author: JUSTICE HEIPLE JUSTICE SCOTT,

text:
    THE DEPARTMENT OF TRANSPORTATION ex rel. THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FIRST GALESBURG NATIONAL BANK AND TRUST COMPANY, Defendant-Appellant (Federal Land Bank of St. Louis et al., Defendants).—THE DEPARTMENT OF TRANSPORTATION ex rel. THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EFFIE GERALDINE TINKHAM, Defendant-Appellant (Federal Land Bank of St. Louis, Defendant).
    Third District
    Nos. 3-88-0585, 3-88-0590 cons.
    Opinion filed September 27, 1989.

      SCOTT, J., specially concurring.
    Barash, Stoerzbach & Henson, of Galesburg (Burrel Barash, of counsel), for appellants.
    Flack, Kwacala, Murphy & Ashenhurst, of Macomb (A. Anthony Ashenhurst, of counsel), for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff, the Illinois Department of Transportation (Department), filed a complaint" for condemnation seeking to acquire fee simple title to the existing Route 34 right-of-way for which it already has a surface-only dedication, and, additionally, the fee simple title to strips of land adjacent to the existing right-of-way in order to widen the highway. The Department filed “quick take” motions, and the defendant, First Galesburg National Bank and Trust Company, filed a traverse and motion to dismiss. The defendant’s motion was denied and the plaintiff’s “quick take” motions were allowed and compensation fixed. The defendant appeals the trial court order denying the traverse and motion to dismiss.

James A. Stone, a civil engineer employed by the Department, testified that the four parcels of land that are the subject of this dispute were needed promptly to complete road improvements on Route 34, which included widening the highway from 18 feet to 24 feet and providing the necessary ditches for drainage. When questioned why the Department needed the fee interest underneath the property in question, Stone responded that it was the policy of the Department when seeking condemnation to request fee simple title to avoid any future problems over the property with the landowners. This policy stemmed from a 1957 directive from the Illinois Attorney General’s office to the Department.

On appeal, the defendant raises three arguments: (1) the Department’s actions were unconstitutional since they were able to acquire the fee interest in the property without adopting and following specific rules pursuant to the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1987, ch. 127, par. 1004.02); (2) there was no evidence that it was necessary for the Department to acquire the fee interest to that portion of the highway which had already been dedicated; and (3) the Department had no reason for invoking the “quick take” procedure since there was no need to acquire the property promptly.

Before addressing the defendant’s contentions, however, this court must initially respond to the Department’s argument that an order denying a traverse and motion to dismiss is not a final and appealable order. The defendant in the present action followed the procedure set forth in Department of Public Works & Buildings v. Association of Fransciscan Fathers (1972), 3 Ill. App. 3d 503. In Fransciscan Fathers, the defendant property owner filed a traverse and motion to dismiss in a “quick take” proceeding, which was denied and from which an appeal was taken. The court found that under the former Illinois Eminent Domain Act, the defendant could appeal the court’s findings as to the Department's authority to exercise the right of eminent domain, the susceptibility of the property to its exercise, and its proper exercise in the particular case. (Ill. Rev. Stat. 1969, ch. 47, par. 2.2(b) (repealed 1979, now codified at Ill. Rev. Stat. 1987, ch. 110, par. 7 — 104(b)).) The defendant’s arguments on appeal focus on the alleged impropriety of the Department in exercising its right of eminent domain. Therefore, the defendant can appeal with regards to these issues.

The defendant first argues that the Department, by failing to enact specific guidelines, violated due process when it attempted to acquire the fee interest to the property in question. Section 4 — 501 of the Illinois Highway Code (Ill. Rev. Stat. 1987, ch. 121, par. 4 — 501) provides in relevant part:

“The Department *** may acquire the fee simple title, or such lesser interest as may be desired, to any land, rights, or other property necessary for the construction, maintenance or operation of State highways ***.”

The defendant argues that this legislative standard provides the Department with no guidelines in exercising its discretion. Consequently, the defendant maintains that the Department should be required to adopt specific rules pursuant to the Illinois Administrative Procedure Act, which clearly sets forth what constitutes actual need before acquiring property under this statute. The Illinois Administrative Procedure Act provides:

“Each rule which implements a discretionary power to be exercised by an agency shall include the standards by which the agency shall exercise the power. Such standards shall be stated as precisely and clearly as practicable under the conditions, to inform fully those persons affected.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 127, par. 1004.02.)

While we agree with the defendant that due process requires that an act provide sufficient standards to guide the administrative body in the exercise of its discretionary power (People ex rel. Stamos v. Public Building Comm’n (1968), 40 Ill. 2d 164), it is our view that section 4 — 501 of the Illinois Highway Code provides the Department with as much guidance as is practicable under the circumstances.

Although it is true that the standard set forth in the present statute is expressed in general terms, the precision of a standard must necessarily vary according to the nature of the objective and the problems involved. (People ex rel. Stamos v. Public Building Comm’n (1968), 40 Ill. 2d 164, 175.) Neither the legislature nor the Department should be required to adopt specific guidelines which attempt to determine what might be “necessary” with respect to the myriad of construction projects on the thousands of miles of highways in the State of Illinois. Rather, this determination, out of necessity, must be left to the discretion of the Department on a project-by-project basis, inasmuch as it is the Department whose job it is t.o be acquainted with the State’s multifarious highway needs. (Department of Public Works & Buildings v. Lanter (1953), 413 Ill. 581.) Thus, this court finds that section 4 — 501 provides sufficient standards. Creating a more particular standard would be impractical, if not impossible.

The aforementioned analysis, however, does not dispel the defendant’s second argument, which contends that the Department failed to produce evidence that it was necessary to acquire the fee interest to that portion of the highway which had already been dedicated. Neither in the briefs nor during oral argument did the State identify one legitimate benefit that would be derived from acquiring the fee interest to that portion of the existing Route 34 right-of-way for which it already has a dedication. The State has the burden of establishing a prima facie right to condemn the property in question when a motion to dismiss has been filed, as in the instant case. (Department of Public Works & Buildings v. Neace (1973), 13 Ill. App. 3d 982.) Moreover, the State must prove its case by competent evidence. (Neace, 13 Ill. App. 3d at 985.) Here, the State did not meet its burden of proof. Consequently, we find that the State cannot take more of an interest in the property than it demonstrates a need for. Therefore, the trial court improperly denied that portion of the defendant’s motion to dismiss which contested the State’s authority to condemn the fee interest to the land already in use as a highway pursuant to prior dedication.

Finally, in order to invoke a “quick take” procedure, the necessity for acquiring the property in this manner must be stated in the “quick take” motion. (Ill. Rev. Stat. 1987, ch. 110, par. 7 — 103.) This requirement is due to the fact that the exercise of quick take power is an even more drastic procedure than the usual eminent domain proceedings because of the immediate vesting of title in the sovereign entity. (Department of Transportation v. V.I.P. Manor, Inc. (1983), 117 Ill. App. 3d 137.) This court finds that the State adequately set forth the necessity for invoking the “quick take” procedure to acquire the additional strips of land adjacent to the existing highway. This land was needed promptly to complete the road improvements on Route 34. Consistent with our previous ruling, however, we find that the State failed to show that a “quick take” procedure was necessary to acquire the fee interest to the existing Route 34 right-of-way for which it already has a dedication.

In summary, we find that although the Department had a right to exercise eminent domain proceedings to widen Route 34, it did not demonstrate a need to acquire the fee interest. That is to say, there is absolutely nothing in the record to indicate a need for more than a surface acquisition of the right-of-way.

Reversed and remanded.

WOMBACHER, P.J., concurs.

JUSTICE SCOTT,

specially concurring:

I concur with the result reached, by the majority in this case. However, I believe that attention should be addressed to the State’s attempt to parlay a bureaucratic directive issued in 1957 by someone in the Attorney General’s office to the status of a regulatory guideline in condemnation cases.

The guideline which the State desired to adopt was that, if a landowner acquiesces and negotiates a use of a portion of his land to the State for highway purposes, then a State would only receive a right-of-way interest. However, if the landowner is recalcitrant and wants a right to which he is entitled, to wit, a condemnation proceeding, then according to the majority opinion the State is entitled to seek and receive a fee interest in the desired land. The condemnee, in the latter instance, is situated like the individual sitting under sword of Damocles. Acquiesce and cooperate and one is safe, but claim a right to an eminent domain proceeding, and the threads to the hanging sword will be severed, and it will fall. The latter result smacks strongly of autocratic bureaucracy.

In the instant case, the fee interest is not needed by the State. A highway is already in esse. The State already has a right of way dedication in the land in question. During oral argument, the State was unable to state one benefit that would be derived from the fee interest, which is necessary to the widening of the highway. The State acknowledged that any possible interest in the land, such as oil, gas or mineral rights, would not be utilized by the State. Such assets, if ever discovered, could be of value to the fee holder and should not blithely be taken from him. It is apparent that if he had not availed himself of his legal right to resist the taking by the State, he would still be possessed of certain possible rights.


source: Caselaw Access Project

author: JUSTICE HEIPLE

license: Public Domain

text:
    KENNETH E. POWELL, Appellee, v. BOARD OF EDUCATION OF THE CITY OF PEORIA, DISTRICT 150, et al., Appellants.
    Third District
    Nos. 3—89—0084, 3—89—0158 cons.
    Opinion filed September 22, 1989.

      James W. Springer, of Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria (Julian E. Canned, of counsel), for appellant Board of Education of the City of Peoria.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen Michels Caille, Assistant Attorney General, of Chicago, of counsel), for appellant Illinois State Board of Education.
    Hamm & Hanna, Ltd., of Peoria (Ronald L. Hamm, of counsel), for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

This case of first impression arises under article 24A of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 24A — 1 et seq.), more particularly section 24A — 5. We are required to decide what, if any, role remains under article 24A, effective September 25, 1985, for the school board in remediation for unsatisfactory teachers, and discharge of such teachers if remediation fails. The applicable statute, section 24A — 5, provides in relevant part:

“§24A— 5. Content of evaluation plans. Each school district to which this Article applies shall establish a teacher evaluation plan which ensures that each teacher in contractual continued service is evaluated at least once in the course of every 2 school years, beginning with the 1986-87 school year.
The evaluation plan shall comply with the requirements of this Section and of any rules adopted by the State Board of Education pursuant to this Section.
The plan shall include a description of each teacher’s duties and responsibilities and of the standards to which that teacher is expected to conform.
The plan may provide for evaluation of personnel whose positions require administrative certification by independent evaluators not employed by or affiliated with the school district. The results of the school district administrators’ evaluations shall be reported to the employing school board, together with such recommendations for remediation as the evaluator or evaluators may deem appropriate.
Evaluation of teachers whose positions do not require administrative certification shall be conducted by an administrator qualified under Section 24A — 3 and shall include at least the following components:
(a) personal observation of the teacher in the classroom by a district administrator, qualified under Section 24A — 3, unless the teacher has no classroom duties.
(b) consideration of the teacher’s attendance, planning, and instructional methods, classroom management, where relevant, and competency in the subject matter taught, where relevant.
(c) rating of the teacher’s performance as ‘excellent’, ‘satisfactory’ or ‘unsatisfactory’.
(d) specification as to the teacher’s strengths and weaknesses, with supporting reasons for the comments made.
(e) inclusion of a copy of the evaluation in the teacher’s personnel file and provision of a copy to the teacher.
(f) within 30 days after completion of an evaluation rating a teacher as ‘unsatisfactory’, development and commencement by the district of a remediation plan designed to correct deficiencies cited, provided the deficiencies are deemed remediable.
* * *
(h) quarterly evaluations and ratings for one year immediately following receipt of an ‘unsatisfactory’ rating of a teacher for whom a remediation plan has been developed. ***
***.
(j) dismissal in accordance with Section 24 — 12 or 34 — 85 of The School Code of any teacher who fails to complete the one-year remediation plan with a ‘satisfactory’ or better rating.” Ill. Rev. Stat. 1987, ch. 122, par. 24A-5.

Defendant-appellant Peoria School District 150 (District 150) and the Peoria Federation of Teachers formed an evaluation plan pursuant to the statute. The plan was duly approved by the codefendant State Board of Education and became effective in January 1987.

In March 1987, Kenneth Powell, a tenured teacher of 22 years with defendant District 150, was evaluated “unsatisfactory — needs improvement.” James McCormack, a school administrator, prepared a remediation plan relating to the unsatisfactory aspects of Powell’s performance: (1) discipline; (2) classroom management; (3) enthusiasm; and (4) organization. McCormack also notified Powell in writing that he would be dismissed if he did not complete the remediation program satisfactorily. Defendant District 150 Board was neither consulted nor involved in the evaluation, the remediation plan, or the post-remedial evaluation.

The remediation plan was put into effect for the 1987-1988 school year. Powell failed to improve. He was rated unsatisfactory in all four of his quarterly evaluations. Pursuant to McCormack’s report and findings, the District 150 Board dismissed Powell, a tenured teacher of 22 years, without any hearing either before, during, or after the remediation program.

Powell demanded the hearing provided in section 24 — 12 (Ill. Rev. Stat. 1987, ch. 122, par. 24 — 12). In that hearing, before a hearing officer selected under the statute by Powell and the State Board of Education, the decision of the administrator, McCormack, was affirmed. Powell was subsequently dismissed as a teacher. Defendant District 150 Board of Education played no part in the entire dismissal process other than to ratify the decision of James McCormack, the administrator.

Powell then filed suit under the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.) in the circuit court of Peoria County against the Board of District 150 and the State Board of Education. The circuit court reversed the hearing officer, stating “that the statutory requirements to initiate a remediation program for Kenneth Powell [were] not met by the School Board.” Powell was subsequently ordered reinstated as a teacher. Defendants, the School Board for District 150 and the State Board of Education, appeal from the decision of the circuit court.

Initially, this court must address the issue of whether article 24A requires school boards to “initiate” or develop a remediation program as stated in the trial court order. The trial court interpreted the language in section 24A — 5(f) “development and commencement by the district of a remediation plan” (emphasis added) to mean that only school boards had the authority to develop and initiate the remediation programs. This interpretation runs contrary to the legislative scheme of article 24A of the School Code, which was added in 1985 to improve educational services by requiring that all certified school district employees be evaluated on a periodic basis. The statutory scheme of article 24A places the majority of the responsibility for evaluating teachers with administrators who are trained and qualified by the State Board of Education. The administrator is responsible for the initial evaluation, the rating of the teacher’s performance, and the specification of the teacher’s strengths and weaknesses. (Ill. Rev. Stat. 1987, ch. 122, pars. 24A — 5(a), 24A — 5(e).) Furthermore, it is the administrator who submits a final evaluation regarding the successful completion of the one year remediation plan. (Ill. Rev. Stat. 1987, ch. 122, par. 24A — 5(h).) Given this legislative scheme and the unspecific language of the statute, we find that the trial court erred in finding that school boards are solely responsible for the remediation plans. We find that the district administrators are permitted under the statute to develop the individual teacher’s remedial plans under the overall supervision of the school board. In fact, this court takes note of the fact that a 1989 amendment to section 24A — 5(f) specifically permits administrators to develop and commence remediation plans. Ill. Rev. Stat., 1988 Supp., ch. 122, par. 24A — 5(f).

The next issue this court must decide is whether there can be a discharge of a teacher who has undergone remediation with the Board acting in only a ministerial capacity. In other words, can a teacher be dismissed without the Board exercising any control over, or responsibility for, the termination. To make this determination requires us to review section 24 — 12, which governs teacher dismissals and which was amended contemporaneously with the passage of article 24A. Section 24 — 12 provides in relevant part:

“Before setting a hearing on charges stemming from causes that are considered remediable, a board must give the teacher reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges; however, no such written warning shall be required if the causes have been the subject of a remediation plan pursuant to Article 24A. The hearing officer shall consider and give weight to all of the teacher’s evaluations written pursuant to Article 24A. The hearing officer shall, with reasonable dispatch, make a decision as to whether or not the teacher shall be dismissed and shall give a copy of the decision to both the teacher and the school board. The decision of the hearing officer is final unless reviewed as provided in Section 24 — 16 of this Act. In the event such review is instituted, any costs of preparing and filing the record of proceedings shall be paid by the board.” Ill. Rev. Stat. 1987, ch. 122, par. 24 — 12.

Under the prior version of section 24 — 12, there was no provision for administrative remediation or for a hearing officer. District 150 Board and the State Board contend that once a remediation program has been instituted by the administration, the local board has no more responsibility or control over firing or retention of the affected teacher. Powell contends that the statutes do not purport to delegate the local Board’s historic, statutorily defined control over the employment of teachers in its district. Because of the clear statutory mandate set forth in the amended version of section 24 — 12, we agree with the District 150 Board and the State Board.

A school board has only those powers expressly conferred upon it by the General Assembly and those that are necessary to carry into effect the powers granted by the legislature. (Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389.) When a statute is amended, it is presumed that the legislature intended to effect some change in the law as it formerly existed. (People v. DeMont (1986), 146 Ill. App. 3d 437.) Under the new section 24 — 12, a hearing officer is responsible for reviewing the teacher’s evaluations written pursuant to article 24A and for deciding whether or not a teacher shall be dismissed. Further, the decision of the hearing officer is final unless reviewed by a circuit court under the Administrative Review Law. Thus, a reading of section 24 — 12 as amended, reflects the legislature’s intent to remove from the jurisdiction of local boards the ultimate responsibility on a termination decision following remediation to a disinterested hearing officer.

In summary, this court finds that the trial court erred in reversing the decision of hearing officer Peter Feuille, based on its erroneous conclusion that the District 150 Board had to initiate and develop the remediation program. Consequently, we reverse the trial court order and remand for a hearing on the merits to determine if Powell’s dismissal was supported by the record.

Reversed and remanded.

WOMBACHER, P.J., and SCOTT, J., concur.


author: PRESIDING JUSTICE WOMBACHER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DEREK F. SHAW, Defendant-Appellee.
    Third District
    No. 3—88—0838
    Opinion filed September 27, 1989.
    Samuel Naylor VI, State’s Attorney, of Carthage (Vicki L. Seidl, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Capps, Ancelet & Stoverink, of Carthage (Albert V. Ancelet, of counsel), for appellee.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

In September of 1986, the defendant, Derek Shaw, was convicted of driving under the influence of alcohol. The offense and conviction took place in the State of Iowa. In August of 1988 the defendant was convicted of the Class A misdemeanor of driving while his driver’s license was revoked in violation of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 303). The offense and conviction took place in the State of Illinois. In September of 1988 the defendant was again arrested in the State of Illinois for driving while his driver’s license was revoked. Pursuant to statutory directive, the defendant was charged with a Class 4 felony, since the instant charge was his second violation following a revocation for driving under the influence of alcohol. Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 303(d).

The pertinent paragraph of the Vehicle Code under which the defendant was charged provides:

“Any person convicted of a second or subsequent violation of this Section shall be guilty of a Class 4 felony if the original revocation or suspension was for a violation of Section 11 — 401 or 11 — 501 [driving while under the influence of alcohol] of this Code, or a similar provision of a local ordinance, or a violation of Section 9 — 3 of the Criminal Code of 1961, as amended, relating to the offense of reckless homicide.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 303(d).)

The defendant filed a motion to dismiss the charge, contending that his Iowa conviction could not be used to enhance his offense to a Class 4 felony since the Iowa offense was not a violation of an Illinois law.

The trial court granted the defendant’s motion to dismiss, ruling that the complaint failed to state a cause of action. The State brought the instant appeal seeking a review of the trial court’s disposition.

The State contends that the Illinois driver’s license compact (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 700) controls the issue presented in this appeal. The compact requires that the State’s licensing authority report each conviction of a person from another State occurring within its jurisdiction to the licensing authority of the licensee’s home State. (Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 702.) The State argues that since the defendant was an Illinois resident and since the Illinois driver’s license compact expresses the legislative intent to discipline resident drivers for conduct in another State, section 6 — 303(d) should be interpreted as allowing the defendant’s Iowa conviction for driving under the influence to be used to elevate the instant in-State charge of driving while license revoked to a Class 4 felony. This reasoning, however, is in direct contravention to this court’s recent holding in People v. Weakley (1988), 176 Ill. App. 3d 274.

The defendant contends that this court’s decision in People v. Weakley (1988), 176 Ill. App. 3d 274, 530 N.E.2d 1168, is precedential authority. We agree.

In Weakley, this court was confronted with the issue of whether section 6 — 303(a) of the Code was a basis to charge an Iowa resident-defendant for driving in Illinois when his Iowa’s driver’s license was revoked by Iowa. Section 6 — 303(a) provided as follows:

“(a) Any person who drives or is in actual physical control of a motor vehicle on any highway of this State at a time when such person’s driver’s license *** is revoked or suspended as provided by this Code or any other law, except as may be specifically allowed *** pursuant to this Code, shall be guilty of a Class A misdemeanor.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 303(a).)

This court found that since section 6 — 303(a) was not specific in referring to foreign State revocations or suspensions and because the statute was penal in nature, the statute must be strictly construed against the State in favor of the defendant.

Likewise, in the instant case, section 6 — 303(d) did not specify that out-of-State convictions could be used for elevating an in-State conviction to a Class 4 felony. Indeed, section 6 — 303(d) specifically refers to particular statutory sections of the Illinois Vehicle Code. Thus, section 6 — 303(d) is more specific than the provision in Weakley, which merely states “this Code or any other law,” and presents an even stronger argument for construing the statute against the State. If the legislature intended otherwise, the legislature, not the court, should change the statute.

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

Affirmed.

HEIPLE and STOUDER, JJ., concur.


text:
    DONALD E. LOHRENZ, Plaintiff-Appellant, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellee (Garth Baecker, Defendant).
    Third District
    No. 3—88—0475
    Opinion filed September 19, 1989.

      Donald K. Birner, of Pekin, for appellant.
    Gary D. Nelson and Timothy D. Seifert, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The plaintiff, Donald E. Lohrenz, brought suit against the defendant-appellee, Country Mutual Insurance Company, and its agent, defendant Garth Baecker, based on an insurance policy the plaintiff had with Country Mutual. He now appeals from summary judgment granted in favor of Country Mutual on counts III and IV of his amended complaint. We note that Baecker is not a party to this appeal, since the dismissal of counts III and IV did not affect the plaintiff’s suit against him.

The record shows that the plaintiff purchased a 1984 Chevrolet and asked Baecker to add it to his policy. During the conversation, Baecker asked the plaintiff whether he was familiar with the insurance option known as “Keeper Coverage.” The plaintiff responded that he had seen Keeper Coverage advertised on television.

Sometime later, the plaintiff went to Baecker’s office to complain about his premiums. Baecker again brought up the availability of the Keeper Coverage option. The plaintiff stated in his deposition that Baecker told him that if for any reason his car was “wrecked” and repairing it would cost more than a new car, he would get a new car. The plaintiff decided to add this coverage to his policy. We note a discrepancy in the record as to when this coverage was purchased. Baecker stated in his deposition that his records showed that the Keeper Coverage was added to the plaintiff’s policy on April 17, 1984. The plaintiff believed the coverage was added to his policy between April and August of 1985.

On or about August 26, 1986, the plaintiff’s car was destroyed by fire. The insurance adjuster determined that the car was totalled, estimated the plaintiff’s loss was $6,500, and tendered that amount to him. The plaintiff stated in his deposition that he did not know that Keeper Coverage did not cover destruction by fire until he reported the loss to Baecker.

The plaintiff filed a complaint against Country Mutual and later in count V of his amended complaint added Baecker as a defendant. In count III of his amended complaint, he alleged that Country Mutual had misrepresented in newspaper and television advertisements and in its newsletters the scope of coverage under the Keeper policy. In addition, the plaintiff alleged that Country Mutual through its agent, Garth Baecker, had purposely failed to inform him that Keeper Coverage did not cover losses by fire, theft, or larceny. The plaintiff alleged that the misrepresentations were made with the intent to deceive and defraud him and that he was fraudulently induced into purchasing Keeper Coverage.

Count IV alleged violations of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121V2, par. 261 et seq.), based on the same set of facts alleged in count III. In both counts, the plaintiff asked for a total of $500,000 in actual and punitive damages.

Country Mutual filed a motion for summary judgment on counts III and IV. Following a hearing, the trial court granted Country Mutual’s motion, finding that as a matter of common knowledge the terms “wrecked” and “accident” in the context of auto insurance connoted physical impact between the insured’s vehicle and another vehicle or object. The court also found that Country Mutual had set forth evidence of a system designed to inform insureds of the contents of their policies, and that it was therefore incumbent upon the plaintiff to produce affirmative proof of an intent to deceive. Pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), the trial court found no reason to delay an appeal from its ruling, and the plaintiff brought the instant appeal.

A motion for summary judgment should be granted “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) Although the plaintiff, as the party opposing summary judgment, is not required to prove his case at this stage, he must provide a factual basis under which he would be entitled to judgment, and he has an affirmative duty to bring forth facts and evidence of a cognizable cause of action. Burns v. Addison Golf Club, Inc. (1987), 161 Ill. App. 3d 127, 514 N.E.2d 68.

The elements of a cause of action for fraudulent misrepresentation are: (1) a false statement of material fact; (2) known or believed to be false by the party making it; (3) an intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damages. (McCarter v. State Farm Mutual Automobile Insurance Co. (1985), 130 Ill. App. 3d 97, 473 N.E.2d 1015.) Punitive damages can be awarded against a master or other principal based on the acts of an agent only if the principal authorized the doing and manner of the act, or the agent was employed in a managerial capacity and was acting within the scope of his employment, or the principal or managerial agent of the principal ratified or approved the act. Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 330 N.E.2d 509.

Initially, we note that the plaintiff’s allegations that he was induced by Country Mutual’s newspaper advertisements and newsletters to purchase Keeper Coverage have no factual support in the record. The plaintiff took out this coverage in 1984 or 1985. The newspaper ads and newsletter cited in the plaintiff’s complaint date from 1986. This was after he took out the coverage. In addition, while the plaintiff said in his deposition that he had seen television commercials advertising Keeper Coverage, he also admitted that this was not the reason he went to Baecker’s office on the day he decided to purchase the additional coverage. He went there to complain about his premiums. Accordingly, we find that the plaintiff failed to present facts to support this portion of his allegations, and therefore there was no genuine issue of material fact regarding inducement through false advertising.

The plaintiff also failed to produce any facts supporting the alleged intent of Country Mutual to defraud him. Country Mutual produced extensive evidence of a system by which policyholders received information on the extent and limitations of their coverage. Country Mutual also produced evidence of a letter mailed in June of 1984 to all of its insureds explaining Keeper Coverage. The plaintiff simply denied ever receiving these materials. Evidence of such an extensive system set up to inform policyholders of the extent of their coverage, without specific contrary evidence by the plaintiff, negated any possible inference of an intent to defraud on the part of Country Mutual. Under these circumstances, the plaintiff’s mere claim that he had not received the information was not sufficient to demonstrate an intent to deceive or defraud.

Additionally, the plaintiff’s claim of misrepresentation by Baecker does not present sufficient facts to arguably demonstrate an intent to deceive or defraud on the part of Country Mutual. An insured is charged with notice of the contents and scope of his insurance policy, regardless of any failure to read the policy. (Dobosz v. State Farm Fire & Casualty Co. (1983), 120 Ill. App. 3d 674, 458 N.E.2d 611.) We find this especially true where as in this case the insurer maintains an extensive system to inform the insured. Further, the plaintiff failed to plead or present facts sufficient to justify punitive damages under the standard set forth in Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 330 N.E.2d 509.

For the foregoing reasons, we find that the trial court properly granted Country Mutual’s motion for summary judgment.

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

Affirmed.

HEIPLE and SCOTT, JJ., concur.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERALD DAVIS, Defendant-Appellant.
    Third District
    No. 3—88—0468
    Opinion filed September 27, 1989.
    Rehearing denied November 7, 1989.
    Law Offices of John H. Bisbee, of Macomb (John H. Bisbee, of counsel), for appellant.
    William Poncin, State’s Attorney, of Macomb (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

Defendant Jerald Davis appeals from the judgment entered by the circuit court of McDonough County following jury verdicts of guilty on four counts of theft as defined in section 16 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(a)(1)). Davis was sentenced to 30 months’ probation, 30 days’ periodic imprisonment in the McDonough County jail, and ordered to pay restitution in the amount of $3,088.16.

Davis, a licensed insurance producer, was engaged in the practice of writing credit life and/or disability insurance policies insuring loan customers of the First National Bank of Macomb. The bank was primary beneficiary of the policies, and the policies were financed by adding the premium to the sum borrowed. Commissions were paid either to the bank when it initiated the sale of the policies, or to other entities, e.g., a retailer whose installment contracts were sold to the bank and provided for purchase of a policy, when they initiated the sale.

The record reveals if a borrower agreed to purchase a policy at the bank’s initiation, the bank calculated the premium and added it to the loan balance. The premium, minus the bank’s commission, then would be deposited into Davis’ escrow accounts when the loan proceeds were disbursed. Davis’ escrow accounts were maintained at the bank, and its officers would deposit the premium directly into his account. Information needed to issue the policy, e.g., borrower’s name, address, age, and terms of the loan, would be provided by Davis and he would forward the net premium and policy application to the insurance company for policy issuance.

If another entity initiated the sale of a policy through its retail installment contract, the bank would issue a money order payable to the entity for the premium at the time the bank purchased the contract. The entity then would pay Davis the premium minus its commission. In the latter instance, the record is unclear as to whether the entity or the bank assumed responsibility for providing Davis with information concerning the borrower and loan required to obtain issuance of a policy.

In an effort to collect an indebtedness Davis owed the bank on a delinquent real estate loan, the bank applied a set off against his insurance escrow accounts closing the accounts in their entirety in the late summer of 1985. Following discovery, in May of 1985, that certain borrowers’ credit insurance policies had not been issued, the bank reported the matter to the McDonough County State’s Attorney’s office for criminal prosecution. The bank, however, did not demand that Davis cover the losses it incurred, e.g., refund of unearned premium, cost of obtaining new policies, payment of death claim, etc., following its discovery of the nonissuance of certain policies.

On August 5, 1986, Davis was charged with 13 counts of theft in violation of section 16 — 1(a)(1) of the Criminal Code of 1961 — “Theft” (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(a)(1))—and 13 counts of breach of fiduciary duty in violation of section 508.1 of the Illinois Insurance Code — “Fiduciary Duties” (Ill. Rev. Stat. 1987, ch. 73, par. 1065.55— 1) — stemming from his failure to procure insurance policies for certain loan customers after premium deposits were made either directly to his escrow account by the bank, or deposited by him from funds received from other entities. All counts of breach of fiduciary duty and all but five counts of theft were dismissed prior to trial.

At Davis’ arraignment and in response to his motion for disclosure pursuant to Supreme Court Rule 412, “Disclosure to Accused” (107 Ill. 2d R. 412), a pretrial discovery order was entered for both Davis and the prosecution. Davis objected to the order granting discovery to the prosecution on grounds the People’s oral motion for discovery did not comply with Supreme Court Rule 413(d), “Disclosure to Prosecution — Defenses” (107 Ill. 2d R. 413(d)), requiring a written motion. During a protracted motion practice wherein the People continuously moved for compliance with the entered order and with Davis objecting to the same, Davis supplemented his refusal to comply on grounds the order granting the People discovery violated his rights under the fifth, sixth, and fourteenth amendments of the United State Constitution (U.S. Const., amends. V, VI, XIV), article I, sections 2, 8, and 10, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §§2, 8, 10), and section 3 — 1 of the Criminal Code of 1961 — “Presumption of Innocence and Proof of Guilt” (Ill. Rev. Stat. 1987,-ch. 38, par. 3 — 1). He further cited the pending decision of Taylor v. Illinois (1988), 484 U.S. 400, 98 L. Ed. 2d 798, 108 S. Ct. 646, which, when entered, would define the power of Illinois courts to impose sanctions for failure to comply with State discovery procedures pursuant to Supreme Court Rule 415(g), “Regulation of Discovery — Sanctions” (107 Ill. 2d R. 415(g)), as a rationale for his continuing noncompliance. Davis, however, did inform the People and trial court he intended to advance no affirmative defense to the charges and that he would not call witnesses whose testimony would be outside the scope of the People’s burden of going forward and proof.

On January 22, 1988, the trial court ordered Davis to comply on or before January 25 with the order entered at the arraignment or suffer exclusion of any evidence subject to disclosure under the terms of the order. He thereafter filed a motion for reconsideration or continuance and set the motion for hearing on January 28. Upon learning of the decision entered in Taylor v. Illinois (1988), 484 U.S. 400, 98 L. Ed. 2d 798, 108 S. Ct. 646, permitting exclusion of defense witnesses for violation of discovery orders, Davis informed the People on January 27 he would comply with the discovery order. In response thereto, the People filed a motion in limine requesting, inter alia, that Davis be precluded from presenting testimony from witnesses not disclosed by January 25.

At hearing on both motions, Davis submitted a list of character witnesses and advised the trial court the witnesses would testify only as to his reputation and honesty in business affairs. The trial court denied Davis’ motion for reconsideration or continuance and granted the People’s motion in limine. No showing of prejudice resulting from Davis’ failure to comply was made by the People and the record reveals that following the hearing the People interviewed at least one rebuttal character witness.

A jury trial was held in February 1988 on the remaining five counts of theft, with the court directing a verdict in favor of Davis on one count at the close of the People’s case in chief. Following Davis’ testimony, the defense rested. Davis’ motion for a directed verdict was denied, and the jury returned verdicts of guilty on the remaining four counts. Two counts stemmed from Davis’ failure to procure insurance on borrowers, whose premiums were directly deposited into his escrow account by a bank officer, with two counts stemming from his failure to procure insurance on borrowers after he deposited premiums received from a local dealership, Happy Camping of Macomb, Illinois, following its sale of retail installment contracts to the bank. Following denial of Davis’ post-trial motion for entry of judgment notwithstanding verdict, or in the alternative, for a new trial or in arrest of judgment, judgment was entered on the verdicts.

On appeal, Davis requests this court reverse his conviction and remand for a new trial based on one or more of the following contentions. First, that the trial court’s sanction denying him the right to call character witnesses for failure to comply in a timely manner with court ordered discovery infringed his rights guaranteed under the compulsory process clause of the sixth and fourteenth amendments to the United States Constitution and corresponding provisions of the Illinois Constitution, and violated his right of due process under the fourteenth amendment to the United States Constitution. Second, given names of his character witnesses were disclosed to the People four days prior to trial and no showing of prejudice was made by his failure to disclose the names earlier, the sanction was improperly imposed. Third, given the People and trial court were advised his defense would be negative, the discovery order requiring disclosure of witnesses and the ensuing sanction was an infringement upon his presumption of innocence guaranteed by the due process clause of the fourteenth amendment to the United States Constitution, the corresponding provisions of the Illinois Constitution, and section 3 — 1 of the Criminal Code of 1961. Fourth, substance of testimony given at trial by three prosecution witnesses concerning three contested and critical issues of fact concerning his knowledge that insurance was requested or that he had sufficient information to procure policies was not disclosed pursuant to Supreme Court Rule 412 resulting in surprise and prejudice to Davis. Fifth, he was denied the effective assistance of counsel, when his counsel failed to provide the People with names of character witnesses in a timely manner resulting in the trial court’s imposition of the sanction excluding the witnesses.

In the alternative, Davis requests this court vacate the trial court’s judgment and discharge him on the grounds that (1) the evidence adduced at trial proved only the breach of an obligor-obligee duty and not theft as defined by section 16 — 1(a) of the Criminal Code of 1961, or (2), as a matter of law, the evidence adduced was not sufficient to establish beyond a reasonable doubt the elements of the crime of theft.

As the evidence adduced at trial revealed only the following, it is not necessary to consider Davis’ contentions concerning the trial court’s imposition of the sanction of witness exclusion, infringement on presumption of innocence when a discovery order requires disclosure beyond revelation that an accused’s defense is strictly negative, the People’s compliance with the letter and intent of mandated disclosure to the accused, or the issue of effective assistance of counsel.

The evidence showed that on two occasions a bank officer solicited insurance, collected the premium and deposited it into Davis’ escrow accounts, and thereafter failed to forward Davis information required to obtain policy issuance. Further, on two occasions involving the bank’s purchase of Happy Camping’s retail installment contracts, which included a request for insurance, Davis accepted the premium from Happy Camping and deposited it into his escrow accounts. In the latter two instances, he did not receive any information from the bank concerning the borrower or loan terms, nor did he receive a copy of the loan contract from Happy Camping containing this information on one transaction, whereas it was disputed he may have received a contract on the other transaction. No evidence was presented that the premiums deposited were withdrawn by Davis, and the premiums apparently remained in the accounts until the bank closed the accounts in set-off against an unrelated delinquent loan.

This evidence establishes clearly that the bank and Happy Camping, through their solicitation of insurance, created a fiduciary relationship between themselves and their respective borrowers. (Ill. Rev. Stat. 1987, ch. 17, par. 2001 et seq.) They were obligated, therefore, to ensure that insurance was procured or risk breach of their fiduciary duties. Further, in the event such insurance was not issued, they were required, inter alia, to refund unearned premium or credit the borrower’s account. Ill. Rev. Stat. 1987, ch. 73, par. 767.58(c); ch. 1211/2, par. 511.

In endeavoring to honor their fiduciary duty, a contractual relationship was established with Davis obligating him to procure insurance in consideration of the premiums deposited. Davis’ failure to obtain the policies, whether contributed in part or whole by the bank’s or Happy Camping’s failure to inform Davis concerning details of the loans, is properly characterized as a breach of a contractual relationship, obligor/obligee, owing the bank and/or Happy Camping as opposed to a criminal offense of theft as defined and chargeable under section 16 — 1 of our criminal code. (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1. See also People v. Becker (1953), 414 Ill. 291, 111 N.E. 2d 491; People v. Robinson (1933), 352 Ill. 596, 186 N.E.2d 484.) Davis’ clearly established failure to procure the policies may give rise to a cause of action in the bank and/or Happy Camping for breach of contract, and in the borrowers against their fiduciaries for breach of fiduciary duty. It is well settled that breach of an obigor/obligee relationship does not support a charge of theft as presented herein. People v. Buffalo Confectionery Co. (1980), 78 Ill. 2d 447, 401 N.E.2d 546.

Accordingly, we hold as a matter of law the evidence presented herein does not constitute theft as defined in section 16 — 1 of our criminal code and therefore reverse the judgment of the trial court of McDonough County and order Davis discharged.

Reversed.

HEIPLE and STOUDER, JJ., concur.


author: JUSTICE BARRY

text:
      In re LYLE HILTON, Asserted to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Lyle Hilton, Respondent-Appellant).
    Third District
    No. 3—89—0043
    Opinion filed August 24, 1989.
    Rehearing denied November 7, 1989.
    Cynthia Z. Tracy, of Guardianship & Advocacy Commission, of Peoria, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Nancy Rink Carter, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Respondent Lyle Hilton appeals from an order of the circuit court of Peoria County for his continued involuntary hospitalization in the Department of Mental Health and Developmental Disabilities (DMHDD) for 180 days. Respondent cites several procedural deficiencies in the petition for admission and supporting certificates, and contends that he was deprived of his right to counsel, that the trial court failed to consider treatment alternatives, and that the evidence admitted at his hearing failed to support an involuntary admission. We affirm.

Procedurally, respondent first complains that the petition for admission filed on December 28, 1988, was untimely. Respondent relies upon section 3 — 813(a) of the Mental Health and Developmental Disabilities Code (the Code) (Ill. Rev. Stat. 1987, ch. 91V2, par. 3— 813(a)), which restricts periods of initial involuntary admissions and the first subsequent extension of involuntary hospitalization to 60 days. If the second petition is not filed before the expiration of the first 60-day period, the patient must be discharged. (Ill. Rev. Stat. 1987, ch. 9IV2, par. 3 — 813(a).) Under subparagraph (b) of that section, the statute provides that “[additional 180-day periods of treatment may be sought pursuant to the procedures set out in [subsection (a)] for so long as the patient continues to be subject to involuntary admission.” (Ill. Rev. Stat. 1987, ch. 9IV2, par. 3 — 813(b).) In support of his argument that subparagraph (a) applies, rather than subparagraph (b), respondent suggests that he was initially hospitalized by an order of the Peoria County circuit court dated October 26, 1988.

In fact, the record on appeal establishes that respondent has been continuously hospitalized on an involuntary basis since at least May 6, 1987. According to testimony admitted at respondent’s hearing on the petition here at issue, respondent has been hospitalized continuously since 1977 or 1978. Prior to his transfer to Zeller Mental Health Center in Peoria on March 23, 1988, respondent was a patient at Chester Mental Health Center in Randolph County. The record contains copies of orders for hospitalization entered by the circuit court of Randolph County on May 6 and July 22,1987, and March 14,1988.

On September 14, 1988, 183 days after the last Randolph County order, a petition was filed in the circuit court of Peoria County seeking an additional period of treatment. After a hearing, the court’s order for further hospitalization was entered on October 26, 1988, without specifying the period of treatment. Respondent did not appeal from this order. Then, on December 28, another petition for involuntary admission was filed with the circuit court of Peoria County, and the matter was set for a January 4, 1989, hearing.

Respondent invites us to speculate that, lacking any documentary evidence that he was not discharged or converted to voluntary status at some point between March 14 and September 14, 1988, the October 26 admission must be considered an initial admission for 60 days. Since the December 28 petition was filed 64 days after the October 26 admission, the argument continues, it was untimely and respondent is entitled to a discharge. See In re Smith (1986), 145 Ill. App. 3d 1002, 496 N.E.2d 497 (wherein court on review determined that petition for continuing hospitalization filed a week after period of initial involuntary hospitalization expired was untimely, rendering trial court’s order on second petition invalid).

The record before us contains no transcript of the October 26 hearing. At his hearing on January 4, 1989, respondent was represented by counsel and no objection was raised as to the timeliness of the December 28 petition. In the absence of any evidence that the period of treatment ordered on October 26 was for less than 64 days, we will not assume that the December 28 petition was untimely. Moreover, the testimony admitted at respondent’s hearing of January 4 belies respondent’s current position. Both respondent himself and his treating physician testified that respondent has been institutionalized continuously pursuant to court order. This testimony, coupled with the documentary evidence of record, supports the petitioner’s position that both the September 14 petition and the one on December 28 were brought pursuant to section 3 — 813(b) of the Code for continued treatment periods up to 180 days.

Any untimeliness of the September 14 petition has been waived by failure to appeal from the court’s October 26 order extending respondent’s hospitalization under section 3 — 813(b). We will not retroactively rectify the petitioner’s failure to discharge respondent upon expiration of the 180-day period in September 1988 by viewing the September 14 petition as an initial commitment period when it is clear that it was not in fact. (See In re Vancil (1989), 183 Ill. App. 3d 204, 538 N.E.2d 1372 (an action treated by the circuit court as one for continuation of hospitalization cannot be validated as one brought under section 3 — 701(a) as an initial involuntary admission merely because the patient was not released after 60 days as required under section 3 — 813(a) of the Code).) At worst, it would appear that the court-ordered periods of continued treatment overlapped; but where, as in this case, further judicial review is indicated, such overlapping does not invalidate the later petition.

Respondent’s second procedural attack relates to Dr. Aranas’ certificate in support of the December 28 petition. Section 3 — 703 of the Code requires that a petition for involuntary admission be supported by a psychiatric certification examination in addition to certification by a qualified examiner. The Code defines a psychiatrist as “a physician *** who has at least 3 years of formal training or primary experience in the diagnosis and treatment of mental illness.” Ill. Rev. Stat. 1987, ch. 911/2, par. 1 — 121.

Dr. Maria Aranas showed her title as “physician” on the face of the certificate in question. A second certificate accompanying the petition was signed by Chris LaRue, a clinical social worker — by definition, a qualified examiner for purposes of the Code (Ill. Rev. Stat. 1987, ch. 911/2, par. 1 — 122). Pursuant to section 3 — 702(b) of the Code (Ill. Rev. Stat. 1987, ch. 911/2, par. 3 — 702(b)), the hearing was set for January 4. At the hearing, Dr. Aranas took the witness stand in support of the petition. Counsel for respondent immediately stipulated to Aranas’ qualifications, and the record is otherwise silent on this point.

In In re Stone (1989), 178 Ill. App. 3d 1084, 534 N.E.2d 213, we reversed judgment ordering the involuntary admission of respondent Stone for failure to file a psychiatrist’s certificate in addition to that of a qualified examiner. Dr. Aranas was the certifying physician in Stone as well. However, to the extent that the opinion in Stone does not disclose whether Dr. Aranas testified in Stone’s hearing or whether counsel for Stone stipulated to her qualifications, we do not believe that the facts before us today compel the same disposition on review.

Rather, we find guidance in In re Hightshoe (1987), 155 Ill. App. 3d 371, 508 N.E.2d 488. In Hightshoe, respondent challenged the certification accompanying a petition for involuntary admission on the ground that the physician who examined him did so in Indiana and the certificate did not affirmatively state that the physician was qualified to practice in Illinois. Respondent contended that inasmuch as “physician” is defined in the Code as a person licensed in this State to practice medicine (Ill. Rev. Stat. 1987, ch. 911/2, par. 1 — 120), the Indiana certification did not satisfy the requirements of section 3— 703. On review, the Hightshoe court rejected respondent’s position, stating:

“Here, the only indication that the statutory requirements were not complied with is the location of the first examination. It is necessary to speculate that the physician was not qualified. We find that the issue was not raised in a timely fashion below, and any error is not readily apparent from the record. In re Peterson (1983), 113 Ill. App. 3d 77, 446 N.E.2d 565.” Hight shoe, 155 Ill. App. 3d at 373, 508 N.E.2d at 489.

As in Hightshoe, in this case the only indication that the statutory requirements were not complied with is Dr. Aranas’ failure to demonstrate that her practice as a physician qualifies her as a “psychiatrist” for purposes of the Code. Given respondent’s general stipulation to her qualifications and the lack of any evidence that Dr. Aranas does not in fact meet the statutory qualifications for a psychiatrist, we will not speculate that the circuit court committed error in proceeding with a hearing on the December 28 petition pursuant to section 3— 702(b).

Respondent similarly contends that he is entitled to discharge because the record does not affirmatively demonstrate that counsel was appointed to represent him on December 28, when the hearing date was set. In In re Walters (1989), 183 Ill. App. 3d 452, 455, 539 N.E.2d 454, 456, we reversed an order for involuntary admission for failure to appoint counsel prior to respondent’s hearing because the record there “affirmatively established] that [respondent] desired to confer with counsel, but was denied that opportunity.”

By contrast, the report of proceedings in this case demonstrates that attorney John Riddle was appointed to represent respondent at some point prior to the start of the January 4 hearing. Although the common law record does not indicate that the appointment was concurrent with the setting of the hearing on the petition as contemplated by section 3 — 805 of the Code (In re Elkow (1988), 167 Ill. App. 3d 187, 521 N.E.2d 290), neither does it demonstrate that respondent was denied a meaningful opportunity to confer with counsel or that appointed counsel was not prepared to represent respondent competently. Under these circumstances, as aforesaid, we will not speculate that the circuit court erred.

Next, respondent argues that treatment alternatives were not considered by the circuit court in extending his admission to the Zeller Zone Mental Center. Respondent also argues that the record does not support the court’s finding that respondent qualified as a “person subject to involuntary admission” in that he was reasonably expected to seriously harm someone or dangerously unable to care for his own basic physical needs. (Ill. Rev. Stat. 1987, ch. 911/2, par. 1— 119.) Based on our review of the record on appeal, we find that the evidence supports the circuit court’s findings both that respondent is subject to involuntary admission and that continued hospitalization in the DMHDD is the least restrictive placement appropriate.

Respondent suffers from a long-term mental illness known as bipolar disorder. He has grandiose delusions. The record is replete with evidence of respondent’s proclivity to violence when he is not appropriately medicated or when he drinks alcohol. Respondent does not believe that he is mentally ill or that he needs medication. He has threatened to kill the staff at Zeller. Respondent told Dr. Aranas that he had killed a policeman. He testified that he had killed people during the Korean war. Respondent’s hostility is controlled under medication, but he has at times refused to take it. Respondent believes in his fantasies. He further believes that violence is an effective response to interpersonal relations. Respondent is an alcoholic and loses control of his impulses when he drinks. Respondent stated that if discharged he did not intend to stop drinking, but would “have a few at home” instead of “going to the tavern to raise hell.” Respondent had shown no improvement in his condition while at Zeller prior to the January 4, 1989, hearing.

It is clear from the testimony admitted at respondent’s hearing that respondent is mentally ill and that he poses a -serious and substantial risk to the health and lives of himself and others. The record on appeal demonstrates that the circuit court heard testimony that respondent wanted to leave the State institution, that he was a veteran and that he had family, but preferred to move in with his girlfriend in Peoria. In ordering continued hospitalization in the DMHDD, the court rejected alternative placement with the Veteran’s Administration or other private facilities. Under these circumstances, we find nothing to commend an environment less restrictive than the Department of Mental Health and Developmental Disabilities. Accordingly, we find no error in the circuit court’s order for continued hospitalization.

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

Affirmed.

SCOTT and STOUDER, JJ., concur.