source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    BOARD OF REGENTS FOR REGENCY UNIVERSITIES, for and on Behalf of Sangamon State University, Petitioner, v. THE HUMAN RIGHTS COMMISSION et al., Respondents.
    Fourth District
    No. 4—89—0303
    Opinion filed April 11, 1990.

      Kenneth G. Kombrink, of Board of Regents of Regency Universities, of Springfield, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Linda J. Hay, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.
    Leahy Law Offices, of Springfield (Mary Lee Leahy and Cheryl Redfield Jansen, of counsel), for respondent Sandra Martin.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The Board of Regents for Regency Universities on behalf of Sangamon State University (SSU) appeals a Human Rights Commission (HRC) finding (In re Board of Regents for Regency Universities, _Ill. Hum. Rights Comm’n Rep. _(June 10, 1986, HRC Nos. 1979SF474, ALS417(S))) that it discriminated against Sandra Martin on the basis of her sex when it denied her application for promotion to assistant professor. SSU also contends the attorney fee award was improper. In light of our disposition of this matter, we need not address the attorney fee issue.

SSU argues: (1) the HRC erred in reviewing the findings of the administrative law judge; (2) the HRC erred in applying the McDonnell Douglas Corp v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817, analysis to the instant case; and (3) the HRC’s decision is contrary to the manifest weight of the evidence.

We reverse.

PROCEDURAL BACKGROUND

On May 14, 1979, Sandra Martin completed a charge of discrimination alleging SSU had denied her request for promotion to assistant professor of learning skills. Martin had been told she had not demonstrated sufficient scholarship in the learning assistance field. Martin alleged she was as qualified or better qualified than two males who were made assistant professors. Subsequently, the Illinois Fair Employment Practices Commission issued a complaint of unfair employment practice pursuant to the Fair Employment Practices Act (Ill. Rev. Stat. 1979, ch. 48, par. 851 et seq., now Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1987, ch. 68, par. 8—107(E))). The complaint alleged: Martin was hired by SSU in 1972 as a lecturer; she was promoted to faculty assistant in 1975; and she was promoted to instructor in 1976. Martin applied for promotion to assistant professor in 1979, was qualified for the position, but was denied promotion. The complaint further alleged she was as qualified as two male assistant professors, Gary Morgan and Ben Ward. Martin concluded SSU discriminated on the basis of sex in denying her application for promotion. On April 17, 1981, the HRC amended the complaint, adding the Board as a respondent.

A hearing on the complaint occurred on December 8, 1981, before administrative law judge James Simpson. However, prior to reaching a decision, Simpson resigned. On December 23, 1983, the parties stipulated that administrative law judge Patricia Patton could write the decision based upon the record of the December 8, 1981, hearing.

DECEMBER 8, 1981, HEARING

SANDRA MARTIN

In 1964, Martin received a bachelor of arts degree from St. Louis University. She graduated cum laude. She then studied under a graduate assistantship program at Purdue University. She taught freshman composition, American culture, and studied English literature as part of the assistantship program. In 1965, Martin started her master’s program at St. Louis University. She received a master of arts degree in 1967. During her studies for her master of arts, she taught freshman and sophomore composition or literature pursuant to a graduate fellowship. During the 1967-68 school year, Martin taught English and composition at St. Louis University. Forest Park Community College hired Martin in 1968. She taught writing, literature, and composition. Her classes principally involved minority population groups who needed remedial assistance.

In 1970, Martin moved to Springfield and worked for the Illinois Institution for Social Policy, where she developed a form application for welfare recipients. She also worked as a free-lance editor of the Journal of the Illinois Constitutional Convention, edited a history of McLean County, and helped form “Brainchild,” a publication of the Illinois Women’s Poetry Collective. She published numerous articles in varied areas.

SSU hired Martin in January 1972 as a lecturer. This was a part-time position. Her first assignment at SSU involved teaching writing to grade school and high school teachers. She also taught magazine production and communication in print. In 1974, Martin interviewed for a position in the newly created learning center. She accepted a graduate assistantship, which was a part-time position. Morgan and Ward interviewed Martin for the position. In 1974, SSU hired Morgan and Ward as assistant professors. They were coadministrators of the learning center. In January 1975, Morgan and Ward hired Martin as a faculty assistant in the learning center. In 1976, Morgan and Ward recommended Martin for promotion to instructor within the learning center. Martin testified that Morgan and Ward actually reallocated learning center funds to create the instructor position.

All learning center personnel had similar duties. They all developed the program, tutored students, and publicized the learning center. Martin’s principal duties involved teaching writing skills. The learning center was initially an experimental unit. Its purpose was to provide tutorial and related services to students. Martin admitted the learning center movement began in the late 1960’s or early 1970’s. From 1972 through 1974 there was little opportunity to participate in educational associations in the specialty. She attended the first meeting of the national organization and four meetings of the State association. Martin stated SSU paid for Ward and Morgan’s membership in the Illinois and national organization. It did not fund her membership.

Martin admitted nothing in her personnel file indicated membership in any professional organizations for learning skills. She had not written any articles on learning centers or learning skills. Everything she wanted considered regarding her application for promotion should have been in her personnel file.

All but one of Ward’s professional activities occurred after 1974. Morgan’s activities in the profession began in 1976. Morgan and Ward were active in organizing the Illinois Association for Personalized Learning (IAPL). Ward was director of the organization. Martin stated she assisted Ward in organizing the association. Ward published an article on personalized learning in 1979. Martin agreed that Ward’s personnel file showed that he was active in the National Association for Remedial Developmental Studies in Post-Secondary Education (NARDSPE). Morgan was a membership chairperson of the national organization. The national and State organizations were formed after 1974.

In 1979, Martin applied for a promotion to assistant professor.

PROMOTION PROCEDURE

SSU has a multilevel promotion procedure. First, the applicant completes a self-evaluation. This evaluation is reviewed by a personnel committee for the immediate unit. If the personnel committee approves the request, it is sent to a cluster personnel committee. The cluster personnel committee submits its recommendation to the university personnel committee. The university personnel committee’s decision is then reviewed by the vice-president for academic affairs. The vice-president for academic affairs recommends the promotion be denied or granted. The vice-president’s recommendation is acted upon by the president of the university and the Board of Regents. The learning center was not attached to an academic cluster. Therefore, the second level of evaluations was inapplicable.

The appointment or promotion policy in effect in 1979 stated:

“Assistant Professor
For appointment or promotion to the rank of assistant professor, a candidate must have completed at least one year of study beyond the Master’s Degree or have clearly demonstrated equivalent competencies as revealed by relevant scholarship, professional experience, or creative work. The amount of formal study beyond the Master’s Degree will of necessity vary from discipline to discipline. In most cases a candidate will be expected to have completed all work for a doctorate except for the dissertation. In some disciplines, of course, the Master’s degree is considered terminal.
Most new faculty members who have completed an earned doctorate, or all but the dissertation, but who have had no teaching experience except as graduate assistants will be appointed to the rank of assistant professor.
Experience gained as an instructor at Sangamon State University should be considered as part of the professional experience when a candidate for promotion has not earned the doctorate in a relevant field. There should be evidence of substantial individual growth in teaching abilities during the instructor ship. The candidate for an assistant professorship must also demonstrate potential to contribute more broadly than the instructor to the missions and mandates of the University. Such evidence may be found in the range of scholarly and professional interests or creative skills as demonstrated by active membership in professional organizations, or by a variety of internal and external services performed in support of university or community programs.”

MARTIN’S APPLICATION FOR PROMOTION

Martin completed all levels of the review procedure. She was favorably recommended at all levels through the university personnel committee. However, Dr. Susan Dezendolet, the vice-president of academic affairs, recommended Martin’s promotion request be denied. Martin stated Dezendolet told her she was not active enough in professional organizations which Dezendolet thought were relevant to her position at the learning center. Dezendolet recommended Martin pursue her doctorate and attend more meetings on learning assistance. SSU’s president, Alex Lacey, acted on Dezendolet’s recommendation.

GARY MORGAN

Morgan had two master’s degrees when he was hired in 1974 as an assistant professor. He and Ward were hired to develop the learning center and were codirectors of it. He was Martin’s supervisor. He and Ward had administrative duties as well as teaching duties. Morgan had not done any work toward a doctorate in 1974. Morgan stated that when SSU hired him he had no regular teaching experience at the university level.

Morgan further stated he presented a paper concerning learning centers at a national conference prior to his employment by SSU. After 1974, he was the membership chairperson for the NARDSPE. He had not published any articles in professional journals concerning learning centers. However, he had completed a consulting task with another university. He evaluated its learning center. Morgan stated he was one of the organizers of the IAPL programs. SSU did not pay for his membership in the organizations, but it did fund his attendance at various conferences.

Morgan further testified that it was not feasible for Martin, Ward, and him to attend conferences at the same time. Morgan and Ward, as coadministrators, decided who would attend conferences. Usually, they attended the conferences while Martin worked at the learning center.

BEN WARD

Ward did not testify at the hearing. His personnel file shows no publication in the learning center field or the personalized learning field in 1974. He did not attend any conferences or meetings in the personalized learning field prior to 1974. Morgan stated he worked with Ward and reviewed his resume. Ward had no university-level teaching experience prior to being hired as an assistant professor in 1974. Ward had a master’s degree but had not done any study toward a doctorate. After Ward was hired as an assistant professor, he helped organize the IAPL programs. Ward attended 10 conferences between 1975 and 1979. In 1976, he published two papers on personalized learning.

THE RECOMMENDED ORDER AND DECISION

On June 28, 1985, the administrative law judge (ALJ) entered a recommended order and decision. The ALJ concluded Martin had established a prima facie case of discrimination, respondent articulated a legitimate, nondiscriminatory reason for the failure to promote Martin, and Martin failed to show the reason was pretextual. The ALJ stated Martin’s personnel file and Dezendolet’s explanation of the unfavorable recommendation established a nondiscriminatory basis for the decision. The ALJ further stated the difference in treatment between Martin, Morgan, and Ward with regard to membership and activity and professional associations did not indicate the reason was a pretext. The ALJ found scholarship in the personalized learning field had developed between 1970 and 1979. Complainant did not state personalized learning field organizations existed prior to 1974. Therefore, the ALJ found it credible that SSU would have substantially different expectations with regard to participation in professional organizations in 1979 than it had in 1974.

THE HRC’S DECISION

On June 10, 1986, the HRC entered its order and decision. The HRC agreed that Martin had set out a prima facie case of discrimination. It found, however, that the stated reason did not explain why similarly qualified individuals were granted the rank of assistant professor while Martin was not granted that rank. It noted the stated reason must explain the disparate treatment to rebut the prima facie case. The HRC then noted no witness explained why Morgan and Ward were granted assistant professorships and no witness explained the difference in application of the criteria for promotion or appointment to Martin.

The HRC then noted the ALJ had accepted respondents’ attorney’s argument about the possible grounds for disparate treatment as fact and as a substitute for evidence to articulate a reason. The HRC found that complainant should not have to prove that every possible reason articulated by respondents’ counsel is a pretext.

The HRC found that SSU failed to articulate a legitimate, nondiscriminatory reason for applying different standards to Martin and the male comparators. The HRC concluded that even if it were to find SSU had articulated a legitimate nondiscriminatory reason for the disparate treatment, it would conclude Martin had shown the reason to be a pretext. The HRC sustained the complaint and remanded for a determination of appropriate relief and attorney fees. After that determination was made, SSU filed the instant appeal.

ANALYSIS

Sections 2 — 102(A) and 1 — 103(Q) of the Act make it unlawful for an employer to make promotional decisions regarding an employee on the basis of his sex. (Ill. Rev. Stat. 1987, ch. 68, pars. 2— 102(A), 1—103(Q).) On judicial review of a decision of the HRC, the HRC’s findings of fact shall be sustained unless the court finds they are contrary to the manifest weight of the evidence. (Zaderaka v. Illinois Human Rights Comm’n (1989), 131 Ill. 2d 172, 180, 545 N.E.2d 684, 688; Ill. Rev. Stat. 1987, ch. 68, par. 8—111(A)(2); Village of Bellwood Board of Fire & Police Commissioners v. Human Rights Comm’n (1989), 184 Ill. App. 3d 339, 349, 541 N.E.2d 1248, 1254-55.) Similarly, the HRC “shall adopt the hearing officer’s findings of fact if they are not contrary to the manifest weight of the evidence.” Ill. Rev. Stat. 1987, ch. 68, par. 8-107(E)(2).

In analyzing employment discrimination claims, Illinois follows the format set out in decisions analyzing claims made under Title VII of the Civil Rights Act of 1964. (42 U.S.C. §2000e et seq. (1982); Zaderaka, 131 Ill. 2d 172, 545 N.E.2d 684.) In McDonnell Douglas (411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817), the Court set out a three-part analysis of discrimination claims. First, plaintiff must establish a prima facie case of unlawful discrimination. If a prima facie case is established, a presumption arises that the employer unlawfully discriminated against the plaintiff.

Second, in order to rebut the presumption, the employer must articulate, not prove, a legitimate, nondiscriminatory reason for the challenged action. (Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 259-60, 67 L. Ed. 2d 207, 219, 101 S. Ct. 1089, 1097; Zaderaka, 131 Ill. 2d at 179, 545 N.E.2d at 687.) The Burdine Court stated:

“[T]he defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity.” (Burdine, 450 U.S. at 255, 67 L. Ed. 2d at 216, 101 S. Ct. at 1094-95.)

In footnote 9, the Burdine Court cautioned that an articulation not admitted into evidence will not meet the burden of production. The Court noted argument alone was insufficient. Burdine, 450 U.S. at 255 n.9, 67 L. Ed. 2d at 216 n.9, 101 S. Ct. at 1094 n.9.

If the employer carries the burden of production, the presumption of discrimination drops. The plaintiff then must prove by a preponderance of the evidence that the employer’s articulated reason was a pretext for unlawful discrimination. This burden merges with plaintiff’s ultimate burden of persuading the trier of fact that the employer unlawfully discriminated against the employee. (McDonnell Douglas, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817; Burdine, 450 U.S. at 256, 67 L. Ed. 2d at 217, 101 S. Ct. at 1095; Zaderaka, 131 Ill. 2d at 179, 545 N.E.2d at 687.) Complainant always has the burden of proof. Zaderaka, 131 Ill. 2d at 179, 545 N.E.2d at 687.

The factors which constitute the complainant’s prima facie showing vary with the particular circumstances of each case. (McDonnell Douglas, 411 U.S. at 802 n.13, 36 L. Ed. 2d at 677-78 n.13, 93 S. Ct. at 1824 n.13.) Generally, under Title VII in situations involving a denial of promotion in a university setting, the complainant must show (1) he was a member of a protected class; (2) he was qualified for and applied for promotion; (3) he was rejected; and (4) other equally or less qualified persons, who were not class members, were promoted or the benefit remained open. Wu v. Thomas (11th Cir. 1988), 847 F.2d 1480, 1483, cert. denied (1989), 490 U.S. 1006, 104 L. Ed. 2d 156, 109 S. Ct. 1641; Dugan v. Ball State University (7th Cir. 1987), 815 F.2d 1132,1136.

However, this test is not exclusive. A complainant may set out a prima facie case under some circumstances by presenting other evidence creating an inference that the complained of act was unlawful. (Lynn v. Regents of the University of California (9th Cir. 1981), 656 F.2d 1337, 1341.) A prima facie case of discrimination may be established by direct evidence that similarly situated employees of a different sex were treated more favorably. (Loyola University v. Human Rights Comm’n (1986), 149 Ill. App. 3d 8, 18, 500 N.E.2d 639, 645-46.) Additionally, an employer may not apply an employment qualification unevenly depending upon the sex or race of the applicant. (McDonald v. Santa Fe Trail Transportation Co. (1976), 427 U.S. 273, 282-83, 49 L. Ed. 2d 493, 502, 96 S. Ct. 2574, 2580; Loyola University, 149 Ill. App. 3d 8, 500 N.E.2d 639; see also In re Avilez, XIII Ill. Hum. Rights Comm’n Rep. 137 (1984).) Whether an employer’s articulated reason for a challenged action is pretexual is a question of fact. Zaderaka, 131 Ill. 2d at 180, 545 N.E.2d at 688; Board of Education of Waterloo Community Unit School District No. 5 v. Human Rights Comm’n (1985), 135 Ill. App. 3d 206, 210, 481 N.E.2d 994, 996.

Initially, SSU argues the HRC erred in rejecting the ALJ’s conclusion that it had articulated a legitimate, nondiscriminatory reason for denying Martin’s promotion request and erred in rejecting the ALJ’s conclusion that Martin had failed to show the proffered reason was a pretext, as these were findings of fact. Martin argues the determinations were conclusions of law, and, thus, were correctly rejected by the HRC. The HRC, in its decision, noted it was required ordinarily to accept the factual findings of the ALJ. However, it rejected the ALJ’s recommended decision in the instant case because it believed the ALJ had shifted the burden to the complainant to prove all potential reasons for treating her differently than the male comparators were pretext. Thus, the HRC rejected the recommended decision and factual finding because of a perceived error of law.

We agree that ordinarily the HRC must accept the hearing officer’s findings that an employer has articulated a legitimate, nondiscriminatory reason for a challenged employment action and the employee has not demonstrated the reason was a pretext, unless those findings are contrary to the manifest weight of the evidence. These are inherently factual matters which both the Act and the courts have stated are best decided by the fact finder. Zaderaka, 131 Ill. 2d at 180, 545 N.E.2d at 688; Ill. Rev. Stat. 1987, ch. 68, par. 8-107(E)(2).

However, while we do not agree that the ALJ applied an incorrect legal standard in reaching her recommended decision in the instant case, we do not believe the HRC is powerless to reject a recommended decision which is premised upon a misconception of the issues to be proved and the legal standards related to those issues. (Smith v. Chicago Board of Education (1988), 176 Ill. App. 3d 109, 530 N.E.2d 1089.) In Smith, the court held the HRC properly rejected an ALJ’s factual finding of pretext because the finding was based upon a mistake of law. The HRC in Smith found the ALJ had elevated the employer’s burden of articulating a legitimate nondiscriminatory reason for its actions beyond the burden stated in Burdine. In the instant case, the HRC found the ALJ had placed an erroneous burden of proving pretext upon the complainant. The analytical circumstance is substantially similar, although the HRC was discussing different portions of the McDonnell Douglas analysis. Thus, the HRC could reject the factual findings inherent in a recommended decision where those findings are premised upon a misapprehension of the law.

SSU next argues the use of the McDonnell Douglas analysis to establish intentional discrimination is not proper because a person of the same sex as Martin made the recommendation to deny promotion. SSU contends that use of noninferential, direct proof of discrimination is necessary. Martin responds that the underlying premise of the argument is untrue, the action is the focus of the claim, and SSU has cited no authority for its contention. The HRC notes that there is no factual or legal basis for the argument that the sex of the decision maker changes the method of proving discrimination.

SSU has cited no authorities for its argument. An appellate court need not consider an argument which is unsupported by citation to authority. (107 Ill. 2d R. 341(e)(7); Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 432 N.E.2d 1267; see generally County of Cook v. Renaissance Arcade & Bookstore (1988), 122 Ill. 2d 123, 144, 522 N.E.2d 73, 82.) We will not address this argument.

SSU next argues the HRC’s decision is contrary to the manifest weight of the evidence and the law. Martin established a prima facie case of discrimination by showing (1) she was a member of a protected group, (2) her application for promotion to assistant professor was denied; and (3) men with similar qualifications or less qualifications received that rank.

Initially, SSU argues the HRC used an inaccurate prima facie case. SSU urges this court to find the HRC erred as. a matter of law in not following the prima facie case set forth in Wu (847 F.2d 1480). The McDonnell Douglas Court specifically stated that the elements of a prima facie showing of discrimination would necessarily vary with the circumstances of each situation. (McDonnell Douglas, 411 U.S. at 802 n.13, 36 L. Ed. 2d at 677-78 n.13, 93 S. Ct. at 1824 n.13.) The critical factor is that complainant’s evidence established an inference of discriminatory animus for a challenged employment action. Complainant made out a prima facie case by direct comparison with similarly situated, nonclass members. The validity of such a prima facie showing has been repeatedly recognized. (McDonald, 427 U.S. 273, 49 L. Ed. 2d 493, 96 S. Ct. 2574.) The HRC did not err as a matter of law in determining the elements of Martin’s prima facie showing of discrimination.

After a complainant raises an inference of discriminatory motive for an employment action, the employer has the burden of articulating a nondiscriminatory reason for the action. (Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089.) This reason must be clearly set forth through the introduction of admissible evidence. Argument, alone, is insufficient to justify a judgment for the defendant. Here, SSU introduced a letter from its president noting Martin’s promotion had been denied because she was not sufficiently active in professional organizations. Martin testified this was the reason for the decision which she and Dezendolet, the vice-president of academic affairs, had discussed. It is not contested that Martin was not active in professional organizations. She had not published any articles dealing with learning centers or personalized learning programs.

Additionally, Martin and Morgan testified that few opportunities existed for professional activity in the specialized learning field in 1974 when Morgan and Ward were appointed assistant professors. Morgan and Ward organized a national and State professional society. Interest and opportunities in the specialized learning field developed between 1974 and 1979.

The ALJ found Martin’s lack of professional activities was a legitimate, nondiscriminatory reason for the decision. She noted it was entirely credible that SSU’s policy toward professional activities in the learning center field was substantially different in 1974 than in 1979. The HRC characterized this statement as based solely on argument and based upon a misapprehension of Burdine.

We do not agree. Under Burdine, to satisfy its burden of articulating a nondiscriminatory reason, “the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.” (Burdine, 450 U.S. at 257, 67 L. Ed. 2d at 218, 101 S. Ct. at 1096.) Burdine cautioned that argument alone was insufficient to establish a nondiscriminatory reason.

Although we are troubled by the fact that neither party called Dezendolet to testify we believe the evidence admitted rationally supports a conclusion that membership in professional organizations was a more critical promotional factor in 1979 than in 1974. (Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089.) This is especially true since the national and State organizations did not exist until after 1974 and SSU had instituted the department in 1974, hiring Ward and Morgan to develop the learning center. Therefore, SSU met its burden of producing a nondiscriminatory reason, supported by evidence for any disparate treatment. The proffered reason was not based solely on argument. Under the facts presented here, SSU did not need to present testimony about a change of its policy in considering professional activities.

The HRC also found, alternatively, that Martin met her burden of showing the reason was a pretext. This finding is not supported by the evidence. Martin established women were underutilized at SSU. However, her evidence did not establish that SSU’s expectations with regard to membership in professional organizations had not increased with the development of the field, thus no pretext was shown.

We need not address the propriety of the attorney fee award.

Reversed.

KNECHT, P.J., and STEIGMANN, J., concur.


author: JUSTICE O’CONNOR

text:
    INSURANCE COMPANY OF NORTH AMERICA, Plaintiff-Appellee, v. DINO KRIGOS, a Minor, by his Mother and Natural Guardian, Voula Krigos, et al., Defendants (Johann Kraus, Defendant-Appellant).
    First District (1st Division)
    No. 1—88—3721
    Opinion filed March 6, 1990.
    Modified on denial of rehearing April 23, 1990.

      Edward L. Osowski, of Chicago (James G. Andros, of counsel), for appellant.

      Modesto, Reynolds & McDermott, of Chicago (Michael K. Lulich and Patrick J. Reynolds, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Insurance Company of North America (INA) brought a declaratory judgment action where summary judgments were entered denying coverage on underlying claims for negligent entrustment and negligent supervision. Johann Kraus, plaintiff in the underlying action, appeals. For the reasons below, we affirm.

Johann Kraus was injured in a traffic collision with Dino Krigos, who was driving a car belonging to his mother, Voula Krigos. Kraus sued Ms. Krigos, seeking recovery for negligent entrustment of the car and negligent supervision of Dino. Ms. Krigos filed a claim under her homeowner’s insurance policy, written by INA.

INA brought a declaratory judgment action alleging that Ms. Krigos was not covered under her homeowner’s policy because it specifically excluded claims arising from motor vehicles, including automobiles. The exclusion stated:

“We will not cover claims that arise because you or another covered person owns, rents, operates or borrows a motor vehicle.
We will not cover claims that arise because you or another person entrusts a motor vehicle to any person.”

The trial court entered summary judgment on INA’s motion, denying coverage for negligent entrustment, finding that the policy excluded such coverage, and on an amended motion, entered a summary judgment denying coverage for negligent supervision. Kraus, whose underlying action for personal injuries is pending, appeals.

Whether an underlying claim is potentially covered by a policy depends on the language of the policy and the allegations of the underlying complaint. (See State Farm Fire & Casualty Co. v. Mann (1988), 172 Ill. App. 3d 68, 526 N.E.2d 389.) Here, the record does not contain the underlying complaint, except the allegations that Ms. Krigos “failed to assert parental guidance and supervision” and was “negligent in asserting parental values.” Without the full complaint before us, we presume that the trial court was correct. (Robles v. Chicago Transit Authority (1988), 173 Ill. App. 3d 46, 55, 527 N.E.2d 361; Cooper v. United Development Co. (1984), 122 Ill. App. 3d 850, 860, 462 N.E.2d 679; Hirn v. Edgewater Hospital (1980), 88 Ill. App. 3d 939, 952, 408 N.E.2d 970.) Moreover, independent analysis, taking into consideration the undisputed allegations that were available in the record and resolving any doubts against Kraus, whose duty it was to provide a sufficient record (Cooper v. United Development Co. (1984), 122 Ill. App. 3d 850, 860, 462 N.E.2d 679; Hirn v. Edgewater Hospital (1980), 88 Ill. App. 3d 939, 952, 408 N.E.2d 970), reveals nothing to overcome the presumption that the trial court’s rulings were correct.

First, the language of Ms. Krigos’ policy clearly and unambiguously excluded coverage for negligent entrustment. Kraus argues without merit that the failure to include the term “use” in the exclusionary clause made the policy ambiguous, and construing against the drafter, INA, required coverage. But case law, including that cited by Kraus (see State Farm Fire & Casualty Co. v. McGlawn (1980), 84 Ill. App. 3d 107, 404 N.E.2d 1122; United States Fidelity & Guaranty Co. v. State Farm Mutual Automobile Insurance Co. (1987), 152 Ill. App. 3d 46, 504 N.E.2d 123 (USF&G II)), makes clear that how a piece of property became the instrument of injury is irrelevant to claims for negligent entrustment.

A claim for negligent entrustment requires an allegation of a negligent entrustment and that the inexperience or recklessness of the person to whom the property was entrusted was the proximate cause of the injury. (Allstate Insurance Co. v. Panzica (1987), 162 Ill. App. 3d 589, 593, 515 N.E.2d 1299; State Farm Fire & Casualty Co. v. McGlawn (1980), 84 Ill. App. 3d 107, 404 N.E.2d 1122.) The first element concerns the conduct of the person entrusting the instrument; the second concerns both the incompetence of the person to whom the instrument was entrusted and the instrument itself. Because the instrumentality is a necessary element of the claim, there can be no coverage where the instrumentality was excluded (Panzica, 162 Ill. App. 3d at 593); if the instrumentality was excluded, it is unnecessary to inquire into how it was involved. Thus, although Ms. Krigos’ policy did not specifically exclude the “use” of an automobile, it clearly excluded entrustment of an automobile.

Kraus further contends that Ms. Krigos’ policy was ambiguous as it failed to specify whether the term “any person” included a “covered person.” Kraus asserts, without basis, that “any person” excluded “covered person,” then maintains that because Ms. Krigos entrusted her car to Dino, a covered person, the claim for negligent entrustment was not excluded.

But, the adjective “any” typically implies an indeterminate, unqualified, all-inclusive designation, and the policy indicates no intention to limit “any.” Kraus contends that INA could easily have drafted the policy to include covered persons in the term “any person,” but, as INA notes, qualifying “any person” might have created ambiguity by implying a meaning for “any” more restrictive than its ordinary meaning. Ms. Krigos’ policy clearly and unambiguously excluded negligent entrustment, and the trial court properly denied coverage.

Second, the available record reveals nothing to indicate that the trial court incorrectly denied coverage for the negligent supervision claim. Kraus relies on his ambiguity argument to support his contention that his claim for negligent supervision was covered; but as the policy was unambiguous, the argument is without merit.

Kraus further argues, however, that because Ms. Krigos’ policy did not specifically exclude negligent supervision, the claim should be covered. INA counters that because the injuries were caused by an excluded instrumentality, the claim should not be covered. INA’s argument is incorrect, but we find no indication that the trial court erred.

INA relies on State Farm Fire & Casualty Co. v. Mann (1988), 172 Ill. App. 3d 86, 526 N.E.2d 389, and Allstate Insurance Co. v. Pruitt (1988), 177 Ill. App. 3d 407, 532 N.E.2d 401, to support its contention that where an injury was caused by an excluded instrumentality, the claim for negligent supervision was excluded. Both cases arose from mishaps involving motor bikes driven by children of the insured, and both denied coverage for negligent supervision.

INA in effect seeks to expand the “excluded instrumentality” theory that applies to negligent entrustment, a proposition considered and rejected in West American Insurance Co. v. Hinze (7th Cir. 1988), 843 F.2d 263, where the insured left his three-year-old grandchild in a car that rolled into Lake Michigan, drowning the child. West American, relying on Allstate Insurance Co. v. Panzica (1987), 162 Ill. App. 3d 589, 593, 515 N.E.2d 1299, contended that the auto exclusion in the insured’s homeowner’s policy applied. The Seventh Circuit rejected West American’s contention, however, stating:

“West American attempts to interpret [Panzica] more broadly and apply it more extensively than Illinois will allow.
*** The ‘instrumentality’ theory, to the extent it is recognized, is clearly limited to a negligent entrustment action for the explicit reason that negligent entrustment includes by definition a finding of negligence with the entrusted instrument.” West American, 843 F.2d at 267.

The Seventh Circuit concluded that the allegations of negligent supervision in the underlying claim were sufficient to show that the claim was potentially within the coverage provided by the policy. (843 F.2d at 267.) West American, though not controlling, is persuasive and consistent with the reasoning of applicable cases.

In United States Fidelity & Guaranty Co. v. State Farm Mutual Automobile Insurance Co. (1987), 152 Ill. App. 3d 46, 504 N.E.2d 123 (USF&G II), a four-year-old child was severely injured when she fell out of a car owned and operated by the day care center she attended. The suit on the child’s behalf alleged, inter alia, negligent supervision, and the day care center filed a claim for coverage under its general liability policy. The insurer sought to deny coverage because an excluded instrumentality, the car, had been involved in the injury. The court held that the claim was covered, however, because allegations of negligent supervision were based on conduct by the day care center separate and independent of the use of the car. (USF&G II, 152 Ill. App. 3d at 48.) USF&G II provided the most useful analysis of whether coverage should be provided for negligent supervision, addressing the issue not in terms of the instrumentality, but in terms of proximate cause:

“[Tjhere may be more than one proximate cause of an injury ***. If a proximate cause of an injury is within the included coverage of an insurance policy, the included coverage is not voided merely because an additional proximate cause of the injury is a cause which is excluded under the policy. Thus, in order for an injury to be excluded from coverage under an insurance policy, the injury must have been caused solely by a proximate cause which is excluded under the policy.” USF&G II, 152 Ill. App. 3d at 48.

State Farm Fire & Casualty Co. v. Mann (1988), 172 Ill. App. 3d 86, 526 N.E.2d 389, and Allstate Insurance Co. v. Pruitt (1988), 177 Ill. App. 3d 407, 532 N.E.2d 401, discussed instrumentality, but close reading shows that their rulings were based not on an extension of the “instrumentality” theory, but on the lack of any allegations that negligent supervision was a proximate cause of the injuries; the underlying complaints alleged solely that the injuries arose from the collisions with the motor bikes, an excluded cause. (Pruitt, 177 Ill. App. 3d at 411; Mann, 172 Ill. App. 3d at 92-93.) In contrast, USF&G II and West American alleged that the injuries were caused by the failure of the insureds directly to supervise the injured parties, without regard to any other cause.

Extrapolating from the proximate cause principle, however, there can be no coverage where the allegations of a complaint, if true, establish that another, excluded, cause of injury severed the causal connection between the injury and the negligent supervision. For example, USF&G II and West American, which imposed coverage, alleged injury arising directly from the insured’s failure to supervise the child. Mann and Pruitt, however, which denied coverage, alleged that the injury arose directly from a collision with a vehicle driven by a third party.

Thus, if a policy does not specifically exclude claims arising from negligent supervision, and the underlying complaint alleges negligent supervision as one proximate cause of injury, then coverage should be provided regardless of whether the policy excluded other alleged causes of injury. But where the injury was caused by the unforeseeable result of independent actions by a third party, there was, as a matter of law, no causal link between any negligent supervision and the injury, and coverage will not be provided.

Here, Ms. Krigos’ policy did not specifically exclude negligent supervision, but, although we have no complaint to examine, the parties do not dispute that Kraus’ injuries were directly caused by the collision with the car driven by Dino Krigos. Dino’s independent actions in the operation of the car, as a matter of law, severed the causal connection between any negligent supervision by Ms. Krigos and Kraus’ injuries.

Further, we find no indication that the trial court was presented with facts or allegations showing that Dino, in his operation of Ms. Krigos’ car, did not act independently and upon his own judgment, or that the collision was the foreseeable result of Ms. Krigos’ failure to supervise Dino. Thus, while the use of an excluded instrumentality did not, a priori, exclude coverage for negligent supervision, the automobile collision was an intervening cause of injury that superseded any failure to supervise, and no set of facts extant in the record could have established potential liability for negligent supervision.

In conclusion, we hold that the record was insufficient to enable a substantive review of the summary judgments, and analysis of the issues based on the record presented reveals nothing to overcome the presumption that the trial court’s rulings were correct. Ms. Krigos’ homeowner’s policy unambiguously excluded claims arising from the entrustment of a motor vehicle, and although the negligent supervision claim was not specifically excluded, a claim for negligent supervision could not be covered because Kraus’ injuries were the direct and unforeseeable result of the conduct of a third person. Accordingly, we affirm.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. ALBERT M. KERR, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant).
    Fourth District
    No. 4—88—0858
    Opinion filed April 5, 1990.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Eve Moran, Assistant Attorney General, of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

The Secretary of State (Secretary) appeals a circuit court order directing the Secretary to issue a judicial driving permit (JDP) to defendant, Albert M. Kerr. Specifically, the Secretary claims that the circuit court exceeded statutory limitations when it directed issuance of a JDP to the defendant because he was not a first offender as defined by the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 951/2, par. 1—100 et seq.).

We agree and reverse.

Defendant was arrested and charged with driving under the influence of alcohol (DUI) on April 20, 1983. (Ill. Rev. Stat. 1983, ch. 951/2, par. 11—501(a)(2).) On June 8, 1983, defendant was placed on court supervision.

On May 20, 1988, defendant was again arrested and charged with DUI. On testing, he had a blood-alcohol level of 0.19, whereupon the officer gave defendant immediate notice of a summary three-month suspension and, therefore, his license was confiscated. (Ill. Rev. Stat. 1987, ch. 951/2, pars. 11— 501.1(f), (f—1), (g).) On June 3, 1988, the circuit clerk filed a confirmation of statutory suspension letter from the Secretary, notifying defendant he was not a first offender and imposing a 12-month suspension effective July 5, 1988, with a provisional reinstatement date of July 5, 1989.

On October 24, 1988, defendant pleaded guilty to the DUI charge and the circuit court placed him on one year’s court supervision. The court further directed the Secretary to issue a JDP to defendant, although the record on appeal does not contain a petition therefor. Subsequently, the Secretary returned the order, requesting that the circuit court reassess the issuance of the JDP. The Secretary had determined defendant was ineligible because his record indicated he was not a first offender as defined in section 11 — 500 of the Code. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11—500.) The court considered the Secretary’s request, but concluded defendant was a first offender under section 11 — 500 and, on November 2, 1988, issued its final order directing the Secretary to issue a JDP to defendant effective that date through July 5, 1989, coinciding with the provisional reinstatement date for defendant’s driver’s license stated in the Secretary’s confirmation letter. The Secretary issued the JDP to defendant on the following day, and this appeal followed.

At the outset, we note that defendant, as appellee, has not filed a brief in this court. However, pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493, we will address the merits of the appeal because the record is simple and the issues are clear. People v. Meece (1987), 162 Ill. App. 3d 658, 660, 515 N.E.2d 1321, 1322.

We are aware that this case may appear moot, given the expiration date for the JDP has passed. We conclude, however, that this case falls within the public-interest exception to the mootness doctrine because the issue is likely to recur. Also, due to the short duration of the action involved, this issue would ordinarily become moot before it could be resolved by an appellate court. Meece, 162 Ill. App. 3d at 660, 515 N.E.2d at 1322 (and cases cited therein); People v. Anderson (1988), 167 Ill. App. 3d 308, 310, 521 N.E.2d 148, 149; People v. Moffat (1989), 192 Ill. App. 3d 326, 328, 548 N.E.2d 757, 758-59.

I. THE STATUTORY SCHEME, RESTRICTING JDP ISSUANCE TO “FIRST OFFENDERS”

The issuance of a JDP is governed by section 6—206.1 of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 6—206.1), as amended effective September 21, 1989, by Public Act 86—929 (1989 Ill. Legis. Serv. 4854, 4860-64, 4868 (West)). That section declares the policy of this State of removing impaired drivers from the roads, but recognizes certain limited circumstances in which the granting of a JDP may be appropriate “to relieve undue hardship.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 6— 206.1(B)(a).) The legislature balanced these concerns by strictly limiting the issuance of JDPs to “first offenders” (Ill. Rev. Stat. 1987, ch. 951/2, par. 6—206.1(B)(a)), as that term is defined under section 11—500 of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11-500).

As noted by our supreme court in People v. Pine (1989), 129 Ill. 2d 88, 97, 542 N.E.2d 711, 713, the legislative scheme for issuance of JDPs vested the circuit court with authority to grant relief to first offenders from a statutory summary suspension (see Ill. Rev. Stat. 1985, ch. 951/2, par. 6—206.1). However, with regard to nonfirst-time DUI offenders, the Secretary of State retained the authority to hold hearings and grant hardship relief or reinstatement, when appropriate, after a suspension or a revocation has been imposed. (Ill. Rev. Stat. 1985, ch. 951/2, pars. 6—205, 6—208; Pine, 129 Ill. 2d at 97, 542 N.E.2d at 713.) At issue in this case is whether the defendant is a “first offender” as so defined.

A. STATUTORY “FIRST OFFENDER” PROVISION AS ORIGINALLY ENACTED

Upon review of section 11 — 500 and the appeals it has generated, we conclude that the legislature intended to delineate several categories of persons disqualified from first-offender status. To assist our analysis, we have inserted brackets in the following quote from section 11 — 500 of the Code, as originally enacted:

“For the purposes of interpreting Sections 6 — 206.1 and 6— 208.1 of this Code, ‘first offender’ shall mean any person who [1] has not had a previous conviction or [2] court assigned supervision for violating Section 11 — 501, or a similar provision of a local ordinance, or [3] a conviction in any other state for a violation of driving while under the influence or a similar offense where the cause of action is the same or substantially similar to this Code within the last 5 years; or any person who [4] has not had a driver’s license suspension for Section 11 — 501.1 after January 1, 1982, or [5] a previous statutory summary suspension as provided in this Code, except in cases where [a.] the driver submitted to chemical testing resulting in an alcohol concentration of 0.10 or more and [6] was subsequently found not guilty of violating Section 11 — 501, or a similar provision of a local ordinance.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 951/2, par. 11—500.)

Under this version of section 11 — 500, the “within the last five years” clause applies to each of the first three categories.

We note in passing that in Public Act 86 — 929 the legislature amended provisions regarding the issuance of JDPs, including section 11 — 500, effective September 21, 1989. (1989 Ill. Legis. Serv. 4854, 4865 (West).) As the amended section is inapplicable to this case, we make no comment upon it.

B. LITIGATION OVER “FIRST OFFENDER” STATUS UNDER SECTION 11-500, AS ORIGINALLY ENACTED

In People v. Meyer (1988), 166 Ill. App. 3d 1030, 520 N.E.2d 1244, this court affirmed the denial of a defendant’s petition for a JDP, finding the defendant was not a first offender within the meaning of section 11 — 500 of the Code. There, the defendant stipulated that on December 13, 1982, he was placed on court supervision for a DUI offense. On January 26, 1987 — within five years of being placed on court-assigned supervision — he was again arrested for DUI.

Two of the other appellate districts have had occasion to consider the issuance of JDPs to persons who had been placed on court-assigned supervision for DUI within the previous five years. The Second District Appellate Court did so in People v. Duff (1989), 181 Ill. App. 3d 324, 537 N.E.2d 8 (defendant, arrested for DUI on December 12, 1983, was placed on court-assigned supervision for DUI on January 11, 1984, and again arrested for DUI on April 17, 1988) and, although in dictum, did so again in People v. Brom (1989), 189 Ill. App. 3d 910, 912, 545 N.E.2d 1061, 1062 (defendant, arrested for DUI on May 8, 1983, was placed on court-assigned supervision on August 30, 1984, and was again arrested for DUI on August 20, 1988). The Third District Appellate Court did so in People v. Pence (1989), 191 Ill. App. 3d 96, 546 N.E.2d 1182 (defendant, arrested for DUI on October 11, 1982, was placed on court-assigned supervision on December 21, 1982, and again arrested for DUI on December 12, 1987), People ex rel. Edgar v. Curley (1989), 188 Ill. App. 3d 37, 543 N.E.2d 1088 (defendant, arrested for DUI on December 23, 1982, was placed on court-assigned supervision on April 28, 1983, and again arrested for DUI on January 3, 1988), and People v. Thompson (1988), 172 Ill. App. 3d 894, 526 N.E.2d 1389 (defendant was placed on court-assigned supervision for DUI on April 18, 1984, and again arrested for DUI on January 15, 1987).

C. JDP ISSUANCE TO DEFENDANT KERR

In the present case, defendant was arrested for DUI on April 20, 1983, and was placed on court supervision on June 8, 1983. He was arrested again for DUI on May 20, 1988 — clearly within five years of being placed on court-assigned supervision, though more than five years from the date of the prior DUI arrest. Thus, consistent with the decision of this court in Meyer — and with those of the second district in Duff and dictum in Brom, and with those of the third district in Pence, Curley, and Thompson — defendant was not a “first offender” under section 11 — 500 as originally enacted. In particular, the majority opinion in Pence held that the dispositive question in cases such as this is whether the second DUI arrest occurred within five years of the disposition of the offender’s previous arrest, e.g., there the date defendant was placed on court-assigned supervision. Comparison of the dates of arrest and disposition shows that the courts in Brom and Curley were in accord with this view. We agree that it is the date of disposition as to the offender’s previous DUI arrest which is the beginning date for calculating the five-year period. The closing date for this calculation is the date of the underlying DUI arrest, that on which the statutory summary suspension was based.

II. STATUTORY PROCEDURES AND FORM ORDERS FOR ISSUING JDPS

The number of appeals challenging the issuance of JDPs on the basis that the recipient was not a first offender within the meaning of section 11 — 500 suggests one or more problems with the procedures for making this determination.

A. EXISTING STATUTORY FRAMEWORK FOR JDP ISSUANCE

As the supreme court majority in Pine recognized, section 6— 206.1 of the Code seems to allow JDP proceedings to proceed ex parte. The Pine majority commented that the record was unclear “whether the State’s Attorney appeared at the JDP hearings, or that a procedure has been developed with the Secretary of State to provide information regarding the petition.” (Pine, 129 Ill. 2d at 100, 542 N.E.2d at 715.) The Pine majority concluded that JDP proceedings require the Secretary to be more actively involved after the order to issue a JDP has been entered, and noted that the interests of the State’s Attorney and the Secretary are not always the same in regard to the issuance of JDPs. (Pine, 129 Ill. 2d at 100, 542 N.E.2d at 715.) Justice Clark’s dissent, joined by Justice Stamos and Justice Calvo, disagreed with the majority’s reading of the statute, under which a two-tier procedure was recognized, as essentially requiring the trial court to make two separate determinations on the issue. (Pine, 129 Ill. 2d at 105, 107, 542 N.E.2d at 717, 718 (Clark, J., dissenting).) Justice Calvo’s dissent, joined by Justice Clark and Justice Stamos, suggested the Secretary might petition the circuit court for leave to intervene after receiving an order directing the issuance of a JDP, then move the circuit court to vacate the order on the ground that the circuit court was without jurisdiction to enter it. Pine, 129 Ill. 2d at 111, 120, 542 N.E.2d at 720, 725 (Calvo, J., dissenting).

Section 6 — 206.1 does not require notice of the petition for a JDP be sent either to the State’s Attorney or to the Secretary. Although that section restricts issuance of JDPs to first offenders, there is no provision by which the circuit court is required to be furnished with official information from the Secretary regarding the petitioner’s driving record so that the circuit court can determine that petitioner is, in fact, a first offender.

B. SECRETARY’S DOCUMENTATION OF JDP APPLICANT’S DRIVING RECORD

Section 6—206.1(B)(d) of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 6—206.1(B)(d)), as amended by Public Act 86—929, section 6—206.1(d) (1989 Ill. Legis. Serv. 4864 (West)), provides that the Secretary shall, upon receiving an order directing the issuance of a JDP, return the order to the issuing court if (1) it contains insufficient data, or (2) it fails to comply with the Code. The letter returning the court’s order in this case stated, in pertinent part, the following:

“We believe the statutory authority granted to this office disallows our issuing the Judicial Driving Permit indicated in the recent order. It appears that Albert M. Kerr, Jr. is ineligible for the Judicial Driving Permit because his record indicates that he is a second offender as defined in Section 11 — 500 of the Illinois Vehicle Code. Mr. Kerr may contact the hearing officer at a drivers license facility for information to apply for a Restricted Driving Permit.
We request the Judge reassess the issuance of the JDP considering the above information. If the Judge wishes to again officially order the issuance of the JDP, we will issue the permit and make the appropriate entries to our official records. If the original court order is resubmitted, please include on the court order the date the Judge reassessed the issuance of the permit.”

This letter lacks any explanation of the defendant’s driving record to support the Secretary’s conclusion that defendant is not a “first offender.” Specificity in this regard would materially assist the circuit courts in evaluating a petitioner’s eligibility for a JDP.

Prior to the final order directing issuance of the JDP, the circuit court here was supplied with an abstract of defendant’s driving record. As discussed by the second district in Duff and in People v. Kazik (1989), 189 Ill. App. 3d 930, 545 N.E.2d 1040, the abstract itself is a virtual maze of codes and abbreviations in a series of columns. (Duff, 181 Ill. App. 3d 324, 537 N.E.2d 8; Kazik, 189 Ill. App. 3d at 933, 545 N.E.2d at 1042.) The Secretary now has a booklet, entitled “Driving Abstract Guide for Illinois Courts,” which may assist the circuit courts in understanding the abstracts of driving records received from the Secretary. Nonetheless, if the Secretary wishes to call to the court’s attention that it may have awarded a JDP to a driver who is not a first offender, the better practice is for the Secretary to provide an explanation of the driving record of that specific driver. Otherwise, the Secretary risks having the court misinterpret the abstract of the driving record and disregard the conclusory statements contained in the Secretary’s correspondence.

C. FORM ORDERS DIRECTING JDP ISSUANCE

As originally enacted, section 6—206.1 of the Code (Ill. Rev. Stat. 1985, ch. 951/2, par. 6— 206.1) specified the issuance of a JDP was a matter for the circuit judge and the circuit clerk (see People v. Inghram (1987), 118 Ill. 2d 140, 149-50, 514 N.E.2d 977, 981-82; People v. Minor (1987), 162 Ill. App. 3d 140, 147, 514 N.E.2d 1042, 1046), but specified the Secretary “shall design and furnish the courts with an official JDP form to be issued by the clerk of the court, upon direction from the court, to a successful Petitioner under this Section.” (Ill. Rev. Stat. 1985, ch. 951/2, par. 6—206.1(d).) In subsequent amendments, the issuance of the JDP was vested with the Secretary; the duty to design and furnish the courts with an official JDP form was eliminated. Given that only first offenders are eligible for consideration for a JDP, the determination of whether a particular petitioner is, in fact, a first offender is the threshold issue before the circuit court in such a proceeding.

At present, however, the form orders for issuance of JDPs require no findings material to the first-offender determination. (See Ahern, Summary Suspension Law, in Defending DUI and Traffic Cases ch. 2, §2.138, at 2—128 (Ill. Inst. for Cont. Legal Educ. 1989) (form 15, denominated “Clerk’s Order for JDP”).) The form order, appended to this opinion, requires, first, findings aimed at the requirements of section 6—206.1(B)(a)(3) of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 6—206.1(B)(a)(3)), as amended by Public Act 86— 929, section 6—206.1(a)(4) (1989 Ill. Legis. Serv. 4863 (West)); and further findings aimed at the requirements of section 6—206.1(B)(b) of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 6—206.1(B)(b)), as amended by Public Act 86—929, section 6—206.1(b) (1989 Ill. Legis. Serv. 4863-64 (West)). Clearly, judicial resources ought not be expended making findings pursuant to amended sections 6—206.1(a)(4), and (b) if the petitioner is not a first offender.

We agree with the view expressed in Moffat (192 Ill. App. 3d at 329, 548 N.E.2d at 759), that the legislature expressly stated limits on who may receive a JDP and the “purposes for which it could be used, and gave the courts no discretion to exceed the statutory limitations.”

We respectfully suggest that the Secretary consider involving the Attorney General’s office earlier in JDP proceedings, for example, to seek leave to intervene and present evidence or explanation or both as to the driving abstract so the circuit court’s determination on these issues may be fully informed. First-time DUI offenders have an interest in speedy resolution of a JDP petition, but this interest is no greater than the interests of the Secretary and the public in screening out those who are not first-time DUI offenders from the issuance of JDPs.

Reversed.

GREEN and McCULLOUGH, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    HUSTON J. LONG et al., Plaintiffs-Appellants, v. KEMPER LIFE INSURANCE COMPANY, Defendant-Appellee.
    Second District
    No. 2—89—0787
    Opinion filed April 11, 1990.

      Patrick E. Ward, of Dixon, for appellants.
    Stephen C. Pemberton, of Williams & McCarthy, P.C., of Oregon, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiffs, Huston and Edith Long, appeal from a judgment of the circuit court of Lee County denying them equitable relief. Plaintiffs raise two issues on appeal: whether the trial court erred by denying plaintiffs’ motion to strike the affirmative defense of defendant, Kemper Life Insurance Company; and whether the trial court erred in relying on the doctrine of “unclean hands” to deny plaintiffs relief.

The parties stipulated to the following facts. Plaintiffs applied to defendant for a life insurance policy on the life of Huston as an investment measure to defer taxes. In the application, plaintiffs stated that Huston was “free from any mental or physical impairment or disease” and that Huston was not taking any medication. Plaintiffs withdrew the premium amount of $100,000 from a certificate of deposit bearing interest at the rate of 11% per year. On June 12, 1985, plaintiffs sent the application and the premium to defendant, which subsequently approved the application.

In April 1986, plaintiffs filled out an application for change of the insurance policy seeking to have the preferred rate for nonsmokers. In that application plaintiffs again stated that Huston did not have any impairment or disease and was not taking any medication. Defendant later discovered that in 1984 Huston was diagnosed as having a pulmonary disorder and claudication (lameness). On May 28, 1985, Huston had been admitted to the hospital for an aortogram and was again diagnosed as suffering from lameness as a result of a vascular disease. Huston was also taking prescription medication for this condition. Plaintiffs did not list Huston’s ailments on the policy applications because Huston was concerned that he might not be eligible for the policy if defendant knew of his physical condition. On September 15, 1986, defendant rescinded the policy and sent plaintiffs a refund of $100,000, the premium price. Defendant had use of the $100,000 from June 27, 1985, to September 15, 1986, and earned interest on those funds at the rate of 7.75%. Defendant did not refund any of the interest to plaintiffs when defendant rescinded the policy.

Plaintiffs filed an action in the circuit court, alleging that defendant unjustly retained the interest. Plaintiffs sought recovery of the interest under the equitable theory of unjust enrichment. Defendant filed an affirmative defense which alleged that plaintiffs had been guilty of misconduct, bad faith, and fraud in procuring the policy from defendant. Plaintiffs filed a motion to strike the affirmative defense, arguing that their misconduct, bad faith and fraud did not affect their right to the interest. The court denied plaintiffs’ motion. Because the facts were not in dispute, the parties submitted briefs to the trial court in lieu of a hearing. The trial court found that because plaintiffs were guilty of misconduct, bad faith and fraud, the equitable doctrine of “unclean hands” barred them from recovery. Plaintiffs then timely filed this appeal.

Plaintiffs first contend that the trial court should have stricken defendant’s affirmative defense because it did not defeat or avoid the legal effect of the cause of action. An affirmative defense is one which gives color to the opponent’s claim but asserts new matter which defeats the plaintiff’s apparent right to judgment. (Raprager v. Allstate Insurance Co. (1989), 183 Ill. App. 3d 847, 854.) An affirmative defense should not be stricken if the pleading raises a possibility that the defendant will prevail. Raprager, 183 Ill. App. 3d at 854.

Plaintiffs argue that their misrepresentations on the insurance applications are irrelevant to the question of which party is entitled to the interest. We disagree. Plaintiffs instituted an equitable action for unjust enrichment. It is a basic maxim of equity that he who seeks equity must do equity. (Mills v. Susanka (1946), 394 Ill. 439, 445.) The affirmative defense here alleged that plaintiffs were not entitled to the interest because they had acted in bad faith and were guilty of fraud. Thus, according to the doctrine of “unclean hands,” if plaintiffs were guilty of misconduct, the trial court could bar them from recovering the interest, even if they were otherwise entitled to it. (See Fair Automotive Repair, Inc. v. Car-X Service Systems, Inc. (1984), 128 Ill. App. 3d 763, 767-68.) We therefore conclude that the trial court properly refused to strike the affirmative defense.

Plaintiffs next contend that the trial court improperly applied the doctrine of “unclean hands.” According to plaintiffs, defendant cannot keep the interest because it elected to rescind the policy and, therefore, had a duty to return plaintiffs to the status quo by returning the premium and the interest which it earned. (See Puskar v. Hughes (1989), 179 Ill. App. 3d 522, 528.) Plaintiffs further argue that the object of rescission is not to punish, but to correct the injustice. (Ehrlich v. United States (5th Cir. 1958), 252 F.2d 772, 776.) This is not, however, an action seeking to rescind a contract, and the question is not whether a party is entitled to prejudgment interest. This is an action seeking funds earned as interest.

Plaintiffs’ arguments also corhpletely miss the point of the equitable doctrine of “unclean hands.” Defendant did not argue that it was entitled to the funds because of plaintiffs’ fraud and misconduct; it asserted that plaintiffs should be barred from the relief they seek because they attempted to defraud defendant. The trial court did not find that defendant was entitled to the funds. Instead, it refused to grant plaintiffs the equitable remedy they sought because they deliberately misrepresented material facts on the applications.

The doctrine of “unclean hands” precludes a party from taking advantage of his own wrong. (State Bank v. Sorenson (1988), 167 Ill. App. 3d 674, 680.) The doctrine applies if the party seeking equitable relief is guilty of misconduct, fraud or bad faith toward the party against whom relief is sought if that misconduct is connected with the transaction at issue. (State Bank, 167 Ill. App. 3d at 680.) The application of the doctrine is a matter for the trial court’s discretion, which we will not disturb on appeal absent an abuse of that discretion. Fair Automotive, 128 Ill. App. 3d at 768.

Here, plaintiffs intentionally misrepresented the state of Huston’s health because they believed defendant would not accept him for a life insurance policy. We agree with the trial court’s finding that plaintiffs are guilty of misconduct, fraud and bad faith. Their misrepresentations are related to the equitable action to recover the interest because the premium which plaintiffs paid when they fraudulently obtained the policy was the principal of the funds they now seek. We therefore conclude that the trial court did not abuse its discretion in refusing to grant equitable relief to plaintiffs.

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

Affirmed.

GEIGER and WOODWARD, JJ., concur.


author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. VINCENT M. MADSEN, Defendant-Appellee.
    Second District
    No. 2—89—0735
    Opinion filed April 11, 1990.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Donald J. Ramsell, of Ramsell & Associates, of Schaumburg, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Vincent Madsen, was charged by uniform traffic citation with the offenses of failure to signal as required (Ill. Rev. Stat. 1987, ch. 951/2, par. 11—804(b)) and driving while license revoked (Ill. Rev. Stat. 1987, ch. 951/2, par. 6—303(a)) in Du Page County, Illinois. On defendant’s motion, the trial court dismissed the charges for failure to comply with the speedy-trial provision contained in the local court rules. The State appeals, contending that the trial court erred due to defendant’s failure to make a specific demand for a speedy trial. We reverse and remand.

Defendant first appeared in court on June 21, 1988, and requested to have counsel appointed for him. The trial court denied this request.

Defendant next appeared in court on July 19, 1988, stated that he was unemployed and again requested that counsel be appointed. The case was continued until August 2, 1988. On August 2, 1988, the case was transferred to the field court in Addison and continued until September 20, 1988. It was subsequently given a new date of November 22, 1988.

On November 22, 1988, counsel for defendant filed an appearance and requested a jury trial. The case was transferred again and continued to December 14, 1988. On December 14, 1988, the case was continued to February 28, 1989.

On February 9, 1989, the State filed a motion for continuance, supported by affidavit, requesting a trial date sometime after March 7, 1989, because of the unavailability of a witness. On May 4, 1989, defendant filed a motion requesting that the case be continued until a date following May 20,1989.

On May 25, 1989, defense counsel filed a motion to withdraw as attorney for defendant. The court conducted a hearing on defense counsel’s motion on June 13, 1989. The trial court denied the motion. Counsel then orally moved to dismiss the charges against defendant, stating that more than 160 days had passed since defendant made a demand for a jury trial and that “a demand for jury trial is ipso facto speedy trial demand.” The court indicated it would hear argument on defendant’s motion at the afternoon session of court.

In the afternoon court session, defense counsel argued that 169 days had passed between the time he made his demand for jury trial on November 22, 1988, and his request for a continuance on May 10, 1989. He argued that with respect to uniform traffic tickets, a jury demand is a speedy-trial demand.

The State argued that because defendant had requested a continuance after the speedy-trial period had allegedly run, defendant had waived any demand for a speedy trial. The State requested time to prepare a response, and the court again continued the case.

On June 16, 1989, the State filed a written response to defendant’s motion to dismiss. The State argued, inter alia, that “[i]n this county [Supreme Court] Rule 505 only applies to citations issued by the Illinois State Police,” and that pursuant to the local court rules, defendant did not comply by serving a written demand for speedy trial upon the State’s Attorney.

On June 22, 1989, the court heard argument on defendant’s motion to dismiss. The State insisted that defendant never made a demand for speedy trial and that a jury demand could not be so interpreted. Defendant noted that the local court rule that the State cited made an exception to the requirement of a written demand for a speedy trial in the situation in which the State has actual notice of the demand. The trial court, finding that the State had actual notice of defendant’s demand for jury trial, granted defendant’s motion to dismiss. This appeal followed.

Initially, we note that defendant has not filed an appellee’s brief in this case. Nevertheless, the record is simple and the claimed errors are such that this court can easily decide them without the aid of an appellee's brief. Therefore, we choose to address the merits of this appeal pursuant to the guidelines in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.

We must first determine if Supreme Court Rule 505 (113 Ill. 2d R. 505) applies in this case. Supreme Court Rule 505 provides in relevant part:

“If the accused demands a trial by jury, the trial shall be scheduled within 120 days of arrest. *** Any State agency or any unit of local government desiring to be exempt from the re quirements of this Rule 505 may apply to the Conference of Chief Circuit Judqes for an exemption." (Emphasis added.) (113 Ill. 2d R. 505.)

The State has claimed an exemption in this case. We take judicial notice of the fact that there was such an exemption in effect in Du Page County at the time of the alleged traffic offenses in this case. See People v. Monaco (1986), 150 Ill. App. 3d 278, 281.

We next turn to the only issue before us: that is, did defendant’s request for a jury trial constitute a demand for a speedy trial? The Circuit Court of the Eighteenth Judicial Circuit had a rule in effect-that concerned defendant’s demand for speedy trial. The rule provided, in pertinent part:

“30.06 DEFENDANT’S DEMAND FOR SPEEDY TRIAL
(a) All demands for trial, pursuant to the Code of Criminal Procedure [Ill. Rev. Stat., Ch. 38 par. 103—5(b)], shall be made in the following manner:
(i) In writing with proper caption and case number signed and dated by the defendant or his attorney and,
(ii) A copy of said demand shall be served on the State’s Attorney in any manner permitted by Supreme Court Rule No. 11 and 12 and,(iii) A copy of said demand shall be filed with the Clerk of this Court with proof of service on the State’s Attorney.
(b) The requirements of this rule are mandatory and a demand for trial that does not comply with the foregoing shall not be recognized unless the Court finds that the State had actual notice of defendant’s trial demand and that the interests of justice require recognition of such demand.” (18th Jud. Cir. R. 30.06 (1987).)

Section 103—5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103—5(b)) provides, in pertinent part:

“(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 103-5(b).)

Defendant did not make a written or oral demand for a speedy trial. However, defendant did demand a jury trial at his hearing on November 22, 1988.

The effect of defendant’s jury demand was also governed by a local rule. Rule 35.02(c) provided:

“A jury demand shall not operate as a demand for speedy trial, for purposes of Section 103 — 5 of the Code of Criminal Procedure [Ill. Rev. Stat., Ch. 38, par. 103—5]; any demand for a speedy trial must be made specifically, in accordance with Rule 30.06.” (18th Jud. Cir. R. 35.02(c) (1987).)

Thus, under the local rules, a jury demand could not operate as a demand for speedy trial unless Rule 30.06 was complied with. The trial court found that Rule 30.06(b) applied in this case, stating, “I think that you [the State] were on actual notice that a demand for jury trial was made.” After hearing argument, the trial court found that the State had actual knowledge of the demand and stated, “I’m going to hang my hat on this B section.” The case was then dismissed for violation of the speedy-trial provision.

The circuit court rules involved in this case are explicit. The rules mandate that a jury demand will not operate as a speedy-trial demand and that any demand for a speedy trial be written with a copy served on the State’s Attorney. Rule 30.06, however, does provide for an exception in paragraph (b) if “the Court finds that the State had actual notice of defendant’s trial demand and that the interests of justice require recognition of such demand.” Defendant did not make an oral or written demand for a speedy trial, and we can find nothing in the record to support the court’s finding that the State had actual notice of any such demand. In addition, the trial court ignored the second requirement for the exception in section 30.06(b), which states “and the interests of justice require recognition of such demand.” 18th Jud. Cir. R. 30.06(b) (1987).

We have already noted that Supreme Court Rule 505 (113 Ill. 2d R. 505) does not apply in this case because of the applicable exemption for Du Page County. As such, there is no basis in the record to convert defendant’s jury demand into a speedy-trial demand.

Finding no basis in the record to determine that the State had actual notice of any speedy-trial demand and lacking the required finding of the “interests of justice,” the order of the circuit court of Du Page County is reversed and the cause is remanded for trial.

Reversed and remanded.

McLAREN and GEIGER, JJ., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLIDELL STEVENSON, Defendant-Appellant.
    Second District
    No. 2—88—0276
    Opinion filed April 11, 1990.
    G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Clidell Stevenson, appeals his conviction of attempt (murder) (see Ill. Rev. Stat. 1987, ch. 38, pars. 8—4, 9—1). Defendant was charged on October 3, 1987, by a criminal complaint alleging attempt with intent to commit first-degree murder by shooting Mantella Stevenson. On November 18, 1987, an indictment was returned consisting of count I charging attempted first-degree murder by pointing a gun at and shooting at Essie Stevenson with intent to kill her; count II charging unlawful use of weapons in carrying a shotgun with a barrel less than 18 inches; and count III charging unlawful use of weapons by a felon. Defendant was convicted by a jury on all three counts, and the trial judge sentenced defendant under count I to 24 years’ imprisonment and under count III to five years’ imprisonment, the sentences to run concurrently.

Defendant raises one issue on appeal: whether the trial court erred when it refused to instruct the jury on reckless conduct as a lesser-included offense. A brief summary of the evidence adduced at trial revealed the following versions of the events of October 3, 1987.

Defendant’s seven-year-old daughter Shonedell testified that she and her younger brothers Mantella and Marquette were at home with a baby-sitter. The three children had been sleeping on a love seat in the living room. When defendant and his wife, Essie, came home, they “started saying bad words.” Shonedell stated that she saw defendant hit her mother with a closed hand on the back of her neck. Essie then walked over by the love seat, and defendant went to the couch and took a gun out of a bag. Defendant threw the bag at Essie and then pointed the gun at her. Essie ducked, and the bullet fired by the defendant from his gun hit Mantella in the hand and leg.

Defendant testified to different facts: that he kept a gun under cushions in the couch for protection after his house had been burglarized. On the night in question, defendant and Essie came home at approximately 3 a.m. The house was dark, and defendant could not see the children in the living room. When his eyes became accustomed to the dark, he saw the handles of the bag containing the gun sticking out from under a cushion of the couch. He walked over to the couch and pulled out the bag. While the gun was still in the bag, it discharged, firing the bullet which struck Mantella. Defendant testified that he did not fire the gun, nor did he point it at his wife. Likewise, his wife, Essie, denied that defendant pointed the gun at her.

The State tendered and the court gave instructions covering count I, i.e., attempted first-degree murder of Essie Stevenson. Also, the court gave instructions defining unlawful use of a weapon and unlawful use of a weapon by a felon as charged in counts II and III of the indictment. The defendant requested the court to instruct the jury on the charge of reckless conduct as a lesser-included offense on the theory that the evidence could support a conviction. In discussion with the trial judge, the State cited People v. Primmer (1983), 111 Ill. App. 3d 1046, and People v. Smith (1980), 90 Ill. App. 3d 83, as cases holding that reckless conduct was not a lesser-included offense to the charge of attempted murder. The trial judge refused the defendant’s instructions on reckless conduct, stating that he was bound by the above two appellate cases.

The trial court, at the State’s request, gave Illinois Pattern Jury Instructions, Criminal, No. 6.07 (2d ed. 1981), which stated in part as follows:

“To sustain the charge of attempt, the State must prove the following propositions:
First: That the defendant performed an act which constituted a substantial step toward the commission of the offense of first degree murder of Essie Stevenson; and
Second: That the defendant did so with intent to commit the offense of first degree murder of Essie Stevenson.”

The defendant’s attorney tendered two instructions, the first of which was Illinois Pattern Jury Instructions, Criminal, No. 5.01 (2d ed. 1981), which defines recklessness as follows:

“A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.”

The second instruction tendered by defendant’s attorney was Illinois Pattern Jury Instructions, Criminal, No. 11.14 (2d ed. 1981), which set forth the elements of reckless conduct in part as follows:

“To sustain the charge of reckless conduct, the State must prove the following proposition:
That the defendant recklessly performed an act which caused bodily harm to Mantella Stevenson.”

Both of the instructions tendered by defendant’s attorney were refused by the trial court.

Defendant argues that his conduct of pulling the handles of the bag containing his sawed-off shotgun from under the couch cushion in a darkened room with other persons present constituted reckless conduct as defined by the instructions tendered by his attorney.

Early cases involving a lesser-included offense were determined on the basis of the statutory definition of the crimes involved, namely, the assertion of the elements of the lesser crime were included in the definition of the greater offense. In the more recent cases, our supreme court has gone beyond the abstract statutory definition and looked to the language used in the charge or indictment and the evidence presented at the trial.

Defendant cites, among other cases, People v. Dace (1983), 104 Ill. 2d 96, 103, for the proposition that in all criminal cases tried by a jury, the defendant should have the benefit of having the jury instructed on any theory which the evidence would support. In People v. Dace, the court determined that where the defendant was charged with residential burglary with intent to commit theft and the offense of theft was proved by the evidence, he was entitled to have the jury instructed on the offense of theft as a lesser-included offense.

In People v. Bryant (1986), 113 Ill. 2d 497, the defendant was charged with the crime of attempted burglary. At the conclusion of the trial, he tendered an instruction on the offense of criminal damage to property as a lesser-included offense. This instruction was refused, and the jury found him guilty of attempted burglary. On appeal, the appellate court reversed the conviction, determining that the trial court erred in refusing the tendered instructions defining the crime of criminal damage to property. On appeal, the supreme court stated in part as follows:

“The principle is well established that a defendant may be entitled to have the jury instructed on a less serious offense that is included in the one he is charged with. [Citation.] The reason for this is clear: an instruction on a lesser offense provides an important third option to a jury which, believing that the defendant is guilty of something but uncertain whether the charged offense has been proved, might otherwise convict rather than acquit the defendant of the greater offense.” (Bryant, 113 Ill. 2d at 502.)

The Bryant court pointed out that section 2—9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 2 —9) states that definitions of “included offenses”

“do not explain ‘which of the following is determinative in deciding if a particular offense is an included offense of another: the abstract statutory definition of the greater crime; the greater crime as it is alleged in the indictment or other charging document; or the greater crime as its necessary elements are proved at trial.’ ” (Bryant, 113 Ill. 2d at 503.)

The court further observed that People v. Dace (1984), 104 Ill. 2d 96, relied “both on the language used in the charging instruments and the evidence presented at the trials.” (Bryant, 113 Ill. 2d at 503.) In holding that the trial court was in error in refusing the instruction on criminal damage to property, the court stated:

“The distinction to be drawn was that between vandalism and attempted burglary. As we have suggested, the evidence presented at trial could have rationally sustained a conviction for the lesser offense and an acquittal on the greater.” (Emphasis added.) (Bryant, 113 Ill. 2d at 506.)

Thereafter, the court made the following comments in reference to lesser-included offenses:

“There are several notable limits on the operation of the included-offense doctrine, however. For example, because a defendant’s instruction on a lesser offense is appropriate ‘if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater’ [citation], the evidence presented in a particular case might rationally preclude the use of an instruction on a lesser offense. [Citations.] Moreover, an included-offense instruction “ ‘is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.’ ” [Citation.] Thus, instructions on less serious offenses are not required in every case.” Bryant, 113 Ill. 2d at 507.

In People v. Krueger (1988), 176 Ill. App. 3d 625, this court, relying on People v. Bryant and People v. Dace, concluded that, where the defendant was charged with attempted murder, it was reversible error to refuse to instruct the jury on the offense of aggravated assault when the evidence at trial could support a conviction of aggravated assault.

Since the decision in People v. Krueger, our supreme court issued its opinion in People v. Schmidt (1988), 126 Ill. 2d 179. In that case, the defendant was charged only with residential burglary. However, at the defendant’s request, the jury was instructed as to the offense of theft. The jury found him guilty of both residential burglary and theft.

On appeal by the State, our supreme court in People v. Schmidt affirmed defendant’s conviction of residential burglary but agreed that the conviction of theft was improper and vacated it. The court held that where an accused is charged with a single offense, he cannot be found guilty of an offense not charged unless it is a lesser-included offense and that theft was not a lesser-included offense to residential burglary in this case.

In People v. Willis (1988), 170 Ill. App. 3d 638, the defendant was found guilty of two counts of aggravated battery and one count of resisting a peace officer. The defendant appealed, claiming error by the trial court in. refusing to give an instruction on the lesser-included offense of reckless conduct. In the trial court, there was evidence of the defendant wrestling with a police officer, and one of the witnesses testified that defendant was “flailing about.” On appeal, the appellate court held that error occurred in failing to give the requested instruction. The court stated:

“Reckless conduct may be a lesser included offense of aggravated battery. [Citation.] It is well settled that a defendant is entitled to a tendered instruction on a lesser included offense if there is any evidence fairly tending to bear upon it. [Citation.]
In the case at hand, there is evidence which was sufficient to create an issue of fact as to whether the defendant acted ‘knowingly’ or ‘recklessly.’ ” Willis, 170 Ill. App. 3d at 641.

As hereinbefore set forth, the defendant’s testimony as to what occurred on October 3, 1987, was in evidence before the jury. His testimony constituted some evidence of reckless conduct which was sufficient to create an issue of fact as to whether the defendant acted “knowingly” or “recklessly.”

Both the State and the defendant are entitled to appropriate instructions which present their theories of the case to the jury when the evidence supports such theories. (People v. Lyda (1989), 190 Ill. App. 3d 540, 544.) A defendant is entitled to the benefit of any defense shown by the entire evidence, even if the facts on which the defense is based are inconsistent with a defendant’s own testimony. (Lyda, 190 Ill. App. 3d at 544.) Very slight evidence upon a given theory of a case will justify the giving of an instruction. Lyda, 190 Ill. App. 3d at 544.

We find that the trial court erred in refusing to instruct the jury on the lesser-included offense of reckless conduct. Accordingly, the judgment of the trial court is vacated, and the case is remanded for a new trial.

Judgment vacated; cause remanded.

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