text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY PONDEXTER, Defendant-Appellant.
    Fourth District
    No. 4—90—0269
    Opinion filed June 5, 1991.

      Daniel D. Yuhas and Peter L. Rotskoff, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant was indicted by a grand jury on March 7, 1989, for two counts of aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12—4(b)(6)). After the jury was impaneled and sworn and the State had rested its case, the trial court declared a mistrial. Defendant subsequently filed a motion to bar reprosecution on double jeopardy grounds, which was denied by the trial court. Defendant appeals pursuant to Supreme Court Rule 604(f) (134 Ill. 2d R. 604(f)). We reverse the trial court and hold double jeopardy bars a second trial.

Defendant is an inmate at the Pontiac Correctional Center and on January 11, 1989, was involved in a fight with an on-duty correctional officer. According to defendant, the correctional officer slammed the cell-house door on his hand and refused to open the door so defendant could release his hand. The correctional officer denied this incident and testified defendant attacked him for no reason whatsoever. The correctional officer received cuts and abrasions on his head and face. Defendant claims to have suffered a broken finger, although this was never proved.

Defendant’s trial began on March 22, 1990, with defendant appearing pro se. Pretrial motions were heard on the two days preceding the trial date. On two occasions, the trial court specifically asked defendant whether he wished to have any witnesses subpoenaed. Defendant stated he did not have any specific names of people he wished to call as witnesses.

The jury was selected and sworn and the State made its opening statement. Defendant did not give an opening statement. The State proceeded with its case in chief, calling three witnesses, all correctional officers on duty that day. Thereafter, the State rested.

The proceedings began the following day for defendant’s case in chief. It was at this point in the proceedings that defendant produced an affidavit from another inmate who claimed to have witnessed the altercation between defendant and the correctional officer. This affidavit was dated February 6, 1989, more than one year prior to trial, but defendant claimed he had forgotten about it until the previous evening when he found it in his files. Defendant requested this witness be called on his behalf.

At this point, the State’s Attorney indicated this affidavit had not been provided in discovery. The court noted the dilemma it faced in that this affidavit was essentially a witness statement that was required to be produced to the State per the discovery rules. Yet, the court observed that, taken at face value, the affidavit was from a person claiming to be an eyewitness to the entire episode who would have material things to say about the incident. The court first indicated its intention to declare a mistrial to straighten out the discovery situation. The court believed this affidavit should have been disclosed to the State but was hesitant to exclude it because it was a material statement as to what occurred. The trial court then sought the State’s position on a mistrial.

The State’s Attorney objected to the mistrial because he did not know what effect it would have in terms of double jeopardy and retrying the defendant. Defendant stated he did not know what to say about the mistrial. However, defendant indicated he did wish this witness to be called.

The court explained to defendant that if a mistrial was declared, this would not be done at the State’s jeopardy, but rather to allow defendant to call the witness who had not been previously disclosed to the State. In the trial court’s statement of its intention to declare a mistrial, it indicated a continuance in the situation would not be sufficient to remedy the problem.

The trial court then declared a mistrial because it failed to see any other way defendant could call the witness when the State had not been informed of this individual. The court indicated to defendant it could refuse to allow the witness to testify but, because of its belief that this would be fundamentally unfair to the process of trying to find out what happened on January 11, 1989, it declined to do this. Thus, the trial court declared a mistrial but explicitly noted the State should not be prejudiced by this declaration.

Defendant filed a motion to bar reprosecution based on double jeopardy grounds. After a hearing on the matter, this motion was denied. The court stated it would have been manifestly detrimental to the ends of justice to have not declared a mistrial. The court indicated the mistrial was declared on the court’s motion and that neither defendant nor the State’s Attorney requested this mistrial. Defendant appeals the denial of that motion pursuant to Supreme Court Rule 604(f), which provides: “The defendant may appeal to the Appellate Court the denial of a motion to dismiss a criminal proceeding on grounds of former jeopardy.” 134 Ill. 2d R. 604(f).

We initially note that reviewing courts should not have procedures and rules for trial courts which apply only to defendants such as Pondexter. A separate standard would only lend encouragement to make a mockery of our judicial system.

Defendant contends his reprosecution is barred by the double jeopardy clause because neither party requested the mistrial and no “manifest necessity” existed to declare a mistrial. Defendant suggests there were less drastic alternatives available to remedy the discovery violation and, thus, a mistrial was unnecessary. The State responds that manifest necessity existed to declare the mistrial. The State asserts the dilemma faced by the court with respect to defendant’s potential witness was caused by defendant’s own conduct and, since the mistrial benefitted defendant, reprosecution should not be barred.

The double jeopardy clause of the fifth amendment of the United States Constitution, made applicable to the States through the fourteenth amendment in Benton v. Maryland (1969), 395 U.S. 784, 787, 23 L. Ed. 2d 707, 711, 89 S. Ct. 2056, 2058, provides “nor shall any person be subject for the same offen[s]e to be twice put in jeopardy of life or limb.” (U.S. Const., amend. V.) This clause safeguards a criminal defendant’s “valued right to have his trial completed by a particular tribunal” but must be balanced against “the public’s interest in fair trials designed to end in just judgments.” (Wade v. Hunter (1949), 336 U.S. 684, 689, 93 L. Ed. 974, 978, 69 S. Ct. 834, 837.) The double jeopardy clause does not bar all reprosecutions. Whether a defendant may be retried after a mistrial has been declared without the defendant’s request depends on whether there was a manifest necessity for the mistrial. People ex rel. Roberts v. Orenic (1981), 88 Ill. 2d 502, 431 N.E.2d 353.

The starting point in any double jeopardy analysis is determining whether jeopardy had attached. Jeopardy attaches when a jury is selected and sworn. (People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527, 387 N.E.2d 325.) It is unquestionable that jeopardy had attached in the present case. Not only had the jury been selected and sworn, but the State had presented and rested its case. Thus, where neither party requested a mistrial, was the discovery violation in this case sufficient to establish a manifest necessity to declare a mistrial? We think not.

In United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165, the Supreme Court first held the double jeopardy clause did not bar reprosecution where a jury trial ended because of jury deadlock. In formulating the standard to determine whether double jeopardy bars a subsequent prosecution, the Court stated:

“We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes ***.” (Perez, 22 U.S. (9 Wheat.) at 580, 6 L. Ed. at 165.)

Manifest necessity “stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” United States v. Jorn (1971), 400 U.S. 470, 485, 27 L. Ed. 2d 543, 557, 91 S. Ct. 547, 557.

The Perez formulation, consistently adhered to by the Supreme Court, “abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial.” (Illinois v. Somerville (1973), 410 U.S. 458, 462, 35 L. Ed. 2d 425, 429, 93 S. Ct. 1066, 1069.) The trial court must always temper the decision whether to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate. (Jorn, 400 U.S. at 486, 27 L. Ed. 2d at 557, 91 S. Ct. at 558.) The trial court must carefully consider all of the circumstances and any reasonable alternatives to a declaration of a mistrial. (Jorn, 400 U.S. at 487, 27 L. Ed. 2d at 558, 91 S. Ct. at 558.) A trial court must not act irrationally or irresponsibly (Arizona v. Washington (1978), 434 U.S. 497, 514, 54 L. Ed. 2d 717, 734, 98 S. Ct. 824, 835), but must use “sound discretion” to assure that manifest necessity exists to declare sua sponte a mistrial. Jorn, 400 U.S. at 487, 27 L. Ed. 2d at 558, 91 S. Ct. at 558.

The classic example of “manifest necessity” is a hung jury. Since the jury has neither convicted nor acquitted, the defendant’s right to have his trial completed by a particular tribunal is not infringed. (Perez, 22 U.S. (9 Wheat.) at 580, 6 L. Ed. at 165.) Juror bias is another example of manifest necessity. (Simmons v. United States (1891), 142 U.S. 148, 35 L. Ed. 968, 12 S. Ct. 171.) Where a jury was discharged because one juror served on the grand jury which indicted the defendant, retrial was not barred because manifest necessity existed. Thompson v. United States (1894), 155 U.S. 271, 39 L. Ed. 146, 15 S. Ct. 73.

Defendant argues the trial court abused its discretion in granting a mistrial for what amounts to a discovery violation. The trial court briefly considered a continuance as an alternative to the mistrial. The court stated, “This is not a matter that simply a short continuance would solve the problem, have just a brief interruption and everybody could find out what he [the potential witness] had to say and produce him over here and see whether he wants to testify.” The court expressed a concern whether this potential witness could be located quickly enough to see whether in fact he wished to testify.

Supreme Court Rule 415(g)(i) provides:

“If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances.” 134 Ill. 2d R. 415(g)(i).

The correct sanction to be applied for violation of a discovery rule is a matter for the trial court’s discretion, and the judgment of the trial court is given great weight. (People v. Morgan (1986), 112 Ill. 2d 111, 492 N.E.2d 1303.) The preferred sanction for a discovery violation where the violation is not blatant is a recess or continuance if the granting thereof would be effective to protect the other party from surprise or prejudice. (People v. Carrasquillo (1988), 174 Ill. App. 3d 1023, 529 N.E.2d 603.) Courts have held that ordering a mistrial for a discovery violation is not an appropriate sanction. (Morgan, 112 Ill. 2d 111, 492 N.E.2d 1303; People v. Peters (1986), 144 Ill. App. 3d 310, 494 N.E.2d 853; People v. Loggins (1985), 134 Ill. App. 3d 684, 480 N.E.2d 1293.) Morgan, Peters, and Loggins involved discovery violations by the prosecutor. Sanctions are designed to accomplish the purpose of discovery, but it is clear the imposition of sanctions should not encroach on a fair trial. People v. Spicer (1987), 158 Ill. App. 3d 699, 511 N.E.2d 235.

In Carrasquillo, defendant violated the discovery rules. The trial court barred the subject testimony. The appellate court, in reversing the trial court, stated:

“Although Rule 415(g) gives trial courts wide latitude in imposing sanctions, the one preferred for a discovery violation in a case such as the one at bar is a recess or continuation, if the granting thereof would be effective to protect the other party from prejudice or surprise.” Carrasquillo, 174 Ill. App. 3d at 1032, 529 N.E.2d at 609.

This court in Spicer, wherein defendant did not provide the State with information regarding a voluntary intoxication defense until the State already presented five witnesses, approved the trial court’s actions in excluding any substantive evidence of the defense.

In Taylor v. Illinois (1988), 484 U.S. 400, 415, 98 L. Ed. 2d 798, 814, 108 S. Ct. 646, 655-56, the Supreme Court stated:

“A trial judge may certainly insist on an explanation for a party’s failure to comply with a request to identify his or her witnesses in advance of trial. If that explanation reveals that the omission was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it would be entirely consistent with the purposes of the Compulsory Process Clause simply to exclude the witness’ testimony.”

Here, the trial court stated it only had two alternatives to remedy this discovery violation: declare a mistrial to allow defendant to call the witness, or bar the testimony. Although the court briefly considered granting a continuance, it ultimately determined a continuance was infeasible at that point in the trial. The State objected to allowing the witness to testify on the grounds of surprise and the discovery violation. The State, however, did not request a continuance to allow it to speak to the witness.

Essentially, the State objected to the witness corroborating defendant’s self-defense theory. But, both the State’s Attorney and the court were aware of defendant’s intention to claim self-defense. Several references were previously made by both parties as well as the court to indicate defendant’s intent to use this defense. In fact, defendant’s discovery answer stated his intent to rely on self-defense. Moreover, the prosecution asked its first witness, Officer Moore, who was involved in the fight, whether he had done anything to provoke the altercation. The officer replied negatively, which demonstrates the State’s attempt to refute defendant’s self-defense claim. Therefore, it is unlikely that the State would have conducted its prosecution differently had it known of this witness prior to the beginning of the trial.

The State argues defendant knew of the witness for some time and wilfully failed to disclose the same. The defendant argues that locating the witness would not be a problem as his cell number was known to the defendant as well as to the court. Mistrial is a drastic sanction and it must be “used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.” (Perez, 22 U.S. (9 Wheat.) at 580, 6 L. Ed. at 165.) WHien a trial court, acting without defendant’s consent, aborts the proceeding, the defendant has been deprived of his valued right to have his trial completed by a particular tribunal. People v. Ruiz (1979), 78 Ill. App. 3d 326, 330, 396 N.E.2d 1314, 1318.

Following Taylor, Spicer, and Carrasquillo, as well as the provisions of Supreme Court Rule 415(g)(i), the trial court had sanctions available short of declaring a mistrial. Under the facts of this case, the order for mistrial was error.

Although neither party raises the issue, we must address the circumstances leading up to the declaration of the mistrial, which may have been a factor in the trial court’s decision. Initially, in his first appearance in court, the public defender was appointed to represent defendant. Subsequently, the public defender withdrew from the case and new counsel was appointed to represent defendant. However, two days before the trial began, that attorney also withdrew from the case. Thereafter, having found the defendant capable of representing himself, the court told defendant no more attorneys would be appointed to represent him. Defendant could either hire private counsel or proceed pro se.

Despite being represented by counsel at all court appearances before trial, defendant filed approximately 10 pro se motions. These motions varied from requests for supplemental discovery to a request to be released from shackles at trial. Only one of these motions raised an issue as to defendant’s dissatisfaction with his attorney. The rest of these motions addressed various procedural aspects of the case. The court entertained these motions and, on more than one occasion, held extensive hearings. This, in part, caused defendant’s trial to be delayed for more than V-k years.

An accused has either the right to have counsel represent him or the right to represent himself; however, a defendant has no right to both self-representation and the assistance of counsel. An election between these two rights must be made at the proper time and in the proper manner. (People v. Williams (1983), 97 Ill. 2d 252, 267, 454 N.E.2d 220, 226-27, citing People v. Ephraim (1952), 411 Ill. 118, 122, 103 N.E.2d 363, 365.) It is obvious that both of these rights cannot be exercised at the same time. Williams, 97 Ill. 2d at 267, 454 N.E.2d at 226, citing United States v. Mitchell (2d Cir. 1943), 137 F.2d 1006.

Once this election is made, the roles of attorney and client are defined. Defendant retains the right to make decisions involving “fundamental rights,” while those strategic matters involving “the superior ability of counsel” are left to the attorney. (People v. Campbell (1984), 129 Ill. App. 3d 819, 473 N.E.2d 129.) Decisions involving “fundamental rights” include the decision whether to plead guilty or not guilty, whether to waive jury trial, whether to testify, and whether to appeal. (Campbell, 129 Ill. App. 3d at 821, 473 N.E.2d at 131.) On the other hand, if a defendant retains counsel, that counsel has control over the day-to-day conduct of the defense. He has the responsibility to determine when and whether to object, what witnesses to call and what defenses to develop. These decisions, practically speaking, must be done without consulting the client. Wainwright v. Sykes (1977), 433 U.S. 72, 91, 53 L. Ed. 2d 594, 611, 97 S. Ct. 2497, 2509 (Burger, C.J., concurring).

The court had no responsibility to entertain defendant’s pro se motions during the time he was represented by counsel. His counsel was competent and the majority of defendant’s motions involved “strategic matters” which were better left to the “superior ability of counsel.” We realize the trial court heard these motions in an effort to be fair to defendant; however, there is a point at which a line must be drawn. A defendant, when represented by competent counsel, must not be permitted to proceed unfettered, to file a stream of pro se motions, especially when the result is a substantial delay of defendant’s trial. The only exception affording the right to file pro se motions while represented by counsel are motions directed to defendant’s attorney’s representation.

The situation presented in this case is comparable to that in which “standby counsel” is appointed to assist a pro se defendant. The court may appoint “standby counsel” to assist a pro se defendant and to protect the judicial process from deterioration occasioned by improper and inadequate conduct of the defense. People v. Partee (1987), 157 Ill. App. 3d 231, 511 N.E.2d 1165.

A pro se defendant is entitled to retain control over the case he wishes to present to the jury and participation by “standby counsel” must not be allowed to destroy the jury’s perception that the defendant is representing himself. (McKaskle v. Wiggins (1984), 465 U.S. 168, 79 L. Ed. 2d 122, 104 S. Ct. 944.) However, a defendant is not entitled to a “hybrid trial” where he alternates between proceeding pro se and being represented by counsel. (McKaskle, 465 U.S. at 178-84, 79 L. Ed. 2d at 133-37, 104 S. Ct. at 951-54.) The accused has no such right to both representation of counsel and to also conduct portions of the proceedings on his own. Partee, 157 Ill. App. 3d at 247, 511 N.E.2d at 1176.

Although defendant insisted he was not electing to proceed pro se, his actions suggest otherwise. Almost from the inception of the proceedings, defendant sought control of the case despite having representation of counsel. Defendant filed numerous pro se motions, some of which were quite extensive, and argued persuasively on those motions. Defendant constantly disagreed with the way his attorneys handled the preparation of his case and, in fact, this was a main cause of both attorneys’ withdrawal from the case. Defendant also constantly argued with the trial court and insisted on continuing to argue with the court on matters decided adversely to his position.

Despite this prohibition against both self-representation and representation by counsel, the trial court’s actions in hearing these motions allowed defendant to have just that. We conclude the trial court may have experienced some degree of frustration in having such a recalcitrant defendant. No doubt, the history of defendant’s antics in the IV2 years preceding the trial contributed to the trial court’s decision to declare the mistrial. Nevertheless, a continuance rather than a mistrial was the proper action to be taken to correct the discovery violation. Therefore, and it is with great reluctance, we reverse the trial court’s denial of defendant’s motion to bar reprosecution.

Reversed.

GREEN and STEIGMANN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    THOM MOSS, as Adm'r of the Estate of David W. Hesler, Deceased, Plaintiff-Appellant, v. JAMES A. WHITAKER et al., Defendants-Appellees.
    Fourth District
    No. 4—90—0831
    Opinion filed June 5, 1991.
    Wilson, Dyar, Moss & Statzer, of Decatur (Darrell E. Statzer, Jr., of counsel), for appellant.

      James V. Mancuso, Jr., of Decatur, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

In this case we are again requested to hold that in a proceeding under the Wrongful Death Act (Act) (Ill. Rev. Stat. 1989, ch. 70, pars. 1 through 2.2) a personal representative may recover on behalf of a sibling who is a next of kin for the loss of society and companionship of the decedent. We refused to do so in Carter v. Chicago & Illinois Midland Ry. Co. (1988), 168 Ill. App. 3d 652, 522 N.E.2d 856, appeal denied (1988), 122 Ill. 2d 571, 530 N.E.2d 240, and we adhere to that determination here.

On August 20, 1990, plaintiff Thom Moss, as administrator of the estate of David W. Hesler, deceased, filed suit in the circuit court of Macon County against defendants James A. Whitaker and Ben Whitaker seeking damages under the Act for the death of the decedent allegedly arising from the tortious conduct of defendants. Counts II and IV alleged Thomas Hesler, decedent’s brother and sole next of kin, had suffered a loss of decedent’s society and companionship as a result of decedent’s death and sought recovery for that loss. Upon defendant’s motion, the circuit court, citing Carter, dismissed those counts by an order made appealable by findings pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Plaintiff has appealed. The sole issue on appeal is whether a sibling who is a next of kin can recover under the Act for loss of the decedent’s society and companionship. We agree with the trial court and affirm.

In Carter, this court noted that in recent years the Illinois Supreme Court had expanded the right to recover under the Act for loss of a decedent’s society first to a surviving spouse (Elliott v. Willis (1982), 92 Ill. 2d 530, 442 N.E.2d 163) and then to parents of a minor child (Bullard v. Barnes (1984), 102 Ill. 2d 505, 468 N.E.2d 1228), but had not held that siblings could recover for loss of society. We also explained that the legislature had enacted sections 2—1116 and 2—1117 of the Code of Civil Procedure (Ill. Rev. Stat., 1986 Supp., ch. 110, pars. 2—1116, 2—1117), which placed limitations on tort liability. Under these circumstances, this court stated it saw “no indication of public policy which directs [it], as an intermediate court of review, to interpret a statute in a new way so as to expand tort coverage in an area where damages are so difficult to calculate and a monetary award will do nothing to alleviate the burden of the injury.” Carter, 168 Ill. App. 3d at 660, 522 N.E.2d at 861.

Prior to the decision in Carter, the First Division of the First District Appellate Court had held that adult siblings who were next of kin of a decedent could not recover under the Act for the loss of society of the decedent, stating that for reasons set forth, “we refuse to expand the holding in Bullard to permit adult siblings to recover for loss of society” (Prendergast v. Cox (1984), 128 Ill. App. 3d 84, 89, 470 N.E.2d 34, 37). In addition, in the case of In re Air Crash Disaster Near Chicago, Illinois, on May 15, 1979 (7th Cir. 1985), 771 F.2d 338, the Seventh Circuit Court of Appeals held the Illinois Supreme Court would likely refuse to extend the proposed coverage to siblings. The Carter opinion also explained that in Chladek v. Albon (1987), 161 Ill. App. 3d 884, 515 N.E.2d 191, the Fourth Division of the First District Appellate Court had apparently ruled that, at least when the decedent is a minor, both parents and siblings, if next of kin, can recover under the Act for loss of society.

Although not discussed in Carter, prior to that decision, the Third Division and the First Division of the First District Appellate Court, respectively, in Sheahan v. Northeast Illinois Regional Commuter R.R. Corp. (1986), 146 Ill. App. 3d 116, 496 N.E.2d 1179, and Singh v. Air Illinois, Inc. (1988), 165 Ill. App. 3d 923, 520 N.E.2d 852, had held that siblings may recover under the Act for the loss of society of a decedent. Those opinions distinguished Prendergast on a theory that in the latter case the court was merely riding that no proof had been made of any damages arising from loss of society by the siblings.

Subsequent to Carter, in Schmall v. Village of Addison (1988), 171 Ill. App. 3d 344, 525 N.E.2d 258, appeal denied (1988), 122 Ill. 2d 594, the Second District Appellate Court, in a comprehensive opinion, held siblings can recover under the Act for loss of society of a decedent. In rejecting Carter, that court noted that the Carter opinion did not consider Sheahan and Singh and deemed the trend of the appellate cases to indicate expansion of the Bullard doctrine. The Schmall court also deemed important the opinion in Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 499 N.E.2d 1373, wherein the court had held that under the Act, a presumption exists that parents suffer pecuniary damage for the loss of an emancipated child. The Ballweg opinion showed the jury had been instructed that siblings could recover for loss of society. However, no issue had been drawn on that point and the court did not discuss it.

The thrust of the Schmall reasoning is that pecuniary injury arises from damages to a family unit by loss of one of its members even when that member is a sibling, and the intent of the Act is to compensate with money those who suffer that loss. The thrust of our decision in Carter is that in view of the apparent public policy of limiting exposure to liability for damages in tort, this court should not expand rights to recover in areas where an award does so little to alleviate the loss incurred. The issue between the districts of the appellate court is clearly drawn. We adhere to our position.

Accordingly, we affirm.

Affirmed.

LUND, P.J., and SPITZ, J., concur.


author: PRESIDING JUSTICE LUND JUSTICE McCULLOUGH,

text:
      In re MARRIAGE OF HAROLD D. SHERRICK, Petitioner-Appellant, and PHYLLIS J. HARWOOD, f/k/a Phyllis J. Sherrick, Respondent-Appellee.
    Fourth District
    No. 4—90—0553
    Opinion filed June 5, 1991.

      McCULLOUGH, J., specially concurring.
    F. Donald Heck, Jr., of Pollock, Ennis & Heck, of Quincy, for appellant.
    Donald R. Schuering, of Goehl & Schuering, of Quincy, for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

The circuit court of Adams County, following a petition for direction, determined that maintenance provided in the 1983 judgment for dissolution of marriage was, in fact, maintenance in gross and, thus, not terminated by the remarriage of the respondent Phyllis Harwood, formerly Phyllis Sherrick. Petitioner Harold Sherrick, who had caused the petition for direction to be filed, now appeals. The trial court refused to consider respondent’s petition to modify.

The question on appeal is whether the trial court should have gone beyond the maintenance provision in the dissolution judgment to determine the obligation of the petitioner. The pertinent portion of the 1983 dissolution judgment provides, in relevant part:

“6. That Petitioner has sufficient funds to support Respondent and the minor child of the parties. The Court further finds that Petitioner is the beneficiary of the Martin Sherrick Trust administered by the Mercantile Trust and Savings Bank of Quincy, Illinois.
7. That the Parties are owners of marital and nonmarital property and have reached a property settlement agreement between themselves.”

The decretory portion of the judgment provided in part:

“C. That Petitioner is to pay Respondent $1,000.00 per month and assign to Respondent his interest in the Martin Sherrick Trust as maintenance.”

Sections 504(b) and 510(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) provide in part:

“Maintenance. ***
* * *
(b) The maintenance order shall be in such amounts and for such periods of time as the court deems just, made without regard to marital misconduct and may be in gross or for fixed or indefinite periods of time and the maintenance may be made from the income or property of the other spouse after consideration of all relevant factors ***.” Ill. Rev. Stat. 1983, ch. 40, par. 504(b).
“Modification and Termination of Provisions for Maintenance, Support and Property Disposition. ***
(b) Unless otherwise agreed by the parties in a written separation agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” Ill. Rev. Stat. 1983, ch. 40, par. 501(b).

The evidence presented at the time of hearing on the petition for direction indicates the property settlement agreement, which evidently was prepared by the attorney for petitioner, was not signed by the parties, even though the judgment for dissolution referred to the agreement. The dissolution was granted on an uncontested basis, without respondent being present and without respondent having legal representation.

The petition for direction was filed by the petitioner on February 1, 1990. The hearing on the petition was held on March 22, 1990, and the evidence established that the Sherricks were married for 31 years. Respondent had helped with farming jobs, raised three children, did not work away from the farm, and had only three years’ high school education. The youngest child, a girl, was supported by respondent for about one year after the dissolution.

Petitioner inherited 300 acres of farmland, but the parties had purchased an additional 150 and 80 acres sometime prior to the breakup of the marriage. The 80 acres, according to respondent, were paid for at least in part by her father. An additional 80 acres were purchased by the petitioner for $200,000 shortly before the marriage dissolution. The 150 and first 80 acres were evidently free of debt before the purchase of the second 80 acres. Respondent executed and delivered deeds conveying her interest in this real estate to petitioner. Petitioner also had a substantial interest in farm equipment, which was allegedly owned jointly with his son.

Based upon respondent’s understanding that she would be assigned petitioner’s life interest in a $40,000 trust with annual interest payments (which was created by petitioner’s grandfather, Martin Sherrick) and would also receive $1,000 per month for her lifetime, she conveyed all marital property (except certain household items) to the petitioner. Petitioner’s attorney did all legal work for the transfers and attended to respondent’s execution of the various conveyances.

According to the testimony of respondent, she received a letter on March 14, 1983, from petitioner’s attorney containing an unsigned property settlement agreement, which indicated that respondent would receive an assignment of annual interest payments from the Martin Sherrick Trust (Trust) and $1,000 a month for the rest of her life. This agreement and the envelope in which it was evidently mailed were tendered at the trial level and refused. This ruling followed petitioner’s objection to its introduction.

Regardless of the ruling on the unsigned property settlement agreement, petitioner acknowledged in his testimony that the agreement contained the provisions he and respondent had agreed to at the time of the marriage dissolution, and that the agreement provided he was to pay respondent “One Thousand Dollars on the first day of each and every month for and during the life time of [respondent] as for support and as a property settlement.”

Contracts need not always be in writing, but may be oral. (Gaffney v. McCarron (1977), 45 Ill. App. 3d 944, 946, 360 N.E.2d 508, 509.) Conduct, including an acceptance of benefits under a contract, may be sufficient to constitute a ratification binding on the party accepting the benefits as if the party had signed the contract. (Bi-County Properties v. Wampler (1978), 61 Ill. App. 3d 799, 805, 378 N.E.2d 311, 316; 12 Ill. L. & Prac. Contracts §45 (1983).) There is no question but that petitioner received the benefits of the agreement when all the marital assets were transferred to him. If, because of the lack of signature, no written agreement exists, there has been sufficient proof of an oral agreement consistent with the unsigned draft. Oral contracts are proved not only by what the parties have said, but by what they have done. Feyreisen v. Sanchez (1897), 70 Ill. App. 105; 12 Ill. L. & Prac. Contracts §14 (1983).

Respondent remarried on September 17, 1984, but petitioner continued to pay the $1,000 payments from the time of the dissolution until December 1989. Petitioner, who states he is having financial problems, further testified he “would still be paying it if [he] could.”

In light of the wording of the judgment of dissolution and the existence of section 510(b) of the Act, we must determine if the trial court was required to find the $1,000 payments were simple maintenance and terminable on remarriage.

Provisions of divorce judgments and property settlements are construed by applying the same rules as those governing construction of contracts. (In re Marriage of Kloster (1984), 127 Ill. App. 3d 583, 584, 469 N.E.2d 381, 383.) Clear and unambiguous contractual terms must be given their ordinary and natural meaning. (In re Estate of Bresler (1987), 159 Ill. App. 3d 535, 539, 510 N.E.2d 1057, 1060.) The intent of the parties to a contract must be determined with reference to the contract as a whole, not merely by reference to particular words or isolated phrases but by viewing each part in light of the others. (La Throp v. Bell Federal Savings & Loan Association (1977), 68 Ill. 2d 375, 381, 370 N.E.2d 188, 191; see also White v. White (1978), 62 Ill. App. 3d 375, 378, 378 N.E.2d 1255, 1258.) The language of the judgment appears clear that respondent was receiving maintenance. However, when a property agreement is approved by the court and incorporated into a judgment of dissolution, the agreement is merged with the judgment and the parties’ rights rest on the judgment. In re Marriage of Morris (1986), 147 Ill. App. 3d 380, 389, 497 N.E.2d 1173, 1178; In re Marriage of Dowty (1986), 146 Ill. App. 3d 675, 678-79, 496 N.E.2d 1252, 1255.

In the present case, the judgment acknowledges that the parties, between themselves, had entered into a property settlement agreement. While the judgment does not specifically approve or incorporate the agreement, it does recognize terms of the agreement by awarding custody of the minor child of the parties to respondent, without providing child support, and provides that “Petitioner is to reimburse Respondent for any amount Respondent may be required to pay on any mortgage heretofore executed by the parties.” These provisions indicate the property settlement agreement was considered as part of the judgment and. require a finding that the agreement was merged with the judgment.

The evidence is clear the parties intended the $1,000 monthly payments to be something more than simple maintenance. Respondent conveyed away substantive marital property interests. In return for conveying her interest in all the farmland and farm equipment, she received only the interest income from the Trust and $1,000 monthly payments. If petitioner’s position is correct in that the provided maintenance terminated on remarriage, it would seem reasonable to suggest the wording of paragraph C of the dissolution judgment would also mandate that interest in the Trust was also maintenance and terminable on remarriage.

Because of reference in the judgment to the property settlement agreement, we conclude, even though the agreement was not included verbatim within the written judgment, that it was incorporated therein and the intent of the parties must be determined by considering the agreement. It then became incumbent upon the trial court to look behind the written judgment, to the actual agreement, to ascertain if the agreement did clearly dictate the nature of the maintenance provision. As stated in testimony by both petitioner and respondent, the agreement did clearly dictate a finding that payments to respondent were to be nonmodifiable $1,000 monthly payments until her death, rather than maintenance terminable by the provisions of section 510(b). Any other finding would be contrary to the manifest weight of the evidence. While this opinion appears in conflict with the provisions of section 510(b), we determine the facts in this case require the question of maintenance be answered by examining the judgment of dissolution and the agreement which was referred to and relied upon.

Because of our opinion, we find that it is not necessary to rule on the correctness of the trial court’s refusal to consider respondent’s petition to modify.

Affirmed.

SPITZ, J., concurs.

JUSTICE McCULLOUGH,

specially concurring:

I agree with the result as set forth by the majority but believe that the trial court does have a responsibility to follow the provisions of section 502 of the Act (Ill. Rev. Stat. 1983, ch. 40, par. 502). That section provides that the parties may enter into a written or oral agreement containing provisions for the disposition of the property owned by them.

As set forth in the Act, section 502(b), the terms of the agreement are binding upon the court unless it finds, after considering certain matters, that the agreement is unconscionable. Ill. Rev. Stat. 1983, ch. 40, par. 502(b).

Subparagraph (d) provides:

“Unless the agreement provides to the contrary, its terms shall be set forth in the judgment, and the parties shall be ordered to perform under such terms, or if the agreement provides that its terms shall not be set forth in the judgment, the judgment shall identify the agreement and state that the court has approved its terms.” Ill. Rev. Stat. 1983, ch. 40, par. 502(d).

Here, the trial court found that the parties had entered into an agreement. The court did not set forth the terms of the agreement in the judgment, nor did it identify the agreement and state that the court had approved its terms. If this had been done by the trial court, the disposition of this appeal would be readily made.

Many times, where children are not involved and the parties have reached a settlement, the trial court does not become involved. This case shows the importance of complying with the provisions of section 502.

Because the terms of the agreement were brought out in the evidence before the trial court on the petition for direction, this court can, in the interests of judicial economy, find that the agreement was not unconscionable and enforce the terms thereof.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES R. COLLINS, Defendant-Appellant.
    Fourth District
    No. 4—90—0438
    Opinion filed June 5, 1991.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John B. Huschen, State’s Attorney, of Eureka (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant, James R. Collins, appeals a circuit court order which denied his motion to quash two aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12—16(b)) indictments on the ground of double jeopardy. Defendant appeals pursuant to Supreme Court Rule 604(f) (134 Ill. 2d R. 604(f)). We affirm the circuit court’s order, because trial of defendant on the charges contained in the indictments will not violate either his right to protection against double jeopardy or his right to compulsory joinder of related offenses.

On September 14, 1989, defendant was charged by information with one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12—16(b)), which alleged he committed an act of sexual conduct with his daughter R.C. On September 27, 1989, an indictment was returned charging defendant with the same offense set forth in the information. Defendant was arraigned on this indictment on September 28, 1989. During the ensuing months, various other pretrial procedures, not pertinent to this appeal, took place.

On March 19, 1990, defendant was charged by information with three additional counts of aggravated criminal sexual abuse. These counts were docketed under the same case number, Woodford County case No. 89 — CF—59, as the initial charge. Each of the additional counts alleged defendant performed the same act alleged in the initial count with a different daughter than R.C.

Defendant’s jury trial commenced on the same date the informations containing the three additional counts were filed. At the beginning of the trial, defendant moved for a continuance based on the filing of the three additional counts on that date. The State’s Attorney responded that if the court was inclined to grant a continuance, the State would move to nol-pros the three additional counts, but stated the counts would be refiled. The State’s Attorney further asserted he did not intend to proceed with the three additional counts on that date. Thereupon, defendant’s counsel stated he objected to the motion to nol-pros the additional counts. Defendant’s counsel asserted all counts pending against defendant ought to be tried together, since they were part of the “same comprehensive transaction or common scheme.”

The court sustained defendant’s objection to the State’s motion to nol-pros, but also denied defendant’s motion to continue. The court indicated the trial would proceed on the charge contained in the indictment, i.e., the charge involving R.C. At that point, defendant’s counsel renewed his motion to continue the cause and reiterated his position the charges against defendant should be tried together. Defendant’s counsel stated he objected to the case being tried in a “piecemeal” fashion, and that “[a]ll of these counts *** are joined by virtue of the file.” Defendant’s counsel also stated denial of a continuance would severely prejudice defendant, and he believed it was in defendant’s best interest to have the charges tried together. (The record reflects no ruling on defendant’s renewed motion for continuanee.) Defendant’s counsel also requested defendant be arraigned on the additional counts, but the court denied this request.

At the conclusion of the State’s case in chief, defendant moved for a directed verdict as to the charge involving R.C. based on insufficiency of the evidence. The court denied this motion. Defendant also moved for a directed verdict as to the three additional charges. The State responded, “we’re not proceeding to trial” on those charges, and the court took defendant’s motion for a directed verdict as to those charges under advisement.

At the close of all of the evidence, the defendant moved for a directed verdict as to all counts. Defendant’s counsel observed no evidence had been presented as to the three additional charges. The State’s Attorney again asserted “we are not proceeding to trial” on the additional charges. In response to a question of the court, defense counsel said he thought his client was on trial for the three additional charges because (1) “[t]hey’re filed in this case”; (2) there was no motion for severance; and (3) jeopardy had attached. The court responded by stating (1) there had been no arraignment nor had pleas been entered on the additional charges, and (2) the motion for a directed verdict as to those charges was still under advisement. (The record reflects no ruling on defendant’s motion for a directed verdict as to the three additional charges.) The court denied the motion for a directed verdict with respect to the count contained in the indictment.

At the jury instructions conference, the court ruled the jury was not to be provided with verdict forms on the three additional charges. In so ruling, the court made the following comments:

“Well, the record should be clear, and it probably is not because there was no Motion to Sever, and the Court did not sever the charges in that the Court did not make a specific statement indicating that ‘the charges are hereby severed.’ However, the Court did indicate that we were proceeding on the True Bill of Indictment returned on September 27th, 1989. ***
***
*** And the jury was advised that we were proceeding on the True Bill of indictment returned in open court on September 27th, 1989. So although the words were probably inartful, the case has been in fact severed by the manner in which it’s been tried.”

At the conclusion of the trial, defendant was found not guilty of the charge involving R.C. Immediately thereafter, defendant waived arraignment on the three additional charges and entered pleas of not guilty to them.

On April 11, 1990, defendant was indicted on two of the charges contained in the three informations filed on the first day of his March 1990 trial. On the same date, defendant filed a motion to quash these indictments on the ground he had previously been placed in jeopardy with respect to the charges contained in them. This motion was supported by an affidavit of defendant in which he stated that at the time of his trial, he did not wish to sever or separate the additional charges from the initial charge, and it was “my desire to put all these charges behind me as soon as could possibly be done.”

The court denied defendant’s motion to quash in a written order entered June 7,1990. In this order, the court stated:

“1. *** While the Court did not use the appropriate terms of art in expressing the severance of the counts, it is abundantly clear from the record that the charges against the Defendant were, in fact, severed by the Court sua sponte.
2. The Defendant was not arraigned on the additional charges on March 19, 1990, nor did the State produce any evidence on said charges.
3. The Court’s frustration with the conduct of the State’s Attorney in prosecution of this felony matter is demonstrated by the Court’s erroneous ruling denying the State’s Motion to [nol-pros] the additional counts before trial proceeded. A motion to [nol-pros] a charge must be allowed unless it is part of a vexatious or repetitious course of conduct directed against the Defendant. [Citation.] While the Court may have been angered by the State filing additional charges after several pre-trial conferences, it was nevertheless improper to refuse to allow the State’s motion to [nol-pros] since there was no showing that the prosecution’s actions were capriciously or vexatiously repetitious. [Citation.] ***
4. Notwithstanding the fact that the motion to [nol-pros] was not allowed it is abundantly clear from the record that Defendant was not tried on the charges filed on March 19, 1990, but was tried only on the charges filed on September 14, 1989. In fact, it was not until March 20, 1990, that bond was set on the additional charges and Defendant waived arraignment. If this is a case where Defendant was placed in jeopardy for the charges filed on March 19, 1990, it will be the epitome of form over substance.”

In appealing the denial of his motion to quash, defendant asserts the two additional charges contained in the April 11, 1990, indictments, which were of a similar nature to the initial charge, were properly filed in the same case, No. 89 — CF—59, as the initial charge. Assuming the charges were improperly joined, defendant contends (1) he waived any improprieties in their joinder by not moving for a severance, and (2) the circuit court could not properly have granted a severance sua sponte under the facts of this case. Defendant further suggests the possible impropriety of the denial of the State’s motion to nol-pros the additional counts is of no relevance to the issues before this court, because the State made no attempt to effect an interlocutory appeal of that order. Also, defendant asserts the fact there was no arraignment or plea as to the additional charges was not a bar to his being tried on those charges as well as on the charge contained in the initial indictment. Defendant further contends because all of the charges were filed under the same docket number, the State tacitly agreed the alleged offenses should be tried together, because they were part of a comprehensive transaction. Defendant maintains because he was tried on all of the charges, further proceedings as to any of them would violate his right to be free of double jeopardy and, thus, the circuit court should have quashed the indictments filed subsequent to his trial.

The State asserts the circuit court was without authority to deny and therefore erred in denying the State’s motion to nol-pros the additional charges. The State argues there is no evidence that in this case the prosecutor had improper motives in moving to nol-pros the additional charges. The State contends since there was in fact no trial on the additional charges, they should be deemed nol-prossed.

The State further argues the additional charges were not pending at the time of defendant’s trial, because the prosecutor stated he did not want to proceed with the trial of the additional charges on that date. The People contend the prosecutor’s statements during trial, and the court’s statement that trial would proceed only on the original charge, should be deemed the equivalent of a motion to sever the additional charges and a severance order. The State asserts severance of the additional charges would not have been an abuse of the circuit court’s discretion, because a joint trial as to all of the charges could have prejudiced defendant.

The State additionally asserts no attempt was made to effect an interlocutory appeal of the denial of the State’s motion to nol-pros the additional charges, because the prosecutor thought the charges had been severed. Also, the State argues the charges against defendant were not subject to compulsory joinder because they involved alleged offenses against separate victims. Finally, the State contends protections against double jeopardy would not be violated by separate trials in this case, because evidence concerning the same act would not establish defendant committed each of the offenses with which he was charged.

At the outset, we question whether denial of a motion to nol-pros is an order from which an interlocutory appeal lies (see People v. Woolsey (1990), 139 Ill. 2d 157, 564 N.E.2d 764; 134 Ill. 2d R. 604(a)), and thus, the State could not have immediately appealed the orders denying its motions to nol-pros which the circuit court entered in this case. We conclude we have jurisdiction to consider in this appeal whether the circuit court properly denied the State’s motion to nolpros.

This court may affirm a final judgment on any basis appearing of record. In affirming a final judgment wholly favorable to the appellee, this court may hold the circuit court erred in entering an interlocutory order unfavorable to the appellee. Under these circumstances, it is not necessary for the appellee to appeal or attempt to appeal the interlocutory order. (See Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 457 N.E.2d 9.) Therefore, the State’s failure to appeal the denials of its motions to nol-pros does not preclude us from considering the propriety of those orders in this opinion.

A trial court must allow the prosecutor’s motion to nol-pros a charge, unless it is persuaded the action is capricious or vexatiously repetitious or allowance of the motion will prejudice the defendant. (Woolsey, 139 Ill. 2d 157, 564 N.E.2d 764.) If a charge is properly nolprossed, it may be refiled so long as jeopardy did not previously attach with respect to the charge. People v. Mooar (1981), 92 Ill. App. 3d 852, 416 N.E.2d 81.

Traditionally, jeopardy was deemed to attach in a jury trial when a jury was impaneled and sworn, and in a nonjury trial when the court began to hear sworn evidence. (People v. Shields (1979), 76 Ill. 2d 543, 394 N.E.2d 1161; Ill. Rev. Stat. 1989, ch. 38, par. 3—4(a)(3).) In recent years, however, courts have moved away from a mechanical application of these principles. In cases where a dismissal order or finding of not guilty has been entered, courts now consider the substance of what occurred in the trial court in determining whether subsequent prosecution on the charge as to which such an order was entered would violate a defendant’s right to be free of double jeopardy. (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10.) For instance, in People v. Rudi (1984), 103 Ill. 2d 216, 469 N.E.2d 580, cited by the State, the court (1) denied the State’s request to nol-pros, (2) caused the defendant to be sworn, and (3) asked the prosecutor if he intended to present any evidence or wanted to bring in a jury. Upon the prosecutor’s failure to produce any evidence, the court found the defendant not guilty. The supreme court held the denial of the prosecutor’s motion to nol-pros was an abuse of discretion. The court further held jeopardy did not attach in the proceedings following the denial of the motion to nol-pros, despite the finding of not guilty. The court stated the circuit court proceeding had none of the traditional characteristics of a trial, because (1) the prosecutor did not present any evidence but was instead trying to dismiss the case, (2) no factual issues were resolved in favor of the defendant, and (3) a prosecution witness was not sworn.

On the basis of the above principles, it is apparent that in this case, the circuit court should have granted the prosecutor’s motion to nol-pros the additional charges. The defendant alludes to no cognizable statutory or constitutional violations which would result from his being separately tried on the charges the prosecutor sought to nolpros in this case. Moreover, under the holding of Rudi, jeopardy did not attach with respect to the additional charges. At the defendant’s trial, no testimony directed to those charges was presented, and no factual issues were resolved with respect to those charges.

Contrary to defendant’s contentions, he had no right to insist that all of the sexual abuse charges pending against him be tried at the same time, if the State desired otherwise. The statutory provision which confers upon defendants a right to compulsory joinder of related charges in some cases is section 3—3(b) of the Criminal Code of 1961. (Ill. Rev. Stat. 1989, ch. 38, par. 3—3(b).) Section 3—3 reads in its entirety:

“Multiple Prosecutions for Same Act. (a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.
(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act.
(c) When 2 or more offenses are charged as required by Subsection (b), the court in the interest of justice may order that one or more of such charges shall be tried separately.” (Ill. Rev. Stat. 1989, ch. 38, par. 3—3.)

The committee comments concerning this section, which were cited with approval by the supreme court in People v. Mueller (1985), 109 Ill. 2d 378, 488 N.E.2d 523, and People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, state in pertinent part:

“Section 3—3 is not intended to cover the situation in which several offenses — either repeated violations of the same statutory provision or violations of different provisions — arise from a series of acts which are closely related with respect to the offender’s single purpose or plan. Many possible combinations of this sort are possible, but some of the common instances are the multiple-assault or multiple-murder situation, as in the Ciucci case (also in People v. Stephens, 297 Ill. 91, 130 N.E. 459 (1921); and see Freeland v. People, 16 Ill. 380 (1855)—riot, and assault and battery committed during the riot); the theft of articles belonging to the same or different persons, in the same location and within a short space of time (as in People v. Mendelson, 264 Ill. 453, 106 N.E. 249 (1914); a robbery, burglary, kidnaping, or rape followed by the murder of the victim or another person to facilitate the escape or prevent the revealing of the offender’s identity (as in People v. Andrae, 305 Ill. 530, 137 N.E. 496 (1922); People v. Stingley, 414 Ill. 398, 111 N.E.2d 548 (1953), cert. denied 345 U.S. 959, 73 S. Ct. 945, 97 L. Ed. 1379)***.” Ill. Ann. Stat., ch. 38, par. 3—3, Committee Comments, at 102-03 (Smith-Hurd 1989).

The defendant’s argument, he was entitled to have the charges tried together, confuses waiver of improper joinder with the right to compulsory joinder. As defendant correctly observes, improper joinder of charges may be waived (e.g., People v. McKendrick (1985), 138 Ill. App. 3d 1018, 486 N.E.2d 1297; People v. Turner (1976), 36 Ill. App. 3d 77, 343 N.E.2d 267); and the circuit court generally has no duty to sever charges sua sponte. (E.g., People v. Lumpkin (1982), 105 Ill. App. 3d 157, 433 N.E.2d 1369.) However, these principles are of no relevance to situations such as that here present, where the prosecutor has the option of trying the charges separately. Also, as noted by defendant, it is not absolutely necessary for there to be an arraignment or entry of a plea in order for a trial to result in a valid adjudication of guilt or innocence. (E.g., Ill. Rev. Stat. 1989, ch. 38, par. 113-6; People v. Laws (1963), 29 Ill. 2d 221, 193 N.E.2d 806.) Furthermore, if probable cause has previously been found as to one of two or more alleged offenses which are premised on the same conduct or transaction, there need not be separate probable cause determinations as to the remaining offenses. (See Ill. Rev. Stat. 1989, ch. 38, par. 111—2(f); People v. Redmond (1977), 67 Ill. 2d 242, 367 N.E.2d 703; People v. Kosyla (1984), 129 Ill. App. 3d 685, 472 N.E.2d 1207.) These principles do not, though, prevent the State from having charges tried separately in cases where separate trials are permissible.

The acts of sexual molestation of his children which defendant allegedly committed are all rather closely related. However, charges of sexual molestation involving different victims obviously are premon different acts. For this reason, defendant had no right to have charges of sexual molestation involving different victims tried at the same time, if the State preferred to try the charges separately.

Contrary to defendant’s contentions, there is nothing to support a holding that the filing of charges under the same docket number amounts to a tacit agreement by the State’s Attorney such charges are to be tried together. The only authority cited by defendant in support of this assertion is section 111—4 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1989, ch. 38, par. 111—4.) That section does provide two or more offenses based on either the same act or on two or more acts which are part of the same comprehensive transaction may be charged in separate counts of the same indictment, information, or complaint. In this case, the additional charges were contained in different charging instruments than was the initial charge. Perhaps more importantly, section 111—4(a) does not preclude (1) the granting of motions to nol-pros less than all of the charges filed under the same docket number or (2) separate trials as to one or more of such charges.

The order of the circuit court which denied defendant’s motion to quash bills of indictment is affirmed.

Affirmed.

SPITZ and GREEN, JJ., concur.


author: JUSTICE HAASE

text:
    FLORENCE PATCH, Indiv. and as Adm'r of the Estate of William C. Patch, Sr., Deceased, Plaintiff-Appellant, v. THE TOWNSHIP OF PERSIFER, Defendant-Appellee.
    Third District
    No. 3—90—0506
    Opinion filed May 3, 1991.
    Rehearing denied July 3, 1991.
    Duane Thompson, of Braud/Warner, Ltd., of Rock Island (Michael J. Warner, of counsel), for appellant.
    Robert C. Stoerzbach, of Barash, Stoerzbach & Henson, of Galesburg (John W. Robertson, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

William Patch, Sr., died as a result of a collision between his motor vehicle and a Santa Fe Railroad train. Florence Patch, the decedent’s wife, brought suit against Persifer Township to recover damages for the wrongful death of her husband. In response, the defendant, Persifer Township, filed a motion for summary judgment. In support of its motion, the defendant attached the depositions of several persons. Likewise, the plaintiff attached various exhibits to her response. After a review of the pleadings and evidence presented, the trial court granted the defendant’s motion. The court ruled the plaintiff failed to present any factual basis that could arguably entitle her to a judgment under applicable Illinois law. The court based its decision, in part, on statutory grants of immunity contained in the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 1—101 et seq.). The plaintiff appeals. We affirm.

The underlying facts of this case for the purpose of this appeal are not in dispute. On January 30, 1987, William Patch, Sr., was driving his car on a rural gravel road in Knox County. As he was travel-ling towards the railroad tracks that intersected the roadway, his vehicle deceased speed to about 20 miles per hour and began “fishtailing.” Mr. Patch’s car slid onto the railroad tracks and was hit by a Santa Fe Railroad train. Mr. Patch was killed as a result of the impact.

The depositions of William Patch, Jr., the decedent’s son, Merrill Collopy, the township road commissioner, and D.F. Dodge, the engineer of the train, were all attached to the defendant’s motion for summary judgment. All agreed that the road was icy and no cinders or salt had been placed on the intersection that day. Collopy testified that he travelled the roads of the township looking for slick spots to cinder, but that he had not cindered the approach to the crossing for three days before the accident. No signs had been placed on the roadway warning of its slippery condition. In addition, it is agreed there were humps in the road caused by ice and snow being pushed up by other vehicles travelling the same road as the decedent. This gave the road a distinct “washboard” effect.

The plaintiff stated several theories of recovery: (1) the road’s “washboard” effect was a result of a defect in the roadway and created a hazardous condition that was the proximate cause of the decedent’s death; (2) the township breached its duty to reasonably maintain the roadway by failing to place cinders or salt on the rail crossing; (3) if the defendant did not have a duty to maintain the rail crossing by spreading salt or cinders, a duty to do so arose from the defendant’s prior voluntary acts of spreading abrasive material on the roadway; and (4) the defendant breached its duty to warn motorists of the dangerous condition of the crossing by not posting a warning sign at the rail crossing.

The issue presented on appeal is whether the trial court erred in granting summary judgment in favor of the defendant.

Summary judgment is only appropriate “if the pleadings, depositions, and admissions on file, together -with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c).) In ruling on a motion for summary judgment, it is important to note that the aim of summary judgment is not to try issues, but to determine whether any triable issues exist. (Allen v. Meyer (1958), 14 Ill. 2d 284, 152 N.E. 576.) This means that while the plaintiff need not prove her case prior to trial, she is required to present some factual basis that would arguably entitle her to a judgment under applicable Illinois law. Chisolm v. Stephens (1977), 47 Ill. App. 3d 999, 386 N.E.2d 495.

Plaintiff first contends the defendant was negligent in maintaining the roadway in question. The plaintiff presented no sworn testimony or affidavits to the trial court, however, that could support such a finding. The sworn testimony presented indicated the road in question had a “washboard” effect caused by other vehicles traveling the same route as the decedent. The evidence also indicated the uneven state of the roadway was common to all gravel roads in the area during the winter months. There was no evidence to support an allegation of a defect in the road and thus the trial court properly found no material issue of fact presented for trial.

Next, plaintiff contends Persifer Township breached its duty to reasonably maintain the roadway by failing to place cinders or salt on the rail crossing. Section 3—105(a) of the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 3—105(a)) provides that local public entities are immune from suit for any injury caused by the effect of weather conditions on “streets, highways, alleys, sidewalks, or other public ways.” We fail to see how a governmental body can be immune from suit for the effects of weather conditions on public ways, and yet be held liable in tort for failing to spread salt on an icy road. Nothing has been presented to the trial court or this court to show that a municipality has a duty to spread salt on an icy road.

In the alternative, plaintiff contends that even if the defendant did not have a duty to spread salt or sand on the rail crossing, a duty to do so arose from the defendant’s prior voluntary acts of spreading abrasive material on the roadway. If we were to accept plaintiff’s theory of assumed duty, governmental bodies could be assured of retaining their statutory grant of immunity under section 3—105(a) of the Tort Immunity Act only if they ceased snow removal and other such activities. Surely this is not what the legislature intended. Case law holds that no duty arises merely from prior voluntary acts. Lansing v. County of McLean (1978), 69 Ill. 2d 562, 372 N.E.2d 822.

Finally, plaintiff claims the defendant breached its duty to warn the decedent of the icy condition of the roadway by not posting warning signs at the rail crossing. Section 3—104 of the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 3—104) provides that local public entities are immune from suit for any injury “caused by the failure to initially provide regulatory traffic control devices *** or any other traffic regulating or warning sign.” Again, the plain language of the Tort Immunity Act specifically prevents the plaintiff from stating a cause of action under Illinois law. See also Lansing v. County of McLean (1978), 69 Ill. 2d 562, 372 N.E.2d 822.

The trial court ruled the plaintiff failed to present any factual basis that could arguably entitle her to a judgment under Illinois law. We agree. The plaintiff presented no affidavits or sworn testimony to the trial court that could support a finding that the roadway in question was defective, negligently maintained, or the proximate cause of the accident.

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

Affirmed.

GORMAN and STOUDER, JJ., concur.


author: JUSTICE BARRY

text:
    BALMORAL RACING CLUB, INC., et al., Plaintiffs-Appellees, v. THE ILLINOIS RACING BOARD et al., Defendants-Appellants (Balmoral Park Trot, Inc., et al., Defendants).
    Third District
    Nos. 3—91—0187, 3—91—0230 cons.
    Opinion filed May 30, 1991.

      Roland W. Burris, Attorney General, of Springfield (Paula Giroux and Rosalyn B. Kaplan, Assistant Attorneys General, of Chicago, of counsel), for appellant Illinois Racing Board.
    Scott J. Szala, Frank H. Langrock, and Darcy J. Bogenrief, all of Winston & Strawn, of Chicago (Dan K. Webb, of counsel), for appellants Arlington Park Racetrack, Ltd., and Washington Park Thoroughbred Racetrack, Ltd.
    Edward M. White, of Carey, Filter, White & Boland, of Chicago, for appellant Hawthorne Race Course, Inc.

      Thomas Feehan, of Rooks, Pitts & Poust, of Joliet, and Jeremiah Marsh, E. Glenn Rippie, and Robert R. Hall, Jr., all of Hopkins & Sutter, of Chicago (William J. McKenna, Jr., of counsel), for appellee Balmoral Racing Club.
    Arthur Edward Engelland and Angela Riccio, both of Chicago, for appellee Horsemen’s Benevolent & Protective Association, Inc.
   JUSTICE BARRY

delivered the opinion of the court:

This is an appeal from an order of circuit court of Will County which reversed an order of the Illinois Racing Board (Board) insofar as the Board denied thoroughbred horse racing dates to Balmoral Racing Club, Inc., for 1991 and which remanded this cause to the Board with directions to award 62 thoroughbred dates between May 12 and December 30, 1991, to Balmoral. We reverse the order of the circuit court and reinstate the order of the Illinois Racing Board.

The Board conducted hearings on September 18, 1990, concerning the applications for thoroughbred and harness racing dates for 1991. In addition to receiving sworn testimony from each of the applicants, the Board also admitted into evidence all of the applications for racing dates, orders setting dates, and annual reports of the Board for the past five years along with staff reports, summaries, and correspondence. The Board issued a 22-page order allotting racing dates to all applicants and imposing certain conditions upon the various licensees.

In 1990 Balmoral had been awarded thoroughbred dates from May 13 to October 2, overlapping the dates of May 9 to October 8 awarded to Arlington. Other tracks in the Chicago area (Hawthorne and Sportman’s) were awarded thoroughbred racing dates that did not conflict with either Arlington or Balmoral. The latter two tracks are approximately 63 miles from one another. For 1991 the Board awarded Arlington the dates of May 12 to October 9 while again allotting noncompeting dates to Hawthorne and Sportman’s. This year, however, the Board denied Balmoral any thoroughbred dates and instead awarded Balmoral harness racing dates throughout the entire year. (Racing dates were also awarded at Ogden-Fairmount, Quad City Downs and Maywood Park, but none of those awards are involved in this appeal.)

In its order the Board found that the experience of the previous two racing years demonstrated that the three Cook County thoroughbred racetracks (Sportsman’s, Arlington, and Hawthorne) needed unopposed race meetings in order to maximize State revenue, due in large part to the inadequate supply of horses available for thoroughbred racing in Illinois. The Board stated:

“Based upon staff analysis and our own expertise and experience, we believe that state revenue will be enhanced by eliminating thoroughbred racing at Balmoral, granting thoroughbred market exclusivity and providing harness racing two days per week at Balmoral during the summer of 1991. Harness horses in Illinois are sufficient in number and race with enough frequency to completely avoid the problems associated with concurrent thoroughbred meets.”

Balmoral filed an administrative review proceeding in the Will County circuit court and obtained a reversal of the denial of thoroughbred racing dates at Balmoral. In support of its judgment order, the court made a finding that the public interest in maximizing State revenue “has no relationship as to whether thoroughbred horseracing programs are run concurrently or not” and held that there was no evidence to support the Board’s finding that excluding Balmoral Park from thoroughbred racing in 1991 would be in the best interest of the public or the sport of horse racing. The court also found that the Board’s finding of an insufficient number of horses available for concurrent racing at Balmoral and Cook County tracks was contrary to the manifest weight of the evidence and that section 21(c) of the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1989, ch. 8, par. 37—1 et seq.) restricts “parochial exclusivity to licensees within 35 miles of each other” and thereby evidences a legislative intent “that competition between Balmoral and the Cook County tracks more than 35 miles away to be in the best interest of the public and the sport of horseracing.”

The trial court also ruled that the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1989, ch. 127, par. 1001 et seq.) is applicable to proceedings of the Illinois Racing Board to award racing dates and that the Board acted in violation of that act so as to deprive Balmoral of its rights to procedural due process. However, the court also found that Balmoral had waived its rights under that act by failing to object during the hearing before the Board and by continued participation in those proceedings.

In addition to reversing the denial of racing dates to Balmoral, the trial court remanded the cause to the Illinois Racing Board with directions to award 62 thoroughbred racing dates for 1991 between May 12 and December 30, 1991, to Balmoral to be held on consecutive Sunday evenings, Mondays and Tuesdays.

Three parties have appealed from the decision of the trial court: Arlington Park Racetrack, Inc., the Illinois Racing Board, and Hawthorne Race Course, Inc. Arlington and the Board present the same basic arguments.

We first consider the court’s ruling that section 21(c) of the Illinois Horse Racing Act was intended by the legislature to limit the Board’s authority to grant exclusive dates to tracks within 35 miles of each other and, furthermore, that the legislature intended that competition between Balmoral and Cook County tracks more than 35 miles away would be in the best interest of the public and the sport of horse racing.

Section 21(c) (Ill. Rev. Stat. 1989, ch. 8, par. 37—21(c)) provides as follows:

“(c) Where 2 or more applicants propose to conduct horse race meetings within 35 miles of each other, as certified by the Board under section 19(a)(1) if this Act, on conflicting dates, the Board may determine and grant the number of racing days to be allotted to the several applicants. In the granting of organization licenses and in allocating dates for horse race meetings which will, in its judgment, be conducive to the best interests of the public and the sport of horse racing, the Board shall give consideration to an agreement among organizations, as provided in subsection (b) of Section 21 of this Act, and also shall give due consideration to:
(1) the character, reputation, experience and financial integrity of the applicants and or any other or separate person that either:
(i) controls, directly or indirectly, such applicant, or,
(ii) is controlled, directly or indirectly, by such applicant or by a person which controls, directly or indirectly, such applicant;
(2) their facilities and accommodations for the conduct of horse race meetings;
(3) the location of the tracks of the applicants in relation to the principal centers of population of the State;
(4) the highest prospective total revenue to be derived by the State from the conduct of such meets;
(5) the good faith affirmative action plan of each applicant to recruit, train, and upgrade minorities in all classifications within the association.”

We hold the court’s ruling erroneous for two reasons. First, when the legislature amended section 21(c) to reduce the distance between tracks from 45 miles to 35 miles (Pub. Act 83—1448), the following statement was made by Senator Phillip Rock in support of the SB 1629, House Amendment 4:

“What Balmoral is attempting to do and attempting to persuade the racing board that it would be in the best interest of racing to afford them the opportunity to race thoroughbreds at night out at Balmoral at the same time, or perhaps overlap at the same time, that standardbreds are racing at Sportsman’s Park, and that’s what the conflict is.” Senate Transcripts, June 28,1984, at 193.

Shortly thereafter, in the course of continued debate on the amendment, Senator Rock stated:

“I really believe, given the fact that Balmoral Race Track and all the parimutual [sic] employees and all the concessionaires and their employees *** I think they ought to have a chance. Now we can’t grant them that chance because we can’t, under our law, dictate to the Illinois Racing Board the award of dates or times or any of that stuff, that’s up to them. All we are *** we are doing is affording the racing board that opportunity. If they don’t want to do it, they don’t have to do it, but we are not prohibiting it by law and I think that’s a fair chance ***.” (Emphasis added.) Senate Transcripts, June 28, 1984, at 202-03.

From this debate, it is clear that the General Assembly did not intend to require the Board to award competing dates if requested by an applicant located more than 35 miles from another track. Balmoral’s situation was before the legislature at that time, and the trial court’s construction is plainly at variance with the legislative intent.

The plain language of the statute, taken as a whole, obviates the court’s construction, as well. Section 19(a) of the Horse Racing Act states explicitly that no organization license may be granted to conduct a horse race meeting to any person at a track within 35 miles of any other track licensed to hold a race meeting on the same date during the same hours. The first sentence of section 21(c) merely adds discretion to the Board to allocate dates among the applicants when two or more apply for conflicting dates within 35 miles.

We agree with the Board that the second sentence of 21(c) applies to all applications for dates because it refers to section 21(b). Overall, the Board is to use its judgment to allocate dates which will be conducive to the best interests of the public and the sport of horse racing, and the factors enumerated in the second sentence of section 21(c) are broadly drawn guidelines for the Board to use in exercising its discretion. The trial court erred in ruling that the Board could only consider those factors when it had competing applications for tracks within 35 miles of one another.

We have carefully reviewed the record which was before the Board. Evidence concerning each of these factors was plainly before the Board. Even without express findings as to each point, we conclude that the Board must be presumed to have considered each and every factor listed in section 21(c). Briefly summarized, those factors and evidence are as follows:

(1) The character, reputation, experience and financial integrity of the applicants — Each application for a license contained extensive information about the financial situation, political activity, criminal and civil litigation history, property ownership, and employment of each applicant and those persons who either controlled the applicant or were controlled by the applicant.

(2) Facilities and accommodations — Each applicant had to describe its facilities in detail, and the Board order included a number of commitments and requirements for improvements.

(3) Location — The application required information concerning the population centers from which each track attracted customers, and the Board order took into account the location of the respective tracks.

(4) Highest State revenue — The Board order recited figures from previous years and from the financial statements of the applicants which provided the basis for its determination that State revenue could best be maximized by giving Arlington Park market exclusivity; also, the Board had statistical studies comparing revenues of various racing programs.

(5) Affirmative action plan — Each applicant provided details of an affirmative action plan and these were acknowledged in the Board order.

Thus, it is apparent that the Board applied the tests required under section 21(c) to the evidence before it in reaching its conclusion that Balmoral should be limited to harness racing in order to avoid direct competition with Arlington Park or other Cook County thoroughbred meets.

Balmoral insists that the same factors as are present in 21(c) are also included in sections 12.1 and 19(a) of the Hlinois Horse Racing Act. Section 12.1 sets out the requirements for affirmative action plans in much more detail than does section 21(c)(5).

Section 19(a) lists certain restrictions on issuance of licenses, including that a license may not be issued to a track within 35 miles of another track licensed to hold a meet on the same date; to any person in default to the State; to anyone who has been convicted of violating any Federal or State laws where the penalty is imprisonment or who has engaged in any illegal business or who does not have a reputation as an honest, law-abiding citizen; or to anyone who does not own or have a lease for a finished race track. These restrictions do not, in fact, duplicate the requirements of section 21(c), and Balmoral’s argument cannot prevail.

Finally, we are mindful that the interpretation given a statute by the agency charged with its administration and enforcement, though not binding, is generally accorded deference by the courts. (City of Burbank v. Illinois State Labor Relations Board (1989), 128 Ill. 2d 335, 538 N.E.2d 1146.) Therefore, we hold that section 21(c) sets forth factors to be considered by the Board in the exercise of its discretion and that the Board acted within its authority in applying the factors of section 21(c) to Balmoral’s application for thoroughbred dates.

Next, we are asked to decide whether the trial court erred in ruling that the decision of the Board in denying thoroughbred dates to Balmoral was against the manifest weight of the evidence. The appropriate standard of review was summarized in Coleman v. Illinois Racing Board (1988), 124 Ill. 2d 218, 221:

“It is well settled that findings of fact by an administrative agency are considered to be prima facie true and correct. [Citations.] Courts will not interfere with the discretionary authority of .administrative bodies unless the administrative decision is contrary to the manifest weight of the evidence [citation].”

The standard for determining whether an agency judgment was contrary to the manifest weight of the evidence was well stated in Evert v. Board of Trustees of Fire Fighters’ Pension Fund (1989), 180 Ill. App. 3d 656, 660, 536 N.E.2d 143, 146, as follows:

"To make such a finding, a court must conclude that all reasonable and unbiased persons, acting within the limits prescribed by the law and drawing all inferences in support of the finding, would agree that the finding is errorieous and the opposite conclusion is clearly evident. [Citation.] It is not sufficient that there are mere conflicts in the testimony or that an opposite conclusion might be reasonable; since the weight of the evidence and the credibility of the witnesses are within the province of the agency, there need be only some competent evidence in the record to support its findings. [Citation.]” (Emphasis added.)

The record in this cause contains an extensive amount of financial data pertaining to the State revenue realized from horse racing over the last five years. The Illinois Racing Board analyzed that data and concluded that State revenue would be increased by eliminating thoroughbred competition between the Balmoral track and the Cook County tracks while awarding a full year of harness racing dates to Balmoral. The analysis of State revenue from each track for the years 1989 and 1990 supports the conclusion of the Board that competition resulted in decreased State revenue at Arlington Park and Hawthorne while the revenue from Balmoral’s thoroughbred racing was not significantly greater than from harness racing.

The trial court conducted its own analysis of the data in the record and reached a different conclusion. In its order, the trial court stated that “the best interest of the public in maximizing State Revenue is adversely affected by increased numbers of offtrack betting facilities and has no relationship as to whether thoroughbred horseracing programs are run concurrently or not.” In doing so, the court exceeded its authority by reweighing the evidence and substituting its judgment for that of the Racing Board. Furthermore, the court apparently overlooked the fact that a decrease in the tax rate was responsible for the decline in revenue which accompanied the establishment of offtrack betting facilities as indicated by the fact that the total handle increased at the same time tax revenue decreased.

In a related ruling, the trial court held that the Board’s finding that the supply of thoroughbred horses is inadequate to provide full fields for concurrent racing at Balmoral and at Cook County tracks was contrary to the manifest weight of the evidence. The Board considered that short fields at the tracks which ran meets in opposition to dates at Balmoral caused a decline in attendance and handle at those meets and that short fields were attributed to the limited supply of thoroughbred horses and the increasing number of thoroughbred race meetings in the Middle West. Again, the trial court apparently examined the evidence in the record and reached its own conclusion that the number of horses entered in racing events was dependent upon factors other than competition from concurrent racing meets.

As to this issue, too, the trial court substituted its judgment for that of the Racing Board and, after reweighing the evidence, reached a different result. This is not the function of the court on administrative review, where the findings and conclusions of the administrative agency on questions of fact must be held to be prima facie true and correct. Ill. Rev. Stat. 1989, ch. 110, par. 3—110.

Given the evidence in the record, we must hold that the findings and conclusions of the Illinois Racing Board were supported by sufficient credible evidence to be sustained. The ruling of the trial court to the contrary is reversed.

Balmoral has argued that the Racing Board improperly ignored the track’s long history of thoroughbred racing and the expenditure of money to refurbish Balmoral Park and to enhance thoroughbred facilities. However, under Illinois law no track has a vested right to a racing meet license. Each license is issued for one calendar year only and does not entitled the holder to special preference in future years except where an agreement for a longer program has been approved by the Board pursuant to section 21(b).

The trial court also ruled that the procedural requirements of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1989, ch. 127, par. 1001 et seq.) was applicable to the 1991 dates hearing of the Illinois Racing Board and that the Board failed to comply with the rules governing contested cases.

Section 2 of that Act states, in part:

“(a) This Act applies to every agency as defined herein. *** However if an agency has existing procedures on July 1, 1977 specifically for contested cases or licensing those existing provisions control.” Ill. Rev. Stat. 1989, ch. 127, par. 1002.

Included in the record on appeal is the affidavit of Racing Board member Cecil J. Troy wherein he asserted that the Board has had procedures in place for conducting racing dates hearings since 1976 and that those procedures have not changed in any material respect. He further stated that the Board has always conducted its dates hearings as if the Administrative Procedure Act did not apply and has restricted the right of applicants to ask questions or to cross-examine competing applicants. None of the facts sworn to by Troy are disputed. We hold that the Board proceedings come within the exception to the Act.

Considering the nature of the racing dates hearing, the quantity of information provided by the application process, and the interrelatedness of the issues to be considered by the Board in making timely allocation of dates between the various applicants, it is apparent that, as a practical matter, it would be impossible to conduct a manageable hearing following statutory administrative procedures. Accordingly, we hold that the Illinois Administrative Procedure Act does not apply to hearings for the allotment of racing dates.

During the pendency of this appeal, Balmoral filed a motion to dismiss that part of the appeal which related to the trial court’s remand of this cause to the Board with directions to award thoroughbred racing dates to Balmoral. The rationale of the motion was that the remand portion of the order was not final and appealable. We took that motion with the case and now conclude that the issue raised is moot since we are reversing the entire order of the trial court. Therefore, the motion to dismiss is denied.

Similarly, the appeal of Hawthorne Race Course relates solely to the remand portion of the trial court’s order. Since we are reversing that order, we need not consider the issues raised in the briefs filed by Hawthorne. Another issue raised by the Racing Board was whether Balmoral’s acceptance of the harness racing dates amounted to a waiver of any objections to the Board’s order. That issue also need not be considered in view of our reversal of the trial court.

For the reasons stated, we reverse the order of the circuit court of Will County and reinstate the order of the Illinois Racing Board.

Reversed.

McCUSKEY and GORMAN, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    ROBERT N. FRANCIS et al., Plaintiffs-Appellants, v. JAMES MILLS, Monmouth Township Road Commissioner, et al., Defendants-Appellees.—ROBERT N. FRANCIS et al., Plaintiffs-Appellants, v. MONMOUTH TOWNSHIP et al., Defendants-Appellees.
    Third District
    Nos. 3—90—0215, 3—90—0762 cons.
    Opinion filed May 31, 1991.

      B. Douglas Stephens, of Wessels, Cleaver & Stojan, P.C., of Rock Island (Mark Tarnow, of counsel), for appellants.
    Hafele, Thiemann & Carter, of Peoria (Bruce Thiemann, of counsel), for appellees James Mills and Douglas Connell.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs, Robert and Elizabeth Francis, appeal from a judgment of the circuit court of Warren County dismissing their action against the defendant, Monmouth Township. This appeal involves an automobile collision which occurred on a public highway maintained by Monmouth Township on August 1, 1987. The plaintiffs’ initial and amended complaints named as defendants the following parties: Wendell Larson, Hale Township road commissioner; Thomas Simms, Hale Township supervisor; James Mills, Monmouth Township road commissioner; Douglas Connell, Monmouth Township supervisor; and Warren County.

Mills and Connell obtained summary judgment in their favor on February 20, 1990. The trial court found that Mills and Connell had statutory immunity under section 2—201 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 2—201) (Act). Subsequently, on March 12, 1990, the plaintiffs filed a third amended complaint, naming for the first time Monmouth Township as defendant. Monmouth Township then filed a motion to dismiss in which it asserted that the plaintiffs’ action was barred by the statute of limitations. The trial court agreed and dismissed the complaint on September 10, 1990. We have consolidated the appeal of both judgments, and because we find that both the individual township officials and the township itself do not owe the plaintiffs a duty in the instant case, we need not address the statute of limitations question.

The plaintiffs allege, inter alia, that Monmouth Township was negligent for having posted a yield sign which did not conform to the Federal Manual on Uniform Traffic Control Devices for Streets and Highways (Manual). The Manual has been adopted in Illinois to govern local traffic control devices. (Ill. Rev. Stat. 1989, ch. 95½, par. 11—301.) We address whether the maintenance of a traffic control sign is a ministerial or discretionary function for a township government.

In two recent cases, this court has found the posting of traffic control signs and the clearing of brush from a highway to be discretionary functions of township government. (Havens v. Harris Township (1988), 175 Ill. App. 3d 768, 530 N.E.2d 284; Bainter v. Chalmers Township (1990), 198 Ill. App. 3d 540, 555 N.E.2d 1195.) In the instant case, we find the moving, changing or upgrading of an existing traffic control sign to be a matter of discretion for township government.

The plaintiffs contend that the Manual makes mandatory the location and choice of a traffic control sign and that employees have no discretion as to conforming the traffic control sign to the Manual. However, section 3—105(b) of the Act provides in relevant part:

“(b) Without implied limitation, neither a public entity nor a public employee is liable for any injury caused by the failure of a local public entity *** to upgrade any existing *** highway, *** or the signals, signs, markings, traffic or pedestrian control devices *** on or near such *** highway.” Ill. Rev. Stat. 1989, ch. 85, par. 3-105(b).

Furthermore, absent a statutory or common law duty, a public official has an absolute immunity from lawsuits challenging his acts of judgment or discretion. (Havens v. Harris Township (1988), 175 Ill. App. 3d 768, 530 N.E.2d 284.) Even assuming the Manual creates an exception to the above-mentioned statute, we note that the Manual itself creates an exception for those nonconforming signs in use prior to January 1, 1985, under section 11—301(a) of the Illinois Rules of the Road. (See Ill. Rev. Stat. 1989, ch. 95½, par. 11—301(a).) This, in many ways, makes the decision to replace or upgrade an existing traffic control sign even more discretionary for township officials. For, along with budgetary concerns, the township officials need to decide whether the Manual is advisory or mandatory, whether the sign in question conforms to the Manual, and finally whether the sign was in use prior to January 1, 1985. Accordingly, we find the decision to replace or upgrade an existing traffic control device to be discretionary.

For these reasons, we affirm the judgments of the circuit court of Warren County.

Affirmed.

McCUSKEY and HAASE, JJ., concur.