the amount sought by the plaintiff would be in excess of $199.55 once the additional costs and fees were determined. On these facts, we find Dils v. City of Chicago (1978), 62 Ill. App. 3d 474, 378 N.E.2d 1130 (reversing a $246,524 judgment based on $50,000 ad damnum), cited by defendant in support of his position, to be inapposite.

III. Denial Of Motion To Vacate Reinstated Default Judgment

Defendant next argues that the trial court erred in denying his motion to vacate the default judgment which the court reinstated after defendant failed to comply with the November 13, 1989, order conditionally vacating the original default judgment. The law is settled that a trial court may condition its vacating of a default judgment upon the payment of attorney fees and costs. (See Town & Country Bank v. E. & D. Bancshares, Inc. (1988), 172 Ill. App. 3d 1066, 527 N.E.2d 637; Bachewicz v. American National Bank & Trust Co. (1985), 135 Ill. App. 3d 294, 42 N.E.2d 95.) This action is authorized by section 2 — 1301(e) of the Code:

“The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1301(e).

We reject defendant’s argument that the trial court’s conditions for vacating the default order were not reasonable. Defendant, a college student, was given approximately seven weeks to pay $107 (a total of $15.29 per week) for plaintiff’s attorney fees and costs that resulted from defendant’s failure to appear in court as summoned. This order is clearly reasonable on its face, and if defendant was unable to comply despite his best efforts, he could have asked for additional time or other relief before the seven-week period expired.

A trial court’s primary concern when deciding whether to set aside a.default judgment should be to do substantial justice between the parties. (Havana National Bank v. Satorius-Curry, Inc. (1988), 167 Ill. App. 3d 562, 564, 521 N.E.2d 645, 646-47.) An appellate court will reverse only if the trial court has clearly abused its discretion. (Havana, 167 Ill. App. 3d at 564, 521 N.E.2d at 647.) We quote with approval the trial court’s remarks explaining to defense counsel the court’s denial of defendant’s January 4, 1990, motion to vacate the default judgment:

“Section 2[ — ]1301 allows the vacation of default judgment [on such ground] as the Court believes is equitable. My belief in being equitable is that people show up in court when they are suppose [sic] to. And if they don’t, I will put people back in the position that everyone was in to begin with. *** Under equity, I believe that everyone should be put back in the position that they were if they had appeared in court, which is why your client [the defendant] was given from November 13th through December 29th, or approximately six weeks to pay for the fees and the costs that were incurred by the plaintiff for his diligence — for defendant’s lack of diligence in being in court. He didn’t do that. Not only didn’t he do that, but during that period of time, you didn’t file any motion [requesting additional time or other relief].”

Because we find the November 13, 1989, conditional vacatur a reasonable exercise of the trial court’s discretion under section 2— 1301(e), we find no error with the court’s reinstatement of the default judgment on January 4, 1990, and the court’s subsequent denial of defendant’s other motion to set aside default judgment.

IV. Reinstatement Of Default Judgment Against A “Poor Person”

Finally, defendant argues that the trial court abused its discretion in not vacating the default judgment against him after he had been given permission to file his motion to vacate default judgment as a “poor person.” Section 5 — 105 of the Code provides procedures for a “poor person *** [to] have all the necessary processes, appearances and proceedings, as in other civil cases, without fees or charges.” Ill. Rev. Stat. 1989, ch. 110, par. 5 — 105.

We reject defendant’s contention that his filing as a poor person has any relevance when the court decides whether, and on what conditions, to vacate a default judgment entered against a “poor person.” The limited relief granted defendant under section 5 — 105 did not insulate him from the court’s imposing reasonable monetary conditions on its order vacating a default judgment any more than that section would render defendant immune from having a judgment for money damages entered against him after trial. The trial court addressed this issue as follows:

“A motion wasn’t placed on file until January 4th when the matter was set for docket call if it had been paid. So we have a motion filed over 30 days after the order was entered, and not even within the time for the payment, asking to undue [sic] what was done. *** Your client wasn’t here when he was suppose [sic] to. He was given time to reimburse them. Yes, he filed [a] poor person affidavit. He was given six weeks. Did not come in and request further time. Did not state that he needed a little bit more time than that. He was given time. *** I haven’t seen anything where in equity I should say that we set aside a default judgment that was entered and have Mr. Prillaman’s client [the plaintiff^ pay for your lack of diligence, which is what we would be doing if we said, no attorney’s fees or costs that were incurred by your client for his not appearing in court.”

We agree with the trial court’s assessment, especially in circumstances like these. In a case such as this, involving a few hundred dollars, attorney fees can easily exceed the underlying claim if multiple appearances in court are required. Trial courts should be sensitive to these concerns and should not hesitate to assess attorney fees and costs in such cases, even when “poor persons” are involved. To hold otherwise risks making a mockery of the civil justice system when the controversy concerns only minor amounts. Plaintiffs would effectively be discouraged from bringing suit because they would be penalized whenever a defendant simply chose not to show up.

Accordingly, we affirm the trial court’s denial of defendant’s motion to vacate the default judgment.

Affirmed.

KNECHT, P.J., and GREEN, J., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
      In re PARENTAGE OF ERIC KIMBLE (Ruby Kimble, Petitioner-Appellant, v. Alfred T. Bean, Respondent-Appellee).
    Second District
    No. 2 — 89—0727
    Opinion filed October 26, 1990.

      Fred L. Foreman, State’s Attorney, of Waukegan (Miriam C. Goldsmith, Assistant State’s Attorney, of counsel), for appellant.
    Ronald M. Gilford and Michael W. Rathsack, both of Chicago, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Petitioner, Ruby Kimble, filed a petition in the circuit court of Lake County seeking a determination that respondent, Alfred Bean, was the father of her son, Eric Kimble. Following a jury trial, the jury found that respondent was not the natural father of Eric Kimble. The only issue raised by petitioner on appeal is whether the trial court committed reversible error in restricting petitioner’s ability, on redirect examination, to question her blood-test expert on matters raised for the first time during respondent’s cross-examination of the witness.

At trial, petitioner testified that she met respondent in 1979 when she had an appointment for dental treatment. She then began seeing respondent off and on socially. She saw him around the middle of October 1984 and engaged in sexual intercourse with him at that meeting. She testified that she did not have sexual intercourse with any other man during the months of September, October, November and December 1984. Petitioner’s son, Eric, was born June 25, 1985, one month premature. Petitioner stated on cross-examination that Larry Sims had periodically been her boyfriend from 1980 to 1985 and that she went with him the early part of 1984. She testified that she had sexual relations with him in 1984. Larry Sims testified that he did not see petitioner or engage in sexual intercourse with her at all in 1984.

Respondent testified that he is a dentist and saw petitioner as a patient in 1979 and 1980. He stated that he never saw her socially and never engaged in sexual intercourse with her.

It was stipulated that petitioner, respondent and the minor child, Eric, had blood samples taken pursuant to court order on May 20, 1987, for the purpose of genetic blood testing and analysis by the Genetic Institute. Beverly A. Pohl, who was employed as a part-time consultant for Genetic Testing Institute, was qualified as an expert on genetic paternity testing. She did not participate in the actual testing of the blood samples in this case, but testified regarding the results of that testing. She provided some detailed background information regarding the testing procedures used. Basically, she stated that the testing involves testing systems to look for factors present in the child that are absent in the alleged father being tested. A standard formula is used by all laboratories to calculate the likelihood of paternity based on the test results.

Pohl stated that she reviewed the documents relating to the blood tests performed in this case and, based on this review, she determined that respondent was not excluded as the father of Eric Kimble. She also testified that, assuming several facts, including the facts that petitioner and respondent did have intercourse and that respondent was not sterile, the likelihood that respondent was Eric’s father was 98.46%.

On cross-examination, Pohl stated that one of the systems tested contained a characteristic common in the blood of the black population. Petitioner, respondent and Eric are all black. She also testified that seven systems were tested and that the tests done in this case would exclude 97% of falsely accused men. On redirect examination, petitioner attempted to ask questions regarding the typical number of tests that a laboratory would normally perform. The court sustained objections to these questions stating that general, foundational questions were no longer appropriate. Petitioner was allowed to ask Pohl if she knew in this particular case why the laboratory conducted the number of tests it conducted. Pohl answered, “[y]es.” Petitioner then asked, “[w]hy was that?” An objection was sustained based on the form of the question. Petitioner made no attempt to rephrase the question and asked no further questions.

Respondent initially argues that petitioner’s failure to file a post-trial motion precludes this court from considering the issue raised on appeal. We agree. Petitioner’s failure to file a post-trial motion following the jury trial amounted to failure to preserve any matters for review. (107 Ill. 2d R. 366 (b)(2)(iii); Hladish v. Whitman (1989), 192 Ill. App. 3d 561, 566; Malott v. Hart (1988), 167 Ill. App. 3d 209, 211.) Before we can be asked to assess the correctness of the original rulings of the trial court, the trial judge, who is most familiar with the events of the trial, must be given an opportunity to reassess his rulings. (See Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 349-50; Leslie H. Allott Plumbing & Heating, Inc. v. Owens-Corning Fiberglas (1983), 112 Ill. App. 3d 136, 137.) We are therefore unable to decide the issue raised on appeal and must affirm the judgment of the trial court. See American National Bank & Trust Co. v. J & G Restaurant, Inc. (1981), 94 Ill. App. 3d 318, 319-20.

It should be noted that, even if the issue raised was preserved for review, there is no basis for petitioner’s claim of error. Petitioner contends that the court erred in preventing petitioner from questioning Pohl as to the number of systems tested and the rationale for testing more than one system where respondent had been allowed on cross-examination to elicit information concerning one of the systems tested. She argues that she was thus unjustly deprived of her right to clarify the issue and to explain how that common marker should be viewed in the total context of the blood test.

In fact, however, this testimony was allowed. Pohl did testify as to the number of systems tested. She also testified that the tests conducted would exclude 97% of falsely accused men. In addition, petitioner was allowed to ask Pohl if she knew why the number of tests conducted were conducted, to which she answered, “Yes.” When an objection was sustained to petitioner’s next question, “Why was that?” based on the form of the question, petitioner simply stated that she had no further questions. There is no indication from the record that additional questions regarding the rationale for testing more than one system would not have been allowed.

While it is true that objections were sustained to petitioner’s questions regarding the number of systems typically tested, petitioner has not complained on appeal that this was error. Further, there was no error in this ruling. It is within the trial court’s discretion to limit redirect examination to matters which were raised on cross-examination, and to exclude matters which could have been raised on direct examination. See Myers v. Arnold (1980), 83 Ill. App. 3d 1, 8.

Based on the record, the error complained of by petitioner on appeal simply did not occur.

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

Affirmed.

GEIGER and REINHARD, JJ., concur.


author: JUSTICE REINHARD

text:
    THOMAS REIMER, Plaintiff-Appellee, v. JAMES LEAHY, Defendant-Appellant.
    Second District
    No. 2 — 90—0245
    Opinion filed October 25, 1990.
    Rehearing denied November 29,1990.
    Paul A. Krieg, of Holmstrom & Kennedy, P.C., of Crystal Lake, for appellant.
    John A. Strom, of Strom, Sewell & Larson, of Belvidere, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, James Leahy, appeals from the judgment of the circuit court of Boone County in favor of plaintiff, Thomas Reimer, in the amount of $762.69, for defendant’s share of the cost of repair of a mutual drainage system.

Defendant raises one issue on appeal: whether an owner of property owes a duty, pursuant to the Illinois Drainage Code (Ill. Rev. Stat. 1989, ch. 42, par. 1 — 1 et seq.), to make a monetary contribution to a neighbor for his unilateral repair of a mutual drainage system running through both properties.

On October 12, 1989, plaintiff filed a small claim complaint alleging that defendant was indebted to plaintiff in the amount of $762.69 “for tiling monies advanced for tiling a portion of the Defendant’s tiling system.” At trial, the parties orally stipulated to the facts and submitted briefs to the court. The parties agreed that the case would be decided on the stipulation of fact and the briefs. Plaintiff also submitted a copy of an agreement for repair and upkeep of the drainage system.

The parties stipulated to the following facts. The drainage system running through both plaintiff’s and defendant’s property had been constructed by a common grantor of the parties’ property at a time when the parcels were part of a larger tract. Martin Keagy had owned three farms, and, in 1959, when he disposed of two of them, a drainage agreement was prepared and signed by the contracting parties, Martin and Alma Keagy, Hans and Anna Reimer, and Thomas and Maxine Reimer. This agreement was not signed by defendant, and it was not a matter of public record when defendant purchased the third farm, which was south of the two farms purchased by the Reimers. The farm drainage system services all three of the farms originally owned by Keagy, and defendant’s farm is at the southern end of the drainage tiling system. At the time of trial, plaintiff owned the remaining two farms, which are adjacent to the north end of defendant’s farm. The tiling system drains from south to north and outlets across the State line in Wisconsin. The drainage water from defendant’s farm runs through the drainage tile across plaintiff’s two farms.

Early in 1989, plaintiff informed defendant of his intention to repair the drainage system to clear blockage in the system located in the northernmost farm owned by plaintiff. Plaintiff asked defendant to contribute to the expense of the project. Defendant told plaintiff he would consider it, but he failed to inform plaintiff of his decision. Plaintiff made repairs and improvements on his own property to the drainage system without defendant’s commitment to reimburse plaintiff. While no work was performed on defendant’s property, the parties agreed that the improvements benefited defendant’s property in a proportion equal to one-third of the total benefit to the entire drainage system. The cost of the repairs and improvements made by plaintiff was $2,288.07.

During the proceedings below, plaintiff informed the court that he was relying entirely on section 2 — 8 of the Drainage Code (Ill. Rev. Stat. 1989, ch. 42, par. 2 — 8) and related case law as the basis of his claim for money damages. It was agreed that plaintiff was not proceeding on any contractual or quasi-contractual theory in support of his claim. After considering the briefs, the circuit court ordered defendant to pay $762.69, one-third of the total cost of repairs, and defendant now appeals.

Section 2 — 8 of the Drainage Code, which concerns the nature of a mutual drainage system, provides in relevant part:

“When a ditch, covered drain or levee is privately constructed through or on a tract of land and the ownership of such tract is thereafter divided, such ditch, covered drain or levee shall thereupon be deemed a drain or levee for the mutual benefit of all the portions of the original tract connected to, or protected by, such ditch, covered drain or levee.” (Ill. Rev. Stat. 1989, ch. 42, par. 2 — 8.)

We note, initially, that the drainage agreement between plaintiff and defendant’s predecessor is irrelevant as the parties stipulated below that plaintiff was not proceeding on any contractual theory.

Defendant argues that article II of the Drainage Code does not give rise to a statutory duty for members of a mutual drainage system to contribute to the cost of repairing the system. We agree. The pertinent provisions of article II of the Drainage Code give rise to perpetual easements arising from the construction of drainage systems by consent or license of the parties involved. (Ill. Rev. Stat. 1989, ch. 42, pars. 2 — 8, 2 — 10.) The purpose of these provisions of the Drainage Code is merely to enlarge drainage rights as they existed at common law and to create mutual easements before the expiration of the necessary common-law period. King v. Manning (1922), 305 Ill. 31, 37, 136 N.E. 730 (referring to the statutory predecessor of the current Drainage Code); Fobar v. Higginson (1955), 6 Ill. App. 2d 29, 33, 126 N.E.2d 521.

Article II of the Drainage Code does not address the general question of who is to be responsible for the cost of maintaining and repairing a mutual drainage system. Members of a mutual drainage system are only required to refrain from making unlawful connections to the drain (Ill. Rev. Stat. 1989, ch. 42, par. 2 — 9) or wilfully interfering with the operation of the drain (Ill. Rev. Stat. 1989, ch. 42, par. 2 — 12). The only provision of the Drainage Code which even arguably touches on the question of who is to pay the cost of maintenance and repair is section 2 — 11, which provides:

“The owner of any land connected to or protected by such a mutual drain or levee may, at his own expense, go upon the lands upon which the drain or levee is situated and repair the drain or levee, and he shall not be liable for damage to lands or crops unless he is negligent in performing the work.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 42, par. 2 — 11.)

This provision clearly does not require that the members of a mutual drainage system have a duty to contribute to the cost of its repair and maintenance.

Other courts examining this question have also concluded that predecessor statutes similar to the pertinent provisions of the Drainage Code do not give rise to a general duty to contribute to the cost of repair and maintenance. Fobar, 6 Ill. App. 2d at 32, 126 N.E.2d at 522-23 (“there is no statutory duty on the part of the members of such system to repair and maintain the system”); Savoie v. Town of Bourbonnais (1950), 339 Ill. App. 551, 560-61, 90 N.E.2d 645 (“there is no provision in the statute requiring the repair and maintenance of [a] mutual ditch”).

This is not, however, the end of the inquiry, for a court may, in the exercise of its equitable powers, provide an appropriate remedy where none is provided by statute. (See Independent Voters v. Illinois Commerce Comm’n (1987), 117 Ill. 2d 90, 104, 510 N.E.2d 850.) Courts in Illinois have long recognized the existence of an equitable remedy for members of a mutual drainage system seeking to compel their fellow members to contribute to the cost of maintaining or repairing the system. Under this equitable approach, which is to be determined based on the facts of each case, members of a mutual drainage system can be compelled to bear a portion of the cost of repair in proportion to the benefit they receive as a result. See Sullivan v. Bagby (1929), 335 Ill. 192, 197, 166 N.E. 449; Cox v. Deverick (1916), 272 Ill. 46, 53, 111 N.E. 560; Harris v. Village of Fithian (1977), 48 Ill. App. 3d 1019, 1021-22, 363 N.E.2d 637; Fobar, 6 Ill. App. 2d at 33, 126 N.E.2d at 523; Savoie, 339 Ill. App. at 561, 90 N.E.2d at 651.

A court’s equitable apportionment of the cost of maintaining and repairing a mutual drainage system, then, is not based on either a statutory duty or an implied-in-fact agreement to share such cost. Because its focus is the need to compensate one member of the mutual drainage system for the benefit he imparts to another member, the equitable remedy discussed above awards recovery based on a theory referred to as quasi-contract, contract implied in law, or quantum meruit, the obligations of which are imposed independently of any agreement between the parties in order to prevent an unjust result (see Knaus v. Dennler (1988), 170 Ill. App. 3d 746, 751, 525 N.E.2d 207).

Here, however, plaintiff has explicitly acknowledged in the stipulation of facts presented in the trial court that he seeks recovery based solely on an alleged statutory duty owed by defendant and not under a contractual or quasi-contractual theory.

As we stated above, the Drainage Code does not give rise to a statutory duty on the part of members of a mutual drainage system to contribute toward the cost of repairs or maintenance. Although a member may be compelled to do so under an equitable, or quasi-contractual, theory, plaintiff here has elected not to proceed on such a basis. Also, while parties may contract between themselves for apportionment of the cost of maintenance and repair of a mutual drainage system, plaintiff stipulated below that he was not proceeding under a contractual theory, although such a contract did exist between plaintiff and defendant’s predecessor. Thus, under the stipulated facts there is no basis for the trial court to compel defendant to contribute toward the cost of repairing the mutual drainage system under article II of the Drainage Code. Accordingly, the judgment of the circuit court of Boone County must be reversed.

The judgment of the circuit court is reversed.

Reversed.

McLaren AND GEIGER, JJ., concur.