author: JUSTICE RAKOWSKI PRESIDING JUSTICE McCULLOUGH,

text:
    WILLIAM RUTLEDGE, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Sargent-Welch Scientific Company, Appellant).
    First District (Industrial Commission Division)
    No. 1 — 92—0062WC
    Opinion filed January 15, 1993.
    McCULLOUGH, P.J., specially concurring.
    Wiedner & McAuliffe, Ltd., of Chicago (Frank J. Wiedner and Mark P. Matranga, of counsel), for appellant.
    Cohn, Lambert, Ryan & Schneider, Ltd., of Chicago (Stanford L. Lambert, of counsel), for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The appellee, William Rutledge (claimant), was employed as a surface grinder for Sargent-Welch Scientific Company (Sargent-Welch or employer) when he developed a work-related disability. The claimant accepted a lesser paying job in the employer’s stockroom, but later quit, moved to Michigan and worked part time. Subsequently, on arbitration, the claimant was awarded two-thirds of the difference between his average weekly wage as a surface grinder and his Michigan job pursuant to section 8(d)l of the Workers’ Compensation Act (Act) (111. Rev. Stat. 1987, ch. 48, par. 138.8(d)(1)). The Industrial Commission (Commission) reversed the decision of the arbitrator based on its finding that the claimant had self-limited his employment and earning capacity without medical necessity or justification. On administrative review, the circuit court reversed the decision of the Commission based on its determination that the claimant’s disability continued. The circuit court concluded that the claimant was entitled to two-thirds of the difference between his surface grinder pay and what he earned at the Sargent-Welch stockroom job, based on a 20-hour work week. The issue on appeal is whether the claimant’s previously established right to a wage differential benefit is terminated by a job change which resulted in a further reduction in wages.

The claimant worked for Sargent-Welch for 15 years as a surface grinder where he was required to have contact with various chemicals and lubricants. On March 20, 1985, the claimant noticed large blisters and sores on his hands that would not heal. His condition became worse, and the nurse referred him to Dr. Hinkamp, who subsequently referred the claimant to Dr. John Weiss. Dr. Weiss examined the claimant on April 29, 1985, and found that his hands and feet were covered with red bumps and that his toenails were black and falling off. Dr. Weiss treated the claimant with steroid medication and an ointment. Around this time, the claimant was moved from his former position as a surface grinder to a position in the stockroom.

In July of 1985, the claimant sought treatment from Dr. Barry Kirschenbaum. The claimant continued working until December 18, 1985, when he was taken off work for several months. He returned to work on February 24, 1986. In September of 1986, the claimant was treated by Dr. Sophie Worbec, who performed patch tests and prescribed numerous antibiotics and creams. Dr. Worbec also removed a bump from the claimant’s right eye which would not heal. The claimant continued treatment with Dr. Worbec until April of 1987, and continued in the stockroom until December 11, 1987.

In December of 1987, the claimant moved to Lawton, Michigan were he found a job with Montgomery Wards working 20 hours a week doing light maintenance work.

In his former position as a surface grinder, the claimant earned $11.30 an hour. When the claimant moved to a position in the stockroom he initially earned $7 an hour, but he received two wage increases which brought his hourly rate up to $7.63. As a maintenance worker for Montgomery Wards, the claimant earns $5 an hour.

The employer contends that it was error for the circuit court to reverse the decision of the Commission and to adopt and modify the dissenting opinion of Commissioner Jacqueline A. Kinnaman because the Commission’s decision that the claimant had failed to prove an entitlement to a wage loss differential where he self-limited his employment opportunities was supported by the evidence. Section 8(d)l of the Act provides in relevant part:

“If, after the accidental injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall *** receive compensation for the duration of his disability *** equal to 66%% of the difference between the average amount which he would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident.” (111. Rev. Stat. 1987, ch. 48, par. 138.8(d)(1).)

Pursuant to this provision, a claimant is entitled to wage loss benefits for the duration of his disability. The purpose of section 8(d)(1) is to compensate the injured employee for his reduced earning capacity. Fritz Electric Co. v. Industrial Comm’n (1988), 165 Ill. App. 3d 550, 559, 518 N.E.2d 1289.

In the case sub judice the claimant was no longer able to work in his former occupation as a surface grinder when he developed contact dermatitis as a result of his exposure to certain chemicals. While the arbitrator and Commissioner Kinnaman concluded that the claimant was entitled to a wage loss differential benefit based on a reduction of his salary to $5 per hour, the claimant concedes that the benefit amount should be based on two-thirds of the difference between his hourly wage as a surface grinder which was $11.30 and the hourly wage of $7.63. Although the Commission, in its findings, acknowledged that the claimant could no longer perform his original job as a surface grinder due to the contact dermatitis and that he was entitled to a wage loss benefit when he was moved to a position in the employer’s stockroom, the Commission concluded that the claimant failed to prove an ongoing wage loss subsequent to leaving the employer.

Relying on Durfee v. Industrial Comm’n (1990), 195 Ill. App. 3d 886, 553 N.E.2d 8, the employer argues that had the claimant remained at Sargent-Welch he would not have to prove that he could only earn $7.63 an hour but that because he voluntarily left the employer and accepted a position in Michigan, he now has to prove that he is unable to find employment at the wages he received as a surface grinder.

In Durfee, the petitioner was unable to perform his job as a repairman of heavy equipment and machinery following an injury to his leg and pelvic area. After completing a rehabilitation program, the petitioner accepted a position with a church school at a reduced wage rate. On appeal, the court affirmed the denial of wage differential benefits based on the fact that the petitioner’s physician had suggested that he perform his former job on a trial basis and placed no restriction on his activity. The court also noted that, although the petitioner had been employed as a computer operator 15 years earlier, he made no effort to obtain employment in this field. Based on these factors, the Durfee court held that there was sufficient evidence to support the Commission’s determination that the petitioner had not shown a loss in. earning capacity. Durfee, 195 Ill. App. 3d at 890.

However, Durfee is distinguishable in several respects. Unlike the petitioner in Durfee, the claimant in this case was unable to return to his former occupation and was placed in a different position at a lower wage by the employer. In addition, there was no evidence that the claimant had an occupation prior to his position as a surface grinder that would have given him the opportunity to find employment without a reduction in wages.

In sum, there is no evidence that the status of claimant’s disability has changed. Because he is entitled to benefits under section 8(d)(1) for the duration of his disability, we conclude that the claimant should have continued to receive benefits based on two-thirds of the difference between $11.30 and $7.63 for a 20-hour work week subsequent to his leaving the employer.

Accordingly, the order of the circuit court reversing the decision of the Commission is affirmed.

Affirmed.

WOODWARD, STOUDER, and LEWIS, JJ., concur.

PRESIDING JUSTICE McCULLOUGH,

specially concurring:

I agree with the majority that the employee should be granted a wage differential as provided for by the circuit court’s order, but for the following reasons.

The Commission allowed a wage differential from February 25, 1986, to July 1, 1986, in an amount of $89.45, a wage differential from July 1, 1986, to April 1, 1987, in the amount of $216.46, and a wage differential -from April 1, 1987, to December 11, 1987, in the amount of $187.17. This decision by the Commission and confirmed by the circuit court is not appealed by either party to the case. The Commission in justifying the above wage differential to the employee found “injuries sustained permanently incapacitate him from pursuing the duties of his usual and customary line of employment.” The only reason the Commission terminated the wage differential was the fact that the employee voluntarily terminated his employment with the employer.

The Commission’s finding that the employee was entitled to a wage differential up until the date December 11, 1987, when he terminated his employment with the employer is inconsistent with its finding that the injuries did not permanently incapacitate him from pursing his usual and customary line of employment after that date.

Durfee, as cited by the respondent, is inapposite. In that case, the Commission found that the employee was entitled to a section 8(dX2) award (see 111. Rev. Stat. 1983, ch. 48, par. 138.8(dX2)) and was not entitled to a section 8(dXl) award (see 111. Rev. Stat. 1983, ch. 48, par. 138.8(dXl)). In Durfee we found that there was sufficient evidence to support the Commission’s determination that the petitioner had not shown a loss in earning capacity. Here, by the Commission’s decision itself, it found that there was wage differential for a certain period of time and simply set a cutoff period with no justification. The claimant did not cross-appeal the decision of the circuit court setting the wage differential after December 11, 1987, at the two-thirds of the difference between $11.30 and $7.63 for a 20-hour work week.

The respondent did not appeal the decision of the Commission insofar as it granted a wage differential up until the time the employee ceased employment with it. The only issue presented by the employer is whether the decision of the Commission which denied the claimant a wage differential after December 11, 1987, was against the manifest weight of the evidence. When one looks at the findings of the Commission and also its provision allowing a wage differential for a certain period of time up until the employee terminated his employment with the employer, the decision of the Commission terminating the wage differential after that date is contrary to law.

       Justice Lewis fully participated in this opinion prior to his retirement.


source: Caselaw Access Project

author: PRESIDING JUSTICE GORDON

license: Public Domain

text:
    JEROME O’NEILL et al., Plaintiffs-Appellants, v. LARRY D. BROWN et al., Defendants-Appellees.
    First District (5th Division)
    No. 1 — 91—1137
    Opinion filed January 22, 1993.

      Michael D. Falls, Chartered, of Deerfield, for appellants.
    William C. Peterman, of Peterman & Bohn, of Chicago, for appellees.
   PRESIDING JUSTICE GORDON

delivered the opinion of the court:

Plaintiffs, Jerome and Lucille O’Neill, brought suit seeking injunc-tive relief under the Illinois Comprehensive Solar Energy Act of 1977 (Solar Energy Act) (111. Rev. Stat. 1989, ch. 96V2, par. 7301 et seq.) alleging that a second-story addition to defendants’ home would partially shade their greenhouse and would thus unlawfully encroach upon their “solar skyspace easement” which plaintiffs contend was created pursuant to the Solar Energy Act. The trial court dismissed plaintiffs’ complaint under section 2 — 615 of the Illinois Code of Civil Procedure (111. Rev. Stat. 1989, ch. 110, par. 2 — 615), finding that the Solar Energy Act did not create such an easement for sunlight. Plaintiffs appeal from this ruling.

Facts

Plaintiffs’ property is a residential structure with a rear addition containing a greenhouse and a breakfast room. Defendants’ property, which is located directly south of plaintiffs’ property, is a two-story house with a single-story addition at the rear of the residence. On October 13, 1989, defendants, Larry and Kathleen Brown, appeared before the Plan Commission and Zoning Board of Appeals of the Village of Lincolnwood (Plan Commission) and applied for a variance to add a second story to the addition at the rear of their house. Plaintiffs objected, contending that the addition of the second story on this portion of defendants’ house would cast a large shadow on their greenhouse and breakfast room during the winter months.

Notwithstanding plaintiffs’ objections, the Plan Commission made a positive recommendation to the Lincolnwood board of trustees, who on November 2, 1989, granted defendants’ request for a variance. In so doing, the board noted that the variance exceeded the rear yard setback requirements by only 5.14 feet and did not expand the ground-level configuration of the home.

On January 16, 1990, plaintiffs filed an action for injunctive relief and for a declaratory judgment under section 2 — 701 of the Hlinois Code of Civil Procedure against defendants and the Village of Lin-colnwood. (111. Rev. Stat. 1989, ch. 110, par. 2 — 701.) In count I, plaintiffs alleged that the village board had abused its discretion in granting the variance and that its decision was arbitrary and confiscatory. In count II, plaintiffs sought an injunction under the Illinois Comprehensive Solar Energy Act (111. Rev. Stat. 1989, ch. 96%, par. 7301 et seq.) contending that their greenhouse was a “solar collector” within the meaning of the Solar Energy Act and that as such they had a “solar skyspace easement” which was being improperly encroached upon by defendants’ addition.

Defendants and the Village of Lincolnwood each filed a motion to dismiss plaintiffs’ complaint pursuant to section 2 — 615 of the Hlinois Code of Civil Procedure (111. Rev. Stat. 1989, ch. 110, par. 2 — 615) challenging the sufficiency of counts I and II. More specifically, with respect to count II, defendants argued that plaintiffs failed to state a cause of action under the Solar Energy Act because their residence did not constitute a “solar collector” within the meaning of the Solar Energy Act. On May 24, 1990, the trial court dismissed plaintiffs’ complaint on all counts and with respect to all parties with leave to amend. On that same day, an agreed order was entered which dismissed the Village of Lincolnwood with prejudice with respect to count II of plaintiffs’ complaint.

On June 20, 1990, plaintiffs filed an amended complaint naming only the Browns as defendants. In their amended complaint, plaintiffs only sought relief under the Solar Energy Act, alleging that their greenhouse qualified as a “solar collector” because it was attached to their property for the specific purpose, and with the specific design, of gathering, concentrating or absorbing direct and indirect solar energy which would subsequently be used to heat the property.

On July 6, 1990, defendants filed a motion to dismiss plaintiffs’ amended complaint under section 2 — 615, again arguing that the greenhouse was not a “solar collector” and that a “solar skyspace easement” was never created. On September 26, 1990, the trial court granted this motion to dismiss, stating that plaintiffs’ greenhouse was not a “solar collector” as contemplated by the Solar Energy Act. The trial court reiterated its statement from the dismissal of plaintiffs’ first complaint, “that a sunroom/greenhouse or a room such as described in this complaint is not the solar collector contemplated by this statute to which the easement could be created.”

On October 15, 1990, plaintiffs filed a motion for leave to file a second amended complaint alleging new circumstances in that since September 26, 1990, they installed solar energy panels of the type contemplated “by the Act.” Pursuant to that motion, the trial court granted plaintiffs leave to file a second amended complaint alleging installation of the solar energy panels and the protection afforded them by the Solar Energy Act. On November 19, 1990, defendants filed a motion to dismiss under section 2 — 619(aX9) of the Illinois Code of Civil Procedure (111. Rev. Stat. 1989, ch. 110, par. 2 — 619(aX9)), arguing, among other things, that even with the new solar panels the Solar Energy Act does not create an automatic “solar skyspace easement.” The motion to dismiss was set for hearing on March 22,1991.

On February 27, 1991, plaintiffs filed a response to defendants’ motion. On March 12, 1991, defendants filed a reply to plaintiffs’ response. In their reply, defendants stated that the arguments raised in their motion to dismiss challenged plaintiffs’ complaint for failing to state a cause of action and were therefore more properly brought under section 2 — 615. At that time, defendants attached excerpts from the legislative debates leading to the adoption of the Solar Energy Act to support their contention that the Act does not purport to recognize the creation of an automatic easement.

On March 19, 1991, plaintiffs filed a motion for leave to file a sur-reply brief and a motion for continuance of the March 22, 1991, hearing, contending that they did not receive defendants’ response until March 18, 1991, and that that response contained new arguments under section 2 — 615. At the March 22, 1991, hearing, plaintiffs’ counsel requested a continuance and objected to proceeding without the opportunity to file a surreply brief. In response, defendants’ counsel stated that plaintiffs were three weeks late in filing their response to the motion to dismiss, thus delaying defendants’ reply.

The trial court denied plaintiffs’ motion for a continuance, noting that the case had been on the docket for a long time, that two motions to dismiss were already heard in the case, and that counsel was familiar with the case. The trial court then granted defendants’ motion to dismiss under section 2 — 615, stating among other things that the Solar Energy Act did not create a “solar skyspace easement.” Plaintiffs appeal from the court’s order granting defendants’ motion to dismiss and denying their motion to file a surreply brief and for a continuance.

Opinion

Plaintiffs first contend on appeal that the trial court erred in granting defendants’ motion to dismiss their second amended complaint because the Illinois Comprehensive Solar Energy Act creates an enforceable “solar skyspace easement.” In support of their contention that the Solar Energy Act creates such an easement, plaintiffs cite to section 1.2(f) of the Illinois Comprehensive Solar Energy Act (111. Rev. Stat. 1989, ch. 96x/2, par. 7303(f)), entitled “Definitions.” This section provides:

“(f) ‘Solar skyspace easement’ means
(1) a right, whether or not stated in the form of a restriction, easement, covenant, or condition, in any deed, will, or other instrument executed by or on behalf of any owner of land or solar skyspace or in any order of taking, appropriate to protect the solar skyspace of a solar collector at a particularly described location to forbid or limit any or all of the following where detrimental to access to solar energy.
(a) structures on or above ground;
(b) vegetation on or above the ground; or
(c) other activity;
(2) and which shall specifically describe a solar skyspace in three dimensional terms in which the activity, structures, or vegetation are forbidden or limited or in which such an easement shall set performance criteria for adequate collection of solar energy at a particular location.” 111. Rev. Stat. 1989, ch. 961/2, par. 7303(f).

Specifically, plaintiffs contend that the above definition creates an enforceable “solar skyspace easement” upon installation of a “solar collector.” According to plaintiffs, the scope of this “solar skyspace easement” is established according to the performance criteria of section 1.2(e), which defines “Solar Skyspace” as the “maximum three dimensional space extending from a solar energy collector to all positions of the sun necessary for efficient use of the collector.” (111. Rev. Stat. 1989, ch. 96%, par. 7303(eXl).) We disagree.

Construction of a statute is a matter of law. (Berrios v. Rybacki (1989), 190 Ill. App. 3d 338, 546 N.E.2d 651.) The primary objective of statutory interpretation is to determine the legislative intent in enacting the statute. (Kirwan v. Welch (1989), 133 Ill. 2d 163, 549 N.E .2d 348.) Legislative intent is best evidenced by the words used in the statute. (Kraft, Inc. v. Edgar (1990), 138 Ill. 2d 178, 189, 561 N.E.2d 656.) Courts will give effect to the legislative intent underlying the statute by “looking at the statute as a whole, taking into consideration its nature and its purposes and ascribing to each word, clause or sentence therein some reasonable meaning.” (Village of South Elgin v. City of Elgin (1990), 203 Ill. App. 3d 364, 368, 561 N.E.2d 295.) Moreover, statutes in derogation of the common law are strictly construed in favor of persons sought to be subjected to their operation and courts will read nothing into such statutes by intendment or implication. In re W.W. (1983), 97 Ill. 2d 53, 454 N.E.2d 207; Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 384 N.E.2d 323.

A statute which attempts to establish an easement for sunlight would be in derogation of the common law. Illinois common law has rejected the “ancient lights” doctrine which recognizes a prescriptive easement for light and air. (Baird v. Hanna (1927), 328 Ill. 436, 159 N.E. 793; Keating v. Springer (1893), 146 Ill. 481, 492, 34 N.E. 805; see also Note, An Integrated Approach to Solar Access, 34 Case W. Res. L. Rev. 367, 368 (1984), quoting Keiper v. Klein (1875), 51 Ind. 316, 323 (“Courts have historically shown great reluctance to interfere with land use on the basis of something ‘so impalpable and fleeting as air and light’ ”).) In rejecting the existence of a right to solar access, courts have generally noted that “easements of light and air over adjacent premises are not favored because such devices inhibit the growth and the use of the land.” Note, Recent Cases, 52 U. Cin. L. Rev. 208, 211 (1984).

In People ex rel. Hoogasian v. Sears, Roebuck & Co. (1972), 52 Ill. 2d 301, 287 N.E.2d 677, the Illinois Supreme Court addressed a nuisance action which was brought to halt construction of a building because it would interfere with television reception in the area. (52 Ill. 2d at 302.) Quoting from Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. (Fla. App. 1959), 114 So. 2d 357, the court stated:

“ ‘There being *** no legal right to the free flow of light and air from the adjoining land, it is universally held that where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action *** even though it causes injury to another by cutting off the light and air and interfering with the view that would otherwise be available over adjoining land in its natural state, regardless of the fact that the structure may have been erected partly for spite.’ ” Hoogasian, 52 Ill. 2d at 304, quoting Fontainebleau Hotel, 114 So. 2d at 359-60.

See also American National Bank & Trust Co. v. City of Chicago (1990), 209 Ill. App. 3d 96, 568 N.E.2d 25 (reaffirming the principles articulated in Hoogasian); Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 579, 325 N.E.2d 799 (“under Illinois law one property owner may not acquire a prescriptive or implied right to air, light, or ventilation over the land of another”).

Taking into account the language and nature of the Solar Energy Act as a whole and the principles by which this court must be guided in construing the statute, we find that the language of the Solar Energy Act does not evidence a legislative intent to establish and give effect to a new property right of solar access.

The provision relied on by plaintiffs is contained in a definitional section of the Solar Energy Act under an official heading entitled “Definitions.” (Ill. Rev. Stat. 1989, ch. 961/2, par. 7303.) (See People v. Lamb (1992), 224 Ill. App. 3d 950, 953, 587 N.E.2d 61 (official heading or title of statute can provide guidance in interpreting statute); see also Illinois Bell Telephone Co. v. Ames (1936), 364 Ill. 362, 365, 4 N.E.2d 494 (“resort may be had to the title [of an act] to enable the court to discover the intent and make certain what is otherwise uncertain or ambiguous”); Merchants National Bank v. Olson (1975), 27 Ill. App. 3d 432, 325 N.E.2d 633.) It begins “ ‘Solar skyspace easement’ means ***.” (Emphasis added.) (111. Rev. Stat. 1989, ch. 961/2, par. 7303(f).) The legislature’s apparent intention in crafting this definition was not to create a right, but to give a uniform definition to certain terms in anticipation of future legislation, whether at the State or municipal level, which would include operative or enforcement language to establish and give effect to as yet undetermined solar rights. See 80th 111. Gen. Assem., Senate Proceedings, May 20, 1977, at 95 (statement of Senator Nimrod: “The only thing that this bill does *** [is] put[ ] us in the position *** so that with the definitions and the uniformity, that we will be able to adapt and be able to take care of any of those funds that are available to the State of Illinois if we should so choose, but there are no programs and no monies that we mandated under the present proposal”); Antunes v. Sookhakitch (1992), 146 Ill. 2d 477, 588 N.E.2d 1111 (legislative history of a statute can be examined in order to determine the intent of the legislature in enacting the statute).

The Solar Energy Act’s function as priming legislation is apparent from a reading of the Solar Energy Act in its entirety, particularly section 1.1(e) (111. Rev. Stat. 1989, ch. 961/2, par. 7302(e)), which sets forth the underlying purposes of the Solar Energy Act. This section, entitled “Legislative findings,” provides “[t]hat it is in the public interest to define solar energy systems, demonstrate solar energy feasibility, apply incentives for using solar energy, educate the public on solar feasibility, study solar energy application and coordinate governmental programs affecting solar energy.” (Emphasis added.) (111. Rev. Stat. 1989, ch. 961/2, par. 7302(e).) All of these purposes indicate an intent to initiate the development of solar energy use through education, studies, and incentive programs rather than the creation of solar rights.

The specific provisions of the Solar Energy Act also address and establish programs consistent with the aforementioned purposes of the Solar Energy Act, not the creation or regulation of a property right. These provisions authorize the Illinois Department of Energy and Natural Resources to develop incentive programs for encouraging the use of solar energy (111. Rev. Stat. 1989, ch. 961/2, par. 7308), to develop educational programs for the public on the use and impact of solar energy (111. Rev. Stat. 1989, ch. 96x/2, par. 7310), to conduct policy studies on the relationship between public energy suppliers and solar energy systems (111. Rev. Stat. 1989, ch. 96x/2, par. 7312), and to provide refunds for the installation of solar energy systems. (111. Rev. Stat. 1989, ch. 96x/2, par. 7317.) The operative language of the statute is limited to studies, incentives and educational programs.

We note the conspicuous absence from the enumerated legislative findings, and their corresponding operative provisions, any mention of the creation of a “solar skyspace easement” or any similar corresponding alteration of existing property rights to accommodate solar energy systems. Private causes of action have been found to exist in statutes which do not expressly provide for them. (See Hoover v. May Department Stores Co. (1978), 62 Ill. App. 3d 106, 378 N.E.2d 762 (holding that Retail Installment Sales Act contained a private right of action), rev’d (1979), 77 Ill. 2d 93, 395 N.E.2d 545 (basing its reversal of appellate court’s decision recognizing a private cause of action on fact that private remedy of previous act was not reenacted in new act); Rice v. Snarlin, Inc. (1970), 131 Ill. App. 2d 434, 266 N.E.2d 183 (determining that Consumer Fraud Act contained a private right of action).) However, as the court noted in Stewart v. Amoco Oil Co. (1979), 72 Ill. App. 3d 330, 389 N.E.2d 1323, these were elaborately drawn statutes which made certain practices unlawful and created liability and penalties on certain parties for violation of its provisions. (72 Ill. App. 3d at 337-38; see also Rice, 131 Ill. App. 2d at 441.) Here no penalties or liabilities are established nor is there any operative language establishing the existence of such easements.

In support of their position that the Solar Energy Act creates an easement, plaintiffs cite the preamble of the Solar Energy Act, placing emphasis on specific language:

“AN ACT in relation to the comprehensive demonstration, encouragement, and development of solar energy systems and a State solar energy program, to establish certain elements of said program, to define certain terms and responsibilities, and to amend certain Acts in connection therewith.” (Emphasis added by plaintiffs.) Preamble of the Comprehensive Solar Energy Act of 1977, 111. Rev. Stat. 1989, ch. 96V2, par. 7301 et seq.

While a preamble to an act can be examined in determining legislative intent (Radford v. Cosmopolitan National Bank (1964), 52 Ill. App. 2d 240, 201 N.E.2d 622), we fail to see how this language supports plaintiffs position that the legislature intended to create a “solar skyspace easement.” The reference to “responsibilities” more than likely refers to those provisions of the Solar Energy Act which formulate the Solar Energy Program and the responsibilities of the Illinois Department of Energy and Natural Resources to implement that program. See 111. Rev. Stat. 1989, ch. 96V2, par. 7304.

In sum, plaintiffs would require that this court transform a single clause, written and postured as a definition, into an affirmative right for a prescriptive easement; a right which was explicitly rejected under common law. While it may be well within the legislature’s power to change the law, and the adoption of definitions may signal the direction of that change, we cannot determine that the legislature intended to create a right to solar access solely by the enactment of this definition without further elaboration or amendment.

Plaintiffs’ second argument on appeal is that the trial court erred in denying their motion for a continuance of the hearing date on defendants’ motion to dismiss their second amended complaint. Specifically, plaintiffs complain that the defendants’ motion to dismiss was brought under section 2 — 619 and that defendants’ reply raised issues under section 2 — 615 and that defendants, for the first time, attached excerpts of the legislative debates surrounding the adoption of the Solar Energy Act to their reply. Plaintiffs rely primarily on Cur tin v. Ogborn (1979), 75 Ill. App. 3d 549, 394 N.E.2d 593, where the court stated that a continuance should not be denied “where the ends of justice clearly require it.” 75 Ill. App. 3d at 553.

A litigant has “no absolute right to have a case continued.” (Lipke v. Celotex Corp. (1987), 153 Ill. App. 3d 498, 510, 505 N.E.2d 1213.) The decision to deny a motion for a continuance is within the sound discretion of the trial court and such decision will not be disturbed absent an abuse of discretion or unless palpable injustice appears in the record on appeal. (Village of Maywood v. Barrett (1991), 211 Ill. App. 3d 775, 570 N.E.2d 645; Martinez v. Scandroli (1985), 130 Ill. App. 3d 712, 474 N.E.2d 456.) A reviewing court must balance the prompt disposition Of the case with the equally compelling interest in obtaining justice to determine whether an abuse of discretion occurred. Schumacher v. Continental Air Transport Co. (1990), 204 Ill. App. 3d 432, 562 N.E.2d 300.

A critical factor in determining whether the trial court abused its discretion in denying a motion for a continuance is whether the party exercised diligence below. (Curtin, 75 Ill. App. 3d at 553.) In this respect, plaintiffs filed their response to defendants’ motion a month after it was due, compelling a one-month postponement of defendants’ reply, which became due 14 days after the filing of plaintiffs’ response.

In addition to plaintiffs’ lack of diligence, we also note that the defendants presented similar arguments, that plaintiffs’ greenhouse was not a solar collector and that no easement was present, in their two earlier motions to dismiss and that the earlier motions were similarly brought under section 2 — 615. While the late shift from a section 2 — 619 motion to a section 2 — 615 motion could well require that a continuance be granted, justice does not require it in a case such as this where the arguments between the parties have remained comparatively similar throughout the course of the litigation, minimizing the likelihood of any unfair surprise. Plaintiffs’ attempt to characterize the legislative debates as new evidence which surprised them is not persuasive. Such debates are a conventional reference source in determining legislative intent which plaintiffs had an adequate opportunity to research prior to the filing of their response as well as during the course of the two earlier motions to dismiss. Therefore, we cannot conclude that the trial court abused its discretion in denying plaintiffs’ motion for a continuance. Moreover, we note that plaintiffs had full opportunity to supplement their argument on appeal as to the applicability of the Solar Energy Act upon which their dismissal was predicated in the trial court so that whatever missed opportunities they claimed to have had in the trial court did not prejudice them in this appeal.

For the foregoing reasons, we affirm the judgment of the circuit court.

Judgment affirmed.

MURRAY and COUSINS, JJ., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN SMITH, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 90—1500
    Opinion filed January 25, 1993.
    Rehearing denied March 9, 1993.

      Rita A. Fry, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Laura E. Forester, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

On April 6, 1988, defendant, Brian Smith, shot and killed Ronald Kucera, as defendant fled the scene of a home invasion and armed robbery in which he was one of four participants.

Kucera was the manager of an apartment building located at 5129 South Harper in Chicago. On the date of the incident, Tommy Gentry was in apartment 514 of the building, visiting with its occupants, Bruce Johnson and Larue Cooper. At 6:30 p.m., defendant and three cohorts gained entry to that fifth-floor apartment and, at gunpoint, robbed Gentry, Johnson and Cooper of both money and jewelry. Eventually, Cooper escaped from the apartment and ran hysterically to Ku-cera’s ground-floor apartment, shouting “Ron, they are sticking my cousins up, they got guns, get your gun.” Kucera called police and then instructed Cooper to remain in Kucera’s apartment. At the same time, defendant and his colleagues had just descended the back stairway to the ground floor and were attempting to flee the building through the back door. Discovering that the door was locked, they began to go back upstairs. Kucera, with gun in hand, walked to the stairway and told them to “Hold it right there, you are going to wait for the police to get here, don’t move.” Defendant then reached for his gun, hidden in his waistband, and fired three shots at Kucera, striking him in the neck and chest. Defendant and his associates then fled the scene.

Eventually, defendant was apprehended, charged, and tried before a jury, which convicted him of the home invasion of both Cooper and Johnson, the armed robberies of Cooper, Johnson, and Gentry, and the murder of Kucera. Defendant was sentenced to concurrent terms of 20 years in the custody of the Department of Corrections for the armed robberies, in addition to a 60-year term for the murder, with the murder sentence to run consecutively to the armed robbery sentence. Defendant appeals both the convictions and sentence.

We affirm.

Defendant initially contends that the jury instructions in the present case improperly failed to indicate that a felon’s right of self-defense is “reinstated after a complete withdrawal, followed by a new encounter initiated by the other person.”

The State responds that defendant has waived this issue by failing to object to the omission at trial and by failing to include the issue in the post-trial motion. Indeed, the failure to object at trial to an error in jury instructions or the failure to raise the issue in the post-trial motion precludes argument of the issue on appeal. (People v. Thur man (1984), 104 Ill. 2d 326, 329, 472 N.E.2d 414; People v. Berry (1984), 99 Ill. 2d 499, 503, 460 N.E.2d 742.) Although this court, under the plain error doctrine, may excuse the waiver in a closely balanced case or to cure “substantial defects” (People v. Sowinski (1986), 148 Ill. App. 3d 231, 241-42, 498 N.E.2d 650; see also People v. Lyons (1967), 36 Ill. 2d 336, 223 N.E.2d 99), we do not believe that the present case warrants the application of the doctrine.

The circuit court, here, instructed the jury that

“[a] person is justified in the use of force when and to the extent that he reasonably believed that such conduct is necessary to defend himself against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force in [sic] necessary to prevent the imminent death or great bodily harm to himself.”

The court further instructed the jury that

“[a] person is not justified in the use of force if he is escaping after the commission of a forcible felony.”

The instructions given to the jury correctly stated the law in this area. A fleeing felon is afforded no right to self-defense in Illinois. (111. Rev. Stat. 1989, ch. 38, par. 7 — 4(a). See also People v. Salazar (1988), 126 Ill. 2d 424, 535 N.E.2d 766, cert. denied (1990), 497 U.S. 1051, 111 L. Ed. 2d 797, 110 S. Ct. 3288; People v. Bell (1989), 191 Ill. App. 3d 877, 548 N.E.2d 397, appeal denied (1990), 131 Ill. 2d 561, 553 N.E.2d 397; People v. Gates (1977), 47 Ill. App. 3d 109, 361 N.E.2d 809.) As noted in the Committee Comments to article 7 of the Criminal Code of 1961 (111. Rev. Stat. 1989, ch. 38, par. 7 — 1 et seq.), the fleeing felon exception to self-defense does not permit the “right of retreat short of complete withdrawal such that the victim’s subsequent use of force initiates a new conflict: if the situation is such that either the aggressor or the victim must suffer harm or even death, the victim clearly is the one entitled to such protection as the law affords.” 111. Ann. Stat., ch. 38, par. 7 — 4, Committee Comments — 1961, at 402 (Smith-Hurd 1989).

Defendant, however, maintains that the jury might have concluded, legitimately, that defendant had withdrawn from the armed robbery because he had released Gentry and Johnson from the apartment and had left the fifth-floor apartment. We find this argument rather specious as the record clearly established that Johnson and Gentry escaped from the apartment only when a neighbor knocked on the door, asking if everything was all right. Johnson testified that, when defendant opened the door, Johnson rushed at it and pushed Gentry into the apartment across the hallway. Defendant, therefore, did not “release” his captives in the manner he suggests on appeal. Moreover, after Gentry and Johnson made their escape, defendant and his cohorts attempted to flee from the building, and they encountered Kucera, to whom one of the robbery victims turned for help. Kucera told them to “hold it” and “wait” for the police to arrive. In response, defendant fired three shots at Kucera, two of which struck him. Clearly, defendant fired upon Kucera in an effort to facilitate his escape. Contrary to defendant’s assertions, there was no evidence presented that Kucera fired at defendant first. A bystander who witnessed the shooting, Lewis Jackson, stated that he saw defendant fire three shots at Kucera. Jackson then heard a shot fired by Kucera, apparently taken in self-defense as he was struck.

The cases cited by defendant in support of his argument of a complete withdrawal are factually distinguishable from the present case and, as a result, are unpersuasive. In People v. Forte (1915), 269 111. 505, 110 N.E. 47, the defendant fired a shot at the victim and ran away. The victim, however, subsequently pursued the defendant and attempted to strangle her. This attempt to strangle, the court ruled, revived the defendant’s right to defend herself. (People v. Forte, 269 111. at 512.) In People v. Fort (1970), 119 111. App. 2d 350, 256 N.E.2d 63, the reviewing court noted that the right to defend oneself does not permit the pursuit and the injuring of an aggressor after the aggressor “abandons the quarrel.”- (People v. Fort, 119 111. App. 2d at 355.) However, the court ruled that defendant was not entitled to the defense because the victim “gave up the fight and ran from the scene.” (People v. Fort, 119 111. App. 2d at 355.) Furthermore, the court did not address the issue of jury instructions in Fort. Neither case contains a factual scenario similar to that presented here.

After carefully reviewing the record, we hold that defendant’s conduct in fleeing from the armed robbery did not amount to the complete withdrawal contemplated by either the statute or the cases interpreting the statute. Accordingly, the instructions given to the jury here by the circuit court were proper.

Defendant next contends that the circuit court erred in refusing to instruct the jury on voluntary manslaughter. Citing People v. Lockett (1980), 82 111. 2d 546, 413 N.E .2d 378, he argues that, by instructing the jury on justifiable use of force, the circuit court was obligated to give the instruction on voluntary manslaughter. The State argues that, because defendant was not entitled to the justified use of force instruction, he had no right to an instruction concerning unreasonable belief in the use of force. We agree.

During the instruction conference, defense counsel tendered instructions on second degree murder based upon unreasonable belief in justification, Illinois Pattern Jury Instructions, Criminal, Nos. 7.05A and 7.06A (2d ed. Supp. 1987) (hereinafter IPI Criminal 2d). The State objected that the instructions were “inappropriate to the facts” of the case, and the court refused to give them to the jury. The jury was given IPI Criminal 2d Nos. 24.06 and 25.06, the instructions regarding justifiable use of force.

IPI Criminal 2d Nos. 7.05A and 7.06A (Supp. 1987) are based on section 9 — 2(b) of the Criminal Code (111. Rev. Stat. 1989, ch. 38, par. 9 — 2(b)), which covers second degree murder based upon an unreasonable belief in justification. Section 9 — 2(b) provides that a person is guilty of second degree murder when he intentionally or knowingly kills another under the unreasonable belief that the killing was justified under article 7 of the Code. Article 7, section 7 — 1, of the Code (111. Rev. Stat. 1989, ch. 38, par. 7 — 1) states that a person is justified in the use of force intended to cause death or great bodily harm if he reasonably believes the force is necessary to prevent imminent death or great bodily harm. Justifiable use of force is a defense in a murder prosecution when the person’s belief “is reasonable even if it is mistaken.” (111. Ann. Stat., ch. 38, par. 7 — 1, Committee Comments, at 352 (Smith-Hurd 1989).) However, section 7 — 4(a) states that the “justification described in the preceding Sections of this Article [section 7 — 1] is not available to a person who *** is *** escaping after the commission of, a forcible felony.” (HI. Rev. Stat. 1989, ch. 38, par. 7— 4(a).) This statutory language clearly establishes that defendant was not entitled to raise self-defense and, as a fleeing felon, could not use any of the justifications found in article 7 to fall within the purview of the second degree murder statute.

Defendant’s misapprehension of the law concerning self-defense and its inapplicability to fleeing felons renders his reliance on People v. Lockett unpersuasive. There, the supreme court noted that a defense based upon self-defense does not preclude a voluntary manslaughter instruction in a murder prosecution. (.People v. Lockett, 82 HI. 2d at 550.) The court further reasoned if the evidence supports a self-defense instruction, it will also support a voluntary manslaughter instruction. (People v. Lockett, 82 HI. 2d at 551.) However, the defendant in Lockett was not a fleeing felon. The victim and defendant had gotten into a verbal argument, which escalated into a physical confrontation when defendant mistakenly thought the victim was pulling a gun on him. (.People v. Lockett, 82 111. 2d at 549.) The facts in the present case implicate the fleeing felon exception to self-defense and bear little resemblance to the facts in People v. Lockett. The circuit court, therefore, did not err in refusing to instruct the jury on second degree murder.

Defendant next identifies as error the circuit court’s denial of defense counsel’s motion for a mistrial when the victim’s widow broke down, sobbed, and screamed before the jury.

The record does not reflect an abuse of discretion on the part of the circuit court. When Mrs. Kucera became upset during the course of her testimony, the circuit court immediately allowed a recess, and a sidebar was conducted in which the following colloquy took place:

“MR. HAAS [defense attorney]: The victim [sic] has been crying in front of the jury for several minutes, we move for a mistrial, it is unduly prejudicial.
THE COURT: Clearly it has not been several minutes that she has been sobbing. At this time the motion for a mistrial is denied.”

Defense counsel renewed his motion for a mistrial at the conclusion of the court’s morning session:

“MR. HAAS: We would just renew our motion for a mistrial based on demeanor and what Judy Kucera said, she was crying, she broke down throughout her testimony and at one point she was screaming.
I think it was unduly prejudicial.
THE COURT: State, response?
MR. EPACH [assistant State’s Attorney]: Judge Urso, you were here for that.
THE COURT: Motion for mistrial denied.
The Court does not believe it was unduly prejudicial.”

A genuine, emotional outburst by a witness does not require a mistrial. (People v. Hudson (1970), 46 HI. 2d 177, 263 N.E.2d 473; People v. Wright (1975), 32 HI. App. 3d 736, 336 N.E.2d 18.) The decision to order" a mistrial is within the discretion of the trial court (People v. Bolla (1983), 114 HI. App. 3d 442, 448 N.E.2d 996), and, upon review, that decision will not be reversed absent an abuse of discretion. (People v. Chaffin (1971), 49 HI. 2d 356, 274 N.E.2d 68.) In the present case, the circuit court was in a superior-position to determine the impact that the witness’ crying may have had on the jury. Accordingly, we find no abuse of discretion in refusing defendant’s request to declare a mistrial.

Defendant next asserts that a “primary theme of the prosecution in this case was that the deceased was a good Samaritan” and that the prosecution also “drew attention” to his surviving family. These attempts operated, defendant argues, to deny him a fair trial because they were prejudicial and improper.

A review of the post-trial motion filed here reveals that this issue was not raised. As a result, defendant is precluded from arguing the issue on appeal. See People v. Enoch (1988), 122 HI. 2d 176, 522 N.E.2d 1124, cert, denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.

Moreover, the record does not demonstrate the need to excuse the waiver under the plain error doctrine. The armed robbery victim, Cooper, travelled from the fifth floor to the ground floor-of the building to summon Kucera. The evidence presented by the prosecution, namely Kucera’s concern and generosity toward his tenants, explained why Cooper would summon Kucera and not a neighbor closer in proximity to the scene of the armed robbery. Thus, the complained-of evidence appears to have provided the jury with some type of context for the events which took place on April 6, 1988. As such, the testimony was relevant and proper. Furthermore, any references to Kucera’s family which were Unnecessary were incidental and not dwelled upon. See People v. Del Vecchio (1989), 129 HI. 2d 265,J 544 N.E.2d 312, cert, denied (1990), 494 U.S. 1062, 108 L. Ed. 2d 779, 110 S. Ct. 1540.

Defendant also claims error resulting from certain comments made during the State’s closing arguments. However, defendant failed to make contemporaneous objections to the comments he now cites in his brief, and his post-trial motion omitted specific reference to the remarks as is required. (See, e.g., People v. Thomas (1984), 121 HI. App. 3d 883, 460 N.E.2d 402.) We find no reason to excuse the waiver under the limited plain error exception. See People v. Carlson (1980), 79 111. 2d 564, 404 N.E.2d 238.

Defendant next contends that the circuit court considered improper factors in aggravation resulting in a sentence which is excessive. Defendant also asserts that the imposition of consecutive sentences was improper.

Sentencing is discretionary with the circuit court and will not be changed upon review absent an abuse of that discretion. (People v. Perruquet (1977), 68 HI. 2d 149, 368 N.E.2d 882; People v. Holloway (1985), 131 111. App. 3d 290, 475 N.E.2d 915.) The circuit court is presumed to have based the sentence on proper legal reasoning, and reviewing courts, in general, are reluctant to reduce a sentence that is within the applicable statutory guidelines. People v. Lambrechts (1977), 69 111. 2d 544, 372 N.E.2d 641.

We initially note that the sentence imposed in the present case falls within the applicable statutory guidelines. Defendant’s 60-year sentence for murder is within the range prescribed by the Unified Code of Corrections. (See 111. Rev. Stat. 1989, ch. 38, par. 1005— 8 — l(aXl).) The 20-year concurrent terms imposed for the three armed robbery convictions are also consistent with the statutory limits. (See HI. Rev. Stat. 1989, ch. 38, par. 1005 — 8—l(aX3).) After noting the factors in mitigation and in aggravation, including defendant’s prior criminal history, which the circuit court characterized as “significant,” the court imposed consecutive terms, declaring that it was doing so to “protect the people of the State of Hlinois from thé conduct of the defendant.” Such a finding is all the Unified Code of Corrections requires for the imposition of consecutive sentences. See 111. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(b) (“[t]he court shall not impose a consecutive sentence *** unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant”).

Relying on People v. Saldivar (1986), 113 111. 2d 256, 497 N.E.2d 1138, defendant further alleges that the circuit court improperly considered the bodily harm to Kucera, a factor which is inherent in the crime of murder. A sentence based on improper factors, such as death as an aggravating factor when implicit in the offense, however, cannot be affirmed unless the reviewing court can determine, from the record, the weight placed on such an improperly considered aggravating factor. (People v. Martin (1988), 119 111. 2d 453, 519 N.E.2d 884.) This does not mean that the circuit court, when determining a sentence arising from a murder conviction, cannot consider the force employed or the the physical manner in which that death was brought about. (See People v. Saldivar, 113 111. 2d at 269-71.) Here, the court briefly stated at the outset of the sentencing that it was “aware” that defendant’s conduct caused serious harm which resulted in the death of a fine man, whom the evidence had shown to be the type of individual who helped the people in his building. However, when stating for the record what factors it had taken into consideration in imposing sentence, the court made no mention of this factor:

“I certainly took into consideration the age of the defendant and his prior history which was not — and I am talking about personal history which was not one that anybody would want to be involved with but that does not change the facts, the seriousness of these offenses when the acts could have been completed but in this case in order not to get apprehended, this individual Mr. Smith took the life of another individual who was coming to the aid of the others would [sic] ask him for help after they were robbed and I feel it was appropriate.”

Therefore, when read in their entirety and in context, the circuit court’s remarks indicate that the passing reference to the harm caused was more a comment on the particular facts of the murder than an improper consideration of a factor implicit in the offense. Not every reference involving a factor implicit in an offense gives rise to reversible error. See People v. Colclasure (1990), 200 111. App. 3d 1038, 558 N.E.2d 705, appeal denied (1990), 133 111. 2d 562, 561 N.E.2d 697; People v. Bennett (1987), 159 HI. App. 3d 172, 511 N.E.2d 1340, appeal denied (1987), 117 HI. 2d 546, 517 N.E.2d 1088; People v. Barney (1982), 111 111. App. 3d 669, 444 N.E.2d 518.

Moreover, we note that, following the sentence hearing, defendant filed a motion to reconsider and reduce sentence. In this motion, defendant identified six reasons for reconsidering the sentence im- , posed. Although defendant failed to raise the issue now complained of here, the circuit court stated for the record that, in imposing the sentence, it had considered “all the information” that it had received as to defendant, including his background, employment history, and family circumstance. The court noted that defendant committed the murder while fleeing from an armed robbery, killing an individual who was coming to the aid of the armed robbery victims. The circuit court made no mention of the improper aggravating factor in summarizing its reasons for ordering the sentence previously imposed. Indeed, the court stated that it did not consider the sentence “as a vindication, or a sentence that would bring back, or punishment for the death of this person.” After carefully reviewing the court’s remarks at both the initial sentence hearing and the subsequent hearing on the motion to reconsider sentence, we hold that the reference to the improper factor was made only in passing and, in the context of imposing this sentence, carried little, if any, weight. Accordingly, the record does not reveal any abuse in sentencing discretion.

Defendant’s convictions and sentences, therefore, are affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.

      Defendant’s brief utilizes the term “voluntary manslaughter.” This is incorrect since, at the time of defendant’s trial, the term “voluntary manslaughter” had been changed, by the legislature, to “second degree murder.”


author: JUSTICE RIZZI

text:
    OWEN F. WAGENER et al., Plaintiffs-Appellants, v. EDWARD J. PAPIE, Defendant-Appellee (John S. Brennan et al., Intervenors-Appellees).
    First District (3rd Division)
    Nos. 1 — 91—0860, 1—91—2346 cons.
    Opinion filed February 3, 1993.
    Steinberg & Steinberg, Ltd., of Chicago (Frances S. Steinberg, Gregory A. Tumbarello, and Charles M. Steinberg, of counsel), for appellants.

      Gordon & Glickson, P.C., of Chicago (Stuart Smith, of counsel), for ap-pellee.
   JUSTICE RIZZI

delivered the opinion of the court:

On June 4, 1987, Edward J. Papie, defendant in this case, filed an action against Peggy Wagener for recovery of a ring which he gave her when the couple became engaged to be married. On July 7, 1987, plaintiffs Owen E Wagener, Lois K. Wagener and Peggy A. Wagener filed this action and gave notice of lis pendens with the Cook County recorder of deeds to recover property which they previously conveyed to defendant. On November 9, 1987, defendant filed a counterclaim against plaintiffs. The trial court later granted plaintiff Peggy Wa-gener summary judgment on count III of the above counterclaim on the basis that defendant terminated the couple’s engagement and that plaintiff Peggy Wagener was therefore entitled to keep the engagement ring. On January 28, 1988, John S. and Peggy A. Brennan, third-party purchasers of the property, filed an intervening complaint to quiet title and to obtain specific performance. The Brennans’ action is still pending.

On February 29, 1988, plaintiffs filed an 11-count amended equitable complaint against defendant to recover the subject property and to obtain damages at law. In addition, plaintiff Peggy Wagener, independently and in the alternative, sought an equitable half-interest in the real estate, profits and damages at law for defendant’s alleged breach of promise to marry. Plaintiffs and defendant filed cross-motions for summary judgment. On January 31, 1991, the trial court granted defendant’s motion for summary judgment and denied plaintiffs’ cross-motion for summary judgment. The trial court also denied plaintiff Peggy Wagener an equitable portion of defendant’s interest and money damages at law for defendant’s breach of promise to marry. Defendant then moved for sanctions pursuant to Illinois Supreme Court Rule 137. (134 111. 2d R. 137.) Plaintiffs moved to strike defendant’s motion and filed a cross-motion under the same rule. (134 111. 2d R. 137.) The trial court denied both motions. Subsequently, plaintiffs and defendant appealed and both appeals were consolidated by this court. We affirm in part, reverse in part and remand.

The issues before this court for review are: (1) whether the trial court erred in denying plaintiffs’ motion for summary judgment; (2) whether the trial court erred in granting defendant’s motion for summary judgment; (3) whether the trial court abused its discretion in denying defendant’s motion for sanctions pursuant to Illinois Supreme Court Rule 137 (134 111. 2d R. 137); and (4) whether the trial court abused its discretion in denying plaintiffs’ motion for sanctions pursuant to Illinois Supreme Court Rule 137. 134 111. 2d R. 137.

This cause arises out of the engagement of plaintiff Peggy Wa-gener to defendant. Peggy’s parents, Owen and Lois Wagener, in anticipation of their daughter’s marriage, sold the family home to defendant, their future son-in-law, as and for the couple’s marital home. Defendant refused to marry Peggy and then resold the subject property for a profit.

The subject property was located at 1714 Walnut Street in Wilmette, Illinois. The property included a residence which had been built by plaintiff Owen Wagener’s father and had been used first as his family home and later by plaintiffs as their family home.

On April 19, 1986, plaintiffs Owen and Lois Wagener entered into a real estate contract to purchase a smaller home for themselves in Glenview, Illinois. Owen and Lois Wagener then listed the Walnut Street property for sale to the general public through a realtor in July of 1986. The property was listed for approximately three months but the Wageners did not receive any offers to purchase the home. In late November of 1986, they elected to take the property off of the market.

In September of 1986, defendant and Peggy Wagener became engaged. The couple then began looking for a home which they would live in after their marriage. Ultimately, discussions took place between Owen Wagener and defendant concerning the sale of the subject property to defendant for use as the engaged couple’s marital home. In January of 1987, Owen and Lois Wagener agreed to convey title to the property to defendant at a price far below its market value.

Owen Wagener prepared a contract for the sale of the property. The contract listed Owen and Lois Wagener as the sellers and defendant as the purchaser. Owen Wagener maintained that he agreed to sell the property to defendant rather than to his daughter, Peggy Wa-gener, because defendant was more likely to be able to obtain a mortgage commitment than his daughter, since she had an erratic work history and inconsequential assets. The parties used the preprinted real estate sales contract traditionally employed for the sale of property on the North Shore. The standard contract provided that a purchaser must tender 10% of the price of the property for earnest money. When Owen Wagener prepared the contract, however, he deliberately struck the 10% earnest money requirement from the agreement and replaced it with a provision requiring defendant to pay nominal earnest money of $1,000 rather than $16,000 or 10%. The customary percentage of the cost of property required for earnest money was well known to defendant, who had taken at least one class in real estate transactions. Owen Wagener also asked that defendant execute a lease along with the contract to purchase the subject property. Owen Wagener later testified that he prepared the lease as a “safety valve” so that defendant could remain as a tenant on the subject property for a short period of time in the event that the marriage did not take place. The rent for the months of February and March was fixed at $250 and at $1,250 per month thereafter. Defendant executed both the real estate contract and the lease.

Defendant then applied to Provident Financial for a mortgage, disclosing that he was “about to be married” and that he was buying a home from a member of the family. Provident Financial had the property appraised and the appraiser recognized that it was worth more than the $160,000 purchase price.

Defendant later testified that he understood that the sale of the property was conditioned upon the consummation of the marriage. Defendant told the court, “it was understood *** we were getting married.” Defendant also stated that it was his understanding that he was “taking title, as it was Owen’s, and when I married his daughter, it would be joint property and she would have half of it.”

The couple took possession of the property prior to the closing in order to redecorate the home. Peggy Wagener moved her furniture and personal belongings into the house and defendant placed his Chicago condominium on the market for sale.

On April 4, 1987, two days prior to the scheduled closing, Father Raymond Dompke, the Papies’ parish priest, informed plaintiffs that he would not officiate at the scheduled wedding ceremony on April 9, 1987. The priest decided to postpone the scheduled Catholic ceremony on the basis of his impressions of the couple which he obtained during their requisite premarital counseling sessions.

Peggy Wagener testified that she responded to Father Dompke’s action by asking him if she and defendant could marry in a civil ceremony and have their marriage sanctioned by the Catholic church at a later date. The priest assured her that the church would sanction their civil marriage by performing a Catholic marriage ceremony after the couple obtained more counseling. Later that same day, Lois and Owen Wagener made an unsuccessful attempt to convince Father Wolff, who was their parish priest, to perform the religious ceremony.

Peggy Wagener testified that on the afternoon of April 7, 1987, she and defendant had a long conversation. She told the court that on that date, she informed defendant that Father Dompke refused to perform the scheduled wedding ceremony, but that he agreed to solemnize a civil marriage between them later in a Catholic ceremony. Peggy Wagener also testified that she told defendant that her parents were trying to convince Father Wolff to perform a Catholic ceremony on the scheduled wedding date. Owen and Lois Wagener maintained that defendant knew that they were trying to convince their own parish priest to proceed with the scheduled Catholic wedding ceremony. Peggy further testified that as of April 7, 1987, defendant had not told her that he did not intend to marry her.

Defendant testified that he responded to the news of Father Dompke’s refusal to officiate at the scheduled wedding ceremony by asking Peggy Wagener to telephone him immediately and to convince him to perform the ceremony as planned, but that she did not respond to his request. Defendant testified that he broke his engagement to Peggy Wagener that evening because she could not decide whether or not she wanted to marry him four days prior to the scheduled wedding ceremony. Defendant testified that he then left the Wagener home without speaking to Owen and Lois and that he did not speak to them until the date of the closing.

Defendant testified that as of April 7, 1987, it was obvious to all of the parties that there was not going to be a Catholic wedding ceremony and that neither Owen nor Lois Wagener spoke to him about having a civil wedding prior to the closing. Defendant maintained that at that time, he had no desire to proceed with the closing and that on the evening of April 7, 1987, his mother, Margaret Papie, sought to verify from Lois Wagener that defendant did not have to purchase the subject property since there would be no wedding. Margaret Papie testified that she was advised by Lois Wagener that defendant would have to go through with the closing. Margaret Papie told the court that after speaking to Lois, she advised her son that he would have to proceed with the closing.

Defendant recalled that when he arrived at the closing, he asked Edward L. Rosen, counsel for Owen Wagener, what would happen if he did not close on the contract for the sale of the subject property. Defendant testified that Rosen told him that his refusal to close would have the following consequences: (1) defendant would default under his loan arrangement with the mortgage; (2) defendant would lose his application fee and points paid; (3) defendant would incur the fees generated at the title company for the closing; and (4) defendant would be accountable to Owen Wagener if Wagener chose to enforce the contract. Defendant testified that he elected to go forward with the closing in light of the above-mentioned alternatives.

The closing on the Wilmette home proceeded as scheduled. Plaintiffs testified that at that time, they believed that there would be a civil wedding ceremony two days later. Plaintiffs further testified that as of the date of the closing, Peggy Wagener and defendant were still engaged to be married, that Peggy continued to wear her engagement ring and that defendant had not asked her to return the ring. Owen and Lois Wagener proceeded with the real estate closing and transferred title to the property to defendant.

Peggy Wagener testified that after defendant, Owen Wagener and Rosen left the closing, she and defendant drove toward downtown Chicago in defendant’s car. Peggy further testified that while she was in the car, she told defendant how happy she was that they were homeowners. Peggy also told the court that defendant remained silent as she discussed the possibility of their being married in a civil ceremony. Peggy testified that upon reaching the building in which she worked, defendant told her that there wasn’t going to be a wedding and that he never loved her. Peggy recalled that defendant said: “[H]e would grow to resent me if he ever married me; that he wasn’t attracted to me and never had been, he couldn’t quite understand what people saw in me, and that if I ever planned to be a success in this world, I better work pretty damn hard because I wasn’t going to make it by my looks.” Peggy Wagener maintained that defendant then asked her to return the engagement ring. Peggy Wagener testified that she then told Lois Wagener that defendant refused to marry her.

That afternoon, Owen Wagener contacted the Chicago Hilton Hotel and cancelled the scheduled wedding reception. Defendant’s mother confirmed that guests were contacted on that same date. Defendant and his sister, Peggy Papie, traveled to Africa on April 9, 1987. This trip would have been defendant and plaintiff Peggy Wagoner’s honeymoon.

Upon defendant’s return from Africa, Owen Wagener met with him and sought to return the purchase monies and any other related costs defendant may have incurred in exchange for title to the subject property. In addition, Owen asked defendant to pay $755.55, which defendant admitted owing for utilities and related costs he incurred while residing on the subject property. Defendant responded by physically assaulting Owen and demanding the return of the engagement ring that he had given Peggy. Around or about the first week in May of 1987, defendant refused to convey the subject property to the Wa-geners in exchange for a refund of the purchase price. At that time, defendant told Owen Wagener that he would have to pay $215,000 in exchange for title to the subject property.

On May 4, 1987, defendant, by his attorney, served Peggy Wa-gener with a written demand that she return the engagement ring to defendant. Said writing did not allege that Peggy had broken the engagement or refused to marry defendant.

On June 3, 1987, defendant placed the subject property on the market for $265,000, or $105,000 more than he paid plaintiffs Owen and Lois on April 8, 1987. On June 10, 1987, defendant obtained a written offer from John and Peggy Brennan, for $260,000, a full $100,000 more than he had paid his future in-laws 62 days earlier. The above contract, negotiated at arm’s length, required bona fide earnest money of $26,000 or 10% of the price of the property.

On June 4, 1987, defendant filed an action against Peggy Wa-gener for the return of the engagement ring, claiming for the first time that she had terminated the engagement on April 7, 1987. On July 7, 1987, plaintiffs filed a lis pendens with the Cook County recorder of deeds in addition to the present action to recover the subject property from defendant. On November 9, 1987, defendant filed a three-count counterclaim against plaintiffs. The trial court later granted plaintiff Peggy Wagener summary judgment on count III of the counterclaim on the basis that defendant terminated the couple’s engagement and she was thus entitled to keep the engagement ring. On February 29, 1988, plaintiffs amended their complaint to include the following equitable theories as bases for the recovery of the subject property: rescission and restitution based upon the failure of a conditional gift; fraudulent concealment or innocent material misrepresentation; imposition of a constructive trust based upon unjust enrichment; breach of a fiduciary duty; abuse of a confidential relationship or fraudulent concealment; imposition of resulting trust on the res based upon the presumed intention of the parties and reformation of the real estate contract based upon mistake. Plaintiff Peggy Wa-gener, independently and in the alternative, sought an equitable half interest in the subject property and defendant’s profits, as well as damages at law for defendant’s “breach of promise to marry.”

Plaintiffs and defendant moved for summary judgment. After numerous depositions upon the cross-motions for summary judgment on all 11 counts of plaintiffs’ amended complaint, the trial court denied plaintiffs’ motions for summary judgment and granted summary judgment in favor of defendant on the basis that plaintiffs could not reform the written real estate transaction documents by “clear and convincing evidence” as a matter of law. The trial court also denied plaintiff Peggy Wagener an equitable portion of defendant’s profits from the sale of the property and money damages at law for defendant’s breach of promise to marry.

Defendant then moved to strike plaintiffs’ motion for summary judgment and to impose sanctions upon plaintiffs pursuant to Illinois Supreme Court Rule 137. (134 HI. 2d R. 137.) Plaintiffs then moved to strike defendant’s motion for summary judgment and moved to impose sanctions upon defendant under Supreme Court Rule 137. (134 111. 2d R. 137.) After a hearing, defendant’s motion was denied, at which time the court also summarily denied plaintiffs’ motion for sanctions and expressly admitted on the record that plaintiffs’ motion was never read or otherwise heard. Plaintiffs and defendant appealed. The appeals were consolidated by this court. The orders appealed were entered in accordance with Illinois Supreme Court Rule 304(a) as the complaint by the intervenors is still pending. 134 HI. 2d R. 304(a).

First, we will address the issues of whether the trial court’s rulings on the parties’ motions for summary judgment were proper. Defendant alleges that the trial court’s rulings on both motions for summary judgment were proper. Plaintiffs contend that the trial court erred in denying their motion for summary judgment and in granting defendant’s motion for summary judgment.

Summary judgment is a drastic and extraordinary remedy. (Anest v. Bailey (1990), 198 111. App. 3d 740, 745, 556 N.E.2d 280, 282.) Summary judgment should be awarded with caution so as not to preempt a party’s right to a jury trial or its right to demonstrate a factual basis for a case where a question of material fact may exist. (Palomar v. Metropolitan Sanitary District of Greater Chicago (1992), 225 111. App. 3d 182, 188, 587 N.E.2d 1067, 1071; Decatur Construction, Inc. v. Central Illinois Public Service Co. (1974), 16 111. App. 3d 1056, 1059, 307 N.E.2d 431, 433.) When reasonable persons disagree concerning the facts of a case, the trial court should deny motions for summary judgment and allow all disputed facts and inferences to be resolved by a trial. (Palomar, 225 111. App. 3d at 188, 587 N.E.2d at 1071.) “[Sjummary judgment is not a procedural tool intended to be used as a means of weighing conflicting issues of fact.” Anest, 198 HI. App. 3d at 745, 556 N.E.2d at 282.

In the present case, the trial court’s denial of plaintiffs’ motion for summary judgment was proper because there are material issues of fact. We conclude that the trial court erred in granting defendant’s motion for summary judgment for the same reason.

Plaintiffs maintain that the following factual scenario occurred. Plaintiffs argued that defendant knew that the sale of the subject property to him was conditioned upon the consummation of his marriage to plaintiff Peggy Wagener, and that he would later convey a one-half interest in the property to her after their marriage. Plaintiffs alleged that on April 7, 1987, after Father Dompke refused to perform the wedding ceremony as planned, defendant knew that Owen and Lois were trying to convince Father Wolff to perform a Catholic ceremony on the scheduled wedding date and that defendant did not refuse to be married in a civil ceremony in the alternative. Plaintiffs maintained that defendant did not inform them that he did not intend to marry Peggy prior to the closing, and that he broke his engagement to her after he obtained title to the subject property. Plaintiffs also alleged that defendant admitted that he did not request the return of the engagement ring at any time prior to or during the closing on April 8, 1987. Peggy Wagener testified that defendant requested the return of the engagement ring after the closing.

Defendant maintains that the following factual scenario occurred. Defendant testified that he responded to the news that Father Dompke refused to perform the wedding ceremony on the scheduled date by asking Peggy Wagener to call Father Dompke immediately and convince him to perform the ceremony, but that Peggy did not respond to his request. Defendant further testified that he broke his engagement to Peggy Wagener that evening because she could not make up her mind whether or not she wanted to be married. Defendant testified that as of April 7, 1987, it was obvious to all of the parties that there was not going to be a Catholic wedding and that prior to the closing, neither Owen nor Lois Wagener spoke to him about having a civil ceremony.

Since material facts are disputable, we find that the trial court’s denial of plaintiffs’ motion for summary judgment was proper and we affirm the trial court’s ruling on the motion. In addition, we conclude that the trial court erred in granting defendant’s motion for summary judgment for the same reason. Specifically, we find that the following genuine issues of material fact exist: (1) whether the subject transaction was conditioned upon the occurrence of a marriage between plaintiff Peggy Wagener and defendant; (2) whether evidence was sufficient to show that defendant was a fiduciary of plaintiffs Owen and Lois Wagener and that his conduct in obtaining title to and refusing to reconvey the subject property to Owen and Lois Wagener constituted a breach of fiduciary duty; (3) whether the record establishes facts legally sufficient to justify the imposition of a constructive trust, resulting trust, order of restitution in specie, or order of rescission and/or reformation in favor of plaintiffs Owen and Lois Wagener; (4) whether the record establishes facts sufficient to support the imposition of a constructive trust in favor of plaintiff Peggy Wagener as to a one-half interest in the subject property if lawfully obtained by defendant; and (5) whether the facts are sufficient to require defendant to pay plaintiff Peggy Wagener damages for breach of promise to marry.

Accordingly, the trial court should have denied defendant’s motion for summary judgment and allowed the disputed facts, inferences and genuine issues of material fact to be resolved in a trial. We therefore reverse the trial court’s grant of summary judgment to defendant and remand the cause for a trial.

Next, defendant contends that the trial court abused its discretion when it denied his motion for sanctions pursuant to Illinois Supreme Court Rule 137. (134 111. 2d R. 137.) Supreme Court Rule 137 provides, in pertinent part, as follows:

“Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. *** The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. *** If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney fee.” 134 111. 2d R. 134.

The imposition of sanctions pursuant to Hlinois Supreme Court Rule 137 is within the sound discretion of the trial court and will not be disturbed by a court of review absent an abuse of discretion. {In re Marriage of Sykes (1992), 231 111. App. 3d 940, 946, 596 N.E.2d 1226, 1231; Kubiak v. City ofKewanee (1992), 228 111. App. 3d 605, 607, 592 N.E.2d 1200, 1202.) When reviewing the propriety of the imposition of sanctions by a trial court pursuant to Rule 137, an appellate court should base its determination upon the following factors: (1) whether the trial court’s ruling was an informed one; (2) whether the ruling was based upon valid reasons which fit the case; and (3) whether the trial court’s ruling followed logically from the application of the reasons stated to the particular circumstances of the case. Kubiak, 228 111. App. 3d at 607, 592 N.E.2d at 1202.

In the present case, the trial court’s denial of defendant’s motion for sanctions pursuant to Rule 137 was not an abuse of discretion. Defendant has failed to demonstrate that the trial court’s ruling was not an informed one, that the ruling was not based upon valid reasons that fit the case and that said ruling did not follow logically from the application of the reasons stated to the particular circumstances of the case.

Finally, plaintiffs allege that the trial court abused its discretion when it denied their motion for sanctions pursuant to Illinois Supreme Court Rule 137. (134 111. 2d R. 137.) We disagree.

The order of June 19,1991, in pertinent part, reads as follows:

“This cause coming to be heard on the plaintiffs’ motion to strike defendant’s Rule 137 motion, and the court having considered the motion to strike and supporting memoranda and recourse to portions of the record:
IT IS HEREBY ORDERED:
* * *
(2) Plaintiffs’ pending motion for sanctions, although not having been reviewed by the court, is denied sua sponte for the reasons expressed from the bench concerning defendant’s motion.”

Although plaintiffs’ motion for sanctions was denied prior to a hearing on the motion, the trial court’s denial of said motion is not an abuse of discretion. The record shows that plaintiffs’ motion for sanctions was denied for the reasons expressed by the trial court concerning its denial of defendant’s motion for sanctions. The record therefore indicates that the trial court’s ruling on plaintiffs’ motion was an informed one which was based upon reasons that fit the case and followed logically from the application of the reasons stated to the circumstances of the case. Accordingly, we find that the trial court’s ruling on plaintiffs’ motion for sanctions was proper.

For the aforementioned reasons, we affirm in part and reverse in part the judgment of the circuit court, and we remand this cause for further proceedings consistent therewith.

Affirmed in part, reversed in part and remanded.

TULLY, P.J., and GREIMAN, J., concur.