author: JUSTICE SCOTT

text:
    BETHEL EVANGELICAL LUTHERAN CHURCH, Plaintiff-Appellant, v. THE VILLAGE OF MORTON et al., Defendants-Appellees.
    Third District
    No. 3-89-0825
    Opinion filed August 23, 1990.
    Rehearing denied September 20, 1990.

      Olsen & Olsen, Ltd., of Springfield (Harold M. Olsen, of counsel), for appellant.
    Thomas E. Davies, of Elliff, Keyser, Oberle & Davies, of Morton, for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

Appellant, Bethel Evangelical Lutheran Church, operates a preschool and grade school on property located within a zoned residential area of appellee, the Village of Morton. The church was established in 1947 and subsequently developed a kindergarten, preschool and Sunday school in the 1950’s. In 1983, it established a school, kindergarten through sixth grade, and received a special use permit subject to an enrollment cap of 60 students. The permit was modified to increase the enrollment cap to 75 students in 1987. Appellant’s school currently has an enrollment exceeding the cap established in 1987.

The church is not located on a collector street as is required by the Morton zoning ordinance, and all other schools in Morton are on collector streets. The church is bounded by a State highway on one side, to which it has no access, and is bounded by residential streets on the other sides. Across the street from the church and school is the Morton High School athletic field. The neighboring surrounding properties, with the exception of the athletic field, are single- and two-family homes.

In August 1988, appellee rejected appellant’s request to expand its school to an unlimited enrollment. At the same time appellant requested that the special use permit be modified to do away with the provision limiting the school to kindergarten through sixth grade and that it be allowed to expand its parking lot. Alternatively, appellants requested that the enrollment cap be set at 105 students. Appellant’s primary requests were presented, considered and denied in tandem by appellee but the alternative request was not considered.

Appellant appealed the appellee’s denial of its request to the circuit court. Appellee challenged the constitutional validity of the Morton zoning ordinance which places a limit on the enrollment of appellant’s school. Moreover, appellant argued that the decision of the appellee was arbitrary, unreasonable and had no substantial relation to the public health, safety and welfare. After three days of hearings, the trial court .by order dated November 27, 1989, denied appellant’s request to declare unconstitutional the school enrollment cap as a condition of appellant’s special use permit; ordered that a revised special use permit be issued authorizing appellant to operate an elementary school (kindergarten through sixth grade) with a maximum enrollment of 105 students; ordered that a revised special use permit be issued authorizing appellant to expand its parking lot subject to a site plan being approved by the director of public works; and ordered each party to bear its own fees and costs. Appellant now appeals only the trial court’s order regarding the enrollment cap and attorney fees and costs.

Appellant first argues that the village zoning ordinance does not directly or by implication allow appellee to place an enrollment cap to insure no growth or to ensure that growth will not exceed an arbitrarily determined limit. We disagree. Section 10 — 10—2(F)(2) of the Morton zoning ordinance contains, in part, the following standards to which special uses must conform:

“a. That the proposed use will not adversely affect other property developed or able to be developed to the uses already permitted;
b. That adequate utilities, access roads, drainage and other necessary supporting facilities have been or are being provided;
c. That adequate measures have been provided to accommodate ingress and egress so as to avoid congestion, not unduly impede surrounding traffic flows, or create hazardous or unsafe conditions;
d. That the standard for site development *** will be such as to enhance the proposed use and its setting ***;
e. That the proposed special use *** will conform to all other requirements of the district ***.”

These standards clearly imply that the governing body may impose such enrollment cap conditions subject to review under the law generally applicable to all zoning regulations.

Generally, a zoning ordinance has a presumption of validity and the decision of a legislative body regarding zoning will not be overturned unless, by clear and convincing evidence, the ordinance is arbitrary, unreasonable and without substantial relation to the public health safety or welfare. (Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 354 N.E.2d 899.) The parties do not appear to dispute appellee’s general right to grant special use permits in residential areas subject to reasonable conditions. However, the difficult aspect of this case, as identified by the trial court, is the question of what significance does the constitutional right of free exercise of religion have on the presumption of validity normally attached to zoning ordinances. Appellant asserts that the free exercise of religion is being bridled in this case because if the number of students exceeds the enrollment cap, then some students are being denied their right of freedom of religion.

Appellant cites numerous Illinois cases which seem to indicate that the presumption of validity and the burden of proof required to overcome that presumption are diminished in cases with religious overtones. These cases, however, fail to address the issue in a first amendment infringement context, but simply lump the free exercise issue into a due process rational-basis analysis under the standards set forth in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65. (See Columbus Park Congregation of Jehovah’s Witnesses, Inc. v. Board of Appeals (1962), 25 Ill. 2d 65, 182 N.E.2d 722; Our Saviour’s Evangelical Lutheran Church v. City of Naperville (1989), 186 Ill. App. 3d 988, 542 N.E.2d 1158; Family Christian Fellowship v. County of Winnebago (1986), 151 Ill. App. 3d 616, 503 N.E.2d 367.) What does seem clear about these cases, however, is that in each of these cases the respective court’s determined that the regulations imposed by the governing body constituted, to some degree, infringement of the free exercise of religion. Unfortunately, these cases fail to provide insight as to what constitutes some degree of infringement. Nonetheless, we perceive these cases as saying that, since infringement was present, the governing body had to show a compelling reason for the regulation. Under this standard, the facts in each of these cases warranted a finding in favor of'the religious institution. In the present case, however, the central question is whether the conditions of the special use permit issued by appellee constitute infringement. If so, then undoubtedly there can be no strong presumption of validity attached to the ordinance. The unanswered question is, what if the regulation does not constitute infringement? Further analysis of this scenario is therefore necessary.

Appellee has cited various Federal cases which discuss at length and set forth tests for determining what constitutes infringement of the free exercise of religion, and if not, the next stage of the analysis. Two cases are particularly instructive. In Grosz v. City of Miami Beach (11th Cir. 1983), 721 F.2d 729, cert. denied (1984), 469 U.S. 827, 83 L. Ed. 2d 52, 105 S. Ct. 108, the court, in addressing the infringement issue, stated that the government action must pass two threshold tests. First, government regulation of religious beliefs and opinions must be distinguished from restrictions affecting religious conduct. Beliefs and opinions may not be regulated, but regulation of conduct is not absolutely impermissible. Second, the regulation itself must have both a secular purpose and secular effect. A government regulation violates the constitution if it is based upon a disagreement with religious beliefs or is aimed at impeding religion. Moreover, the free exercise clause is violated if the “essential effect” of the law negatively influences religious activity or beliefs. (Gorsz, 721 F.2d 729.) If the regulation passes these two tests, then the government interests must be balanced against the restricted religious interest with one basic principal in mind:

“[T]he balance depends upon the cost to the government of altering its activity to allow the religious practice to continue unimpeded versus the cost to the religious interest imposed by the government activity.” (Grosz, 721 F.2d at 734.)

Under this balancing test, governmental regulation which burdens conduct rooted only in secular philosophy or personal preference should generally be upheld. Grosz, 721 F.2d at 734.

In Grosz, the plaintiffs, members of the Jewish Orthodox faith, were conducting religious services twice daily to a congregation of no less than 10 adults in a remodeled, unattached garage next to their residence. The property was zoned residential, and there appeared to be no special use permit authorizing the use of the property for organized religious congregations. It was not disputed that plaintiff’s religious faith required the plaintiff Rabbi to perform services twice daily in the company of 10 adults. Moreover, the court found that the City of Miami Beach allowed such religious conduct in one half of the city’s territory and as close as four blocks from plaintiff’s home. The court quickly surmised from these facts that there was no infringement upon the free exercise as regulation affecting prayer and religious services involved conduct. Additionally, it was undisputed that the zoning law was secular in purpose. In balancing the interests, the court noted that allowing the religious activity placed a heavy burden on the governing authority’s underlying objectives in protecting the health, welfare and sanctity of residential areas within the city, whereas the burden on the plaintiff by upholding the zoning regulation did not rise to the level of criminal liability, loss of livelihood, or a denial of basic income sustaining benefits. The court admittedly noted, however, that the exact economic, convenience or aesthetic impact of requiring plaintiffs to change locations was unknown.

In Messiah Baptist Church v. County of Jefferson (10th Cir. 1988), 859 F.2d 820, plaintiffs sought a special use permit for the construction of a church and recreational facility in an agricultural zoned area. Church facilities were allowed as special uses subject to approval by the planning commission. The planning commission denied plaintiff’s request, citing access problems, erosion hazards and inadequate fire protection as a few of the reasons. Plaintiff subsequently filed an action under 42 U.S.C. section 1983 (1982) contending, in part, that the zoning regulation was unconstitutional under the free exercise clause of the first amendment.

The court first analyzed whether the zoning regulation regulated religious beliefs and found that clearly no religious beliefs were being impinged. Secondly, the court considered whether the regulations impermissibly regulated religious conduct. Citing Wisconsin v. Yoder (1972), 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526, the court noted that regulation of conduct stemming from religious beliefs warrants protection when such conduct is integrally related to the underlying religious belief. Plaintiff argued that constructing a place of worship was integrally related to its religious tenets. The court accepted this abstract argument as true but determined that no showing had been made that building the church on the property in question was intimately related to the plaintiff’s religious beliefs. At most, plaintiff’s statement was nothing more than a preference, rather than a fundamental tenet of plaintiff’s religion. Messiah, 859 F.2d 820.

The court next considered whether the zoning regulation placed any burden on plaintiff’s free exercise of religion. While determining that the regulations do not directly prohibit plaintiff from religious observance, the court found that the regulations did impose an indirect economic burden on the exercise of religion. Nonetheless, quoting Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc. v. City of Lakewood (6th Cir. 1983), 699 F.2d 303, cert. denied (1983), 464 U.S. 815, 78 L. Ed. 2d 85, 104 S. Ct. 72, the court stated:

“ ‘[T]he First Amendment does not require the City to make all land or even the cheapest or most beautiful land available to churches.’ ” Messiah, 859 F.2d at 825, quoting Lakewood, 699 F.2d at 307.

The court’s analysis did not stop there, however. Next the court considered whether alternative means were available for the governing body to accomplish its goals by means which did not impose the indirect economic burden on plaintiff. In upholding the regulation, the court reasoned that the zoning ordinance withstood scrutiny under normal due process analysis and thus could not be implemented without some financial cost to plaintiff. Thus, since the regulation did not affect religious practice, the indirect burden did not render the regulation infirm. The court stated:

“A church has no constitutional right to be free from reasonable zoning regulations nor does a church have a constitutional right to build its house of worship where it pleases.” Messiah, 859 F.2d at 826.

Other Federal cases, however, using the balancing test set forth in Grosz, have landed in favor of the religious institution. For example, in Islamic Center of Mississippi, Inc. v. City of Starkville (5th Cir. 1988), 840 F.2d 293, the court' held that the city’s denial of a special use permit placed too great a burden upon the religious organization as no practical alternatives were available to the organization within the city limits. Moreover, the court determined that the city was not treating all religious organizations in a like manner when it came to allowing conditional permits.

With this precedent in mind, we now turn to the facts of this case. Appellants do not argue that the zoning ordinance in this case infringes upon their constitutional rights because it was designed to impede their religious pursuits. Appellant does argue, however, that the enrollment cap serves to regulate religious instruction of the church to those who get there first. In essence, appellant’s position is that once the village decides to allow the parochial school at this location, the village has no further right to regulate the school except for setback lines, fire code building capacities, and similar objectively measured regulations. We disagree.

As have already been discussed, religious institutions are not per se exempt from governmental regulations that regulate conduct. The special use permit in this case, according to precedent, is clearly regulating conduct. Moreover, appellant has put forth no more than the abstract notion that this particular school is fundamental to its religious tenets let alone fundamental at this particular location. We believe the enrollment cap in this case thus passes the two threshold questions set forth in Grosz and Messiah. According to the Federal precedent, it is also clear that the regulation in this case poses an indirect economic burden on appellant, as it is obvious that the facilities in place are adequate for a school enrollment in excess of the student cap. Therefore, causing appellant to relocate, at least at this stage, appears to be somewhat more of an economic burden on appellant than the burdens imposed in the religious institutions in Grosz and Messiah. In those cases, the churches had not already constructed elaborate facilities for worship and it was merely a matter of choosing another location. In this situation, the facility was constructed with the consent of the village. The inquiry then, is whether this burden upon the religious institution in having to abide by an enrollment cap which is less than the capacity of the facility outweighs the burden placed on the governing body by allowing an increase in student enrollment.

The evidence reveals that the residential setting of the neighborhood was in place prior to the establishment of the school itself. Quite clearly, at some point in time, the allowance of an unlimited enrollment would substantially burden the village’s interest in protecting the sanctity of the surrounding neighborhood as well as the dignity of the village’s comprehensive zoning plan. It cannot be doubted that at some point in time, the existing school facility will reach, as the trial court phrased it, a “saturation point” where school overcrowding, related noise and traffic congestion will demand that the governmental interest prevail in limiting growth. Thus, in an abstract sense, an enrollment cap weighs in favor of the village, and we decline to rule that any enrollment cap is unconstitutional under either a balancing test as in Grosz and Messiah or a rational basis due process approach as used in previous Illinois decisions stemming from the standards set forth in La Salle National Bank where religious overtones were present.

The next inquiry is to balance appellee’s interest of an enrollment cap of 75 students versus the appellant’s interest of having a higher enrollment cap of 105 students. The school presently has a student enrollment in excess of the enrollment cap. To hold appellant to this cap undoubtedly creates significant indirect burden in that in order for appellant to educate the number of students in excess of the cap, a new location for some or all of the students must be obtained. Moreover, the evidence did not indicate that an enrollment cap of 105 students would create any more of a burden upon appellee than an enrollment cap of 75 students. Experts testified that the market value of surrounding properties had not in fact depreciated, nor would a slight increase in enrollment create any unresolvable traffic problems. The trial court ordered that a special use permit issue with an enrollment cap of 105 students, and appellee, in its brief, requests that trial court’s order be affirmed. Thus, based on appellee’s consent, appellant’s alternative request of an enrollment cap of 105 students is sustained. We likewise reach the same result regarding appellant’s request for expansion of the parking lot.

Finally, appellant asserts that appellee ought to be required to pay appellant’s attorney fees and costs under the authority of section 2 — 611 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 611.) We find appellant’s arguments on this point without merit and affirm the trial court’s decision on this issue.

Thus, for the reason expressed herein, the decision of the trial court is affirmed.

Affirmed.

GORMAN and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    VELDE FORD SALES, INC., Plaintiff-Appellant, v. JOHN BEARCE FORD, INC., et al., Defendants-Appellees (University Ford of Peoria, Inc., Proposed Intervenor).
    Third District
    No. 3-89-0730
    Opinion filed August 7, 1990.
    Rehearing denied September 20, 1990.

      Elliff, Keyser, Oberle & Davies, RC., of Pekin (Burt L. Dancey, of counsel), for appellant.
    Michael R. Feagley and Phillip S. Reed, both of Mayer, Brown & Platt, of Chicago (Michele Odorizzi, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Suit was brought by Velde Ford Sales, Inc., against John Bearce Ford, Inc., and Ford Motor Company, Inc., on February 18, 1988, pursuant to section 12 of the Illinois Motor Vehicle Franchise Act (Ill. Rev. Stat. 1987, ch. 121V2, par. 751 et seq.). Velde sought declaratory and injunctive relief to prevent the proposed relocation of defendant John Bearce Ford.

We dismissed a prior interlocutory appeal brought by the proposed intervenor, University Ford of Peoria, on the ground that appellate jurisdiction was lacking. (Velde Ford Sales, Inc. v. John Bearce Ford, Inc. (1989), 194 Ill. App. 3d 951, 551 N.E.2d 808.) It now appears that during the pendency of the prior appeal, the circuit court entered final judgment in favor of defendants, from which plaintiff Velde appeals; however, University Ford has not joined in this appeal. Under the circumstances, before proceeding to the merits of this appeal, we wish to make clear that there is no indication of record that University Ford’s interests have not been fully and fairly represented by Velde both in the trial court and in this appeal.

Velde’s complaint sought a judicial determination as to whether good cause existed for the proposed relocation under sections 12(b) and (c) of the Act. Attached to the complaint was a letter from Ford to Velde dated December 22, 1987, stating, inter alia, that pursuant to a 1987 market study for the Peoria area, John Bearce would be relocated and that the planned action would be considered approved on March 1,1988.

Ford moved to dismiss the complaint on the ground that it had entered into an agreement in 1972 which gave Ford the right to appoint additional dealers to plaintiff’s market area after conducting a market study and providing notice to plaintiff. Velde concedes that the terms of the 1972 agreement, which was attached to Ford’s motion, would permit the proposed relocation of John Bearce. Velde resisted the motion, however, on grounds that Ford did not establish by affidavit that the agreement had not been materially amended, and that the December 22, 1987, notice was defective by not specifying the date as of which John Bearce would be operating in its new location.

In response, Ford filed an affidavit of its manager of the dealer contracts department which stated that the parties’ June 1, 1972, agreement had not been materially amended between its effective date and December 24, 1987, the date Velde received Ford’s letter of intent to relocate John Bearce.

Thereafter, Velde filed affidavits of its vice-presidents, Tim and Bruce Saurs, who stated that Tim had been approached by Ford’s district service manager, J.C. Collins, in the fall or winter of 1987 concerning Tim’s purchase of an ownership interest in Velde because his father, Bruce, was suffering from health problems during this period. According to the affidavits, Collins stated that approval of Tim’s application for the stock purchase “would be no problem, as such approval was a ‘done deal.’ ” Tim submitted his application in January 1988, but it was not formally approved until September 1988.

The trial court heard arguments on Ford’s motion to dismiss, and on October 12,1989, granted it with prejudice.

In this appeal, Velde contends: first, that Ford’s letter of December 22, 1987, was insufficient notice under the Illinois Motor Vehicle Franchise Act; second, that the relevant date for determining the parties’ rights was not December 22, 1987; and third, that Velde established a material amendment to the 1972 sales and service agreement sufficiently to withstand Ford’s motion to dismiss. For reasons that follow, we reject each argument.

The Illinois Motor Vehicle Franchise Act was enacted effective June 29,1979, with the express purpose of

“promot[ing] the public interest and welfare, and *** to regulate motor vehicle manufacturers, distributors, wholesalers and factory or distributor branches or representatives, and to regulate dealers of motor vehicles doing business in this State in order to prevent frauds, impositions and other abuses upon its citizens, to protect and preserve the investments and properties of the citizens of this State, and to provide adequate and sufficient service to consumers generally.” (Ill. Rev. Stat. 1987, ch. I2IV2, par. 751.1.)

The Act declares that

“[i]t shall be deemed a violation for a manufacturer, a distributor, a wholesaler, a distributor branch or division or officer, agent or other representative thereof: *** to relocate an existing motor vehicle dealership within or into a relevant market area of an existing franchise of the same line make. However, *** if the manufacturer wishes to relocate an existing motor vehicle dealership, then the manufacturer shall give notice in writing to the existing dealer or dealers of the same line make whose relevant market area includes the proposed location of the *** relocated franchise, at lease 60 days prior to the grant or establishment of the *** relocated franchise. Unless the parties agree upon the *** establishment of such *** relocated franchise, the propriety of the *** relocating of an existing motor vehicle dealership shall be determined pursuant to the guidelines of Section 12, with the franchiser having the burden of proof.” (Ill. Rev. Stat. 1987, ch. 121V2, par. 754(e)(8).)

Section 12 provides that

“[i]f the franchiser and the franchisee have not agreed to submit a dispute, involving *** the relocating of an existing motor vehicle dealership, to arbitration *** a proceeding for a remedy other than damages shall be commenced by the objecting franchisee in the Circuit Court of the County in which the objecting franchisee has its principal place of business, within 60 days of the date the franchisee received notice of *** the relocating of an existing motor vehicle dealership at a location within or into a relevant market where the same line make of motor vehicle is then represented.
*** [W]hen determining whether good cause has been established for *** relocating an existing motor vehicle dealership *** the arbitrators or court shall consider all pertinent circumstances ***.” Ill. Rev. Stat. 1987, ch. 121V2, pars. 762(b), (c).

Also of particular relevance to this appeal is the case of Ace Cycle World, Inc. v. American Honda Motor Co. (7th Cir. 1986), 788 F.2d 1225. In Ace, as here, an existing franchisee (Ace) sought to enjoin Honda’s establishment of another franchise within Ace’s market area. It appears that Ace and Honda had entered into a franchise agreement in March of 1983 which allowed Honda to define Ace’s market area “from time to time.” Later that year, the Motor Vehicle Franchise Act was amended to define a “relevant market area” as “the greater of ‘the area within a 10 mile radius from the principal location of the franchise’ or the area defined in the franchise agreement.” (See 788 F.2d at 1226.) In March 1985, Honda notified Ace that it would establish another franchise, R.RM. Honda, within four miles of Ace’s dealership. Ace then entered into a new franchise agreement with Honda and immediately thereafter filed suit for relief under the Motor Vehicle Franchise Act. On these facts, the Federal court ruled that Honda had vested rights under the 1983 agreement that were not impaired by the amendment to the statute and remained in effect at the time of Honda’s notice to Ace in 1985. The court held, accordingly, that Ace had no cause of action under the Act.

Plaintiff argues that the notice in this case was insufficient under the statute because it stated only that the planned action would be considered “approved” as of March 1, 1988. Plaintiff points to language in Ace wherein the court indicated that “a notice of intent results in the accrual of nothing until the actual grant” of the new franchise. (788 F.2d at 1227.) The statute refers to the “grant or establishment” of a relocated franchise.

Plaintiff’s argument on this point is not well taken. Clearly the intent of the statute is to give fair notice to the existing franchisee so that any objections can be formulated and communicated to the franchiser before the market is affected by the proposed change. That purpose was served by the December 22, 1987, notice in this case, which gave plaintiff a little more than 60 days to oppose the relocation before defendants moved ahead with their plans.

Next, plaintiff suggests that March 1 should be the relevant date for determining the rights of the parties. The trial court determined that the relevant date was December 24, the date the franchisee received notice of the planned relocation.

A cause of action under the statute accrues when the existing franchisee receives notice of the proposed relocation. (Ill. Rev. Stat. 1987, ch. 121V2, par. 762(b).) And, the relative rights of the parties must be determined as of the date the cause of action accrued. (Ace, 788 F.2d at 1226-27.) Ford’s 60-day notice of “approval” of the proposed relocation of John Bearce is the functional equivalent of a notice of “grant” as referred to in the statute or the notice of proposed operation of the new franchise in Ace. To hold that the relative rights of the parties were not determined until March 1, 1988, some two weeks after the complaint in this case was filed, makes even less sense than determining the parties’ rights with reference to the date suit was filed, an alternative rejected by the court in Ace. Accordingly, we hold that the trial court correctly concluded that the parties’ rights were determined on December 24, 1987.

Finally, we consider plaintiff’s argument that the parties’ 1972 agreement was materially amended in the fall of 1987 such that the Motor Vehicle Franchise Act controls, requiring defendants to show good cause for the proposed relocation. The trial court rejected plaintiff’s position that the conversation between Bruce and Tim Saurs and Ford’s representative respecting a change in the ownership of Velde effectively amended the parties’ 1972 agreement. So do we.

It has been consistently held that vested contractual rights will not be impaired by retroactively applying the Motor Vehicle Franchise Act. (See Ace, 788 F.2d at 1227 (and cases cited therein).) In this case, the “done deal” referred to in the parties’ conversation quite clearly was contingent at the very least upon Tim Saurs’ submission of his application for the stock purchase. Moreover, the 1972 agreement expressly states that any amendments must be in writing and approved by Ford. Since Saurs’ application was not even submitted for Ford’s approval until January,. 1988, the proposed change in ownership had no effect upon the parties’ 1972 agreement, which plaintiff concedes permitted Ford to relocate John Bearce Ford, as aforesaid. Accordingly, the trial court correctly ruled that plaintiffs had no cause of action under the Motor Vehicle Franchise Act.

The judgment of the circuit court of Tazewell County is affirmed.

Affirmed.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RABHE MUSITIEF, Defendant-Appellant.
    Second District
    No. 2-89-1107
    Opinion filed August 20, 1990.

      Joseph M. Haddad, of Chicago, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford, and Eleesha Pastor O’Neill, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Rabhe Musitief, was charged with committing arson with the intent to defraud an insurer in violation of section 20— 1(b) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1985, ch. 38, par. 20 — 1(b)). At his jury trial, the State introduced evidence pertaining to the defendant’s unrelated financial misdeeds in an attempt to demonstrate motive or intent. The defendant was convicted of the offense charged, and he now brings this appeal.

On appeal, the defendant contends that his conviction must be reversed and the cause remanded for a new trial because evidence of other crimes was improperly presented to the jury without a limiting instruction and because the prosecutor’s remarks during closing argument allegedly deprived the defendant of a fair trial.

The fire giving rise to the charges against the defendant took place on February 5, 1986. The property which was the target of the arson was the defendant’s grocery business, known as O’Donald’s Food Store (the store). The defendant owned the business, but he only rented the building in which the business was located. The State alleged that the defendant paid Alvin Brown, a convicted felon and admitted cocaine user, to set fire to the store so that the defendant might recover from his insurer, General Casualty Companies. The defendant did, in fact, submit a claim under his $350,000 insurance policy following the fire.

Before trial, the defendant filed a motion in limine asking that the State be prohibited from introducing evidence pertaining to the defendant’s prior wrongdoings or his financial condition on the ground that it would be unduly prejudicial. The trial court denied the motion.

At trial, the central witness against the defendant was Alvin Brown. Brown testified that the defendant asked him to break into the store and burn it in return for $1,000, with half that amount to be paid before the arson and half afterwards. Brown testified that the defendant told him that he should enter the store through the roof, and the defendant assured him that the security alarms would be turned off. According to Brown, the defendant told him to set several fires, including one by the store’s liquor section because of the flammable nature of the alcohol. Brown entered the store and set it afire as directed by the defendant, and he testified that he heard no alarm triggered by his entry.

Also testifying for the State were several police and fire department personnel who responded to or investigated the fire at the store. All indicated that no alarm could be heard even after fire fighters forcibly entered the premises. Fire inspectors determined that several fires had been set in the store, including one near the liquor department. A green duffle bag was found in the precise location in the store where Brown said he had left it the night before. A police officer at the scene who entered the office with the defendant testified that the defendant opened the safe and indicated that nothing was missing from it. The following evidence was presented at trial in an attempt to demonstrate the defendant’s poor financial condition which allegedly led him to commit the offense. Representatives of two different banks testified that they had loaned the defendant more than $300,000 between August 1984 and December 1985. On the date of the fire, the defendant was several months past due in his payments on the loans in the amount of at least $25,000. One of the bank representatives also stated that the defendant had presented for deposit two checks totalling $15,000 which were drawn on an account in the defendant’s name from another bank. The checks were returned with the notation that the account had been closed.

Evidence also showed that, as of February 5, 1986, the defendant had not paid $59,000 he owed to Automatic Environmental Systems for refrigeration service and repair. A former employee of the defendant testified that the first paycheck issued to him by the defendant bounced. The employee testified that, from that point on, the defendant would cash his employee’s checks himself directly out of the store’s cash registers.

During trial, the defendant renewed the objection stated in his motion in limine to evidence of the defendant’s prior conduct which might constitute criminal offenses. Specifically, the defendant noted his continuing objection to the testimony of Roger Buck, an accountant who performed various services for the defendant from November 1984 through 1985, which would indicate that the defendant was guilty of tax fraud. The trial court ruled that Buck could testify regarding the defendant’s conduct in preparing tax statements, but he was instructed not to characterize the conduct as tax fraud.

Buck testified that, during the time he served as the defendant’s accountant, he was instructed to lower his calculation of the amount the defendant owed to the State for sales tax. Buck eventually stopped signing the defendant’s tax statements when the defendant instructed him to understate the store’s sales in order to arrive at an amount of tax owed which suited the defendant. Buck stated that he was also instructed to lower the statement of the store’s sales when calculating the amount of Federal corporate income tax due. Additionally, Buck testified that he was instructed to compile inflated statements of the store’s assets and income which might be presented to potential buyers of the store. The figures given to Buck for these statements were, Buck testified, dictated by the defendant with no apparent factual basis. In Buck’s opinion, the defendant had an “insufficient cash flow problem” in the months Buck worked for him. Buck stated that checks the defendant wrote to him in payment for his services bounced, and he never received any payment from the defendant.

Ruby Reum, a representative of the Illinois State Lottery, testified that the defendant sold lottery tickets at the store. According to Reum, the defendant came to her office at approximately 11 a.m. or 11:30 a.m. on February 6, 1986, to report that lottery tickets had been stolen from the store the night before. The defendant filled out a form which stated that, the day after the fire, he found the office safe open and the lottery tickets missing. The defendant did not at any time object to Reum’s testimony.

During closing argument, the State noted discrepancies in the defendant’s actions and characterized each as a “lie.” The prosecutor also referred to Buck’s testimony as evidence of the defendant’s motive for committing the crime. During his rebuttal argument, the prosecutor noted the “dishonest way [the defendant’s] sales tax returns were prepared” and that his “corporate income tax return [was] prepared the same way.” He also referred to the statement of assets prepared for potential buyers as “[a]nother dishonest document.” The prosecutor stated that this and other evidence was presented to show that the “defendant’s financial ship was sinking and it was sinking fast.” The prosecutor concluded his rebuttal by stating:

“MR. TORRISI [Assistant State’s Attorney]: Don’t be fooled like the Department of Revenue or the lottery office or the United States government and so many local banking institutions who put their trust in [the defendant]. We’ve shown you he’s not worthy of your trust. He can’t be trusted. Place your trust in your common sense, your mind, your gut, and your heart.”

The jury returned a verdict of guilty. The defendant filed a motion for a new trial on the basis that, inter alia, the trial court improperly allowed Buck to testify regarding the defendant’s possible sales tax fraud and his financial condition. The trial court denied the motion. The court then sentenced the defendant to 30 months’ probation, with probation conditioned on the defendant serving six months’ periodic imprisonment plus payment of a $1,000 fine.

On appeal, the defendant advances three arguments in support of his contention that he is entitled to a new trial: (1) the trial court erred by allowing into evidence testimony regarding his prior offenses (tax fraud) and his subsequent attempt to defraud the lottery; (2) such evidence should not have been admitted without a limiting instruction to the jury; and (3) the prosecutor’s remarks in closing argument were prejudicial and deprived the defendant of a fair trial. We will address the first two of the defendant’s arguments together and will then proceed to address the third.

Evidence of other crimes for which a defendant is not on trial is inadmissible if relevant merely to establish the defendant’s propensity to commit crime. Such evidence overpersuades the jury, which might convict the defendant only because it feels he is a bad person deserving punishment. (People v. Richardson (1988), 123 Ill. 2d 322, 338-39.) Other-crimes evidence is admissible, however, if relevant for any purpose other than to show the propensity to commit crime. (Peo ple v. McKibbins (1983), 96 Ill. 2d 176, 182.) Such purposes include proving modus operandi, intent, identity, motive, or absence of mistake. Richardson, 123 Ill. 2d at 339.

Even where factors are present which justify the admission of evidence of other crimes, however, such evidence must be rejected where its prejudicial effect clearly outweighs its probative value. (People v. Rodriguez (1982), 107 Ill. App. 3d 43, 48.) The questions of whether other-crimes evidence is relevant and whether its probative value outweighs its prejudicial effect are matters within the sound discretion of the trial court. The trial court’s rulings on these questions will not be disturbed on review absent abuse of that discretion. People v. Clark (1988), 173 Ill. App. 3d 443, 453-54.

In the instant cause, the State presented the testimony of Buck, the defendant’s accountant, in order to bolster its contention that the defendant’s financial position was deteriorating or, in other words, to establish motive. While it is not necessary to establish motive in an arson case, motive can be established by evidence pertaining to the defendant’s financial condition and the possible effect of insurance thereon. (People v. Martin (1978), 59 Ill. App. 3d 785, 788.) The fact that the defendant was engaged in intentional financial misdeeds in the months preceding the fire, viewed in conjunction with the other evidence of his poor financial health, supports the inference that the defendant had a financial motive to defraud his insurer. We cannot say that the trial court abused its discretion in holding that the evidence was relevant to show motive.

The defendant argues that, even if relevant, the prejudicial effect of the testimony regarding tax fraud outweighed its probative value. Though he has put them forth as separate contentions, this inquiry requires us to address the defendant’s additional argument that the other-crimes evidence should not have been allowed absent a limiting instruction to the jury. The defendant could have requested such a limiting instruction (see Illinois Pattern Jury Instructions, Criminal, No. 3.14 (2d ed. 1981)), but he did not. It is not the trial court’s obligation to give such an instruction sua sponte. (People v. Cregar (1988), 172 Ill. App. 3d 807, 822.) The defendant’s failure to tender a proper instruction waives any objection concerning its absence on appeal. People v. Reddick (1988), 123 Ill. 2d 184, 198.

If a limiting instruction had been given, it would have lessened any prejudicial effect of the other-crimes evidence. (People v. Rose (1990), 198 Ill. App. 3d 1, 7-8.) In reviewing the trial court’s determination that the probative value of the evidence outweighed its prejudicial effect, the defendant’s failure to tender the limiting instruction cannot be allowed to increase our assessment of its possible prejudicial effect. In other words, we should not assume that the evidence was considered for a purpose different from that for which it was offered.

In the instant cause, the trial court instructed the State that the defendant’s conduct could not be referred to as tax fraud per se, but such conduct could be recounted only toward demonstrating his deteriorating financial condition. We also note that there was no extensive discussion of the collateral tax-fraud crimes greater than that necessary to demonstrate motive, the purpose for which the evidence was offered. (See Richardson, 123 Ill. 2d at 343.) Under these circumstances, we do not believe it was an abuse of discretion for the trial court to conclude that the probative value of the evidence showing the defendant’s motivation outweighed its possible prejudicial effect.

Our holding in this regard is in accord with two Federal decisions. In United States v. Fakhoury (7th Cir. 1987), 819 F.2d 1415, a case relied on by the trial court here, the defendant was charged with attempted arson and mail fraud. The government introduced evidence which indicated that the defendant was involved in actions constituting tax fraud. On appeal, the court held that this evidence was admissible because it was offered “primarily to show [the defendant’s] deteriorating financial condition rather than tax fraud.” (Fakhoury, 819 F.2d at 1420 n.1.) Similarly, in United States v. Kerr (11th Cir. 1985), 778 F.2d 690, the defendant, a pharmacist, was charged with, inter alia, mail fraud based on the predicate crime of arson. The government introduced evidence showing that the defendant was engaged in irregular practices in the dispensing of drugs and that these practices were about to be discovered. The court held that the evidence was relevant to show the defendant’s motive for burning his business to destroy pharmaceutical records. (Kerr, 778 F.2d at 695-96.) In both cases, the prejudicial effect of the other-crimes evidence was outweighed by its probative value.

The defendant also contends that Reum’s testimony regarding his attempt to defraud the Illinois State Lottery was prejudicial and should not have been allowed into evidence. Our review of the record indicates that, despite his contention to the contrary, the defendant never raised this issue below. No objection to the testimony was made when it was given, and the issue was not raised in the motion in limine or in his post-trial motion. Accordingly, we find that the defendant has waived consideration of this issue on appeal. People v. Enoch (1988), 122 Ill. 2d 176, 186.

Even if the issue were not waived, however, it is not necessarily error to admit evidence of other crimes occurring after the one with which the defendant is charged. If another crime has a tendency to make the existence of a fact of consequence to the determination of the case more probable than it would be without that evidence, then it is relevant and admissible regardless of whether the other crime occurred before or after the crime charged. (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 489.) Evidence of a subsequent crime may also be admissible where it bears some degree of identity to the offense charged and demonstrates a common design. See Rose, 198 Ill. App. 3d at 7.

Finally, the defendant contends that statements made by the prosecutor in closing argument were prejudicial and denied him his right to a fair trial. We note that, because the statements were not objected to at trial or raised in the defendant’s motion for a new trial, the issue is waived on appeal. (See People v. Cisewski (1987), 118 Ill. 2d 163, 176.) Relaxation of the waiver rule may be appropriate under the plain-error doctrine, however, where the evidence is so closely balanced that the jury’s verdict may have resulted from the alleged error. People v. Gacho (1988), 122 Ill. 2d 221, 249.

If evidence of other crimes is admitted, it is not impermissible for the prosecutor to refer to or summarize such evidence in closing argument. (McKibbins, 96 Ill. 2d at 187.) The prosecutor’s final plea that the jury not “be fooled like the Department of Revenue or the lottery office or the United States government” may have, however, overemphasized the prejudicial aspect of the other-crimes evidence rather than its relevant probative value. Nevertheless, we do not believe that the evidence of the defendant’s guilt was so closely balanced that the jury’s verdict was the result of this isolated remark. (See People v. Baker (1983), 114 Ill. App. 3d 803, 808.) Accordingly, application of • the plain-error doctrine to review the defendant’s contention is inappropriate here.

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

Affirmed.

UNVERZAGT, P.J., and DUNN, J., concur.


author: JUSTICE LEWIS

text:
    KATHLEEN GALLENTINE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (K mart Corporation, Appellee).
    Second District (Industrial Commission Division)
    No. 2-89-1229WC
    Opinion filed August 22, 1990.

      Brian P. Reese, of Reese & Reese, of Rockford, for appellant.
    Robert G. Shapin, of Ganan & Shapiro, P.C., of Chicago, for appellees.
   JUSTICE LEWIS

delivered the opinion of the court:

Claimant, Kathleen Gallentine, filed a petition for an emergency hearing pursuant to section 19(b — 1) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b — 1)) of the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) against the respondent, K mart Corporation, following the respondent’s discontinuance of her temporary total disability benefits (TTD) and her medical expenses. In addition, the claimant filed a petition for penalties under sections 19(k) and 19(7) (Ill. Rev. Stat. 1987, ch. 48, pars. 138.19(k), 138.19(i)) and for attorney fees under section 16 (Ill. Rev. Stat. 1987, ch. 48, par. 138.16) of the Act. Following a hearing on these petitions, the arbitrator found that the claimant continued to be temporarily totally disabled and awarded her 1556/7 weeks of TTD; that the claimant was entitled to medical expenses totalling $2,644.07; and that she was entitled to penalties under section 19(1) in the amount of $2,380 and to attorney fees under section 16 in the amount of $1,500. On review, the Industrial Commission (Commission) modified the arbitrator’s decision and reduced her TTD to 134 weeks; disallowed the $1,500 awarded by the arbitrator for the chiropractor’s bill as an unreasonable and unnecessary medical expense; and disallowed the arbitrator’s award of penalties and attorney fees. Additionally, the Commission held that the arbitrator erroneously admitted a report of Dr. R.L. Anderson over the respondent’s objection, and the Commission refused to consider that evidence in its decision. The Commission’s decision was subsequently confirmed by the circuit court, and the claimant appeals.

On appeal, the claimant raises the following issues: (1) whether the Commission erroneously denied the admittance of Dr. R.L. Anderson’s report; and (2) whether the Commission’s decision was against the manifest weight of the evidence with regard to (a) the reduction of the claimant’s TTD, (b) the Commission’s finding that the chiropractor’s bill was unreasonable and unnecessary and the denial of the payment of the bill, and (c) the reversal of the arbitrator’s award of penalties and of attorney fees. To consider these issues, a statement of the facts is necessary.

At the hearing before the arbitrator, the claimant testified that she was employed by the respondent in January 1985 and that her duties included taking freight from upstairs, hanging up merchandise, and doing displays of merchandise in the lingerie department. Her work shift was from 8 a.m. or 8:30 a.m. until noon, although she sometimes worked past this time if another employee was unable to work. On January 23, 1985, the claimant lifted a clothes rack to place it on a caster, and when she did so, she felt something “pop” in her back. The claimant reported her injury to the floor supervisor and continued to work until the end of her shift. At the time of the accident, the claimant had immediate pain in her back, and as the morning progressed, she developed pain down her hips and both of her legs. By the end of her shift, the claimant was in considerable pain.

At the end of her work day, the claimant went home. Shortly thereafter, she went to the emergency room of the hospital, where she was examined, given pain medication and told to see her personal physician. The claimant called her doctor, Dr. Neiweem, immediately, but she was unable to obtain an appointment until a week later. When the claimant saw Dr. Neiweem, he examined her, prescribed physical therapy for her, and .told the claimant not to return to work. Dr. Neiweem admitted the claimant to the hospital in March 1985 for a myelogram and a CAT scan.

Also in March 1985, while the claimant was still receiving physical therapy, the claimant started chiropractic treatments with Dr. Meyers. The claimant stated that Dr. Meyers’ treatments did not help her condition; however, the chiropractic treatments temporarily relieved her pain for approximately two hours after the treatment. The claimant saw Dr. Meyers on a regular basis until April 1987, and she still occasionally went to him for treatment. It was Dr. Meyers who referred her to Dr. R.L. Anderson. On cross-examination, the claimant admitted that Dr. Neiweem did not refer her to Dr. Meyers, and that it was Dr. Neiweem’s opinion that chiropractic treatment would not help her condition.

The claimant first saw Dr. Anderson in May 1985. At that time, Dr. Anderson examined her, prescribed more physical therapy, told her to walk and advised the claimant not to return to work. Dr. Anderson also had electrodiagnostic tests, an epidural block, and a CAT scan performed on the claimant. Dr. Anderson told the claimant that she had a herniated disc at L5-S1 and that she had two disc protrusions. Dr. Anderson had scheduled the claimant for surgery in October 1986, but because of the claimant’s other physical problems at that time, the surgery was not performed, and the surgery had never been rescheduled. Dr. Anderson had referred her to “back school” in March 1987 and to Mayo Clinic in April 1987.

The claimant testified that she was still under Dr. Anderson’s care and that her last appointment with Dr. Anderson was on January 15, 1988. Before returning to work in August 1987, Dr. Anderson had placed work restrictions on her. Dr. Anderson had advised her not to do any strenuous or heavy lifting or to stay in one position, i.e., either bending, sitting, or standing, for long periods of time. According to the claimant, she has never been released for full-duty work.

The claimant attempted to return to work on August 24, 1987, and upon her return to work, the claimant was assigned to run a cash register. To run the cash register, the claimant had to operate the cash register, pull merchandise through, and package the merchandise for the customer. The merchandise involved could weigh up to 20 pounds.

On her first day back to work, the claimant was scheduled to work for three hours. The claimant did not operate the cash register that day, but she observed another employee. After standing and watching the other employee for about an hour and a half, the claimant began to have excruciating pain in her left leg. The respondent had provided the claimant with a stool so that she could sit down when necessary; however, this did not help her as the claimant could only alleviate her pain by walking around or by lying down and propping up her leg. The claimant told the floor supervisor that she was in pain, and the claimant was sent home. The following day, the claimant continued to have pain, so she called the respondent and said that she was not coming in to work that day. After calling the respondent, the claimant called Dr. Anderson, and he told her not to go into work. The claimant had not returned to work since that time, although the claimant stated she had sought other work within her restrictions. It was the claimant’s testimony that the respondent had not offered her a position within her work restrictions.

The claimant testified that she was not currently receiving TTD payments because the respondent had discontinued her TTD as of May 1987. The claimant stated that she cannot lift heavy items and that, while she can twist and turn, she cannot do these activities for any extended period of time. The claimant further stated that she always has pain in her left leg, as well as tingling and numbness in three of her toes.

In addition to the claimant’s testimony, numerous medical records and reports were admitted into evidence by both the claimant and the respondent. Because of the nature of the claimant’s issues, the evidence presented in these records will be discussed under the consideration of the issues.

The first issue raised by the claimant is that the Commission erroneously excluded Dr. Anderson’s letter report of January 18, 1988, from the evidence and from the Commission’s consideration. The claimant contends that the Commission’s ruling on the admissibility of this evidence is erroneous for two reasons: first, that the parties had stipulated that the medical evidence in this case could be presented by way of reports and records and that the Commission’s ruling violated the stipulation; and second, that the Commission’s exclusion of the doctor’s report as hearsay was erroneous, since the hearsay rule is not absolute when there is evidence of a document’s trustworthiness and where, as here, such evidence of the report’s trustworthiness was present.

Initially, we consider the claimant’s contention that the Commission’s ruling violated the parties’ stipulation. At the beginning of the arbitration hearing, the arbitrator stated that the parties had entered into a written stipulation, which was identified as the parties’ request for hearing and which was admitted as arbitrator’s exhibit No. 1. It is the language contained within the request for hearing form upon which the claimant supports her argument. The pertinent language upon which the claimant relies is as follows:

“Petitioner and Respondent are prepared to try this 19(b — 1) Petition to completion on 1/19/88 except for (a) medical evidence which both parties agree may be submitted by reports or deposition ***.”

The claimant interprets this language to mean that the parties stipulated that all of the medical evidence could be presented by reports alone and that this evidence would not be challenged by either party. In this interpretation, the claimant is mistaken.

The primary purpose of a request for hearing form is to delineate and to limit the issues which are in dispute, and it was for this purpose that this form was considered a stipulation of the parties by the arbitrator. Here, the respondent disputed whether the claimant remained temporarily disabled, and it was to this issue that the doctor’s report in question pertained. The standard language of the request for hearing form simply permitted medical evidence to be admitted through reports or depositions, if both parties agreed that it may. In the absence of an agreement between the parties to admit the records, as was the case here, that party was not foreclosed from objecting to the evidence. Therefore, the Commission did not violate the parties’ stipulation when it excluded the doctor’s report on the basis of the respondent’s hearsay objection.

Next, we consider whether the Commission properly held that the doctor’s report was not admissible as it was hearsay evidence. It has been held that “the rule against the admission of hearsay evidence is not absolute and that, under certain circumstances, the probability of the evidence’s accuracy and trustworthiness may act as a substitute for cross-examination under oath.” (Fencl-Tufo Chevrolet, Inc. v. Industrial Comm’n (1988), 169 Ill. App. 3d 510, 514, 523 N.E.2d 926, 929; United Electric Coal Co. v. Industrial Comm’n (1982), 93 Ill. 2d 415, 444 N.E.2d 115.) Here, the report of Dr. Anderson of January 18, 1988, was one of many reports of the doctor which were presented by both the claimant and by the respondent. The respondent did not object to the admission of the claimant’s treating doctor’s other reports. Additionally, the respondent did not challenge the authenticity of the doctor’s report of January 18, 1988. Because of these factors, the report was trustworthy and was admissible even though it was hearsay. Therefore, the Commission should have admitted Dr. Anderson’s letter report of January 18, 1988; however, under the circumstances presented here, the Commission’s ruling was harmless error. Having reviewed the content of Dr. Anderson’s letter report, it is clear that the doctor’s report simply stated the claimant’s current physical status, but nothing in the report supported the claimant’s position that the doctor had not released her for work. Thus, although the report was admissible, the error does not require reversal, where, as here, there has been no prejudice to the claimant, and the failure to admit the doctor’s report did not materially affect the outcome of this case. Illinois Piping Co. v. Industrial Comm’n (1987), 156 Ill. App. 3d 955, 509 N.E.2d 1107.

The claimant’s second issue, consisting of three subissues, concerns whether the Commission’s decision was against the manifest weight of the evidence. The general principles regarding the manifest weight of the evidence questions are that it is the claimant who bears the burden of proving her claim by a preponderance of the evidence; that it is the Commission whose function it is to determine the credibility of the witnesses and to resolve conflicts in the evidence; that the Commission is not bound by the arbitrator’s findings; and that the Commission’s findings and decision will not be overturned upon review unless its determination is against the manifest weight of the evidence. (Rambert v. Industrial Comm’n (1985), 133 Ill. App. 3d 895, 477 N.E.2d 1364.) Bearing these principles in mind, we consider the claimant’s separate subissues.

The claimant’s first subissue is that the Commission’s reduction of her TTD benefits was against the manifest weight of the evidence. It is well established that the determination of the time for which a claimant is temporarily totally disabled is a question of fact for the Commission to decide, and, unless that decision is against the manifest weight of the evidence, it will not be disturbed on review. (Lusietto v. Industrial Comm’n (1988), 174 Ill. App. 3d 121, 528 N.E.2d 18.) The period of temporary total disability encompasses the time from which the injury incapacitates the claimant until such time as the claimant has recovered as much as the character of the injury will permit, i.e., until the condition has stabilized. (Rambert, 133 Ill. App. 3d 895, 477 N.E.2d 1364.) To show temporary total disability, the claimant must show not only that she did not work, but that she was also unable to work. Rambert, 133 Ill. App. 3d 895, 477 N.E.2d 1364.

In the instant case, Dr. Sherman, a physician seen by the claimant at the respondent’s request, sent a letter to the respondent dated August 4, 1987. Dr. Sherman had seen the claimant on July 30, 1987, and, on the basis of his examination, it was his opinion that the claimant could return to light duty, that is, work which did not require repetitive bending and stooping or which did not require the claimant to lift more than 15 to 20 pounds. Another letter report dated May 29, 1987, from Dr. Fealey, a doctor seen by the claimant at Mayo Clinic at her treating physician’s request, stated that the claimant could return to light duty work, just as Dr. Sherman had. The work restrictions imposed upon the claimant by Dr. Fealey were that she should not lift more than 30 pounds, and that she should not put undue stress on her lower back by standing eight hours a day or by performing jobs which required vigorous bending, twisting, or jarring to her spine. Lastly, Dr. Anderson, the claimant’s treating physician, stated in a letter report of August 26, 1987, that he had examined the claimant on August 20, 1987, and that if the claimant returned to work, she should avoid heavy lifting, repetitive twisting and bending, and standing for long periods of time.

Following the receipt of the above letter reports, the respondent attempted to provide the claimant with the job of cashier, which position appeared to be within her work restrictions. By the claimant’s own testimony, the respondent provided her with a stool so that she did not have to sit or stand for long periods of time, and the job required her to lift up to 20 pounds, an amount within her weight lifting restrictions. The only evidence offered by the claimant that she could not work after August 24, 1987, when she worked for IV2 hours, was her uncorroborated testimony that Dr. Anderson told her to not work on August 25, 1987. However, the claimant did not see Dr. Anderson after August 24, 1987, until January 15, 1988, and, as we noted previously, following the doctor’s examination in January 1988, the doctor’s report gave an update of the claimant’s physical condition, and nothing in his letter indicated that he had altered his previous position that the claimant could return to light duty work. Therefore, there was sufficient evidence to support the Commission’s determination that the claimant was able to return to work as of August 21, 1987, and that the claimant was not entitled to TTD after this date.

The claimant argues that her uncorroborated testimony that she was told by Dr. Anderson that she was unable to return to work was sufficient to support a finding that she was entitled to continuing TTD. In this assertion the claimant is partially correct. However, uncorroborated testimony will support an award for benefits only if a consideration of all the facts and circumstances supports that decision. (Caterpillar Tractor Co. v. Industrial Comm’n (1980), 83 Ill. 2d 213, 414 N.E.2d 740.) Here, the facts and circumstances conflicted with the claimant’s testimony and did not support an award for TTD benefits.

The claimant’s next subissue is that the Commission’s disallowance of Dr. Meyers’, the chiropractor’s, bill as an unnecessary and unreasonable medical expense was against the manifest weight of the evidence. The claimant’s argument of this issue is twofold: (1) that the Commission erroneously placed the burden of proving the reasonableness and necessity of Dr. Meyers’ treatment upon her; and (2) that the Commission’s denial of Dr. Meyers’ bill was also erroneous in that the Commission based its decision upon the fact that Dr. Meyers was a chiropractor and that Dr. Meyers’ treatment of the claimant was not beneficial.

With regard to the claimant’s first argument, that the Commission erroneously imposed the burden of proving the reasonableness upon her, we find that the Commission was correct in this regard, for it is the claimant who bears the burden of proving her reasonable medical expenses by a preponderance of the evidence. Gray Hill, Inc. v. Industrial Comm’n (1986), 145 Ill. App. 3d 371, 495 N.E.2d 1030. The claimant also contends that the Commission denied Dr. Meyers’ bill because Dr. Meyers was a chiropractor and because his treatment of her was not beneficial. In the Commission’s decision, the denial of Dr. Meyers’ bill was given as follows:

“The Commission concludes that Petitioner failed to prove that these charges [Dr. Meyers’ expenses] were either reasonable or necessary, based on the evidence that Petitioner was simultaneously receiving physical therapy at Community General Hospital while seeing Dr. Meyers, and on the opinions of Drs. Neiweem and Sherman, who both felt that chiropractic treatment was unbeneficial and unwarranted in the case.”

From this statement by the Commission, it is clear that the denial of Dr. Meyers’ expenses was not on the basis that he was a chiropractor, and the claimant’s argument in this regard is without merit.

Likewise, the Commission did not deny Dr. Meyers' expenses because his treatment of the claimant was unsuccessful in curing her condition. What is apparent is that the Commission found that Dr. Meyers’ treatment of the claimant was unnecessary and thus, unreasonable, and the record supports the Commission’s decision. In Dr. Neiweem’s records of March 22, 1985, the doctor indicated that the claimant discussed with him the benefits of receiving chiropractic treatment. The doctor stated in his notes that “I have explained [to] her that I have no objections to her trying chiropractic treatment, [sic] however, I do not feel that these will significantly improve her back.” Similarly, in a letter report dated May 9, 1985, from Dr. Sherman, Dr. • Sherman indicated that he had examined the claimant on May 7, 1985. In his letter report, Dr. Sherman stated as follows: “Chiropractic treatment may be keeping her busy, however, I doubt that it would be helping to any great degree.” In addition to the two doctor’s reports, the claimant herself testified that the chiropractic treatments gave her temporary relief from pain for a short time after a treatment, but that the treatments had not helped her overall condition. From this evidence, the Commission could have concluded that the chiropractic treatments received by the claimant were unnecessary, and the Commission’s denial of Dr. Meyers’ expenses was not erroneous. See Pemble v. Industrial Comm’n (1989), 181 Ill. App. 3d 409, 536 N.E.2d 1349.

The last subissue raised by the claimant is that the Commission’s reversal of the arbitrator’s award of penalties and of attorney fees was erroneous as it was against the manifest weight of the evidence. In this case, the arbitrator originally awarded penalties under section 19(Z) of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(Z)), in the amount of $10 per day for 238 days for a total of $2,380. The arbitrator also awarded the claimant attorney fees under section 16 of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.16) in the amount of $1,500. On review, the Commission determined that there was a genuine dispute as to whether the claimant remained temporarily totally disabled and reversed the arbitrator’s award for sanctions. The Commission found that the respondent discontinued paying the claimant TTD in June 1987, following the May 1987 reports from Mayo Clinic and Dr. Sherman’s report of July 23, 1986, in which it was stated that the claimant could return to work with restrictions.

It is the respondent who bears the burden of proving that a failure to pay TTD is reasonable. (Waldschmidt v. Industrial Comm’n (1989), 186 Ill. App. 3d 477, 542 N.E.2d 726.) Whether the employer’s conduct was unreasonable, thereby justifying the imposition of penalties, is a question of fact for the Commission. (Waldschmidt, 186 Ill. App. 3d 477, 542 N.E.2d 726.) Here, the evidence supported the Commission’s finding that there was a genuine dispute regarding the claimant’s continuing eligibility for TTD, for Dr. Fealey stated in his report of May 29, 1987, that the claimant could return to work with restrictions. Dr. Fealey’s report, combined with Dr. Sherman’s prior report of July 23, 1986, in which Dr. Sherman stated the claimant could probably return to work with a 15-pound lifting restriction, was sufficient evidence to support the Commission’s determination that there was a reasonable question as to whether the respondent remained obligated to pay the claimant TTD.

Further, the Commission found that the claimant was no longer entitled to TTD as of August 21, 1987, the day following Dr. Anderson’s examination of the claimant, as Dr. Anderson had found the claimant able to return to light duty work. Since the Commission had correctly found that the claimant was not entitled to additional benefits, it cannot be said that the respondent’s discontinuance was unreasonable. Therefore, the Commission properly reversed the arbitrator’s award for penalties under section 19(f).

Additionally, the Commission was also correct in reversing the arbitrator’s award for attorney fees under section 16, as attorney fees are not recoverable in the absence of section 19(k) penalties. (Waldschmidt, 186 Ill. App. 3d 477, 542 N.E.2d 726; Boker v. Industrial Comm’n (1986), 141 Ill. App. 3d 51, 489 N.E.2d 913.) Here, the arbitrator only awarded penalties under section 19(f), so the award of attorney fees by the arbitrator was inappropriate.

For the foregoing reasons, the judgment of the circuit court of Winnebago County, confirming the Industrial Commission’s decision, is affirmed.

Affirmed.

BARRY, P.J., and McNAMARA, WOODWARD, and McCullough, jj., concur.