author: PRESIDING JUSTICE BARRY

text:
    OLD BEN COAL COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Jon M. Porvaznik, Appellee).
    Fifth District (Industrial Commission Division)
    No. 5—89—0080WC
    Opinion filed June 11, 1990.

      A. Courtney Cox, of Hart & Hart, of Benton, for appellant.
    William D. Hanagan, of Hanagan & Dousman, of Mt. Vernon, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

In proceedings under the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.), an arbitrator found that the petitioner, Jon M. Porvaznik, had sustained injuries as a result of two separate incidents arising out of and in the course of his employment with the respondent, Old Ben Coal Company. The arbitrator consolidated the two claims and found that as a result of an incident that occurred on December 30, 1981, the petitioner was temporarily totally disabled for 23s/? weeks pursuant to section 8(b) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(b)), and permanently disabled to the extent of 5% pursuant to section 8(d)(2) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(d)(2)). With respect to a second incident- that occurred on October 28, 1983, the arbitrator awarded the petitioner wage differential benefits under section 8(d)(1) of the Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(d)(1)), based on a finding that the petitioner was incapacitated from pursuing his usual and customary line of employment. On review, the Industrial Commission affirmed the arbitrator’s decision. Judge Terrence J. Hopkins of the circuit court of Franklin County confirmed the Commission’s decision. The respondent appeals.

At the arbitration hearing held on April 16, 1986, the petitioner testified that he was working as a roof bolter for the respondent on December 30, 1981. On that day, he was required to set timbers in the respondent’s coal mine. As he bent over to pick up a board, a timber fell and struck him on his lower back, knocking him to the ground. The petitioner felt a stabbing pain in his back. No one else was around so he got up, walked to his boss, and told him what had happened. The petitioner continued working that day and for several weeks thereafter, but did not perform any heavy lifting. During the weeks following his injury, the pain in his back worsened and he sought medical treatment. He was off work from February 4, 1982, until July 11, 1982. After returning to work on July 12, the petitioner was assigned to a job as a roof bolter’s assistant, which required him to lift no more than 15 pounds.

The petitioner introduced into evidence results of the preemployment medical examination and X rays he had undergone at the request of the respondent in February of 1977. The physical examination revealed that the petitioner’s health was normal. The radiologist’s report of AP and lateral X rays of the spine showed that the petitioner had no fractures or dislocations. The intervertebral joint spaces and sacroiliac joints were normal.

The petitioner’s medical records from the Rea Clinic revealed that he was first seen by Dr. Scott Zimmerman and physical therapist Robert Steffi on January 28, 1982. An X-ray examination of the petitioner revealed “mild spondylolisthesis involving L5, finding anterior superior aspect of the first sacral segment, suggesting an old marginal fracture.” Steffi’s medical records noted that the petitioner had a history of back pain dating back several years and that the pain had become acute within the past two months. Zimmerman recorded that he saw the petitioner again on July 27, 1982, and referred him to Dr. Thomas W. Davis, who advised the petitioner that he should quit coal mining and find a job involving no physical labor. Zimmerman further noted that the petitioner informed him that he was going to return to work. Zimmerman then advised the petitioner that returning to work could be dangerous.

A letter dated April 1, 1982, from Dr. Davis to Dr. Zimmerman, stated that it was Dr. Davis’ impression that the petitioner had an acute lumbar sprain, strain, and contusion superimposed on the spondylolisthesis at L5-S1.

The petitioner was also treated at the Rea Clinic by Dr. Z. Taylor. After seeing the petitioner in November of 1982, Taylor noted that it was his impression that while the petitioner had real medical problems, he was exaggerating their severity to avoid working. On November 12, 1982, Taylor noted that the petitioner was improving due to physical therapy and recommended that he return to work. The Rea Clinic records further revealed that the petitioner was not totally disabled on November 11, 1982, and that he was released to work on November 17,1982.

Regarding the second incident in which the petitioner allegedly sustained injuries to his back, the petitioner testified that after he was released to work in November of 1982, he worked until he sustained an injury to his arm when top coal fell and struck him on his head and arm. The record is unclear regarding the date of the petitioner’s arm injury. The arm injury did not cause any new damage to his back, but did require him to miss several weeks of work. After being released to work in September of 1983, the petitioner was assigned the job of shoveling coal onto a belt. He found that this activity bothered his back. On October 28, 1983, he was shoveling coal when wet coal stuck to his shovel, causing him to jerk forward and twist his back. As the petitioner fell to his knees, he felt a sharp pain in his back. He continued having considerable pain in his back for several weeks thereafter.

Medical records from the Rea Clinic indicated that the petitioner was treated for his back problems on November 1 and November 16, 1983. A report signed by Dr. Zimmerman, dated November 17, 1983, stated that the petitioner was totally disabled.

Dr. Marshall B. Conrad, an orthopedic surgeon, examined the petitioner on December 20, 1983, at the request of the petitioner’s attorney. A letter summarizing his examination was introduced into evidence. Conrad noted that the petitioner complained of lower back pain. The petitioner related his symptoms to the injury he had sustained in December of 1981. According to Conrad’s letter, the petitioner had attempted to return to work but found that the symptoms were aggravated by working. Conrad compared the X rays of the petitioner’s back taken on December 20, 1983, with X rays taken on January 28, 1982. He indicated that both sets of X rays showed spondylolisthesis and that it had not changed in degree. However, Conrad did note that there had been some change in the appearance of the bony fragment adjacent to the anterior superior margin of the body at SI and that it might well represent a fracture.

Dr. David Lange examined the petitioner on February 2, 1984, at the request of the petitioner’s attorney. In a letter dated February 7, 1984, Lange noted that the petitioner told him that he had suffered a work-related injury on December 30, 1981, and that since that time he had had fairly continuous pain in his lower back. The petitioner also told Lange that he returned to work several times, but currently was not working because of his back pain. Lange’s examination revealed that the petitioner had a grade 1 spondylolisthesis at L5-S1. Lange also indicated that the petitioner should not return to work and that surgery could relieve some of his symptoms but that there was no guarantee he would be able to return to work even with surgery.

A letter dated March 16, 1984, from neurologist David M. Reisler, was introduced into evidence by the petitioner. Reisler’s letter summarized his examination of the petitioner and the X rays taken of the petitioner’s back on March 3, 1984. According to the letter, the petitioner stated that he had injured his back on December 30, 1981. The petitioner told Reisler that after he intermittently missed several months from work due to his 1981 back injury and an unrelated arm injury, he returned to work around September of 1983. According to Reisler’s letter, the petitioner stated that his work assignment involved shoveling coal onto a belt all day and that it bothered his back. Reisler recommended that the petitioner not return to work as a coal miner.

At the arbitration hearing, the parties stipulated that the petitioner’s accidental injuries of October 28, 1983, arose out of and in the course of his employment and that there was a causal connection between the petitioner’s accident and his condition of ill-being. The parties further stipulated that the petitioner’s average earnings during the year preceding his October 28, 1983, injury had been $429.08 per week as calculated pursuant to the provisions of section 10 of the Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.10). The arbitrator noted that the issues to be determined were the nature and extent of the injury and whether a wage differential as provided for in section 8(d)(1) should be awarded.

Regarding his earning capacity, the petitioner testified that he had become a roof bolter in 1980. He stated that a roof bolter was classified as a grade 5 employee and that he was classified as a roof bolter up until his injury on December 30, 1981. The petitioner also stated that when he returned to work in September of 1983, he was assigned to a different shift with a different mine manager, because there had been a general layoff. He noted that following the layoff he was assigned the job of belt shoveling. He stated that belt shoveling was grade 1 work and the lowest paying job in the mine. The petitioner further stated that at the time of his injury he was a member of the United Mine Workers of America, District 12. He introduced into evidence a copy of one of the pages of the union contract under which the respondent was operating at the time of the arbitration hearing. The contract was known as “The National Bituminous Coal Wage Agreement of 1984” and set forth the daily wage rates and the quarterly wage increases for grade 5 employees for the period from October 1, 1984, until January 1, 1988. The petitioner stated that the daily wage of a roof bolter as of January 1, 1986, was $117.72 per day and that a roof bolter was required to work at least five days per week.

The petitioner further testified that sometime following his injury on October 28, 1983, he discussed with his doctors whether he should undergo surgery. He stated that he decided against surgery because of the risk associated with anesthesia and the prognosis that he probably could not return to work even if he had surgery. Thereafter, he requested that the respondent provide him with the rehabilitation necessary to acquire a skill with which he could find employment and earn a living. No evidence was presented that the respondent complied with that request.

The petitioner then attempted to find light work in the southern Illinois area. Because he was unable to find work, he left Illinois and went to Michigan. There he obtained employment at Laco Screw Products, earning $4.25 per hour or $170 per week. The petitioner introduced into evidence several $170 checks made out to him from Laco Screw Products. He testified that he was not required to do any-loading or unloading at his new job.

Following the arbitration hearing, the arbitrator awarded the petitioner benefits for permanent partial disability under section 8(d)(2) of the Act, based on the injury he had sustained on December 30, 1981. The arbitrator further awarded the petitioner wage differential benefits pursuant to section 8(d)(1) of the Act, based on his finding that the petitioner on October 28, 1983, had aggravated a preexisting lower back injury. The arbitrator computed the section 8(d)(1) award for the period from October 1, 1984, to the time of the hearing, by taking 66%% of the difference between the average amount the petitioner would have earned at the time of the hearing as a grade 5 roof bolter and the average weekly amount he earned in his employment at Laco Screw Products. The Commission approved the arbitrator’s award, and the circuit court confirmed the Commission’s decision. The respondent appeals.

On appeal, the respondent first argues that the petitioner failed to prove he was unable to return to his regular employment with the respondent. The respondent contends that none of the doctors who examined the petitioner following the October 28, 1983, incident were aware of that incident and therefore the petitioner’s injury was not traceable to a definite time, place, and event.

The petitioner initially answers the respondent’s argument by noting that the parties stipulated prior to the arbitration hearing that the petitioner’s October 28, 1983, injury was causally related to his condition of ill-being. He contends that that stipulation precludes the respondent’s argument that the petitioner failed to prove he suffered an injury on October 28,1983, that aggravated his preexisting condition.

Initially, it should be noted that the parties cannot bind a court by stipulating to a question of law or the legal effect of facts. (Domagalski v. Industrial Comm’n (1983), 97 Ill. 2d 228, 454 N.E.2d 295.) Moreover, the authority to address an issue depends on whether the issue was raised at arbitration or on review; controverted issues are defined by the parties’ conduct rather than their contradictory prior stipulation. Neal v. Industrial Comm’n (1986), 141 Ill. App. 3d 289, 490 N.E.2d 124.

We note that the petitioner presented evidence at the arbitration hearing regarding how he had injured his back on October 28. The record further reveals that the respondent contested the issue of causal connection both before the Commission and the circuit court, by way of the same arguments it now makes on appeal. Accordingly, we find that the' parties’ prior contradictory stipulation does not prevent the respondent from asserting the instant argument.

Turning to the merits, we note that a claimant’s testimony regarding his experiencing back pain while lifting at work may be sufficient to trace an incident to a definite time, place, and cause; moreover, a claimant may recover on his own testimony without corroboration. (Interlake Steel Co. v. Industrial Comm’n (1985), 136 Ill. App. 3d 740, 483 N.E.2d 979.) Medical testimony is not necessarily required to establish causation and disability; proof of an employee’s state of health prior to the time of injury and the change immediately following the injury is competent as tending to establish that the impaired condition was due to the injury. (Westinghouse Electric Co. v. Industrial Comm’n (1976), 64 Ill. 2d 244, 356 N.E.2d 28.) Resolving disputes in the evidence and drawing reasonable inferences and conclusions therefrom is the responsibility of the Industrial Commission, and given its expertise in the area of workers’ compensation, its findings on the disability of a claimant should be given substantial deference. County of Cook v. Industrial Comm’n (1988), 177 Ill. App. 3d 264, 532 N.E.2d 280.

We find that the instant incident is traceable to a definite time, place, and cause. It is undisputed that the petitioner, while shoveling wet coal for the respondent, jerked his back and fell to his knees in pain on October 28, 1983. The respondent places great emphasis on its argument that there was no medical evidence linking the petitioner’s physical condition to the October 28, 1983, incident. However, the medical evidence did reveal that the petitioner was able to work prior to the injury. Yet four days after the October 28 injury, the petitioner was seen by doctors at the Rea Clinic and found to be totally disabled. Moreover, none of the doctors who saw the petitioner following his injury suggested that he return to work as a coal miner. Further, Dr. Conrad noted that his comparison of X rays taken on January 28, 1982, and December 20, 1983, revealed that there had been some change in the X rays, which may have represented a fracture.

The respondent contends that none of the doctors who examined the petitioner after October 28, 1983, were aware that he had injured his back on that date, but rather believed that the only injury had occurred on December 30, 1981. We find, however, that the Commission could have properly concluded otherwise. Dr. Conrad noted that the petitioner’s symptoms were aggravated by working. Dr. Reisler noted that the petitioner found that shoveling coal bothered his back. The lack of detail in their reports regarding the second injury may be explained by the fact that the first injury was much more severe than the second and was the initial cause of the petitioner’s unstable back. Accordingly, we conclude that the Commission’s finding that the petitioner sustained an injury on October 28, 1983, which rendered him unable to pursue his usual and customary line of employment, was not against the manifest weight of the evidence.

The respondent next argues that if a wage differential award is warranted, the petitioner should only receive an award based on the amount the parties stipulated his earnings were prior to the injury, since the petitioner did not establish that he was capable of earning more than his stipulated earnings. The respondent further contends that the Commission’s award was mere speculation, since it did not take into account days off from work due to sickness, injury, absenteeism, layoffs, and strikes.

The respondent relies on Deichmiller v. Industrial Comm’n (1986), 147 Ill. App. 3d 66, 497 N.E.2d 452, in support of its position. In Deichmiller, the court found that the Commission had properly refused to base its wage differential award on the amount the claimant might have earned as a union journeyman plumber, because doing so would have been mere speculation since the claimant at the time of the accident had not attained that job classification.

We find that Deichmiller is inapposite. In the instant case, the record reveals that the petitioner was classified as a roof bolter in 1980, before he sustained either of his back injuries. Conversely, in Deichmiller, the petitioner had never attained the status of union journeyman plumber prior to his injury.

The language of section 8(d)(1) of the Act indicates that the Commission should calculate wage differential awards based on the amount the claimant would be able to earn at the time of the hearing if the claimant were able to fully perform the duties of the occupation in which he was engaged at the time of the accident. (General Electric Co. v. Industrial Comm’n (1986), 144 Ill. App. 3d 1003, 495 N.E.2d 68.) We are unaware of any cases directly on point, but agree with the petitioner’s assertion that the statute provides that a wage differential should be calculated on the presumption that but for the injury, the employee would be in the full performance of his duties. Accordingly, we hold that the Commission properly elected to compute the wage differential award based in part on the petitioner’s classification at the time of the original injury, rather than on the stipulated amount that he had actually earned.

The respondent next argues that at the time of the accident on October 28, 1983, the petitioner was working as a grade 1 miner, the lowest paying job in the mine, and therefore the award was improperly based on a grade 5 job classification.

Initially, it should be noted that there is nothing in the record which indicates the respondent raised this issue before the Commission or in the circuit court; consequently, this court need not consider it on review. General Electric Co. v. Industrial Comm’n (1986), 144 Ill. App. 3d 1003, 495 N.E.2d 68.

On the merits, we note that the petitioner was classified as a grade 5 roof bolter sometime in 1980. He remained at grade 5 until his December 20, 1981, injury. The record is unclear whether the petitioner continued to be classified as a grade 5 employee after he returned to work following his first back injury. At the time of his second injury, the petitioner was performing the work of a belt shoveler, which was a grade 1 job classification. However, it is unclear whether while performing the grade 1 job, the petitioner was nevertheless classified as a grade 5 employee.

In view of the fact that the record does not contain any evidence clearly showing that the petitioner’s classification had been reduced, we find that the Commission could have properly inferred that he was classified as a grade 5 employee at the time of the October 28, 1983, injury, since it was within the Commission’s province to weigh the conflicting evidence and draw reasonable inferences therefrom. General Motors Corp., Central Foundry Division v. Industrial Comm’n (1989), 179 Ill. App. 3d 683, 534 N.E.2d 992.

The respondent next argues that the Commission arrived at the wage difference by comparing the petitioner’s net pay at his current job with his gross pay at his former job. It contends that the petitioner’s paychecks introduced into evidence were made out in the amount of $170 each and that common practice suggests that that amount must be net pay.

Again the record does not indicate that the respondent raised this argument in the circuit court; therefore, this court need not consider it on review. General Electric Co. v. Industrial Comm’n (1986), 144 Ill. App. 3d 1003, 495 N.E.2d 68.

Nevertheless, upon turning to the merits, we note that the petitioner testified that he earned $4.25 per hour or $170 per week at his job at Laco Screw Products. No evidence was offered as to whether this amount represented his gross or net pay. We find that in the absence of evidence showing that this amount represented the petitioner’s net pay, the Commission could reasonably infer that it represented his gross pay, since where the evidence is such that different inferences may be drawn therefrom, a reviewing court will not disregard a reasonable inference drawn by the Industrial Commission merely because other inferences may be drawn. Fritz Electric Co. v. Industrial Comm’n (1988), 165 Ill. App. 3d 550, 518 N.E.2d 1289.

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

Affirmed.

McNAMARA, WOODWARD, McCULLOUGH and LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RARICK

license: Public Domain

text:
      In re J.B., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. D.D., f/k/a D.B., Respondent-Appellant).
    Fifth District
    No. 5—89—0241
    Opinion filed June 11, 1990.

      Scott Wilzbach, of Salem, for appellant.
    William Hoffeditz, Special Prosecutor, of Mt. Vernon (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

On June 22, 1987, the Marion County State’s Attorney filed a petition seeking termination of parental rights against respondent, D.D., with respect to her then five-year-old daughter, J.B. On March 14, 1989, the juvenile court entered an order terminating D.D.’s parental rights due to mental impairment pursuant to section 1(D)(p) of the Adoption Act (Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(p)). She appeals from this order.

J.B., along with her younger brother, was removed from the home in June of 1986 following an investigation by the Department of Children and Family Services. The grounds for removal were based upon suspected sexual abuse by J.B.’s stepfather in addition to both parents’ failure to protect the younger child from overexposure to the sun. The stepfather later admitted having sexually abused J.B. D.D. has since divorced him and has remarried. After psychological testing of both D.D. and J.B., the State sought termination of parental rights based on D.D.’s mental impairment.

To uphold the trial court’s determination, this court must find clear and convincing evidence that D.D. is an unfit parent. (In re Pronger (1987), 118 Ill. 2d 512, 526, 517 N.E.2d 1076, 1081; In re Tolbert (1978), 62 Ill. App. 3d 927, 930, 378 N.E.2d 565, 568.) However, we will not disturb the trial court’s findings unless they are against the manifest weight of the evidence. In re T.E. (1984), 128 Ill. App. 3d 449, 451, 470 N.E.2d 1300,1302.

Section 1(D)(p) of the Act requires “competent evidence from a psychiatrist or clinical psychologist of mental impairment” which supports a finding of an “inability to discharge parental responsibilities.” (Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(p).) The trial court’s decision to terminate respondent’s parental rights was based primarily on the testimony of Dr. Jerry L. Boyd, a clinical psychologist who examined D.D. in 1987. Since the hearing on termination was held in March of 1989, the examination was two years old at the time of the hearing. Notwithstanding the time lapse, we are satisfied that there is sufficient evidence in the record to support the trial court’s decision.

In situations in which unfitness under subparagraph (p) of section 1(D) is in question, a two-part analysis is required. First, the evidence must indicate a parent is mentally unable to discharge her normal parental responsibilities. Second, there must be sufficient justification to find that the inability shall extend beyond a reasonable time period. (In re E.J.F. (1987), 161 Ill. App. 3d 325, 331, 514 N.E.2d 544, 548.) The State established both aspects of the analysis.

Dr. Boyd’s testimony indicates D.D. has a mental impairment which prohibits her from discharging her parental responsibilities. He concluded that D.D. was of limited intellectual ability; that she has severe, chronic borderline personality disorder; that she was emotionally and behaviorally unstable; that she consistently demonstrated a severe and repeated neglect of the child; and that she demonstrated self-absorption to the exclusion of her protection of the child. Most importantly, he concluded she had been unable to meet the demands of her adult life so as to care for herself, let alone her dependent children. Testimony by Lanette Crum, a foster parent, and Sheila Ashby, a social worker, indicated bizarre and cruel forms of punishment D.D. exacted on J.B. The minor told both women of D.D. locking her in a drawer and holding her head in a toilet bowl, telling J.B. she was going to “flush her down.”

With regard to the second part of the test, the language of the statute is broad and requires only “sufficient justification” to support the trial court’s findings that the impairment will extend beyond a reasonable time. (Ill. Rev. Stat. 1985, ch. 40, par. 1501(D)(p). See also E.J.F., 161 Ill. App. 3d at 331, 514 N.E.2d at 549.) A medical prognosis need not be absolutely conclusive to satisfy the requirement of the statute, and Dr. Boyd’s testimony provided sufficient justification to support the trial court’s findings. See E.J.F., 161 Ill. App. 3d at 331, 514 N.E.2d at 549.

Dr. Boyd testified that D.D. is unlikely to function differently in the future. There is no evidence on the record that D.D. has sought any treatment. Even with substantial treatment, Dr. Boyd stated he would not expect significant improvement in the foreseeable future. Other evidence corroborates Dr. Boyd’s testimony. He testified one manifestation of self-absorption in people with borderline personality disorder is repeated claims of illness. Hospital records indicate D.D. visited a local emergency room more than 30 times in the course of one year. In light of the record, we find there is clear and convincing evidence of D.D.’s unfitness due to mental impairment and that such impairment will extend beyond a reasonable time.

Respondent’s next argument is that the State did not prove it is in the minor’s best interest to terminate D.D.’s parental rights. The record clearly indicates this is not the case.

The court must consider both the best interests of the child as well as the rights of the parents. (In re T.G. (1986), 147 Ill. App. 3d 484, 488, 498 N.E.2d 370, 373.) Only after finding parental unfitness can the court consider the best interest of the child. (Lael v. Warga (1987), 155 Ill. App. 3d 1005, 1012, 508 N.E.2d 1095, 1100.) However, once parental unfitness has been found, all parental rights give way to those interests. T.G., 147 Ill. App. 3d at 488, 498 N.E.2d at 373.

The State presented the testimony of Dr. Alexander James, Jr., also a clinical psychologist, who observed that J.B. has clearly suffered severe emotional trauma. He further testified that he found the child to be very delayed in developmental skills and he described her general behavior as chaotic. Dr. James examined J.B. twice and concluded that a return to D.D. would be disastrous. Respondent contends that because J.B. has so many emotional problems, foster parents, as lay people, will be unable to cope with her. Therefore, she should be left in the home. This reasoning leads to the absurd result that, because she is extremely difficult to manage, J.B. should be returned to the home of an unfit parent who is unable to care for even a well-balanced child.

Actually, the record indicates J.B. has shown improvement since leaving D.D.’s custody. In fact, testimony by Dr. James, Lanette Crum, and Sheila Ashby indicates that J.B.’s behavior worsens shortly before and after visits with her mother. Nowhere in the record do we find any contradiction of the aforementioned testimony. In her brief, respondent invokes the strength of a child’s bond to a natural parent. While we recognize such a bond usually exists, we must also recognize that it does not automatically insure that the parent will be fit or that the child’s best interests will be served by that parent. We are convinced, based on the record, that the trial court’s findings are proper as to both D.D.’s unfitness and J.B.’s best interests.

For the aforementioned reasons, we affirm the order of the circuit court of Marion County terminating respondent’s parental rights.

Affirmed.

WELCH and CHAPMAN, JJ., concur.


text:
    CHARTER BANK, formerly First Federal Savings and Loan Association of Sparta, Plaintiff, v. JAMES A. ECKERT et al., Defendants and Counterplaintiffs (Donald A. Cook, Defendant and Counterdefendant and Counterplaintiff-Appellee; Frederick C. Stiles, Defendant and Counterdefendant-Appellant; Forrest Hall et al., Defendants).
    Fifth District
    No. 5—89—0545
    Opinion filed June 12, 1990.

      Norma J. Beedle, of Carbondale, for appellant.
    Robert P. Schulhof, of Carbondale, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

On January 4, 1989, Charter Bank filed a foreclosure action in the circuit court of Jackson County naming James Eckert, Larry Eckert, the Eckert Land Company, Donald Cook, Frederick Stiles, the Forrest Hall partnership, and all unknown claimants of record as defendants.

The record indicates that on August 29, 1986, the Eckerts and the Eckert Land Company borrowed $450,000 from Charter Bank to purchase the Forrest Hall dormitory in Carbondale, Illinois, securing the note with a mortgage on the premises. On or about December 31, 1986, they sold the property to Donald Cook, who immediately sold it to Forrest Hall, a Michigan based partnership composed of Cook and Frederick Stiles. On October 3, 1988, Cook sold his interest in the partnership to Stiles.

Defendants James Eckert, Larry Eckert, and the Eckert Land Company filed an answer to the foreclosure action and a counterclaim against Donald Cook, alleging that Cook had agreed to assume the mortgage and all obligations secured thereby. The answer and counterclaim were verified by the Eckerts’ attorney, but not by any of the parties.

On February 24, 1989, the trial court heard and denied Stiles’ motion to dismiss Charter Bank’s complaint as to him. Stiles also filed a motion to excuse verification of all pleadings as he resided outside the State of Illinois and was temporarily out of the United States.

On March 1, 1989, Cook filed an answer to Charter Bank’s complaint for foreclosure, an answer to the Eckerts’ counterclaim alleging that Stiles now owned the property in question, and a counterclaim against Stiles alleging that he had conveyed all of his interest in the property to Stiles and that as a result of Stiles’ failure to pay the mortgage, he had incurred attorney fees and could become liable to the Eckerts for any deficiency.

On March 15, 1989, Stiles filed an answer to Charter Bank’s complaint for foreclosure and an affirmative defense, alleging that he and Cook had expressly agreed pursuant to a written agreement that Cook assume all obligations with respect to the mortgage and that he did not assume the mortgage nor the obligation to pay the note secured thereby. On March 21, 1989, Stiles filed an answer to Cook’s counterclaim and an affirmative defense alleging that neither he nor the Forrest Hall partnership had assumed the mortgage or the note and that Cook had agreed to assume the mortgage. This answer was not verified by Stiles or his attorney.

On March 31, 1989, the trial court entered a written order denying Stiles’ motion to dismiss and granted a motion by Stiles’ attorney excusing verification of Stiles’ answer. While the written order refers to this as an oral motion, it presumably refers to Stiles’ written motion filed on February 24,1989, the day of the hearing.

On April 5, 1989, Cook filed a denial of Stiles’ affirmative defense and a motion for judgment on the pleadings. In his motion, Cook argued that because Stiles’ answer to his counterclaim was unverified, all matters alleged therein were admitted pursuant to section 2—605(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—605(b)) and that even if section 2—605(b) did not support a judgment on the pleadings, Stiles’ answer admitted the essence of Cook’s counterclaim.

On April 13, 1989, Stiles filed a motion to excuse verification of his pleadings based upon his temporary residence in Mexico, along with a response to Cook’s motion for judgment on the pleadings and a verification of his answer to Cook’s counterclaim signed by his attorney. After a hearing on June 8, 1989, the trial court denied the motion to excuse verification and told Stiles’ attorney that the March 31, 1989, order excusing verification related only to Stiles’ answer to Charter Bank’s complaint. The court also found that Stiles’ attorney could not verify a pleading, that his answer to Cook’s counterclaim was therefore unverified and did not constitute an answer. The court also found that regardless of whether the unverified answer could stand, Stiles had admitted the essence of Cook’s counterclaim. Cook’s motion for judgment on the pleadings was granted and a docket entry to that effect was made. The amount of damages was reserved for prove up at a later date.

On June 20, 1989, Stiles filed a personally verified answer and affirmative defense, along with a motion to vacate the judgment on the pleadings. On July 13, 1989, the trial court’s written order granting judgment on the pleadings against Stiles in favor of Cook was entered.

Stiles advances numerous arguments on appeal challenging the trial court’s determination that his answer to Cook’s counterclaim was unverified and therefore did not constitute an answer, and that the allegations of Cook’s counterclaim were therefore admitted. Stiles maintains that attorney verification of the complaint was legally sufficient, that because the court accepted unverified and attorney-verified pleadings from other parties, Stiles’ attorney-verified answer should also be accepted on equitable principles, and that section 2—605 does not require verification unless the execution of the instrument is challenged. We need not, in fact cannot, address Stiles’ arguments as the order granting judgment on the pleading was not a final and appealable order.

This court has jurisdiction to hear an appeal only from a final judgment or order. For a judgment or order to be final, it must constitute a final determination of the rights of the parties with respect to a separate and distinct portion of the subject matter so that if affirmed, the trial court need only to proceed with execution of the judgment. (Santana v. Zipperstein (1986), 142 Ill. App. 3d 386, 491 N.E.2d 1231.) The order granting Cook’s motion for judgment on the pleadings specifically provided that the determination of the amount of damages was reserved until after the sale of the real estate, and there is nothing in the record to indicate that damages were ever determined. Because the court reserved the issue of damages for a later determination and because that determination was never made, the court’s order granting Cook judgment on the pleadings was not final. (See Mar Cement, Inc. v. Diorio Builders, Inc. (1987), 153 Ill. App. 3d 798, 506 N.E.2d 381; Lindsey v. Chicago Park District (1985), 134 Ill. App. 3d 744, 481 N.E.2d 58.) Further, absent a finding pursuant to Supreme Court Rule 304 (107 Ill. 2d R. 304) that there is no just cause for delaying an appeal, a foreclosure action is not final and appealable until the trial court approves the foreclosure sale and distribution of proceeds. (Marion Metal & Roofing Co. v. Mark Twain Marine Industries, Inc. (1983), 114 Ill. App. 3d 33, 448 N.E.2d 219; King City Federal Savings & Loan Association v. Ison (1980), 80 Ill. App. 3d 900, 400 N.E.2d 562.) We therefore conclude that this court lacks jurisdiction to hear Stiles’ appeal and the same is hereby dismissed.

Appeal dismissed.

HOWERTON and GOLDENHERSH, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    BILL CASEY et al., Plaintiffs-Appellants, v. ROY POHLMAN, Defendant-Appellee.
    Fifth District
    No. 5—89—0151
    Opinion filed June 13, 1990.

      John Womick & Associates, Chartered, of Carbondale, for appellants.
    William J. Novick, of Fowler & Novick, of Marion, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs, Bill Casey and Kay Casey, appeal from a judgment of the circuit court of Union County entered on jury verdicts in favor of plaintiffs and against defendant, Roy Pohlman. The jury returned a verdict in favor of plaintiff Bill Casey in the amount of $57,000 reduced by 40% for plaintiff’s contributory negligence. The jury returned a verdict in favor of plaintiff Kay Casey but awarded her no damages for her loss of consortium claim. Plaintiffs raise the following issues: (1) whether the trial court erred in refusing to direct a verdict or enter a judgment notwithstanding the verdict (j.n.o.v.) in favor of plaintiff Bill Casey on the issue of defendant’s negligence, and (2) whether the trial court erred by entering judgment on the verdict in which the jury found in favor of plaintiff Kay Casey on her loss of consortium claim, but awarded her no money damages. We affirm in part, and reverse and remand in part.

This appeal arises out of a suit to recover damages for personal injuries and loss of consortium sustained by plaintiffs as the result of a collision between Bill Casey’s pickup truck and a semi-tractor pulling a trailer full of logs driven by defendant. On March 17, 1987, Bill Casey, a 70-year-old retired farmer, was traveling in a westerly direction on Route 146 in Union County. Route 146 is a two-lane highway. The place where the collision occurred is straight and level. Defendant was traveling westbound on Route 146. A witness to the collision testified that he saw plaintiff before the collision when plaintiff passed the intersection of Route 146 and Interstate 57. The witness was exiting from Interstate 57 and was waiting at a stop sign in order to turn onto Route 146. The witness noticed plaintiff, who was directly in front of a log truck driven by defendant. The witness estimated that defendant was “a couple of car lengths” behind plaintiff. There were also two cars following defendant’s log truck. The witness then pulled out onto Route 146 after all four cars passed. This witness, who was acquainted with plaintiff prior to the collision, knew where plaintiff lived and testified that plaintiff was heading in the direction of his home and traveling at approximately 40 to 45 miles per hour. The two cars following defendant’s log truck passed both plaintiff and defendant, leaving the witness directly behind defendant. The witness stated he could see plaintiff’s tires from underneath the log truck, but he could not see whether plaintiff used his turn signal. He testified that at plaintiff’s driveway, defendant pulled out into the left lane of traffic to pass plaintiff, but because plaintiff was turning left into his driveway, plaintiff and defendant collided.

Defendant testified that he first saw plaintiff when plaintiff was approximately 100 feet in front of him. According to defendant, plaintiff’s right rear and right front tires were off the pavement on the shoulder of the road, and plaintiff was traveling between 20 and 25 miles per hour. Defendant did not see a turn signal on the back of plaintiff’s truck. He believed that plaintiff was pulling off to the right side of the roadway, so defendant pulled over into the left lane, which he referred to as “the passing lane.” When defendant got into the passing lane, plaintiff came across in front of him. Defendant applied his brakes in an attempt to avoid hitting plaintiff, but the vehicles collided. The right front of defendant’s semi-tractor collided with the left rear of plaintiff’s truck. After impact occurred, both parties’ vehicles went off to the left side of the roadway ending up near plaintiff’s driveway.

Plaintiff testified that he turned on his left turn signal approximately 300 feet before his driveway, and that approximately 70 to 80 feet before his driveway, his truck was hit in the rear. Plaintiff stated that when the collision occurred, he was in the westbound lane. After impact, plaintiff crossed in front of defendant’s truck and went off to the left side of the roadway near his driveway.

The responding police officer testified that the collision occurred approximately two-tenths of a mile west of Interstate 57 on Route 146. He noted that there was debris in the roadway from the collision. Antifreeze, which in his opinion came from the accident, was located in the westbound lane toward the center line.

Plaintiff received injuries to his neck, head, and arm from the collision. He spent two weeks in the hospital as a result of injuries caused by the collision and continues to have pain in his neck, arm, and shoulders. Plaintiff cannot work on his farm as he once did and has had to hire people to complete projects that he would have been able to complete himself before the accident. For example, plaintiff hired someone to put his seedbed down, which he stated cost him $12,000. He also hired a man to do bulldozer work for $40,000. Plaintiff stated that had he not been injured, he could have done between $12,000 and $15,000 worth of the $40,000 job himself. Kay Casey testified that her husband had been an active man who was able to play ball with his grandchildren, do work on his farm, and ride horses regularly. Since the accident, her husband has periods of pain in which “he has no desire to go anywhere or do anything that would be pleasurable for me or him both.” She finds this “depressing, but I just take it for granted that he doesn’t feel good.” Mrs. Casey testified that she was not out any money because of her husband’s injury, but had lost his love and affection in that her husband could not participate in activities with her that he had been able to participate in prior to the accident. On cross-examination, Mrs. Casey admitted that at the time of her deposition she stated that she had not lost any love or affection because of her husband’s injury. She explained, however, that at the time she was asked the question, she believed the defense attorney was asking her about her and her husband’s sexual activities.

After trial, the jury returned a verdict in favor of Bill Casey in the amount of $57,000, reduced by 40% for plaintiff’s contributory negligence. The jury also returned a verdict in favor of Kay Casey, but awarded her no damages.

The initial question raised in this appeal is whether the trial court erred in refusing to direct a verdict or enter a j.n.o.v. in favor of plaintiff on the issue of defendant’s negligence. Plaintiff argues that defendant’s liability is clear, as he struck plaintiff’s vehicle in the rear and that there was no evidence that plaintiff was contributorily negligent; therefore, the case should be reversed and remanded with directions for the trial court to enter judgment for plaintiff for $57,000 plus costs. In reply, defendant contends that there is definitely a dispute as to how the occurrence took place, and there is sufficient evidence to support the jury’s finding of 40% contributory negligence on the part of plaintiff. We agree.

The standard applied in determining whether to grant a directed verdict or a j.n.o.v. is whether all of the evidence, when viewed in the light most favorable to the nonmoving party, so overwhelmingly favors movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) Where the evidence demonstrates that there is a factual dispute, it is error for the trial court to direct a verdict or to enter a j.n.o.v., as it is the function of the jury to decide whether the defendant exercised due care under the circumstances. Beeler v. Chem-Lawn Corp. (1989), 183 Ill. App. 3d 648, 652, 539 N.E.2d 290, 292.

Plaintiff maintains that in rear-end collision cases there is a line of precedent for holding that the driver of the rear vehicle is negligent as a matter of law. In support of this position, plaintiff cites Burroughs v. McGinness (1978), 63 Ill. App. 3d 664, 380 N.E.2d 37, and Wooff v. Henderson (1964), 46 Ill. App. 2d 420, 197 N.E.2d 103. The Burroughs court specifically stated:

“In light of general experience and common knowledge, the evidence before us reveals that the defendant was not attentive while driving and therefore, negligent. A driver approaching from the rear has the duty to keep a safe lookout and he must take into consideration the fact that he may be required to stop or slow his vehicle suddenly. [Citations.] Furthermore if he does not maintain a proper lookout for traffic ahead he is negligent. [Citation.]” Burroughs, 63 Ill. App. 3d at 667, 380 N.E.2d at 39.

Plaintiff argues that the application of Wooff and Burroughs to the instant case demonstrates that defendant’s actions constituted negligence and plaintiff’s actions did not. (See also Zaeh v. Huenke (1979), 70 Ill. App. 3d 39, 388 N.E.2d 434; Glenn v. Mosley (1976), 39 Ill. App. 3d 172, 350 N.E.2d 219; Barnash v. Rubovits (1964), 46 Ill. App. 2d 409, 197 N.E.2d 134.) While we do not dispute the cases cited by plaintiff, other cases have held that a rear-end collision does not automatically create an inference as a matter of law that the driver of the rear car was negligent, that he was following too closely, or that he was driving too fast for conditions. Instead, these cases have held that it is the responsibility of the trier of fact, herein the jury, to determine whether the rear driver was acting reasonably under the circumstances or that the accident was unavoidable. Strasma v. Rager (1986), 145 Ill. App. 3d 826, 829, 495 N.E.2d 1343, 1344; Thomas v. Northington (1985), 134 Ill. App. 3d 141, 145, 479 N.E.2d 976, 979; Burgdorff v. International Business Machines Corp. (1979), 74 Ill. App. 3d 158, 163, 392 N.E.2d 183, 186.

In the cases relied upon by plaintiffs, there were no facts to support any inferences that the defendants were misled by conduct on the part of the plaintiffs which either proximately or contributorily caused the collision. In the instant case, however, as in the cases holding contra to plaintiff’s position that a rear-end collision automatically creates an inference as a matter of law that the rear car driver was negligent, the evidence is conflicting as to whether plaintiff was in any way negligent in the operation of his pickup truck. The evidence, viewed in a light most favorable to defendant, shows that plaintiff was driving slowly with his right rear and front tires off the roadway on the shoulder. Defendant testified plaintiff did not have a turn signal on the back of his truck. He believed plaintiff was pulling off the right side of the roadway, so defendant pulled into the eastbound passing lane in order to pass plaintiff. According to plaintiff himself, two cars had passed him just prior to the collision between plaintiff and defendant. Whether plaintiff’s conduct was negligent and whether it proximately contributed to the collision were proper questions of fact for the jury. We cannot say that the inferences which might be reasonably drawn from this evidence so overwhelmingly favor the plaintiffs that no contrary verdict could ever stand. Accordingly, plaintiffs’ motions for a directed verdict and for a j.n.o.v. were properly denied.

The remaining question is whether the trial court erred by entering judgment on the verdict in which the jury found in favor of plaintiff, Kay Casey, on her loss of consortium claim, but awarded no money damages. Plaintiff argues that it is inconsistent for the jury to return a verdict in favor of the impaired spouse and the deprived spouse and then award no damages to the deprived spouse for her loss of consortium claim where there was evidence to support such a claim. Defendant replies that the verdict was not inconsistent, but rather, plaintiffs failed to prove actual damages because Kay Casey herself testified that she did not sustain any loss. We disagree with defendant and find that Kay Casey did present evidence of damages for which she could recover.

A claim for loss of consortium is a separate cause of action based upon the impaired spouse’s claim for his own injury. (Brown v. Metzger (1983), 118 Ill. App. 3d 855, 859, 455 N.E.2d 834, 837, aff’d (1984), 104 Ill. 2d 30, 470 N.E.2d 302.) An action for loss of consortium is based upon a transferred negligence theory whereby a defendant’s duty to act with reasonable care toward the impaired spouse is transferred to the deprived spouse. (118 Ill. App. 3d at 858, 455 N.E.2d at 837.) Loss of consortium incorporates two basic elements of the marital relationship: (1) loss of support, and (2) loss of society, which includes companionship and sexual intercourse. Pease v. Ace Hardware Home Center (1986), 147 Ill. App. 3d 546, 555, 498 N.E.2d 343, 350.

In the instant case, the evidence was clear that Mr. Casey had been an active 70-year-old retiree prior to the accident, but because of injuries caused by the accident is unable to perform farming duties around his farm, is unable to play as actively with his grandchildren, and is unable to ride horses. Mrs. Casey testified that since the accident her husband has periods of pain in which “he has no desire to go anywhere or do anything that would be pleasurable for me or him both.” The injuries to Mr. Casey also affected the parties financially, as Mr. Casey has had to hire people to do work around the farm that he ordinarily would have done himself. However, Mrs. Casey did testify on cross-examination that she was not out any money due to her husband’s injury. The following colloquy between Mrs. Casey and the defense attorney on cross-examination is enlightening as to the loss of consortium issue:

“Q. And you have not lost any love or affection because of the injury that you are aware of?
A. Sure.
Q. Sure; do you mean yes or no?
A. Yes, I have.
Q. Ma’am?
A. Yes, I have.
Q. You have not knowingly lost any loss of consortium, have you?
A. No. Tell me the definition of consortium.
Q. Do you remember when your deposition was taken at your attorney’s office?
A. Yes, I do.
Q. In May of 1988? Do you remember that?
A. Yes, I do.
Q. And the question was asked of you *** was this question asked of you? ‘Have you lost any love or affection because of his injury that you are aware of?’ Your answer, ‘No.’ Was that question asked of you and did you give that answer?
A. I thought you were talking about sex, and people our age I thought *** that was what I was talking about.
Q. Well, the question is whether that question was asked of you and did you give that answer? That’s the question.
A. I would say I did if you said I did.
Q. Also, was this question asked of you and did you give this answer? The question, ‘So, I take it that you have not knowingly lost anything personally; love, affection or loss of consortium or anything of that sort?’ The answer, ‘No, I just answered that.’ Now, was that question asked of you and did you give that answer?
A. If you said I did, I’d say I did.
Q. I’m asking you if that question was asked of you and did you give that answer?
A. I have lost affection and going places and doing things that we would ordinarily do on account of Bill’s condition.
Q. I see, but you refuse to answer my question?
A. Pardon me?
Q. I asked you whether that question was asked of you and did you give that answer? That’s the question before the house today.
A. And I said that I guess I did if you say I did. If it was under oath, I’m sure I said that.
MR. NOVICK: That’s all that I have. Thank you.”

On redirect, plaintiff’s attorney attempted to rehabilitate the witness by having her explain her idea of loss of consortium:

“Q. Kay, when you were asked the questions about consortium in your deposition, what did you understand that term to mean?
A. That’s what I thought it was. I thought it was sex and at our age, why, anybody around here that is our age, which they are probably not, that that would be a big laugh.
Q. That’s something you do not want to go into?
A. Right, I would rather just drop that.
MR. WOMICK: Thank you.
MR. NOVICK: I don’t want to get into it either. I have no questions.”

It is apparent to us after review of the transcript that Mrs. Casey clearly felt uncomfortable talking about loss of consortium because in her mind this issue related only to loss of sexual relations. Mrs. Casey was clear, however, that because of her husband’s injuries she had suffered loss of society, specifically, loss of her husband’s companionship.

It cannot be ascertained with definiteness what the jury here intended by its verdict. The zero verdict could have meant that the jury did not feel Mrs. Casey sustained any damages as the result of the accident. However, we find that the record reflects that Mrs. Casey did, in fact, suffer loss of consortium as a result of the accident. The award of “0” damages is therefore against the manifest weight of the evidence.

The question which remains is the extent of our remand. In Manders v. Pulice (1970), 44 Ill. 2d 511, 256 N.E.2d 330, our supreme court affirmed the appellate court’s remand of the award to the impaired spouse even though only the award to the deprived spouse was found to be against the manifest weight of the evidence. The Manders court stated that in Illinois the rule is to examine the verdict to ascertain the jury’s intention and if the verdict is otherwise supportable, to mold the verdict into proper form. (44 Ill. 2d at 517, 256 N.E.2d at 333.) The Manders court then stated:

“One may hypothesize that the jury intended that the award to the plaintiff-wife was to be solely in her favor, that the failure of the jury to make an award to the husband for his demonstrated damages was due to simple inattention and that a new trial for the wife is unnecessary. However, the hypothesis that the jury intended to disregard the court’s instructions and intentionally returned inconsistent verdicts appears to be just as defensible.” 44 Ill. 2d at 518-19, 256 N.E.2d at 334.

In other circumstances, courts have found that it is not necessary to remand both the awards to the impaired spouse and to the deprived spouse. For example, in Pease v. Ace Hardware Home Center (1986), 147 Ill. App. 3d 546, 498 N.E.2d 343, the court found that there was no basis for concluding that the award to the impaired spouse was so large as to require the conclusion that it contained an award of damages for the deprived spouse’s consortium claim. (147 Ill. App. 3d at 560, 498 N.E.2d at 352-53.) Because the Pease court concluded that there was no possibility that a subsequent award of damages to the deprived spouse on her consortium claim would result in a double recovery (147 Ill. App. 3d at 560, 498 N.E.2d at 353), only that portion of the judgment concerning the deprived spouse’s consortium claim was reversed and remanded.

We likewise find no basis for concluding that Mr. Casey’s damage award and a subsequent award to Mrs. Casey on her consortium claim will result in double recovery. As we previously stated, the evidence adduced at trial supported the award of $57,000 reduced by 40% for Mr. Casey’s contributory negligence. We therefore find it unnecessary to provide another jury with the opportunity to reexamine Mr. Casey’s award.

For the foregoing reasons, that portion of the judgment finding defendant liable in the amount of $57,000, reduced by 40% for plaintiff’s contributory negligence, is affirmed; that portion of the judgment concerning Mrs. Casey’s consortium claim is reversed, and the cause is remanded for a new trial in accordance with the views expressed herein.

Affirmed in part; reversed and remanded in part.

LEWIS, P.J., and HARRISON, J., concur.


author: JUSTICE HOWERTON PRESIDING JUSTICE LEWIS,

text:
    RICK BROWN et al., Plaintiffs-Appellants, v. DONALD H. VEILE et al., Defendants-Appellees.
    Fifth District
    No. 5—88—0161
    Opinion filed June 14, 1990.

      LEWIS, P.J., dissenting.
    Thomas A. LeChien, of Belleville, for appellants.
    Myron A. Hanna, of Thompson & Mitchell, of Belleville, for appellees.
   JUSTICE HOWERTON

delivered the opinion of the court:

After defendants refused to offer plaintiff Rick Brown a lease for a mobile home lot in Arapaho Village Mobile Home Park, plaintiffs filed for a judicial declaration that defendants had a legal duty to offer plaintiffs the lease under the Mobile Home Landlord and Tenant Rights Act (Ill. Rev. Stat. 1987, ch. 80, par. 201 et seq.). In addition to declaratory judgment, plaintiffs also joined a claim for money damages under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121½, par. 261 et seq.) for Veile’s refusal to offer a lease to an individual interested in buying the mobile home from Brown.

The circuit court of St. Clair County granted summary judgment in favor of defendants on both counts and plaintiffs appeal. We affirm in part and reverse in part.

I

THE MOBILE HOME LANDLORD AND TENANT RIGHTS ACT

Count I of plaintiffs’ complaint alleged a violation of the Mobile Home Landlord and Tenant Rights Act (hereinafter referred to as the Act) and sought a declaration that defendants had a legal duty to offer Brown a lease for a lot in Arapaho Mobile Home Park.

In his affidavit in support of his motion for summary judgment, defendant Veile stated: (1) Kevin Johnson owned a mobile home that sat on a lot Johnson had leased from Veile in Arapaho Mobile Home Park; (2) Veile was contacted by plaintiff, Brown, who said that he intended to make repairs on Johnson’s mobile home, buy it, and then resell it; (3) Veile requires all prospective lessees to complete and submit a written application, and, based on that application, he then obtains a credit report on the applicant and contacts the applicant’s prior landlord and the references listed; (4) Brown did not request a lease from Veile; (5) Veile told Brown that the mobile home would have to be removed from Arapaho Mobile Home Park; (6) later, Veile was told by Brown that he or Manufactured Housing Specialist had bought Johnson’s mobile home; (7) by letter, Veile directed Brown and Manufactured Housing Specialist to remove the mobile home from the mobile home park.

Brown filed a counteraffidavit stating: (1) Brown had bought Johnson’s mobile home; (2) before closing, Brown had requested a lease from Veile, but Veile refused to give him one; (3) Manufactured Housing Specialist entered into a tentative agreement to sell the mobile home to Doy Turna; (4) Tuma’s application for a lease from Arapaho Village Mobile Home Park was denied; (5) Turna, however, was granted a mobile home lease by Arapaho Village Mobile Home Park for a different mobile home on a different lot.

Section 6(a) of the Act requires mobile home park owners to offer a written lease to each “present and future tenant.” (Ill. Rev. Stat. 1987, ch. 80, par. 206(a).) A “tenant” is either a “person who occupies a mobile home rental unit for dwelling purposes” or a person who occupies “a lot on which he parks a mobile home for an agreed upon consideration.” Ill. Rev. Stat. 1987, ch. 80, par. 203(e).

Brown argues that he is a “future tenant” under the Act because: (1) he was the purchaser of Johnson’s choice; (2) he requested a lease from Veile; and (3) he tendered rent. Therefore, Brown concludes, Veile has a legal duty to offer Brown a lease. Ill. Rev. Stat. 1987, ch. 80, par. 206(a).

Veile argues, however, that even if Brown attempted to tender rent to Veile, Veile had no obligation to accept it because he considered Brown a trespasser. Veile claims that Brown is not a future tenant under the Act because Veile never agreed to accept Brown as a tenant. Veile further asserts that because Brown did not obtain a lease prior to closing, he is in violation of section 24 of the Act (Ill. Rev. Stat. 1987, ch. 80, par. 224(a)) and is, therefore, not entitled to relief under the Act.

Section 24 of the Act enjoins and restrains mobile home park owners from

“prohibiting, limiting, restricting, obstructing or in any manner interfering with the freedom of any mobile home owner to:
(a) Sell his mobile home to a purchaser of his choice, provided that the park owner shall be allowed to promulgate any general qualifications or lawful restrictions on park residents which limit or define the admission of entrants to the park. The purchaser, prior to closing, must obtain a written and signed lease.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 80, par. 224(a).

The first issue for us to resolve is whether plaintiffs are within the coverage of the Act even though they did not obtain a written and signed lease prior to closing. We believe they are, because they alleged that they tried to get a lease. To construe the Act to extend protection only to those mobile home buyers who obtain a written and signed lease is absurd. A buyer who has a lease ordinarily does not need the protection of the Act.

Here would be the effect of defendants’ contention that plaintiff is not protected by the Act — if a buyer cannot get a lease, the Act extends protection, but, to get protection, the buyer first has to get a lease; the net result is: “if you do not have a lease, you need protection; but, you cannot get protection unless you have a lease.”

Such a construction would have made the Air Force proud in Joseph Heller’s Catch 22. Such a construction would allow the mobile home park owner to frustrate the entire Act by saying, “In order to get me, you have got to get me to sign a lease, and I am not doing it.” That kind of construction would be more than a gloss; it would amount to a tough, amber resin, encasing the mobile home park owner, rendering him impervious to challenge, just as prehistoric insects have been encased and preserved, impervious to challenge for millions of years. The law has no particular interest in mummification.

The second issue for us to resolve is whether plaintiff is within the coverage of the Act. It must be remembered that Johnson, not plaintiff, was the seller, and therefore, it is argued that the coverage of the Act is to Johnson, not plaintiff. The circuit court held that since plaintiffs never were tenants, defendant owed no duty to them under the Act.

We disagree. Plaintiff alleges that he is a future tenant within the provisions of the Act. The Act prohibits defendant from obstructing the freedom of Johnson to sell his mobile home. If Johnson cannot sell to plaintiff, to whom can he sell? Another? If he did try to sell to another, what would keep defendant from refusing to accept the other as a tenant? Nothing. Except the Act itself. Unless the coverage of the Act is extended to a buyer, what can happen in practice is the Johnsons of the world must sell their mobile home, perhaps because of graduation from college, or discharge from service, or transfer to another job, or perhaps because of buying a house. To confer standing only on Johnson means Johnson has to use some funds other than the equity in the mobile home to move, or buy a house. We are mindful of the economic difficulties that people who live in mobile homes sometimes have. We know further that the potential for an economic squeeze that can be placed on them by the mobile home park owner so often will bring the Johnsons of the world to accept the mobile home park owner’s terms, “Sell to me at this lower price and get it over with, or get out and sue me.” It is this analysis that impels us to the conviction that the legislature intended to give plaintiff standing to sue under the Act. Anything less would grant a mobile home owner the ability to obstruct a sale.

The question in this case is whether the refusal to give a lease was reasonable. We do not believe that the legislature promulgated section 24 so that a mobile park owner could unreasonably refuse to offer a lease to a party. To allow a park owner to unreasonably refuse to tender a lease to a buyer would allow park owners to defeat the statute.

Here, Veile’s affidavit asserts that Brown did not request a lease. On the other hand, Brown’s affidavit asserts that he did request a lease from Veile, and further asserts that he met all of the general qualifications and lawful restrictions for tenancy in Arapaho Village Mobile Home Park. Therefore, whether Brown requested and was refused a lease and whether Brown met all of defendants’ requirements for tenancy are genuine issues of material fact. It is the determination of these issues which may well establish whether Brown is a “future tenant” under the Act and, resultantly, whether Veile would have a duty to offer Brown a lease pursuant to section 6(a) of the Act. Ill. Rev. Stat. 1987, ch. 80, par. 206(a).

Because these genuine issues of material fact exist, the decision of the circuit court granting summary judgment on count I was improper and is, therefore, reversed.

II

THE CONSUMER FRAUD AND DECEPTIVE BUSINESS PRACTICES ACT

Count II of plaintiffs’ complaint sought money damages and alleged that defendant engaged in a deceptive business practice by refusing to grant a lease to Tuma in violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121½, par. 261 et seq.).

In its amended order, the circuit court did not give a factual basis for its decision granting summary judgment, but simply stated that “judgment is entered for defendants *** on Count II.” Because we find that plaintiffs lack standing to bring a cause of action under the Consumer Fraud and Deceptive Business Practices Act, we affirm the court’s decision.

The purpose of the Consumer Fraud and Deceptive Business Practices Act is “to protect consumers and borrowers and businessmen against fraud, unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” (Ill. Rev. Stat. 1987, ch. 121½, par. 261 et seq.) Whether a party has standing to sue under the Consumer Fraud and Deceptive Business Practices Act is dependent upon whether that party is a “consumer.” (People ex rel. Fahner v. Hedrich (1982), 108 Ill. App. 3d 83, 438 N.E.2d 924.) Although the Consumer Fraud and Deceptive Business Practices Act provides a right of action to “[a]ny person who suffers damage as a result of a violation” (Ill. Rev. Stat. 1987, ch. 121½, par. 270a), the supreme court of Illinois has held that only “consumers” have standing to sue under the statute. Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634.

A “consumer” is “any person who purchases or contracts for the purchase of merchandise not for resale in the ordinary course of his trade or business but for his use or that of a member of his household.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 121½, par. 261(f).) Tenants of a mobile home park are consumers for purposes of the Consumer Fraud and Deceptive Business Practices Act. People ex rel. Fahner v. Testa (1983), 112 Ill. App. 3d 834, 445 N.E.2d 1249.

We find in this case, however, that plaintiffs cannot be defined as consumers. Instead, they are dealers in preowned mobile homes, buying them, and offering them for resale in the ordinary course of their trade or business — a finding of the circuit court supported by the record and not challenged as erroneous by plaintiffs on appeal. Accordingly, because plaintiffs are not consumers and because only consumers can bring an action under the Consumer Fraud and Deceptive Business Practices Act, plaintiffs lack standing and summary judgment on count II was proper.

For the above-stated reasons, summary judgment on count I is reversed, summary judgment on count II is affirmed, and this cause is remanded to the circuit court for further proceedings.

Affirmed in part; reversed in part and remanded.

GOLDENHERSH, J., concurs.

PRESIDING JUSTICE LEWIS,

dissenting:

I respectfully dissent. The trial court was correct in dismissing count I, which dealt with the Mobile Home Landlord and Tenant Rights Act (the Act) (Ill. Rev. Stat. 1987, ch. 80, par. 201 et seq.).

Under the title of the Act it is stated: “An act concerning Mobile Home Parks and the rights of Mobile Home owners and Mobile Home Residents.” The Act is replete with the rights and obligations of both the tenant and owner and, in fact, the last paragraph of section 21 (Ill. Rev. Stat. 1987, ch. 80, par. 221), entitled “Remedies, tenants,” says:

“The tenant may sue to enforce all Sections of this Act and the court may award damages or grant any injunctive or other relief.”

In the next paragraph, section 22 (Ill. Rev. Stat. 1987, ch. 80, par. 222) of the Act, the remedies of the park owner are defined.

The majority states that the Act prohibits defendant from obstructing the freedom of Johnson (tenant) from selling his mobile home. In this it is absolutely correct. However, the majority goes on to say that because of the economic difficulties that people who live in mobile homes have, someone else has standing to bring the law suit. I cannot accept this line of reasoning. The legislature by enacting this Act set forth the rights and responsibilities of the park owner and the tenant or resident.

Section 24 of the Act (Ill. Rev. Stat. 1987, ch. 80, par. 224) provides:

“Sale of Mobile Home. The park owner shall be enjoined and restrained from prohibiting, limiting, restricting, obstructing or in any manner interfering with the freedom of any mobile home owner to:
(a) Sell his mobile home to a purchaser of his choice, provided that the park owner shall be allowed to promulgate any general qualifications or lawful restrictions on park residents which limit or define the admission of entrants to the park. The purchaser, prior to closing, must obtain a written and signed lease.” (Ill. Rev. Stat. 1987, ch. 80, par. 224(a).)

This section specifically grants any mobile home owner the freedom to sell to the purchaser of his choice. However, this section also requires that a purchaser must obtain a lease prior to closing, from the park owner. Here, Johnson was not prohibited from selling his mobile home to the plaintiff, but, according to the plaintiff’s affidavit, the plaintiff had bought Johnson’s mobile home without obtaining a lease before closing. The reason for the plaintiff’s failure to obtain a lease prior to closing is irrelevant, and the important fact to this case is that the plaintiff did not comply with the statute in obtaining a lease, and without a lease, he was not a tenant under the Act. Therefore, since the plaintiff was not a tenant, either present or future, the plaintiff had no standing to sue. If the plaintiff had requested a lease as stated in the plaintiff’s affidavit, and had been refused a lease by the defendant before closing, then Johnson should have challenged the refusal at that time as prohibiting Johnson’s right to sell to a purchaser of his choice. This Johnson did not do.

Section 6, upon which the majority relies, discusses the obligation of a park owner to offer a written lease and it states in part:

“Obligation of Park Owner to Offer Written Lease. No person shall offer a mobile home or lot for rent or sale in a mobile home park without having first exhibited to the prospective tenant or purchaser a copy of the lease applicable to the respective mobile home park.
(a) The park owner shall be required to offer to each present and future tenant a written lease for a term of not less than 12 months, unless the parties agree to a different term subject to existing leases which shall be continued pursuant to their terms.” (Ill. Rev. Stat. 1987, ch. 80, par. 206(a).)

This provision is meant to protect the parties so they know the exact terms of the lease. Even if we assume that no lease was offered it makes no difference in this case. It is Johnson, the tenant, who needs and gets protection under the Act. Section 6 protects persons wanting to rent or buy by allowing them to know the exact terms of the written lease.

In discussing the constitutionality of the Act in question, the court in People ex rel. Fahner v. Hedrich (1982), 108 Ill. App. 3d 83, 95, 438 N.E.2d 924, 932, stated:

“A reading of the Mobile Home Landlord and Tenant Act indicates that the purpose of sections 6 and 9 of the Act is to protect tenants from landlords who would take unfair advantage of a tenant by raising rental fees and adding charges after the tenant has expended funds by affixing a dwelling onto the rented premises.”

It is the tenant who is given protection and can sue to have those rights protected. The plaintiff in this case was not a present or future tenant, and thus, he was not entitled to the rights afforded under the Act.

Therefore, I would affirm the trial court as to count I.


author: JUSTICE HOWERTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK MAPPS, Defendant-Appellant.
    Fifth District
    No. 5—89—0285
    Opinion filed June 19, 1990.

      Daniel M. Kirwan and Janet L. Gandy, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Garnati, State’s Attorney, of Marion (Kenneth R. Boyle, Stephen Norris, and Scott A. Manuel, all of State's Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

We affirm defendant’s conviction entered on his open plea of guilty to unlawful possession of a controlled substance and unlawful possession of cannabis, but the sentence is modified by reducing the sentence for possession of a controlled substance from five years' to three years’ imprisonment.

Prior to accepting defendant’s plea, the circuit court of Williamson County informed defendant that the controlled-substance charge was a Class 4 felony, and that he could be sentenced to one to three years’ imprisonment, but did not inform defendant that he could receive an extended term.

At defendant’s sentencing hearing, the State argued for an extended-term sentence on the controlled-substance conviction because defendant had a prior burglary conviction. The court sentenced defendant to an extended term of five years’ imprisonment on the controlled-substance conviction, and 364 days on the cannabis conviction, with the sentences to run concurrently.

Defendant’s motion to withdraw his guilty plea was denied and defendant appeals, claiming that his sentence of five years’ imprisonment must be vacated because he was not informed that he was eligible for an extended-term sentence before his guilty plea was accepted.

The State argues that defendant has waived appellate review of this issue because he did not include the propriety of the extended term in his motion to withdraw his plea of guilty.

Section 5—8—2(b) of the Unified Code of Corrections governs the applicability of extended-term sentences. It provides:

“If the conviction was by plea, it shall appear on the record that the plea was entered with the defendant’s knowledge that a sentence under this Section was a possibility. If it does not so appear on the record, the defendant shall not be subject to such a sentence unless he is first given an opportunity to withdraw his plea without prejudice.” Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—2(b).

Defendant was not informed that he could receive an extended-term sentence when his plea was accepted. The record shows that the first defendant heard of the possibility of being given an extended term was when he was sentenced.

The critical question, therefore, is whether defendant had an opportunity to withdraw his guilty plea prior to sentencing. If he did have an opportunity to withdraw his plea, the sentence is proper under section 5—8—2(b). (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—2(b).) If, however, defendant did not have an opportunity to withdraw his plea, we cannot find waiver and we must vacate the portion of the sentence that is void.

A review of the record establishes that defendant was never afforded an opportunity to withdraw his plea of guilty before he was sentenced. Therefore, the statute provides that defendant is not eligible for an extended-term sentence.

Questions then arise: What is to become of the conviction? Is it wiped out and the case remanded for a fresh start? Or, is the conviction to be affirmed and the sentence to be modified by reducing it?

In Illinois, where a sentence that is greater than permitted by statute is imposed, the sentence is not void; rather, only the excess portion of the sentence is void. (In re T.E. (1981), 85 Ill. 2d 326, 333, 423 N.E.2d 910, 913; People v. Perruquet (1989), 181 Ill. App. 3d 660, 663, 537 N.E.2d 351, 353.) The excess here is two years: This excess is void. The maximum sentence available here is three years’ imprisonment. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(a)(7).) Section 5—8—2(b) (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—2(b)) requires that defendant’s five-year sentence be modified accordingly by reducing it to three years. See Supreme Court Rule 615(b) (107 Ill. 2d 615(b)).

As to the State’s argument that this issue is waived, we noted in People v. Perruquet (1989), 181 Ill. App. 3d 660, 537 N.E.2d 351, that:

“To the extent that the excess sentence is void, the judgment is void also, and a void judgment may be vacated at any time. Given this, we believe that petitioner’s attack on his extended-term sentence is, in effect, an attack on a void judgment. ***
* * *
*** [T]he argument that a judgment in a criminal case is void is, as we have indicated, a matter which can be raised at any time. This is so regardless of whether the argument was properly preserved for review.” Perruquet, 181 Ill. App. 3d at 663-64, 537 N.E.2d at 353-54.

Therefore, since the excess portion of an extended-term sentence imposed in violation of a statute is void, the excess portion may be challenged on appeal irrespective of whether this issue was included in a motion to withdraw a guilty plea.

Therefore, defendant’s convictions for unlawful possession of a controlled substance and unlawful possession of cannabis are affirmed. Defendant’s sentence for his conviction of unlawful possession of a controlled substance is modified and reduced to three years’ imprisonment. See Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—2(b).

Affirmed as modified.

WELCH and CHAPMAN, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SIMON GREEN, Defendant-Appellant.
    Third District
    No. 3—88—0794
    Opinion filed June 12, 1990.

      Janet L. Gandy, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Edward Burmila, State’s Attorney, of Joliet (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Defendant Simon Green and codefendant Ricky Gordon were charged by complaint with armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18—2(a)). The two were tried separately, with Green being tried first. Following a jury trial, Green was convicted of the offense. During two hearings following the conviction, the defendant argued that he should be granted a new trial because of certain newly discovered evidence. The trial court denied the motion and sentenced the defendant to a 20-year prison term. The defendant appeals.

At trial Gina Staehley, an owner of the Ken Woody Sports store, testified that at approximately 12:15 p.m. on June 6, 1988, an individual later identified as Ricky Gordon came into the store, inquired about some merchandise and left, indicating that he would return later. At about 12:35 p.m. Gordon returned and selected a pair of athletic shoes to purchase. Instead of paying for them, however, he drew a gun and ordered Staehley to put the shoes and all the money from the cash register into a plastic bag. Gordon then exited the store, walked past the next door Sunbaum Schwinn store and got in the passenger side of an automobile parked behind the Schwinn store.

David Lesniewcz and Tim Beno, employees of the Schwinn store, testified that at approximately 12:45 p.m. on June 6, 1988, Staehley entered their store and told them that she had just been robbed. The two men ran out the back door of the store and saw a man get into the passenger side of a green Cordoba automobile.

Staehley was able to provide police with a fairly detailed description of the robber, while Beno was able to provide the police with a fairly detailed description of the driver of the automobile. Lesniewicz was unable to provide specific identification regarding either of the suspects but he did give the police a general description of the passenger and the number of the license plate.

Robin Jones, who lived across the hall from Gordon, testified that she saw Gordon and the defendant together at Gordon’s apartment between 1 and 1:15 p.m. on the day of the robbery. Jones did not know whether the two arrived together. Jones further testified that Gordon’s automobile was outside the apartment building at that time.

Sergeant Hafner of the Joliet police department testified that he was able to trace the license plate number provided by Lesniewicz to a car owned by Gordon. The police went to Gordon’s apartment at 1:15 p.m. on the day of the robbery and found the car in front of Gordon’s apartment complex. A new pair of athletic shoes, as well as a shirt later identified by Staehley as being the one worn by the robber, were found in the apartment.

Beno and Staehley were able to identify Gordon as the passenger in the automobile from a police photographic lineup held nearly one month after the robbery. During the same photographic lineup, Beno also identified the defendant as the driver of the automobile.

The defendant was found guilty of armed robbery. During two hearings following the conviction, defense counsel argued that the defendant should be granted a new trial because of certain newly discovered evidence. Counsel explained that after Beno had testified, the defendant had informed him that his photograph had been in a “Crime Stoppers” article in the Joliet Herald News. Counsel was not able to confirm this until shortly before closing arguments. During Gordon’s trial it was established that Beno had seen the “Crime Stoppers” article and had discussed it with other witnesses before he was shown the lineup from which he identified the defendant as the driver of the automobile. In fact, the same photograph that appeared in the paper was the same photograph Beno picked out during the lineup..In Gordon’s trial, Beno’s identification of Gordon was suppressed because of the impermissibly suggestive lineup.

The prosecutor argued that the motion for a new trial should be denied because defense counsel became aware of the “Crime Stoppers” article prior to the close of the defendant’s trial and might have had a tactical reason for not pursuing the matter. The trial judge denied the motion without comment. The defendant raises two questions for our consideration.

Initially the defendant contends that the trial court erred in not granting the defense motion for a new trial based upon the newly discovered evidence that the State’s only identification witness had identified the defendant in an impermissibly suggestive lineup.

The party seeking a new trial based upon newly discovered evidence “must establish that the newly discovered evidence would have been likely to produce a different result in the trial.” (People v. Molstad (1984), 101 Ill. 2d 128, 135, 461 N.E.2d 398.) A trial court’s decision to deny a motion for a new trial will not be overturned absent an abuse of discretion. People v. Peters (1986), 144 Ill. App. 3d 310, 320, 494 N.E.2d 853.

We find that the trial court did not abuse its discretion in denying the motion. The State initially contends that the evidence was not newly discovered. We agree with the defendant that the evidence was newly discovered evidence. While defense counsel clearly became aware of the “Crime Stoppers” article during the defendant’s trial, it was not discovered until after the trial that Beno had seen the article. We do not agree, however, that the evidence would have produced a different result at trial.

Assuming that the photographic identification was impermissibly suggestive, the State may nevertheless overcome that obstacle, by a clear and convincing showing, based on the totality of the surrounding circumstances, that “ ‘the witness is identifying the defendant solely on the basis of his memory of events at the time of the crime.’ ” (People v. McTush (1980), 81 Ill. 2d 513, 520, 410 N.E.2d 861, quoting Manson v. Brathwaite (1977), 432 U.S. 98, 122, 53 L. Ed. 2d 140, 159, 97 S. Ct. 2243, 2257 (Marshall, J., dissenting).) In Manson, the Court stated:

“We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony ***. The factors to be considered are set out in Biggers. 409 U.S., at 199-200, 34 L. Ed. 2d at 401, 93 S. Ct. 375. These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” 432 U.S. at 114, 53 L. Ed. 2d at 154, 97 S. Ct. at 2253.

Applying these factors to the case at bar, it is apparent that:

1. At approximately 12:45 p.m. on a clear, sunny day witness Beno observed the defendant from a distance of 10 to 15 feet for a period of one to two minutes. Beno described the defendant as “sweaty.”
2. Beno had just been advised that the store next door had been robbed. He and the other two employees went to the back of the store to see if they could observe the robber. It certainly can be inferred that he had a high degree of attention at that time, i.e., he wasn’t a passive observer but rather went out to see what was going on.
3. Beno’s description to the police shortly after the incident was of a heavyset black male, approximately 30 to 40 years of age, with a bushy afro haircut, small beard and mustache.
The presentence report indicates that the defendant is a 5-foot 9-inch, 260-pound black male in his late 30’s. The photograph of the defendant which was introduced at trial shows the defendant to have a small beard and mustache. Beno testified that other than having longer hair, the defendant appeared the same in the photograph as he did the day of the robbery.
4. Beno never wavered in his identification of the defendant as the driver, either at the pretrial photo lineup or at the in-court identification of the defendant.
5. The photo lineup took place approximately one month after the robbery. The in-court identification took place in mid-October 1988, four months after the robbery.
6. It is true that the photo Beno saw in the article was identical to the photo he picked out of the police lineup. However, when he saw the photo, he immediately recognized the defendant as the driver of the automobile on June 6,1988.

Balancing the first five against the sixth, we are of the opinion that an independent basis existed for Beno’s identifications of the defendant. Accordingly, evidence of these would have been admitted at trial even if the identifications were tainted by Beno’s viewing of the “Crime Stoppers” article.

The defendant’s second issue contends that the defendant was denied his right to effective assistance of counsel. The defendant maintains that his counsel knew or should have known during the trial that the identification by Beno was suppressible.

The standard for determining whether a defendant has received effective assistance of counsel at trial has two components: deficiency and prejudice. The defendant must first prove that his counsel made an error so serious that he was not functioning as the “counsel” guaranteed the defendant by the sixth amendment to the United States Constitution. Second, the defendant must prove that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result *** would have been different.” Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.

The defendant has failed to persuade us as to either of these points. The issue of counsel’s competency is always based on a totality of the counsel’s conduct. (People v. Mitchell (1984), 105 Ill. 2d 1, 15, 473 N.E.2d 1270.) Our review of the record fails to support such a finding.

Second, we are of the opinion that even if the defense counsel had discovered that Beno had seen the “Crime Stoppers” article, an independent basis existed for his identifications such that a motion to suppress would have failed.

Accordingly, the judgment of the circuit court of Will County is affirmed.

Affirmed.

BARRY and SCOTT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICHARD A. McKNIGHT, Defendant-Appellee.
    Third District
    No. 3—89—0685
    Opinion filed June 8, 1990.

      Joseph Navarro, State’s Attorney, of Ottawa (Elizabeth A. Klug and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Darrell K. Seigler, of Ottawa, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Richard A. McKnight, was charged with driving while his license was revoked (Ill. Rev. Stat. 1987, ch. 95½, par. 6—303). The trial court granted the defendant’s motion to quash the arrest and dismiss the charge. The State appeals. We reverse.

The record shows that on June 13, 1989, about 10:40 p.m., police officer Patricia Swanson was on routine patrol. As she drove along Lymons Mound Road, she observed a pickup truck parked beside the road with its headlights off. She testified that she parked her squad car behind the truck. Upon exiting her car, she observed the defendant in the driver’s seat of the truck and heard the truck’s motor running.

Officer Swanson further testified that upon approaching the truck she immediately asked the defendant if he had a driver’s license. He responded that he did not. Swanson asked the defendant for his name and ran it through the sheriff’s dispatch, which informed her that the defendant’s driver’s license was revoked- .Swanson then asked the defendant if he had been driving the truck. When he stated that he had been driving, she arrested him for driving while his license was revoked.

Officer Swanson also testified that Lymons Mound Road is in a wooded area, is not well traveled, and has few houses along it. She stated that the sheriff’s department receives three to four complaints a month about people drag racing on the road and parking alongside it to drink and fight. She testified that she decided to investigate the defendant’s parked truck because it looked suspicious. Additionally, she wanted to determine whether the driver was hurt.

Other evidence showed that Officer Swanson observed no mechanical defects in the defendant’s truck. Further, the truck had a valid registration and was properly pulled off the road. In addition, Swanson never asked the defendant if he were hurt or needed help.

At the conclusion of the hearing, the trial court quashed the defendant’s arrest and dismissed the charge. It held that while Officer Swanson had a right to investigate the parked truck, she was without probable cause to ask for the defendant’s driver’s license, since the defendant was not overtly violating any laws.

On appeal, the State argues that Officer Swanson’s request for the defendant’s driver’s license was proper based on the provision of the driver licensing law (Ill. Rev. Stat. 1987, ch. 95½, par. 6—100 et seq.) authorizing a police officer to request the production of a driver’s license.

Section 6—112 of the driver licensing law (Ill. Rev. Stat. 1987, ch. 95½, par. 6—112) states in part:

“Every licensee *** shall have his drivers license *** in his immediate possession at all times when operating a motor vehicle and *** shall display such license *** upon demand ***.”

Citing this court’s opinion in People v. McVey (1989), 185 Ill. App. 3d 536, 541 N.E.2d 835, the defendant argues that to invoke the authority granted by section 6—112, there must first be probable cause. The defendant argues that without probable cause such a demand amounts to an illegal seizure under the fourth amendment.

We disagree and adopt the reasoning set forth in People v. Francis (1971), 4 Ill. App. 3d 65, 280 N.E.2d 49. There, the court held that to require some other offense to have been committed before a police officer may demand a driver’s license vitiates the purpose of section 6—112. Therefore, it concluded that a routine spot check of a motorist to ascertain if he has complied with the requirement of possession of a driver’s permit is neither unreasonable nor invalid, provided such check is not used as a substitute for a search for evidence of some possible crime unrelated to possession of a driver’s permit.

Based on Francis, we conclude that it is not necessary for a police officer to have probable cause to request production of a driver’s license and that such a request does not create an illegal seizure. We also find that this decision is consistent with our holding in People v. McVey.

In McVey, the defendant was arrested for driving while his license was revoked. The defendant was parked in his car when a police officer pulled up behind him. Upon approaching the car, the officer asked the defendant for his license. The defendant produced an apparently valid California driver’s license. This court concluded that at that point a seizure had not yet occurred. However, the officer then proceeded to order the defendant to remain in his car while the officer ran a check on the defendant’s license. We concluded that at that point a seizure occurred.

Therefore, contrary to the defendant’s argument in the case at hand, McVey does not stand for the proposition that a seizure occurs when a driver is asked for his license. The seizure in McVey occurred when the officer continued his investigation even though he had been given an apparently valid license. At that point the officer had no grounds to believe the defendant was committing a crime, and any further investigation amounted to an illegal arrest and seizure.

Therefore, since we have concluded that Swanson’s request for the defendant’s license was proper, the next step is to determine whether her continued investigation was also proper. Here, upon asking for the defendant’s license, Officer Swanson was informed that he did not have one. We find that at that point Swanson had reasonable grounds upon which to continue her investigation, since the defendant failed to produce the required license.

In conclusion, we hold that the trial court’s decision to quash the defendant’s arrest and dismiss the charge was manifestly erroneous. The court is therefore ordered to reinstate the charge against the defendant.

The judgment of the circuit court of La Sallé County is reversed and the cause is remanded for further proceedings consistent with our findings.

Reversed and remanded.

BARRY and SCOTT, JJ., concur.