text:
    THE VILLAGE OF DOWNERS GROVE, Petitioner-Appellant, v. THE ILLINOIS STATE LABOR RELATIONS BOARD et al., Respondents-Appellees.
    Second District
    No. 2 — 91—0046
    Opinion filed October 31, 1991.

      Bruce C. Mackey, of Klein, Thorpe & Jenkins, Ltd., of Chicago (Karl R. Ottosen, of counsel), for petitioner.
    Roland W. Burris, Attorney General, of Springfield, and Jacalyn J. Zimmerman, of Illinois State Labor Relations Board, of Chicago (Rosalyn B. Kaplan, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois State Labor Relations Board.
    John F. Ward, Jr., and Carmell, Charon, Widmer & Mathews, Ltd., both of Chicago (Lisa Beth Moss, of counsel), for respondent Downers Grove Firefighters Association Local 3234.
   JUSTICE INGLIS

delivered the opinion of the court:

Petitioner, the Village of Downers Grove (Village), seeks administrative review of certain orders of the respondent, the Illinois State Labor Relations Board (Board), pursuant to section 9(i) of the Illinois Public Labor Relations Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 1609(i)). The orders directed election and certified respondent, the Downers Grove Firefighters Association, IAFF, Local 3234 (Local 3234), as the exclusive bargaining representative of a bargaining unit. The bargaining unit includes full-time fire fighters, fire engineers, fire lieutenants, captains, paramedics and the director of emergency medical services (EMS). Petitioner contends that the Board erred in including the captains and the director of EMS in the bargaining unit as these positions are supervisory as defined by section 3(r) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 1603(r)). We affirm the actions of the Board.

The Village of Downers Grove Fire Department (Department) has one chief, three assistant chiefs, five captains, five lieutenants, five engineers, 18 fire fighters, 11 paramedics, one director of EMS, two fire inspectors and the director of fire prevention. The Department maintains five fire stations, with one captain assigned to each station. The captain’s staff at station three, the headquarters, includes one lieutenant, one engineer and six fire fighters. The captain’s staff at the remaining four stations includes one lieutenant, one engineer and three fire fighters. The director of EMS, along with five other paramedics, are assigned to station three. The remaining six paramedics are assigned to station five, the training station. The captains, lieutenants, engineers and fire fighters work from 7 a.m. to 6 p.m. every day except Sunday. The paramedics, including the director of EMS, work a schedule of 24 hours on duty and 48 hours off duty on rotating four-man shifts.

The record on appeal contains thorough background information pertaining to job descriptions, working hours, and compensation for the various employees in the Department. For purposes of this appeal, we need only concentrate on the duties of the employees in question: captains and the director of EMS.

The captain, who is frequently the highest ranking employee working the shift, is the officer in charge at the station. The officer in charge is responsible for staffing and the overseeing of station operations. At the beginning of the shift, the captain inspects the station and the equipment to ensure it is in proper working order and discusses any problems that occurred on the preceding shift. After a coffee break with the off-going shift, the captain oversees the performance of daily maintenance duties. These duties include general cleaning and upkeep of the station. After these duties are completed, the daily assignments are performed, which include training exercises and fire inspections of local businesses and major equipment. The captain determines the scheduling of inspections.

When the captain and the subordinates are not performing daily tasks, they work on committee assignments and special projects. All ranks have the opportunity to be appointed to a committee. The chief and assistant chiefs appoint committee members and chairpersons. Committee chairpersons may be of any rank. Committees include the air compressor operation and maintenance committee, the fire investigation and ground ladder testing committee and the hazardous materials committee. The committees make recommendations to the chief and assistant chiefs.

Each of the five captains also has department-wide duties. The captain at station number one schedules all department personnel. The captain at station number two prepares and maintains department payroll. The department’s budget is reviewed by the captain at station number three. The department’s purchasing officer is the captain at station number four. The captain at station number five reviews and revises department rules, regulations and procedures and recommends changes to the chief and assistant chiefs. Station number five captain is also the liaison with the Village dispatching center.

In the event of a fire, the highest ranking person on the scene, usually a captain or lieutenant, is the incident commander. The incident commander evaluates the situation and makes tactical decisions in deploying incoming units. The main duty of the incident commander is to coordinate fire suppression and maintain communication with the dispatch center. At large fires, the incident commander will be an assistant chief, with support from station captains.

The captains perform other administrative duties as well. The captains are responsible for evaluating their station lieutenants. The captains and lieutenants together evaluate station engineers and fire fighters. All Department employees are evaluated every six months. The evaluations are completed, discussed with the individual employee and are forwarded to the chief and assistant chiefs, who apply the evaluation to the Village-wide matrix system to determine merit increases in pay. Probationary employees are evaluated by captains, who determine whether to grant permanent status, extend the probationary period or dismiss the employee. As of the time of the hearing officer’s decision, no probationary employee had been denied permanent status upon a recommendation by a captain.

Once a year, the captain must determine what line items will be requested for the station for the next fiscal year. The subordinates list their requests. The captain reviews the list and submits it to an assistant chief. The three assistant chiefs discuss the requests with all the captains, but the chief and assistant chiefs ultimately determine what items will be included in the budget presented to the Village. The Department has a five-year budget plan for large ticket items for which the captains also make recommendations.

A captain has no authority to hire, lay off, recall, promote, discharge, reward or permanently transfer. The captain has authority to give reprimands, either oral or written, and recommend suspensions. The ultimate responsibility for disciplining employees lies with the chief and assistant chiefs. The Board of Fire and Police Commissioners has the sole authority to hire and promote employees. Grievances are initially submitted to the station captains as a first step of the grievance procedure. Minor grievances are usually informally resolved between the subordinate and the captain. Formal grievances are resolved by the chief and assistant chiefs.

The director of EMS performs a number of administrative and paramedic functions. The director is responsible for the functioning of paramedics in the field. The director also heads paramedic crew meetings and training sessions and participates on the same committees as fire fighting personnel. When the director’s home station, station number three, is dispatched on a call, the director serves as a paramedic. The Department averages six EMS calls per day.

When not responding to a call, the director performs administrative responsibilities. One primary duty is to serve as liaison between Good Samaritan Hospital and the Department. The director attends bimonthly meetings with other Village paramedic coordinators and the hospital. Annual training budget proposals and determination of equipment needs are also handled by the director of EMS. The director researches products and completes purchase orders for equipment. The director works with local high schools to establish CPE training programs. The director recommends policy and procedural changes in the EMS program to the chief. The EMS director is also required to schedule paramedics. Personnel action reports are prepared by the director if subordinates’ pay is reduced due to tardiness. Ambulance run reports are reviewed by the director to ensure full documentation.

The director of EMS has no hiring authority, but is a member of the committee for hiring paramedics. Applicants are interviewed and evaluated by the director, chief, assistant chief, and a chosen paramedic. The director conducts an employment and criminal background of the applicant, reporting results to the committee. After the committee ranks the applicant, the director recommends which individual should be hired.

The director has no authority to transfer permanently, suspend, lay off, recall, promote, reward or discharge an employee. The director has authority to issue written and verbal reprimands after consulting with an assistant chief. Formal reprimands are issued by an assistant chief.

Twice a year, the director of EMS evaluates paramedics in the same manner that captains evaluate their employees. Probationary evaluations are performed by directors in the same manner as performed by captains. The director is the first step of the grievance procedure for paramedics. Minor grievances are appealed to assistant chiefs, the chief and the Village manager. Formal grievances are not adjusted by the director of EMS.

The action in question began on June 23, 1989, when Local 3234 filed a petition with the Board for certification as the exclusive bargaining representative of certain employees. The employees included fire fighters, engineers, lieutenants, captains, fire inspectors, the fire prevention director, paramedics and the director of EMS. The Village opposed the petition arguing, inter alia, that captains and the director of EMS are “supervisors” under section 3(r) of the Act. The hearing officer determined that neither captains nor the EMS director is a supervisor. The hearing officer recommended Local 3234 be certified as the exclusive bargaining unit for the above-mentioned employees, excluding the fire inspectors and the fire prevention director.

On April 6, 1990, the Village filed a motion to supplement the record and exceptions to the hearing officer’s recommended decision and direction of election. The Board issued its decision and order on July 13, 1990, finding that the captains and the EMS director are not supervisors within the meaning of the Act. The Board’s order directed an election by employees in the bargaining unit. The Board also denied the Village’s motion to supplement the record, concluding that the Village presented no compelling reason to reopen the record.

On August 29, 1990, the Village filed a motion for reconsideration and rehearing alleging that subsequent incidents of discipline by captains and the director of EMS called for reconsideration of whether captains and the EMS director are supervisors. The Village also sought a stay of the election. The Board denied the motion for reconsideration and rehearing, stating that the Board had no statutory authority to reconsider its decision in representation cases.

The election was conducted by the Board on August 30, 1990, with a 38 to 1 vote in favor of representation by Local 3234. The Village filed objections to the election, contending that the presence of the captains and the director of EMS tainted the election. The evidence presented by the Village to support the allegation was its previous motion to reconsider.

The executive director of the Board issued a report on challenges and objections to election, finding no reason to believe the election was objectionable. The Village later filed exceptions to the executive director’s report on challenges and objections to the election.

On December 12, 1990, the Board affirmed the executive director’s report and certified Local 3234 as the exclusive representative of the bargaining unit. The Village now seeks administrative review of the Board’s orders.

Although petitioner raises seven issues for review, these can be consolidated into the four issues which the petitioner actually argued in its brief. The Village contends that both the captains and the director of EMS are supervisors pursuant to section 3(r) of the Act. The Village seeks reversal of the Board’s orders directing the election and certifying Local 3234 as the exclusive representative of the bargaining unit. The petitioner also contends that the Board had authority to reconsider its July 13, 1990, order directing election and its decision that the captains and the EMS director are not supervisors. In the alternative, the Village requests the matter be remanded to the Board for further hearings to determine the extent the captains and the director of EMS exercise supervisory authority.

The respondents, Local 3234 and the Board, contend that the Board properly determined that the captains and the director of EMS are not supervisors within the meaning of the Act. They also contend that the Board had no statutory authority to reconsider its July 13, 1990, decision and order. Finally, the respondents contend that remand is not appropriate because the supposed newly discovered evidence is cumulative.

Judicial review of the Board’s action extends to all questions of law and fact presented by the record. The Board’s findings and conclusions on questions of fact shall be held prima facie true and correct. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110.) The reviewing court may reverse the agency’s findings of fact only if they are against the manifest weight of the evidence and it is clearly evident that the agency should have reached the opposite conclusion. (Balmoral Racing Club, Inc. v. Illinois Racing Board (1991), 214 Ill. App. 3d 112, 119.) Where the question is one of law, such as the interpretation of a statute, the agency’s finding is not binding on the court. (City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 507 (hereinafter Village of Wheeling).) While courts give deference to an agency’s statutory interpretation, it is not binding and will be rejected if clearly erroneous. Press v. Code Enforcement Board of Appeals (1991), 213 Ill. App. 3d 307, 308.

Section 3(r) of the Act defines a “supervisor”:

“ ‘Supervisor’ is an employee whose principal work is substantially different from that of his subordinates and who has authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees, or to adjust their grievances, or to effectively recommend such action, if the exercise of such authority is not of a merely routine or clerical nature, but requires the consistent use of independent judgment. Except with respect to police employment, the term ‘supervisor’ includes only those individuals who devote a preponderance of their employment time to exercising such authority State supervisors notwithstanding.” Ill. Rev. Stat. 1989, ch. 48, par. 1603(r).

The duties of lieutenants in the Village of Wheeling fire department, as described in Village of Wheeling (135 Ill. 2d 499), closely parallel the duties of captains and the EMS director in the Downers Grove fire department. Thus, the analysis provided by the Illinois Supreme Court in Village of Wheeling is extremely helpful in resolving the issue in the instant appeal of whether captains and the EMS director are “supervisors.”

The court in Village of Wheeling divided the definition of “supervisor” under the Act into a four-part test. (135 Ill. 2d at 512.) The first prong of the test to determine if an employee meets the definition of “supervisor” under the Act is whether the employee’s work is “substantially different” from that of the other employees. The Board did not conclusively determine that the captains and the EMS director performed work substantially different from other employees, but recognized that the Village of Wheeling rationale strongly favored that determination. Indeed, the captains’ and the EMS director’s duties are substantially different from those of the other employees, as was found of lieutenants in Village of Wheeling. Captains and the EMS director are responsible for the equipment and personnel assigned on their shift. They are also responsible for coordinating crews and equipment at the fire scene. They evaluate the employees, and the evaluations are used in calculating merit pay increases. The existence of authority and power to affect adversely the employment of subordinates makes the captains’ and EMS director’s work substantially different from that of the employees. Village of Wheeling, 135 Ill. 2d at 528.

The second factor under the “supervisor” definition is that the employee has the supervisory authority to perform one of the 11 supervisory functions designated in the Act. The authority to hire, promote, discharge and reward fire fighters is vested in the board of fire and police commissioners. (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—1 et seq.; Village of Wheeling, 135 Ill. 2d at 529.) The Board found captains and the EMS director had authority similar to lieutenants in Village of Wheeling in regard to direction and discipline of subordinates. But, the Board concluded that because the duties directed are routine, the supervisory authority element under the Act is not satisfied. This is inconsistent with the rationale in Village of Wheeling. The court there found the lieutenants had authority to discipline, direct, suspend and adjust grievances. (135 Ill. 2d at 530.) The lieutenants had the authority to deal with employee complaints, personal disputes and equipment problems. (135 Ill. 2d at 530.) The captains and the EMS director have the same authority. Since only one of the supervisory functions need be met to satisfy the second prong of the test, the captains and EMS director have supervisory authority.

The third prong of the test is that the employees exercise independent judgment when exerting their supervisory authority. The Board found that the captains and EMS director do not exercise independent judgment, even though the court in Village of Wheeling found that lieutenants did while performing similar duties. The Village of Wheeling court found the lieutenants’ authority to direct subordinates at the fire station is routine. (135 Ill. 2d at 531.) The authority at the fire scene is derived from the lieutenants’ superior skill and expertise and does not require independent judgment “in the interest of the employer.” (135 Ill. 2d at 532.) But, the court found independent judgment exerted when lieutenants exercised their authority to discipline and suspend, authority nearly identical to that of captains and the EMS director here. Such similar duties include issuing oral and written reprimands, issuing emergency summary suspensions and resolving minor grievances. (135 Ill. 2d at 526.) Following the Village of Wheeling precedent, captains and the EMS director indeed use independent judgment when exercising supervisory authority.

The final prong of the test is that the preponderance of employment time is spent performing supervisory functions. Both the Board in the appeal at bar and the court in Village of Wheeling found this element unsatisfied in the respective cases, with the Board relying on the Village of Wheeling rationale. The court in Village of Wheeling concluded that the lieutenants rarely exercised their authority to suspend or discipline fire fighters; thus, they did not spend more time exercising supervisory authority than performing any other nonsupervisory function. 135 Ill. 2d at 532-33.

The Board found that captains spend 40 hours a year performing evaluations and rarely issue reprimands or recommend actions for suspensions. The coordinating functions that captains perform at a fire scene amount to only a small percentage of overall work time. The director of EMS spends four to five hours a day performing administrative tasks, along with serving as a paramedic when dispatched. This leaves little time in which the director of EMS exercises supervisory authority. The court in Village of Wheeling interpreted the “exercise of supervisory authority” to mean an actual exercise of authority rather than being in a position of possessing supervisory authority. Strictly following Village of Wheeling, we find that the EMS director and captains fail to meet the fourth prong of the test.

The petitioner relies on the dissent in Village of Wheeling in arguing that the captains and the EMS director spend a preponderance of time exercising supervisory authority. Justice Miller disagreed with the majority’s view of crediting only time spent actually performing supervisory functions in determining the “preponderance” factor. With that standard, it would be difficult to find any employee who would qualify as a supervisor. (135 Ill. 2d at 537.) Justice Miller believed the exercise of supervisory authority occurs whenever the employee is in a situation in which supervisory authority may be called upon. He further stated:

“An employee then would be excluded from coverage under the act whenever a preponderance of his or her employment time is devoted to a position vested with that authority and the employee is placed in situations that require the exercise of independent judgment on when and how to use it. This interpretation of section 3(r) better facilitates the legislature’s intent to exclude a certain class of company officers from the act’s coverage.” 135 Ill. 2d at 538.

Justice Miller’s dissent has merit; however, the majority’s strict interpretation of the Act requires the employees to “devote a preponderance of their employment time [in] exercising such authority.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 48, par. 1603(r).) Since the majority of the Illinois Supreme Court has construed this phrase to mean an active exercise of supervisory authority, this court will follow a similar interpretation. We hold that the captains and the EMS director are not supervisors as defined under the Act.

The petitioner also argues that the Board had statutory authority to reconsider its July 13, 1990, decision that the captains and the EMS director are not “supervisors.” The Village asserts that the Board’s decision was not a final order and was not final until the Board certified the results of the election on December 12, 1990, citing section 9(i) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 1609(i)).

The petitioner’s reliance on section 9(i) of the Act is misplaced. The issue of whether an agency may reconsider its decision is not determined by the existence of a final order, but whether the agency has authority conferred by the statute to reconsider its decisions. In Caldwell v. Nolan (1988), 167 Ill. App. 3d 1057, the court stated:

“ ‘It is settled that administrative bodies have only such powers as are conferred upon them by statute or ordinance.’ * * *
Consistent with this principle, the supreme court has held that ‘an administrative agency may allow a rehearing, or modify and alter its decisions, only where authorized to do so by statute.’ ” 167 Ill. App. 3d at 1061.

In the instant appeal, the Act makes no mention of the Board’s authority to reconsider its decision classifying the members of the bargaining unit. Thus, the Board properly refused to reconsider its determined bargaining unit. See Ill. Rev. Stat. 1989, ch. 48, par. 1609.

Finally, the petitioner requests that this matter be remanded so the Board may consider additional evidence. Section 3 — 111 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 3— 111(a)(7)) allows remand when “such evidence is material to the issues and is not cumulative.” The evidence presented by the petitioner demonstrates situations in which captains and the EMS director have exercised supervisory authority. The additional 13 incidents occurring over the course of nearly a year would not negate the finding that captains and the EMS director fail to exercise supervisory authority a preponderance of their working time. In fact, this evidence tends to support that holding. Thus, remand is inappropriate.

Based on the reasons set forth above, the orders of the Illinois State Labor Relations Board are affirmed.

Affirmed.

WOODWARD and GEIGER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE RARICK

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. KEVIN L. CARPENTER, Defendant-Appellee.
    Fifth District
    No. 5 — 88—0793
    Opinion filed September 23, 1991.
    — Rehearing denied November 12, 1991.

      Kathleen M. Ailing, State’s Attorney, 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.
    Ronald A. Niemann, of Centraba, for appellee.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Kevin Carpenter was charged in the circuit court of Jefferson County with four counts of home invasion and one count of residential burglary. A summary of the facts adduced at trial is as follows. The defendant forced his way into the residence of Ted Steele, with whom the defendant’s ex-wife, Debra Carpenter, was living. The defendant was armed with a shortened baseball bat. Debra went to the kitchen to call the police, but the defendant followed and smashed the phone with the bat. Defendant then turned to Steele, who was standing behind him, and struck Steele. Debra then grabbed the bat and struggled with the defendant. Defendant released the bat, but when he did, it struck Debra.

Counts I through IV of the information charged the defendant with home invasion, while count V charged the defendant with the offense of residential burglary. Count I alleged defendant intentionally injured Ted Steele. Count II alleged defendant intentionally injured Debra Carpenter. Count III alleged defendant used force against Debra Carpenter while armed with a dangerous weapon. Count IV alleged defendant used force against Steele while armed with a dangerous weapon. Count V alleged that defendant knowingly and without authority entered Steele’s residence with the intent to commit criminal damage to property in an amount over $300.

At the conclusion of the State’s presentation of evidence, defendant moved for dismissal of count V, charging residential burglary. Defendant argued that no evidence had been presented that defendant entered Steele’s residence with intent to commit a felony. In response the court only stated, “I’m going to order Count V stricken.”

The jury was instructed on counts I through IV and on the lesser-included offenses of battery and criminal trespass to a residence (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 3, 19 — 4). However, the verdict forms given to the jury were mislabelled: the verdict form for count III was labelled “(Count IV),” and the verdict form for count IV was labelled “(Count III).” In addition, although two separate instructions properly defined the alternative ways of committing home invasion, i.e., use or threat of force while armed with a dangerous weapon (counts III and IV) or intentional injury (counts I and II) (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 11(a)(1), (a)(2); Illinois Pattern Jury Instructions, Criminal, No. 11.21 (2d ed. 1981) (hereinafter IPI Criminal 2d)), the issues instructions for counts III and IV did not correspond to the definitional instruction or the language of the statute for those counts.

The offense of home invasion is set forth in section 12 — 11(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 11(a)) and provides:

“A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling of another when he or she knows or has reason to know that one or more persons is present and
(1) While armed with a dangerous weapon uses force or threatens the imminent use of force upon any person or persons within such dwelling place whether or not injury occurs, or
(2) Intentionally causes any injury to any person or persons within such dwelling place.” (Emphasis added.)

In the instant case, two definitional instructions for home invasion were given. One definitional instruction mirrored the language of section 12 — 11(a)(2) (intentional injury) and corresponded to counts I (Steele) and II (Carpenter) of the information.

Another definitional instruction mirrored the language of section 12 — 11(a)(1) (use or threat of force while armed) and corresponded to counts III (Carpenter) and IV (Steele) of the information. However, the issues instructions for counts III and IV required the State to prove, inter alia:

“Fourth: That [defendant] intentionally caused an injury to Ted Steele, a person within the dwelling place;
and Fifth: That he was armed with a dangerous weapon.”

The issues instruction for count IV, involving Debra Carpenter, similarly required the State to prove intentional injury while armed with a dangerous weapon. These issues instructions for counts III and IV, therefore, erroneously required the State to prove that defendant committed an intentional injury while armed with a dangerous weapon, rather than requiring the State to prove that defendant used force or threatened the imminent use of force while armed with a dangerous weapon. See IPI Criminal 2d No. 11.22.

On these instructions, the jury found defendant guilty of the two counts of home invasion involving Steele (counts I and IV of the information), but not guilty of the two counts involving Carpenter (counts II and III of the information). Defendant was also found guilty of the lesser-included offenses of battery and criminal trespass to a residence. At that time, the circuit court entered judgment only on count IV (“Count III” on the verdict form).

Defendant filed a post-trial motion, arguing, inter alia, that the guilty verdicts on the home invasion counts should be vacated because they were legally inconsistent with the not guilty verdicts.

After taking the cause under advisement, the circuit court entered an order on November 7, 1988, which: (1) entered judgments of guilty on the jury’s verdicts on the battery and criminal trespass to residence charges; (2) vacated the judgment of guilty on count IV charging home invasion (mislabelled count III); (3) found the jury’s verdicts on the four counts of home invasion to be “legally inconsistent” and therefore entered a judgment of not guilty notwithstanding the verdict on the remaining home invasion guilty verdict, count I; and (4) “found” that the defendant could not be retried on the charge of home invasion.

The State filed a motion to reconsider. After argument, the following colloquy occurred:

“BY THE COURT: *** I have four counts of Home Invasion, two verdicts of not guilty. I don’t see how you can retry on those two counts. The other count is incorrect. I cannot take that and let it stand as a judgment of guilty. That being three out of four, I don’t see how I can retry it. If he is guilty at all, he is guilty of more than one Count or he is not guilty. That is the basis of my opinion briefly.
ROBERT CREGO, ASS’T STATE’S ATTY: Your Honor, in light of the Court’s ruling thereon, is the Court stating that the evidence was insufficient to find the defendant guilty beyond a reasonable doubt[?]
BY THE COURT: No[,] that is not my problem. I had the problem of the verdicts.”

The State’s motion to reconsider was denied.

The court subsequently sentenced defendant, on the convictions for battery and criminal trespass to a residence, to concurrent one-year terms of probation and a term of periodic imprisonment, and ordered him to pay a fine of $800 and make restitution in the amount of $556. The State appeals.

On appeal, the State argues that the verdicts were not legally inconsistent because considerations of legal inconsistency do not arise where only one offense is charged under different theories and the jury convicts on some counts but acquits on others. The defendant maintains on appeal, as he did in the court below, that the verdicts were legally inconsistent because the jury had to find that a particular mental state both did and did not exist. Specifically, defendant contends that to find him guilty on counts I and IV, the jury had to find that he knowingly entered the dwelling and intentionally injured any of the persons therein, but to acquit him of counts II and III, the jury had to find that he did not intentionally injure any person therein. Despite the analytical appeal of defendant’s argument, we are not persuaded.

“Legally inconsistent verdicts are verdicts where the same essential element of each crime is found to exist and not to exist and both crimes arise out of the same set of facts. [Citations.] Legally inconsistent verdicts are invalid and the convictions must be reversed.” (People v. Sandy (1989), 188 Ill. App. 3d 833, 845, 544 N.E.2d 1248, 1255.) This case, however, does not involve legally or factually inconsistent verdicts.

Defendant’s argument that the jury returned legally inconsistent verdicts focuses on the phrase, “any person or persons,” as used in the alternative definitions of home invasion in sections 12 — 11(a)(1) and (a)(2) and the definitional instructions given to the jury (IPI Criminal 2d No. 11.21). However, all of the issues instructions and verdict forms given to the jury named one victim and one victim only for each count and did not use the phrase, “any person or persons.” It is apparent that the jury found defendant guilty of home invasion for his actions toward Ted Steele (counts I and IV of the information), because he intentionally injured Steele while armed with a dangerous weapon, but not guilty of home invasion for his actions toward Debra Carpenter (counts II and III of the information), because he did not intentionally injure her.

This court therefore reverses the circuit court’s ruling that the jury’s verdicts on the home invasion counts were inconsistent.

We note that the fact that the issues instruction for count IV did not accurately reflect the elements of the offense of home invasion as set out in the statute did not prejudice defendant. The State in this case proved more than what was required by the statute. Whereas section 12 — 11(a)(1) requires the State to prove the use of force or the threat of the imminent use of force, while armed with a dangerous weapon, the issues instructions for counts III and IV required the State to prove an intentional injury, while armed with a dangerous weapon. Thus, in the instant case, involving defendant’s striking of Ted Steele with a baseball bat, for the guilty verdict on count IV it appears the State proved (intentional injury) more than was necessary under section 12 — 11(a)(1) (use or threat of force). See Killian v. United States (1961), 368 U.S. 231, 257-58, 7 L. Ed. 2d 256, 273-74, 82 S. Ct. 302, 317 (inconsistent paragraphs in instruction not prejudicial because latter paragraph exacted higher standard of proof than law required); People v. Upton (1987), 151 Ill. App. 3d 1075, 1079, 503 N.E.2d 1102, 1104 (instructions placed greater burden on prosecution than statute required); see also People v. Pierce (1974), 56 Ill. 2d 361, 308 N.E.2d 579 (error which favors defendant, and of which he cannot complain, is harmless).

In addition, we note that while defendant objected to the giving of the issues instructions, he did not object on the ground that the elements of the offense were misstated. Defendant complained that the instructions should not identify a specific victim, but rather they should parallel the language of the statute, “any person or persons.” Defendant also complained that the jury should be instructed on only one count of home invasion, because defendant could only be convicted of one count. The court overruled defendant’s objections. Not only did defendant not raise this specific objection at trial, but defendant preferred an issues instruction which made the same misstatement of the elements of the offense. We note that neither party has discussed the misstated jury instruction in their briefs. We therefore conclude that the waiver rule would prohibit defendant from complaining about the misstated instructions. 134 Ill. 2d R. 341(e)(7) (failure to argue in briefs results in waiver); People v. Jeffrey (1981), 94 Ill. App. 3d 455, 468, 418 N.E.2d 880, 891 (appellant must show he raised issue at instructions conference); People v. Belcher (1946), 395 Ill. 348, 352, 70 N.E.2d 201, 202 (defendant cannot complain of error in instruction when his own instruction contained some error).

Finally, we note that the error in the instructions for count IV did not prejudice defendant in light of this court’s decision, infra, to allow the circuit court’s decision to vacate the judgment of guilty on count IV to stand and to reinstate the guilty verdict on count I and enter judgment on that count.

The next issue is the appropriate remedy for the court’s error in finding the verdicts to be inconsistent. The State acknowledges that there can only be one conviction for home invasion, regardless of the number of victims. (People v. Hawkins (1984), 125 Ill. App. 3d 520, 466 N.E.2d 299.) The State therefore requests that this court reinstate only the guilty verdict on count I and remand for resentencing on that count. Defendant maintains that to vacate the trial court’s order of dismissal and to remand this case for retrial would subject him to double jeopardy. We do not agree. There is no need for a second trial. The court’s order entering a judgment of not guilty on count I notwithstanding the guilty verdict was not based on any insufficiency of evidence as to any of the elements of the offense, but rather upon an incorrect conclusion of law. Reversal of the trial court’s order and reinstatement of the jury’s verdict will therefore not subject the defendant to double jeopardy. (People v. Mink (1990), 141 Ill. 2d 163, 173, 565 N.E.2d 975, 979; United States v. Wilson (1975), 420 U.S. 332, 352-53, 43 L. Ed. 2d 232, 247, 95 S. Ct. 1013, 1026.) In Mink, the supreme court stated:

“[Wjhere the jury returns a verdict of guilty but the trial court thereafter enters a judgment of acquittal notwithstanding the verdict, the double jeopardy clause does not prohibit the State from appealing the judgment of acquittal. If the appeal is successful and the appellate court concludes that a judgment of acquittal was improper, the criminal defendant is not required to submit to a second trial; the error of law may be corrected on remand by simply reinstating the jury’s verdict.” 141 Ill. 2d at 177-78, 565 N.E.2d at 981.

We therefore reinstate the verdict of guilty on count I, enter judgment on that count, and remand for sentencing on that count.

With respect to count IV, although a second conviction for home invasion in this case cannot stand (Hawkins, 125 Ill. App. 3d 520, 466 N.E.2d 299), we nevertheless believe it is necessary to address the circuit court’s order vacating the judgment of guilty on that count.

The circuit court did not give a reason for its decision to first vacate the judgment of guilty on count IV (mislabelled count III) before entering judgment notwithstanding the guilty verdict on count I. From the colloquy at the hearing on the State’s motion to reconsider, excerpted above, it appears the court believed the mislabelling of the jury verdict forms warranted it.

We do not believe the mislabelling of the verdict forms warranted rejection of the jury’s verdict on count IV. Each verdict form specified the charge to which it applied. The verdict form in question stated: “We, the jury, find the defendant Kevin Carpenter Guilty of the offense of home invasion, having intentionally caused injury to Ted Steele while armed with a dangerous weapon. (Count III).” This verdict form misidentified the charge as count III instead of count IV, and the verdict form for count III of the information was correspondingly misidentified as “Count IV.” However, because the basis for each charge was set out in these verdict forms, identifying the victim by name, we believe these errors were insufficient reason to warrant vacating the jury’s verdict of guilty of home invasion on count IV.

Nevertheless, in light of our decision to reinstate the judgment of guilty on count I, it is unnecessary to reverse the circuit court’s ruling which vacated the judgment of guilty on count IV.

As a final matter, we note we are duty bound to consider whether this appeal has been properly taken so as to invoke the jurisdiction of this court. Bell Federal Savings & Loan Association v. Bank of Ravenswood (1990), 203 Ill. App. 3d 219, 223, 560 N.E.2d 1156, 1158-59.

Our constitution provides that “after a trial on the merits in a criminal case, there shall be no appeal from a judgment of acquittal.” (Ill. Const. 1970, art. VI, §6.) Furthermore, Supreme Court Rule 604(a) provides:

“(1) When State May Appeal. In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.” 134 Ill. 2d R. 604(a)(1).

Before the record was filed in this cause, this court entered an order directing the State to show cause why this appeal should not be dismissed for lack of appellate jurisdiction. The State responded, arguing, “Since the basis of the order was the court’s belief that the verdicts were legally inconsistent, and not the evidence was insufficient, the trial court’s ruling did not result in an acquittal.” (Emphasis in original.) The State further argued, “The effect of the trial court’s order was to dismiss the counts of the information charging home invasion.”

Section 114 — 1 of the Code of Criminal Procedure of 1963 sets forth various grounds upon which the trial court may base a dismissal of an indictment, information, or complaint. (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 1.) The type of order in this case, a not guilty judgment based upon the perceived legal inconsistency of the jury’s verdicts, is not expressly mentioned in either Rule 604(a) or section 114 — 1. However, the supreme court has determined that when Rule 604(a) made explicit the right of the State to appeal on grounds set forth in section 114 — 1, it was not intended to reduce the range of the State’s right to appeal, but instead it was intended to make clear that the State had a right to appeal from dismissals on any of the various grounds set forth in section 114 — 1. (People v. Love (1968), 39 Ill. 2d 436, 439-40, 235 N.E.2d 819, 821-22.) In Love, the supreme court stated:

“The redrafting [of Rule 604(a)] was not intended to extinguish the People’s right to appeal from judgments the substantive effect of which was to dismiss indictments on grounds not specified in the rule ***.” Love, 39 Ill. 2d at 440, 235 N.E.2d at 822.

In People v. Oswald (1982), 106 Ill. App. 3d 645, 435 N.E.2d 1369, the State sought to appeal from orders granting supervision to defendants based upon their pleas of guilty and terminating the supervision instanter. The State contended that an order granting supervision and terminating it instanter is in effect a dismissal, permitting an appeal under Rule 604(a).

In considering the defendants’ jurisdictional objections, the Oswald court initially noted that there can be no appeal from a judgment of acquittal after a trial on the merits (Ill. Const. 1970, art. VI, §6). However, the court noted that none of the factual elements of the offenses charged were resolved in defendants’ favor. Defendants were discharged on grounds unrelated to their guilt and despite the evidence of their guilt. The court concluded that such a dismissal of the charges is not a judgment of acquittal. Oswald, 106 Ill. App. 3d at 646-47, 435 N.E.2d at 1371.

In this case, the jury found defendant guilty of the offense of home invasion on the charges naming Ted Steele as a victim. Moreover, the trial court did not base its decision to enter judgment notwithstanding that verdict on lack of evidence of defendant’s guilt, but rather on the perceived legal inconsistency of the verdicts. Accordingly, this court concludes that the circuit court’s order with respect to count I in this cause did not constitute an acquittal, and thus this court believes it has properly exercised jurisdiction in this appeal.

For the foregoing reasons, we reverse the circuit court’s finding of inconsistent verdicts. As a result, with respect to count I of the information, we vacate the circuit court’s judgment of not guilty notwithstanding the jury verdict of guilty, reinstate the verdict of guilty of home invasion in count I, enter judgment on that count, and remand for sentencing on that count. Finally, we vacate the convictions and sentences for battery and criminal trespass to a residence, because they are lesser-included offenses of home invasion.

Reversed in part; vacated in part; judgment of guilty entered on count I; and remanded in part.

WELCH and GOLDENHERSH, JJ., concur.


author: JUSTICE HARRISON

text:
    GRANITE CITY DIVISION OF NATIONAL STEEL COMPANY et al., Petitioners, v. THE POLLUTION CONTROL BOARD, Respondent. — USS DIVISION OF USX CORPORATION, Petitioner, v. THE POLLUTION CONTROL BOARD, Respondent.
    Fifth District
    No. 5 — 90—0101
    Opinion filed October 15, 1991.

      James T. Harrington, Heidi E. Hanson, David L. Rieser, Joshua M. Levin, and Darren J. Hunter, all of Ross & Hardies, of Chicago, and Eric R. Robertson, of Lueders, Robertson & Konzen, of Granite City, for petitioners.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn Kaplan, Solicitor General, and James L. Morgan, Assistant Attorney General, of counsel), for respondent.
   JUSTICE HARRISON

delivered the opinion of the court:

In a rulemaking proceeding designated as R88-21, Dockets A and B, the Illinois Pollution Control Board (the Board) adopted various amendments to its existing water quality regulations as codified in Title 35, Subtitle C, of the Illinois Administrative Code (35 Ill. Adm. Code §§301 through 309 (1985)). The amendments made in R88-21, Docket A, were adopted in an opinion and order entered by the Board on January 25, 1990, while those made in R88-21, Docket B, were adopted in an opinion and order entered by the Board on June 21, 1990. Petitioners, the Granite City Division of National Steel Company, Laclede Steel Company, USS Division of USX Corporation, and the Illinois Steel Group, filed separate petitions in the appellate court to obtain judicial review of these amendments. (See Ill. Rev. Stat. 1989, ch. HV-k, pars. 1029(a), 1041.) Their petitions have been consolidated and are now before us for consideration on the merits. We find the challenged amendments to be valid and therefore affirm.

Title 35, Subtitle C, Part 302 of the Illinois Administrative Code, as amended, sets forth the water quality standards applicable to the surface waters of this State. It provides that “[wjaters of the State shall be free from any substances or combination of substances in concentrations toxic or harmful to human health, or to animal, plant or aquatic life.” (35 Ill. Adm. Code §302.210 (pending).) As was done under the previous version of the regulations, the maximum allowable concentrations for certain substances, such as arsenic, cyanide, and zinc, are expressed by the regulations in numeric terms. (35 Ill. Adm. Code §302.208 (pending).) For all other toxic substances, however, a new “narrative” standard has been created. (35 Ill. Adm. Code §302.210 (pending)) Under the narrative standard, any substance or combination of substances is deemed to be toxic if present in concentrations that exceed any of five basic “criteria” relating to human health, animal, plant and aquatic life. 35 Ill. Adm. Code §§302.210(a) through (c) (pending).

The criteria established by the narrative standard have no fixed values. Rather, they are to be determined on a case-by-case basis by following the requirements, test protocols and data assessment methods set forth in Subpart F of Subtitle C of Title 35 (35 Ill. Adm. Code §§302.601 through 302.669 (pending)). (35 Ill. Adm. Code §302.210(e) (pending)) The amended regulations contemplate that criteria will normally be derived under these procedures when a person discharging effluent to surface waters applies to the Illinois Environmental Protection Agency (the Agency) for a National Pollutant Discharge Elimination System (NPDES) permit. The “validity and correctness of application of numeric criteria derived [by the Agency] pursuant to [these regulations] may be challenged” (1) when the criteria are first applied in the permit proceeding or (2) in an action pursuant to Title VIII of the Environmental Protection Act (Ill. Rev. Stat. 1989, ch. 1111/2, pars. 1030 through 1034). (35 Ill. Adm. Code §§302.210(e), (f) (pending).) The latter statute, entitled “Enforcement,” governs the procedures to be followed when an individual is alleged to have violated the Environmental Protection Act (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1001 et seq.) or “any rule or regulation promulgated thereunder, or *** any permit granted by the Agency or any term or condition of any such permit.” Ill. Rev. Stat. 1989, ch. 1111/2, par. 1030.

Another feature of the Board’s amended regulations is their provision for “mixing zones.” Under this provision a discharger may be allowed to comply with the applicable water quality standards, including the new narrative standard, “[by] mixture of an effluent with its receiving waters.” (35 Ill. Adm. Code §302.102(a) (pending).) The “mixing zone” is that portion of the receiving water where the regulations permit mixing with the effluent to occur. (35 Ill. Adm. Code §302.102(b) (pending).) The regulations also include the concept of a “zone of initial dilution” (ZID) in waters within which “effluent dispersion is immediate and rapid.” 35 Ill. Adm. Code 302.102(e) (pending).

The significance of having a mixing zone or ZID recognized is that it alters the point in the receiving waters at which the various water quality standards must be met. Where a mixing zone exists, all water quality standards prescribed by the regulations, both chronic and acute, must be met at every point outside of the area and volume of the receiving water where mixing is allowed. Inside the mixing zone, only the acute toxicity standards of sections 302.208 and 302.210 of the regulations (35 Ill. Adm. Code §§302.208, 302.210 (pending)) must be met, subject to the possible existence of a ZID. (35 Ill. Adm. Code §§302.102(c), (e) (pending).) Where a ZID is allowed, the acute toxicity standards will not apply within the ZID. (35 Ill. Adm. Code §§302.100, 302.208(c)(1), 302.210(d) (pending).) A mixing zone or ZID may be recognized by the Agency as part of an NPDES permit (35 Ill. Adm. Code §§302.102(d), (e) (pending)), or a polluter may invoke the mixing zone or ZID rules by way of a defense in an action against him under 35 Ill. Adm. Code §304.205 (pending) for violations of the regulations’ water quality standards. 35 Ill. Adm. Code §302.102(i) (pending).

In this proceeding, petitioners first argue that section 302.210 and Subpart F of the amended regulations (35 Ill. Adm. Code §§302.210, 302.601 through 302.669 (pending)), which govern the derivation and application of “criterion” under the narrative standard are invalid. They are invalid, in petitioners’ view, because they represent an impermissible attempt by the Board to delegate to the Agency its statutory responsibility for setting water quality standards. This argument is wholly untenable.

As we have previously indicated, the regulations provide that the “[w]aters of the State shall be free from any substances or combination of substances in concentrations toxic or harmful to human health, or to animal, plant or aquatic life.” (35 Ill. Adm. Code §302.210 (pending).) This is the standard. It was set by the Board, and the Agency has been given no authority to alter or vary it. The Agency’s responsibility is simply to derive and apply criteria according to detailed guidelines in order to ascertain whether the standard prescribed by the Board is being met. The power of the Agency to apply standards promulgated by the Board for water toxicity inheres in its statutorily mandated authority to enforce the Environmental Protection Act (Ill. Rev. Stat. 1989, ch. lll1/2, par. 1001 et seq.) and the rules and regulations promulgated thereunder (see Ill. Rev. Stat. 1989, ch. 1111/2, par. 1030), and to issue NPDES permits for the discharge of contaminants (see Ill. Rev. Stat. 1989, ch. lll1/2, par. 1039(b)). See United States Steel Corp. v. Illinois Pollution Control Board (1977), 52 Ill. App. 3d 1,10, 367 N.E.2d 327, 334-35.

The right of the Agency to derive and apply criteria according to the procedures established by the Board no more constitutes an improper delegation of Board authority than did the rule at issue in Commonwealth Edison Co. v. Pollution Control Board (1976), 62 Ill. 2d 494, 497-98, 343 N.E.2d 459, 461-62, which authorized the Agency to lower ambient air quality standards upon proof to the Agency that “such change is justifiable as a result of necessary economic and social development and will not interfere with or become injurious to human health or welfare.” We note, moreover, that during the pendency of this proceeding, the General Assembly expressly amended the Environmental Protection Act to incorporate the “criterion” concept. The Act now provides that a criterion is

“the numerical concentration of one or more toxic substances calculated by the Agency as a basis for establishing a permit limitation or violation of a water quality standard pursuant to standards and procedures provided for in board regulations.” (Ill. Rev. Stat., 1990 Supp., ch. lll1/2, par. 1003.80.)

The Act, as amended, further provides that if

“the Agency issues an NPDES permit that imposes limits which are based upon a criterion or denies a permit based upon application of a criterion, then the Agency shall have the burden of going forward with the basis for the derivation of those limits or criterion which were derived under the Board’s rules.” (Ill. Rev. Stat., 1990 Supp., ch. ll11/2, par. 1040(a)(1).)

What is significant about this is that in amending the statute as it did, the General Assembly did not deem it necessary to also include some express authorization allowing the Agency to derive and apply criteria. The only reasonable inference that can be made from this is that the General Assembly assumed that such power already existed and was proper at the time the regulations challenged here were promulgated.

Petitioners next argue that the new narrative standard violates due process because it is vague. Where, as here, a due process vagueness challenge is raised and the first amendment (U.S. Const., amend. I) is not involved, two requirements must be fulfilled. The enactment must give a person of ordinary intelligence a reasonable opportunity to know what conduct is lawful or unlawful, and it must provide standards sufficient to avoid arbitrary and discriminatory enforcement and application. (In re Summary Suspension of Driver’s License (1989), 187 Ill. App. 3d 27, 36, 542 N.E.2d 1311, 1316.) Establishing that these requirements have been satisfied is not the obligation of the administrative agency, for administrative regulations are presumed to be valid. (Begg v. Board of Fire & Police Commissioners (1984), 99 Ill. 2d 324, 331, 459 N.E.2d 925, 928, cert. denied (1984), 469 U.S. 818, 83 L. Ed. 2d 33, 105 S. Ct. 86.) Rather, it is the person challenging a regulation who has the burden of showing that it is invalid. (99 Ill. 2d at 332, 459 N.E.2d at 928.) To succeed on a claim that a law or regulation is, on its face, unduly vague in violation of due process, the complainant must demonstrate that the law or regulation is impermissibly vague in all of its applications. (Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 497, 71 L. Ed. 2d 362, 371, 102 S. Ct. 1186, 1193.) Petitioners made no such showing here.

The gist of petitioners’ vagueness challenge is simply that different experts following the same procedures set out in Subpart F (35 Ill. Adm. Code §§302.601 through 302.669 (pending)) may reach different conclusions in calculating the applicable toxicity criteria in a given situation. During the course of the rulemaking proceedings, evidence was presented which substantiated that such differences could occur. Indeed, the Board itself acknowledged in its opinion and order of January 25, 1990, that Subpart F contains “some elements of choice about which reasonable experts might be expected to differ.” That the potential for such disagreement may exist does not, however, mean that such disagreement will occur in every case. Until the regulations are actually implemented, how much the experts will actually disagree in their calculations is purely speculative. In practice there may well prove to be many situations where the conclusions of the experts are in complete accord. For this reason alone we could not say at this point that the regulations are impermissibly vague in all their applications.

But that is not the only defect in petitioners’ vagueness claim. Petitioners suggest that the constitution requires that predetermined numeric standards be established for all toxins that would be applicable in all situations and that the potential for disagreement under Subpart F’s narrative standard is inherently violative of due process. We disagree. Due process does not mandate absolute standards or mathematical precision. Although it does require that a regulation not be vague, indefinite or uncertain, it does not require that a regulation be more specific than is possible under the circumstances. (In re Ladewig (1975), 34 Ill. App. 3d 393, 397, 340 N.E.2d 150, 153.) In this case the Board did not believe that a higher degree of specificity was possible. Its view was founded, in part, on a recognition of the inherent uncertainties of toxicological assessment, which it characterized as “a science much burdened by complex, interrelated phenomena that now and into any foreseeable future has to be expected to present instances where reasonable experts are going to disagree.” The Board also believed, among other things, that the narrative standard provided a flexibility in dealing with varied and changing circumstances which fixed numeric standards normally could not match. These are questions involving technical judgment and scientific methodology in an area within the Board’s expertise. On such questions we will defer to a great extent to the Board (see Natural Resources Defense Council, Inc. v. United States EPA (9th Cir. 1988), 863 F.2d 1420, 1430), and petitioners have offered no valid reason why we should second-guess its judgment here.

Contrary to petitioners’ fears, polluters will not automatically be subject to sanctions simply because they may have calculated a criterion differently than the Agency. Rather, the regulations give polluters the opportunity of contesting the derivation and application of criteria in the context of both permit applications and enforcement actions (35 Ill. Adm. Code §§302.210(e), (f) (pending)), and those proceedings, in turn, are subject to review by the Board (Ill. Rev. Stat. 1989, ch. 1111/2, pars. 1031.1, 1040) and the courts (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1041). Given the availability of such review, the test for vagueness is less strict. (Village of Hoffman Estates v. Flip-side, Hoffman Estates, Inc. (1982), 455 U.S. 489, 498, 71 L. Ed. 2d 362, 371-72, 102 S. Ct. 1186, 1193.) While mistakes may still be made, the possibility that a regulation may be misapplied in certain circumstances will not, standing alone, render it constitutionally infirm. O’Connor v. A&P Enterprises (1980), 81 Ill. 2d 260, 269, 408 N.E.2d 204, 208.

We must also reject petitioners’ claim that the Board’s rule-making is invalid because the Board failed to adequately consider “the technical feasibility and economic reasonableness” of its amended regulations, as required by section 27(a) of the Environmental Protection Act (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1027(a)). When an administrative agency such as the Board exercises its rulemaking powers, it is performing a quasi-legislative function and has no burden of supporting its conclusions with a given quantum of evidence. (Stepan Co. v. Pollution Control Board (1990), 193 Ill. App. 3d 827, 833, 550 N.E.2d 682, 685.) On judicial review we therefore need not consider whether the manifest weight of the evidence reveals that the proposed regulations are technically feasible and economically reasonable. A regulation will be upheld if the record simply reflects that these factors were “taken into account.” 193 Ill. App. 3d at 834, 550 N.E.2d at 686.

Under section 27 of the Environmental Protection Act (Ill. Rev. Stat. 1989, ch. lll1/2, par. 1027), the phrase “take into account” is used in its general sense of to “allow for, make allowance for, weigh carefully, consider, take into consideration, bear in mind, remember, realize, appreciate, have in one’s mind. [Citation.]” (See Shell Oil Co. v. Pollution Control Board (1976), 37 Ill. App. 3d 264, 272, 346 N.E.2d 212, 219.) That standard was certainly satisfied here. Technical feasibility and economic reasonableness were explicitly addressed by the Board in its final order and opinion adopting its amended regulations for water quality standards. Petitioners may disagree with the Board’s conclusions, but as the Appellate Court, Third District, recently observed, “[w]e are not a technically qualified super-agency ready to determine whether the Board’s decision with respect to [the amendments] was right or wrong.” Stepan Co. v. Pollution Control Board (1990), 193 Ill. App. 3d 827, 834, 550 N.E.2d 682, 686.

Because administrative agencies are inherently more qualified to decide technical problems, this court may not invalidate an administrative rule or regulation unless it is clearly arbitrary, unreasonable, or capricious. (193 Ill. App. 3d at 833, 550 N.E.2d at 685; Illinois State Chamber of Commerce v. Pollution Control Board (1988), 177 Ill. App. 3d 923, 928, 532 N.E.2d 987, 991.) Petitioners argue that the Board’s amendments are arbitrary and capricious for a variety of reasons. They assert, for example, that there is insufficient justification in the record for the amendments’ adoption, that the amendments violate the constitutional prohibition against ex post facto laws, and that they do not include site-specific relief for petitioner Granite City Division of National Steel. Based upon the law and facts presented to us, we can find no merit to these claims. Nor can we find any merit to petitioners’ additional arguments that the mixing zone rules are unconstitutionally vague and involve an improper delegation of authority by the Board to the Agency, that the amendments fail to state clear standards to guide decision making by the Agency, and that they fail to provide adequate opportunities for public comment and administrative review. Some of these are variations on petitioners’ previous arguments. In any case, they merit no further discussion.

For the foregoing reasons, we affirm the opinion and order of the Board entered on January 25, 1990, in R88-21, Docket A, and its opinion and order entered on June 21,1990, in R88-21, Docket B.

Affirmed.

CHAPMAN and HOWERTON, JJ., concur.

      Throughout this discussion we shall cite to the amended regulations by inserting the word “pending” after the section of the Administrative Code in which they will be published. For example, the amendment which will ultimately be codified at section 302.210 of Title 35 of the Code will be cited here as 35 Ill. Adm. Code §302.210 (pending).


author: JUSTICE GOLDENHERSH

text:
    CLUB EXCHANGE CORPORATION, Plaintiff-Appellee, v. DAVID J. RICHTER et al., Defendants-Appellees (Sandra J. Rachell et al., Defendants-Appellants).
    Fifth District
    No. 5 — 89—0705
    Opinion filed October 15, 1991.

      Beth Kamp Veath and Kathleen A. Buckley, both of Brown, James & Rabbitt, EC., of Belleville and St. Louis, Missouri, for appellants.
    Robert L. DeVoto, of Wuestling, James & DeVoto, of St. Louis, Missouri, for appellee Club Exchange Corporation.
    No brief filed for appellees David J. Richter and Amy Richter.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendants, Sandra J. Rachell and Richard W. Rachell, appeal from the judgment of the circuit court of St. Clair County denying their motion for summary judgment and granting the cross-motion for summary judgment of plaintiff, Club Exchange Corporation, d/b/a Automobile Club Inter-Insurance Exchange. In this cause, defendants raise the following issues: (1) whether the policy issued by plaintiff is ambiguous in its definition of the term “bodily injury,” and (2) whether loss of consortium is a separate compensable injury. This court reverses.

On July 2, 1987, insured, David Richter, was involved in an automobile collision with Sandra Rachell. Richter’s insurance policy limited his liability coverage to $100,000 per person, $300,000 per accident. Mrs. Rachell suffered extensive injuries, and plaintiff settled with her by payment of $100,000 — the policy limit on individual injury. Plaintiff then filed its complaint for declaratory judgment alleging that as the loss-of-consortium claim by defendant, Richard Rachell, was not a separate injury, no further coverage applied. Defendants filed a motion for summary judgment arguing that the term “bodily injury” is ambiguously defined in the policy and therefore must be construed against plaintiff. Plaintiff filed a cross-motion for summary judgment arguing that the term is not ambiguous. On September 21, 1989, the circuit court, citing McDaniel v. Madison County Mutual Automobile Insurance Co. (1981), 95 Ill. App. 3d 1092, 420 N.E.2d 1032, and Creamer v. State Farm Mutual Automobile Insurance Co. (1987), 161 Ill. App. 3d 223, 514 N.E.2d 214, denied defendants’ motion, and granted plaintiff’s cross-motion.

On appeal, defendants assert that the policy issued by plaintiff is ambiguous in its definition of the term “bodily injury” and that loss of consortium is a separate compensable injury. Plaintiff responds that its obligation to defendants was extinguished by the payment of the per-person policy limit.

Loss of consortium is a separate injury. Our supreme court has stated:

“[A]n action for loss of consortium is not a derivative claim brought by the spouse as the personal representative of the employee, but is an independent action to recover for injuries the spouse has suffered, such as loss of support and loss of society. (See Brown v. Metzger (1984), 104 Ill. 2d 30, 38[, 470 N.E.2d 302, 306]; Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 208-09[, 454 N.E.2d 210, 218].” (Page v. Hibbard (1987), 119 Ill. 2d 41, 48, 518 N.E.2d 69, 72.)

A loss-of-consortium claim is based on a “transferred negligence” theory. The defendant’s duty to act with reasonable care toward the injured party is transferred to the spouse. (Giardino v. Fierke (1987), 160 Ill. App. 3d 648, 653, 513 N.E.2d 1168, 1171.) A loss-of-consortium claim is derivative in the sense of using the spouse’s underlying personal injury claim as the vehicle to establish liability and for purposes of assessing comparative fault. (See Blagg v. Illinois F.W.D. Truck & Equipment Co. (1991), 143 Ill. 2d 188, 572 N.E.2d 920.) The Blagg situation, however, does not apply in the case at bar.

The dispute here concerns whether defendant may recover from the insurance company. This question is determined by the language of the policy in question. (Giardino v. Fierke (1987), 160 Ill. App. 3d at 653, 513 N.E.2d at 1171-72.) While Mr. Rachell may state a claim for loss of consortium, the question is whether Richter’s insurance covered the alleged injury. Our research has determined that Illinois courts have decided this issue according to policy language.

In the definitions section of this policy, the language reads, “ ‘Bodily Injury’ means injury, sickness, disease or death.” Another section titled “Limit of Liability” limits the amount recoverable. It states:

“The limit of liability shown in the Declarations for ‘each person’ for Bodily Injury Liability is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one auto accident. Subject to this limit for ‘each person’, the limit of liability shown in the Declarations for ‘each accident’ for Bodily Injury Liability is our maximum limit of liability for all damages for bodily injury resulting from any one auto accident. The limit of liability shown in the Declarations for ‘each accident’ for Property Damage Liability is our maximum limit of liability for all damages to all property resulting from any one auto accident. This is the most we will pay regardless of the number of:
1. Covered persons;
2. Claims made[.]”

In Giardino, the policy defined bodily injury to specifically include “loss of services” which result from a bodily injury. (160 Ill. App. 3d at 654, 513 N.E.2d at 1172.) The Appellate Court, Second District, concluded that, under the policy before it, loss of consortium is a separate bodily injury and subject to the occurrence, not individual, limitations of the policy. (160 Ill. App. 3d at 655, 513 N.E.2d at 1173.) As the policy before us does not explicitly include “loss of services,” Giardino does not guide us.

On the other hand, Creamer v. State Farm Mutual Automobile Insurance Co. (1987), 161 Ill. App. 3d 223, 514 N.E.2d 214, cited by the circuit court, defined bodily injury as “bodily injury to a person and sickness, disease or death which results from it.” (161 Ill. App. 3d at 224, 514 N.E.2d at 215.) The Appellate Court, Third District, characterized this definition as “unambiguous.”

In Cross v. Country Cos. (1989), 188 Ill. App. 3d 847, 544 N.E.2d 1246, the policy stated that the damages for bodily injury “include required care, loss of services, loss of use and death.” (188 Ill. App. 3d at 849, 544 N.E.2d at 1247.) The limit-of-liability section of the policy, however, stated that the bodily-injury liability limit for each person includes any claim of other persons for damages arising out of that bodily injury. (188 Ill. App. 3d at 849, 544 N.E.2d at 1247.) The Appellate Court, Fourth District, concluded that the intent of the policy before it was to limit loss-of-consortium claims to the personally injured “per person” maximum. 188 Ill. App. 3d at 850, 544 N.E.2d at 1248.

Most recently, the Appellate Court, First District, First Division, in Filip v. North River Insurance Co. (1990), 201 Ill. App. 3d 351, 559 N.E.2d 17, considered a policy which defined “bodily injury” as “injury, sickness, disease or death.” Noting that loss of consortium has been defined as an “injury,” the court concluded that loss of consortium was included as a compensable bodily injury. Creamer was distinguished as follows:

“In Creamer, the policy defined ‘bodily injury’ as ‘bodily injury to a person and sickness, disease or death which results from it.’ (Creamer, 161 Ill. App. 3d at 224[, 514 N.E.2d at 215].) Predicated on that definition, the Creamer court held that ‘bodily injury,’ as defined by the relevant policy, did not include loss of consortium, which was a type of personal injury. In contrast to the policy in Creamer, the Policy in the present case defines ‘bodily injury’ as ‘injury,’ thereby broadening the ordinary definition of ‘bodily injury’ to encompass all types of injury, including the personal injury of loss of consortium.” 201 Ill. App. 3d at 353-54, 559 N.E.2d at 19.

We have before us a policy which defines “bodily injury” as “injury, sickness, disease or death” and limits liability as the “maximum limit of liability for all damages for bodily injury sustained by any one person in any one auto accident.” We note the definition of “bodily injury” as identical to the language in Filip. Also considering a per-person limit of liability, the court in Filip noted:

“North River further argues that it would be against public policy to hold that loss of consortium is payable under a separate ‘per person’ limit of liability because that decision would effectively double the amount of potential recovery for each automobile accident involving an insured motorist. In addition, North River contends that the word ‘injury’ was intended to reiterate ‘the type of traumatic physical injury to one’s body that insurers and insureds alike understand to be encompassed by the term “bodily injury.” ’ However, not only is this intent not evidenced by the Policy’s definition, a contrary intent is evidenced by use of the broader term ‘injury.’ ” 201 Ill. App. 3d at 354-55, 559 N.E.2d at 19.

Based on the language, analysis, and authorities stated above, we conclude the circuit court erred in denying defendants Rachells’ motion for summary judgment and granting plaintiff’s cross-motion for summary judgment. We therefore reverse the judgment of the circuit court of St. Clair County and remand with directions to enter judgment in favor of defendants Rachells on their motion for summary judgment.

For the foregoing reasons, the order of the circuit court of St. Clair County is reversed and the cause is remanded with directions.

Reversed and remanded with directions.

LEWIS and HOWERTON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TROY D. HANS, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0612
    Opinion filed October 15, 1991.

      Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Don Sheafor, State’s Attorney, of Vandalia (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 GOLDENHERSH

delivered the opinion of the court:

Defendant, Troy D. Hans, appeals from an order of the circuit court of Fayette County sentencing him to five years in prison, ordering him to pay $135.80 in restitution, and ordering that outstanding court costs in defendant’s other criminal cases be paid out of the bond defendant had posted in the instant case. In this appeal, defendant raises two issues: (1) whether the trial court erred in applying defendant’s bond in the instant case to payment of court costs in defendant’s other criminal cases, and (2) whether the order of restitution should be vacated because the trial court did not admonish defendant of the possibility of restitution before accepting the plea of guilty. We affirm.

Defendant was charged by information with forgery in violation of section 17 — 3(a)(2) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1987, ch. 38, par. 17 — 3(a)(2)) and misdemeanor theft in violation of section 16 — 1(a)(1) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(a)(1)). Defendant appeared in court with counsel on December 5, 1988, and pleaded guilty to forgery. By agreement of the parties, the misdemeanor theft charge was dismissed. The trial court advised defendant of the penalties he faced, namely, a prison term between 2 and 10 years and a fine of up to $10,000. The trial court did not advise defendant of the possibility of being ordered to pay restitution. On January 11, 1989, the trial court sentenced defendant to five years in prison and ordered defendant to pay restitution in the amount of $135.80. The trial court also ordered that court costs in outstanding criminal cases in which defendant had been convicted be paid out of the bond defendant had posted in the instant case. On August 25, 1989, defendant, through counsel, filed the motion for leave to withdraw his guilty plea and for vacation of judgment. In said motion, defendant did not raise the issue that the trial court failed to advise him of the possibility that he may be ordered to pay restitution, nor did defendant raise the issue that the trial court erred in ordering defendant to pay outstanding court costs in previous cases out of the bond in the instant case. Ultimately, the trial court denied defendant’s motion.

The first issue we are asked to address is whether the trial court erred in applying defendant’s bond in the instant case to payment of court costs in defendant’s other criminal cases. Defendant, citing People v. Martin (1983), 120 Ill. App. 3d 581, 457 N.E.2d 1372, argues that section 110 — 7(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 110 — 7(f)) limits the trial court’s authority to order deductions from the bail money to those obligations arising in the case for which the bail was posted as security. (Martin, 120 Ill. App. 3d at 583, 457 N.E.2d at 1373.) The State responds that this issue is waived because defendant failed to object at the sentencing hearing to the trial court’s order requiring that court costs in other cases be deducted from this bond and further failed to raise the issue in his motion to withdraw his guilty plea.

Supreme Court Rule 604(d) succinctly states that failure to raise an issue in the motion to withdraw a guilty plea waives that issue on appeal. (134 Ill. 2d R. 604(d); People v. Durbin (1991), 210 Ill. App. 3d 825, 569 N.E.2d 548; People v. Stice (1987), 160 Ill. App. 3d 132, 513 N.E.2d 463.) In the case at bar, defendant did not raise the issue of lack of authority of the trial court to apply the bond in the instant case to outstanding court costs in other cases. Therefore, defendant failed to preserve the point for review and the issue is waived.

Anticipating this outcome, defendant argues that failure of his counsel to raise this issue in the motion to withdraw defendant’s guilty plea and vacate the judgment amounted to ineffective assistance of counsel, which would allow review of the error on appeal. We need not address this issue because we find that even if the issue had been properly preserved, we would determine that the trial court did not err in applying defendant’s bond in the instant case to payment of court costs in defendant’s other criminal cases.

Section 110 — 7(f) of the Code of Criminal Procedure of 1963 reads, in pertinent part:

“(f) When the conditions of the bail bond have been performed and the accused has been discharged from all obligations in the cause the clerk of the court shall return to the accused, unless the court orders otherwise, 90% of the sum which had been deposited and shall retain as bail bond costs 10% of the amount deposited.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 110 — 7(f).)

We believe that the phrase “unless the court orders otherwise” gives the trial court the discretion to apply the bond in one case to other financial obligations owed by defendant to the court in other cases. In our estimation, it makes no sense to refund a bond in one case when the same defendant owes money to the court because of outstanding fines or costs in other cases. In support of our decision, we note that the General Assembly amended this statute in 1989 to allow the bond deposited by or on behalf of a defendant in one case to satisfy the financial obligation of the same defendant in a different case due to a fine, court costs, restitution, or attorney fees. (See Ill. Rev. Stat. 1989, ch. 38, par. 110 — 7(f).) This amendment was instituted after our colleagues on the Fourth District Appellate Court narrowly interpreted section 110 — 7(f) of the Code of Criminal Procedure of 1963 and found that the trial court’s authority to order deductions from the bond was limited to obligations arising in the case for which the bond was posted as security. (People v. Martin (1983), 120 Ill. App. 3d 581, 457 N.E.2d 1372.) It is clear to us that the General Assembly intended the trial court to have such discretion all along but felt compelled to clearly state its intention by the 1989 amendments. We, therefore, decline to follow Martin and instead give section 110 — 7(f) of the Code of Criminal Procedure of 1963 the expansive construction we believe was intended from its inception. We find that the trial court did not err in ordering defendant’s bond in the instant case to be applied to outstanding court costs in defendant’s other criminal cases.

The only other issue we are asked to consider is whether the order of restitution should be vacated because the trial court did not advise defendant of the possibility of restitution before accepting defendant’s plea of guilty. Defendant argues that because he was not admonished that as part of his sentence he could be ordered to pay restitution, the restitution order must be vacated in order to bring defendant’s sentence within the range of penalties of which he was advised. Again, the State responds that this issue has been waived because defendant failed to object to the propriety of the restitution order at either the sentencing hearing or in his motion to withdraw his guilty plea and vacate the judgment. We agree.

Rule 604(d) provides that “any issue not raised by the defendant in a motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived.” (134 Ill. 2d R. 604(d).) Our supreme court has emphatically stated that its rules, including Rule 604(d), “are in fact rules of procedure and not suggestions” and must be adhered to. (People v. Wilk (1988), 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221.) Consequently, even if we found merit in defendant’s argument, we are required to find the issue waived. Defendant, again anticipating the waiver outcome, again argues that failure of his counsel to raise the issue that the trial court’s admonitions were inadequate constituted ineffective assistance of counsel. We disagree.

When challenging the quality of representation following a guilty plea, a defendant must show that the level of representation fell below an objective standard of reasonableness and that but for defense counsel’s errors, there is a reasonable probability that the defendant would not have pleaded guilty and would have insisted on proceeding to trial. (Hill v. Lockhart (1985), 474 U.S. 52, 88 L. Ed. 2d 203, 106 S. Ct. 366; People v. Felton (1989), 191 Ill. App. 3d 599, 601, 548 N.E.2d 57, 59.) Defendant has not convinced us that had he known that he might be subject to court-ordered restitution of $135.80, he would have pleaded not guilty and would have instead insisted on going to trial.

Defendant was subject to an extended term pursuant to section 5 — 8—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2) because he had a prior felony conviction. The factual basis for the forgery charge was sound according to all accounts. We do not believe that defendant would have chosen to go to trial over pleading guilty to the charge even if he had been aware that he would be required to pay restitution. $135.80 seems to be a small sum to pay in comparison to the possibility of an additional five years in prison. Therefore, defendant has not convinced us that his trial counsel was incompetent, and we find that defendant’s argument concerning the restitution order is waived.

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

Affirmed.

HARRISON and LEWIS, JJ„ concur.


author: JUSTICE HOWERTON

text:
      In re APPLICATION OF THE COUNTY COLLECTOR FOR JUDGMENT AND ORDER OF SALE AGAINST LANDS AND LOTS RETURNED DELINQUENT FOR NONPAYMENT OF GENERAL TAXES FOR THE YEAR 1986 AND PRIOR YEARS-TAX CERTIFICATE No. 8600983 (Omer Trolard, d/b/a Belle East Investments, Petitioner-Appellee, v. St. Clair County, Respondent-Appellant).
    Fifth District
    No. 5 — 90—0826
    Opinion filed October 16, 1991.
    Barry D. Dix, of Kassly, Bone, Becker, Dix, Reagan & Young, P.C., of Belleville, for appellant.
    Donald L. Smith, of Hoagland, Fitzgerald, Smith & Pranaitis, of Alton, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Petitioner purchased a tax sale certificate. The day before the redemption period expired, the expiration of which would enable petitioner to apply for a tax deed, three creditors filed an involuntary bankruptcy petition against Gateway Community Hospital, the owner of the property. Petitioner thereafter filed an application for sale in error (Ill. Rev. Stat. 1987, ch. 120, par. 741), and the circuit court granted that application and ordered petitioner’s money returned.

Section 260 of the Illinois Revenue Act of 1939 (Act) provides in pertinent part:

“Whenever it shall be made to appear to the satisfaction of the court which ordered the property sold *** that prior to the issuance of the tax deed a voluntary or involuntary petition has been filed against the legal or beneficial owner of the real estate requesting relief *** the court which ordered the property sold shall declare such sale to be a sale in error ***.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 120, par. 741.

Respondent asserts on appeal that petitioner failed to show sufficient proof that the debtor in the bankruptcy proceedings, Gateway Community Hospital, was the legal owner of the property purchased at the tax sale. Respondent claims that petitioner must show the identity of the legal owner by a preponderance of the evidence. We disagree.

The statute is clear: ownership need only be proven “to the satisfaction of the court.” We are not free to disregard the clear wording of this statute, nor are we free to amend it by imposing standards of proof not required in the Act. The Act provides, in effect, that whatever satisfies the court is sufficient. We cannot, therefore, say that some legal technical proof, such as deeds or some document, official or otherwise, is needed. Our supreme court has indicated that we are to follow the clear wording of a statute. (DeClerck v. Simpson (1991), 143 Ill. 2d 489.) Therefore, the conclusion is inescapable. Whatever satisfies the court is all that is required. Here, the circuit court was satisfied or it would not have cancelled the sale, and after all, petitioner, without objection, testified that Gateway was the legal owner of the property and this testimony was uncontradicted. Respondent cites no case stating that ownership can be shown only by deeds or other official document. The circuit court is affirmed.

Affirmed.

RARICK, P.J., and HARRISON, J., concur.


author: JUSTICE CHAPMAN

text:
      In re MARRIAGE OF JULI ANNE SIMMONS, Petitioner-Appellee and Cross-Appellant, and GREGORY SCOTT SIMMONS, Respondent-Appellant and Cross-Appellee.
    Fifth District
    No. 5-90-0737
    Opinion filed October 18, 1991.

      Donald V. Ferrell, of Jelliffe, Ferrell & Morris, of Harrisburg, for appellant.
    Norma Miner, of Marion, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The trial court entered a judgment of dissolution of the marriage of Juli Anne Simmons and Gregory Scott Simmons on July 12, 1990, and an amended judgment on October 12, 1990. Gregory Simmons appeals from the trial court’s decisions on visitation and valuation of his business interest. Juli Simmons cross-appeals on the issues of property classification, deviation from child support guidelines, and the value of Gregory’s business interest. We affirm.

Juli Anne Simmons and Gregory Scott Simmons were married on January 31, 1981. One child was born to the marriage on January 28, 1986. Juli Simmons filed for dissolution of the marriage January 12, 1989. On March 7, 1989, the parties entered into a stipulation regarding temporary custody and visitation, giving the mother temporary custody and the father specific visitation. Four witnesses were called on the valuation of Gregory’s 40% interest in the Crossroads Sporting Goods Store. Dr. Donald Vaughn, a professor of finance at Southern Hlinois University, Carbondale, was called by Juli. Gregory called Mr. Lee Simmons, his father and founder and 10% owner of Crossroads; Mike Simmons, brother and 50% partner in the store; and Mr. Douglas Thompson, a certified public accountant.

On July 12, 1990, the trial court changed the visitation from its temporary order. Under the new order Gregory was granted visitation every other weekend from Friday at 6 p.m. until Sunday at 8 p.m., every other Federal holiday, six weeks in the summer, and alternating Christmas and Easter spring break vacations. Gregory claims the trial court deprived him of his noncustodial weekday visitation without a factual basis for the change. Great discretion is vested in the trial court on issues of custody due to the judge’s superior opportunity to evaluate the evidence and determine the best interests of the child. (In re Marriage of Brooks (1981), 97 Ill. App. 3d 921, 924, 424 N.E.2d 81, 83.) In cases regarding custody issues, there is a strong and compelling presumption in favor of the result reached by the trial court. The result will be reversed only if it is contrary to the manifest weight of the evidence. (In re Marriage of Slavenas (1985), 139 Ill. App. 3d 581, 587, 487 N.E.2d 739, 742-43.) Gregory claims that no evidence was offered to warrant the changes made concerning visitation from the stipulated temporary agreement. The record does not support this claim. Juli Simmons testified that the temporary visitation schedule was not working out very well. The schedule was confusing to the child, and according to Mrs. Simmons, the problem would only get worse when the child began school. This was evidence upon which the trial court could have based its change. A temporary order is provisional in character and continues only during the pendency of the action. When the action becomes final, the temporary order has fulfilled its purpose and is superseded by the provisions of the final decree. (Slavenas, 139 Ill. App. 3d at 587, 487 N.E.2d at 743.) We hold that the trial court’s ruling on visitation was not contrary to the manifest weight of the evidence.

Gregory also argues that the trial court erred in assessing the value of his interest in the Crossroads Sporting Goods store. On February 15, 1990, the trial court ruled that the defendant’s 40% interest in Crossroads was marital property. The court also ordered the matter of valuation be reset for additional testimony. Juli retained Dr. Donald Vaughn as an expert witness. Dr. Vaughn valuated Greg Simmons’ 40% interest at approximately $75,000. Gregory called his father, Lee Simmons, who was a 10% partner, his brother and 50% partner, Mike Simmons, and Mr. Douglas Thompson, a certified public accountant, to testify on the valuation issue. All three witnesses for defendant rated the interest as having zero value. The valuation of assets in an action for dissolution of marriage is a question of fact for the trial court to determine. Any conflicts in testimony concerning the valuation of such assets are matters to be resolved by the trier of fact. (In re Marriage of Stone (1987), 155 Ill. App. 3d 62, 70-71, 507 N.E.2d 900, 905.) Both parties presented expert testimony regarding the value of the disputed assets. The trial court considered the testimony and assessed a value of $30,000 to Gregory’s 40% interest in Crossroads. Gregory claims the trial court refused to consider the opinion of Mr. Thompson and gave credence only to Dr. Vaughn. This claim is not supported by the record. The trial court assessed the value at $45,000 below that suggested by Dr. Vaughn, nearer in fact to the zero value expressed by Mr. Thompson. The trial court need not have ignored the personal interests of Lee and Mike Simmons when it considered their valuation of Crossroads. Though Gregory makes much of the fact that Dr. Vaughn did not have a balance sheet, the record shows that Mr. Thompson did not have one either. The record also shows that Crossroads had substantially increased its gross sales every year for the last five years, even after factoring in inflation. A firing range was constructed and added to the facility in 1986. Gross sales increased by $23,000 from 1987 to 1988 and by $60,000 from 1988 to 1989. The valuation of assets in an action for dissolution of a marriage is a question of fact and the trial court’s findings thereon will not be disturbed on review unless they are contrary to the manifest weight of the evidence. (In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 349, 461 N.E.2d 447, 454.) The trial court had before it evidence of an ongoing, expanding business with an established clientele, substantially increasing gross sales, and no intention or desire to sell on the part of the owners. Considering these factors, we hold that the trial court did not abuse its discretion in determining the valuation of Gregory’s 40% interest in Crossroads Sporting Goods to be $30,000.

On cross-appeal Juli Simmons claims that the trial court erred in finding that two parcels of real estate, an 80-acre tract and a 53V2-acre tract, were nonmarital. The trial court’s discretion on such determinations will not be disturbed on review unless it is contrary to the manifest weight of the evidence. (In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 393 N.E.2d 1065.) The testimony of Lee Simmons indicated that he intended the transfer of interest in the lands as a gift to his children. This is supported by the fact that Gregory did not contribute toward the purchase of either property. In a dissolution of marriage proceeding, for a gift to be valid, there must be proof of do-native intent. Such intent is presumed where, as here, the transfer is from parent to child. (In re Marriage of Brown (1982), 110 Ill. App. 3d 782, 784, 443 N.E.2d 11, 13.) Juli Simmons was required to present sufficient evidence to convince the trial court that Lee Simmons acted without donative intent. (Brown, 110 Ill. App. 3d at 784, 443 N.E.2d at 13.) The mere execution of a mortgage note is not sufficient to turn nonmarital property into marital property. (In re Marriage of Brennan (1981), 93 Ill. App. 3d 903, 907, 418 N.E.2d 30, 34.) It has been held that the evidence most relevant in determining donative intent is the donor’s own testimony. (Brown, 110 Ill. App. 3d at 784, 443 N.E.2d at 13.) Lee Simmons’ testimony was that he made a gift, and the trial court obviously found this evidence persuasive. We hold that the trial court’s ruling that the two tracts of land were non-marital was not against the manifest weight of the evidence.

Juli Simmons also alleges the trial court erred in deviating from the statutory guidelines in assessing child support at an amount less than the statutory percentages. The uncontested testimony of Gregory Simmons, called as an adverse witness by Juli, established that he did not draw a salary from the Crossroads store until 1988. Juli used this in an attempt to demonstrate that she was the primary source of income for the family. Juli has failed to demonstrate that Mr. Simmons’ salary was different than the $185 per week testified to in trial. Given this rate, the award of $225 per month exceeds the 20% guideline (Ill. Rev. Stat., 1990 Supp., ch. 40, par. 505(a)(l)), and is a substantial increase over the $160-per-month child support agreed to in the temporary stipulation. Juli has failed to demonstrate that the trial court deviated from the statutory guidelines in assessing child support. We, therefore, affirm the trial court’s ruling on child support.

Finally, Juli also alleges the trial court erred in its valuation of Gregory Simmons’ 40% interest in Crossroads. We have already addressed the trial court’s valuation and found no abuse of discretion in its ruling.

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

Affirmed.

LEWIS and HOWERTON, JJ., concur.