text:
    HARVEY FERGUSON et al., Petitioners-Objectors and Appellants, v. LAWRENCE RYAN et al., Respondent-Candidates and Appellees (Patricia O’Hara et al., Respondents-Appellees; Clara Hartley Woodward, Will County Clerk, Respondent).
    Third District
    No. 3—93—0247
    Opinion filed November 19, 1993.

      Robert L. Tucker, of Robert L. Tucker & Associates, and William J. Harte, of William J. Harte, Ltd., both of Chicago (Courtney C. Nottage, of counsel), for appellants.
    Block, Krockey, Cernugel & Cowgill, P.C., of Joliet (Joseph M. Cernugel, of counsel), for appellees Lawrence Ryan, Stanley Waznis, Ann DeMattie, Nicholas Tomac, Jeffrey Wallace, Robert Wisniewski, Rudolph Pucel, Ronald Mrozek, and John Allen.
    Franklin Burkey, of Joliet, for other appellees.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

Petitioners, Harvey Ferguson, Warren Dorris, Marvin French, David Gorman, Franklin Stewart, Humberto Rodriguez, John Grabavoy, Robert Torres, Ezra Henderson, Jr., and Edward Kluge, appeal from an order of the circuit court of Will County which affirmed the decision of the Joliet Township Electoral Board (Electoral Board). The Electoral Board had denied petitioners’ objections to a township caucus held January 12, 1993.

Both the trial court and the Electoral Board found the procedures followed at the township caucus were adequate under the applicable statutes. The trial court also found the Electoral Board’s choice of counsel did not prejudice the outcome of the proceedings. On appeal, petitioners argue that both of these findings were against the manifest weight of the evidence. Petitioners also argue they were deprived of their constitutional guarantee to a free and equal election. We find no error in the trial court’s rulings and also find that petitioners were not deprived of their constitutional rights. Therefore, we affirm.

On January 12, 1993, a caucus was held in Joliet Township for the purpose of selecting a slate of candidates from the Democratic Party to run for the township offices of supervisor, clerk, highway commissioner, assessor, collector and trustee. The caucus was held at the St. George Serbian Hall (Hall) and was scheduled to begin at 6:30 p.m. However, a large number of people entered the Hall around 5:30 p.m. Because so many people entered the Hall early, affidavits were not signed at the door but were passed around inside the Hall. The affidavits clearly stated on the front:

“I hereby certify I am a registered voter in [Joliet Township] and that I am affiliated with the [Democratic Party], and I am not prohibited from signing this affidavit by any of the reasons listed on the reverse side of this affidavit; nor ■will I become an independent candidate or a new political party candidate at the upcoming election.”

Also, the following language was clearly printed on the back of the affidavits:

“No participant shall be able to participate or to vote at any township or multi-township caucus if such person is or was at any time during the twelve months prior to the caucus:
1. an elected or appointed public official of another established political party;
2. an elected or appointed officer, director, precinct committeeman or representative of the township committeeman of another established political party;
3. a judge of election pursuant to Article 13 or 14 of The Election Code for another established political party;
4. a voter who voted in the primary election of another established political party.”

There were a total of 616 signatures on the affidavits.

Prior to the caucus, the Joliet Township Democratic Organization (central committee) had not voted on rules for the caucus or on caucus judges. At the caucus, the caucus chairman, Nicholas Tomac, read proposed rules to the voters present. Also, three judges were chosen by Tomac, and three judges were submitted by petitioner Ferguson. The caucus rules and the six judges were voted on and approved by those present at the caucus. Two slates of candidates were then nominated for the various township offices that would be elected on April 20, 1993. The two slates were the “Ryan” slate and the “Gorman” slate.

It was decided that the vote on the slates would be taken by means of a division of the house. Accordingly, voters favoring the Ryan slate assembled on one side of the room and voters favoring the Gorman slate assembled on the opposite side of the room. Two judges counted the Ryan slate voters while another two judges counted the Gorman slate voters. Each pair of judges included one chosen by Tomac and one submitted by Ferguson. The two judges counting the Gorman slate voters each agreed on a total count of 211. One of the judges counting the Ryan slate voters counted 360 while the other judge counted 421. Tomac accepted the lower count for the Ryan slate. Tomac declared the Ryan slate the winner.

On February 1, 1993, nomination papers were filed by the Ryan slate candidates, Lawrence Ryan, Stanley Waznis, Ann DeMattie, Nicholas Tomac, Jeffrey Wallace, Robert Wisniewski, Rudolph Pucel, Ronald Mrozek and John Allen. Petitioners, including most of the Gorman slate candidates and several others, filed their objections on February 11,1993.

On February 16, 1993, the circuit court of Will County entered an order appointing Patricia O’Hara, Bob Egan and Jeannie Rohder to be members of the Electoral Board. The court stated in the order that it had been advised that no sitting member of the Electoral Board was eligible to rule on the objections. Just prior to the hearing on the objections, petitioners filed a motion requesting the Electoral Board obtain new counsel. Petitioners contended that a conflict of interest existed because the Electoral Board’s counsel had previously represented respondent Tomac during the caucus. The petitioners’ motion was denied.

The hearing before the Electoral Board was held on February 22, 23 and 24, 1993. Several witnesses testified that it was apparent following the division of the house that a clear majority of the voters favored the Ryan slate candidates. On February 25, 1993, the Electoral Board issued its decision. The Electoral Board determined the petition was insufficient as a matter of law. It found that none of the procedural violations alleged by petitioners altered the declared result of the caucus. Accordingly, the Electoral Board denied petitioners’ objections.

On March 8, 1993, petitioners filed a petition for judicial review. The trial court affirmed the decision of the Electoral Board. The court found as follows:

“1) the process of the Caucus, as a whole, functioned fairly and honestly and that the nominations represented accurately the decision of the caucus;
2) that the Electoral Board’s choice of counsel did not prejudice the outcome; and
3) that the Decision of the Electoral board is not against the manifest weight of the evidence.”

This timely appeal followed.

Petitioners claim their objections should have been sustained by the trial court because the procedures set out in sections 6A — 1 and 6A — 1.1 of the Township Law of 1874 (Township Act) (60 ILCS 5/ 6A — 1, 6A — 1.1 (West 1992)) were not followed at the Joliet Township caucus. Petitioners contend the Township Act was violated because: (1) there was no verification system in place to determine, prior to their entry into the caucus, whether the participants were qualified to participate; (2) the central committee did not promulgate and adopt the caucus rules, including the method of voting at the caucus; (3) the central committee did not appoint the caucus judges; (4) the participants did not determine the duties of the caucus judges; and (5) the central committee did not declare the result of the caucus.

Petitioners, however, do not argue: (1) that there actually were voters who participated in the caucus who were not qualified to participate; (2) that the rules approved by the caucus participants were unfair or incomplete; (3) that the six judges approved by the caucus participants were not fair and impartial; (4) that there was any question or confusion regarding the duties of the caucus judges; or (5) that the declaration of the Ryan slate as the winner of the caucus was not based upon the actual vote of the participants.

Petitioners do not claim that the outcome of the caucus would have been any different if the violations complained of had not occurred. Instead, petitioners contend the statute’s requirements are mandatory. As a result, petitioners argue that any failure to follow the requirements of the statute, no matter how small or inconsequential, affects the validity of the caucus results. We disagree with petitioners’ analysis of the law.

The general purpose of election laws is “to obtain fair and honest elections” (Pullen v. Mulligan (1990), 138 Ill. 2d 21, 66, 561 N.E.2d 585, 605) and “to obtain a correct expression of the intent of the voters” (Pullen, 138 Ill. 2d at 79, 561 N.E.2d at 611). This purpose “ ‘is paramount in importance to the formal steps prescribed as a means to its achievement.’ ” (Pullen, 138 Ill. 2d at 66, 561 N.E.2d at 605, quoting Carr v. Board of Education of Home-wood-Flossmoor Community High School District No. 233 (1958), 14 Ill. 2d 40, 44, 150 N.E.2d 583.) Therefore, a court, under the appearance of enforcing election laws, should not defeat the very object those laws were intended to achieve. Pullen, 138 Ill. 2d at 80, 561 N.E.2d at 611.

Based upon this general principle, we find that the purpose of election laws is promoted by upholding the clear intent of the voters who participated at the caucus. Consequently, we conclude that the minor and technical violations of the statute petitioners complain of did not affect the overall fairness of the caucus and in no way prejudiced the outcome.

Moreover, we find absolutely meritless petitioners’ argument that the statutes in question are mandatory. Petitioners point out that the cited sections of the Township Act use the word “shall.” They argue that every requirement stated in the sections is therefore mandatory and must be followed in order for the results of a township caucus to be valid. The law does not support petitioners’ conclusions.

It is true that, as a general rule, the word “shall” is regarded as mandatory. (Maske v. Kane County Officers Electoral Board (1992), 234 Ill. App. 3d 508, 515, 600 N.E.2d 513, 518-19.) However, “the term does not have a fixed or inflexible meaning and may be given a permissive meaning depending on the legislative intent.” (Maske, 234 Ill. App. 3d at 515, 600 N.E.2d at 519.) If the statute in question “simply provides that certain acts or things shall be done within a particular time or in a particular manner, and does not declare that their performance is essential to the validity of the election, then they will be regarded as directory.” (Pullen, 138 Ill. 2d at 65, 561 N.E.2d at 604.) Accordingly, unless the statute specifically describes the consequences for failing to follow its provisions, it is not mandatory. See Pullen, 138 Ill. 2d at 65, 561 N.E.2d at 604; Maske, 234 Ill. App. 3d at 515, 600 N.E.2d at 519.

Sections 6A — 1 and 6A — 1.1 of the Township Act set out detailed procedures for conducting a township caucus. However, neither section of the statute states that compliance with these procedures is essential for the validity of the caucus. Also, neither section of the statute describes any consequences for failing to follow its provisions. Therefore, we find that the statutes are clearly directory.

While directory provisions may not be disregarded, it does not follow that every departure or omission will vitiate the proceeding. (Ballentine v. Bardwell (1985), 132 Ill. App. 3d 1033, 1040, 478 N.E.2d 500, 505.) Consequently, the failure to strictly comply with directory provisions is not fatal in the absence of fraud or a showing that the merits of the election were affected. People ex rel. Meyer v. Kerner (1966), 35 Ill. 2d 33, 39, 219 N.E.2d 617; In re Petition to Form the South Prairie Park District (1992), 224 Ill. App. 3d 614, 617, 587 N.E.2d 14, 16.

Here, petitioners have only argued violations of directory statutes. They have not shown that any of the violations were caused by fraud or affected the outcome of the caucus. Based on the law under these circumstances, it is clear that petitioners have no valid objection to the results of the caucus.

Additionally, we note that the procedures used at the caucus to verify the eligibility of participants actually complied with section 6A — 1.1 of the Township Act (60 ILCS 5/6A — 1.1 (West 1992)). The statute sets out the eligibility requirements for participation in the caucus. Here, the voters were required to sign affidavits stating that they were eligible to participate. The affidavits specifically stated the statutory eligibility requirements. We find this was sufficient compliance with the statute’s requirements. Contrary to petitioners’ assertions, the statute does not require verification of the participants’ eligibility prior to their entry into the caucus room.

Section 10 — 10 of the Election Code provides that, after timely objections are filed, the Electoral Board’s role is to determine: (1) whether the nomination papers or petitions are in proper form; (2) whether they were timely filed; (3) whether they are genuine; and (4) whether they represent “accurately the decision of the caucus or convention.” (10 ILCS 5/10 — 10 (West 1992).) As an administrative agency created by statute, the Electoral Board may only exercise the powers conferred upon it by the legislature. (Kozel v. State Board of Elections (1988), 126 Ill. 2d 58, 68, 533 N.E.2d 796, 801; Sullivan v. County Officers Electoral Board (1992), 225 Ill. App. 3d 691, 694, 588 N.E.2d 475, 477.) We conclude that petitioners’ objections had nothing to do with the form of the nomination papers, their timeliness, whether they were genuine or whether they accurately represented the decision of the caucus. (See Sullivan, 225 Ill. App. 3d at 694, 588 N.E.2d at 477.) Therefore, we agree with the Electoral Board’s finding that petitioners’ petition was insufficient as a matter of law.

Petitioners next contend that the trial court erred in finding the Electoral Board’s choice of counsel did not prejudice the outcome of the proceedings. During the hearing, Franklin Burkey represented the Electoral Board. Burkey was Joliet Township’s attorney and advised Tomac during the caucus. Petitioners note that the Electoral Board had the duty to determine the validity of the nomination papers of respondents, including Tomac. Therefore, petitioners argue that, because Burkey had advised Tomac during the caucus, Burkey had a conflict of interest in advising the Electoral Board. Petitioners did not cite any applicable authority to the trial court in support of this argument. Also, petitioners have failed to cite any relevant case law in their appellate briefs. Moreover, we have found no authority which supports petitioners’ argument.

We recognize that it is well settled that a party appearing before an administrative tribunal has the right to be judged by an unbiased decision maker. (Ryan v. Landek (1987), 159 Ill. App. 3d 10, 12, 512 N.E.2d 1, 2.) Here, the Electoral Board was the decision maker. The three members of the Electoral Board were appointed by the court for purposes of rendering a fair and unbiased decision. Petitioners do not contend that any member of the Electoral Board was biased in any way. As a result, we conclude the Electoral Board’s ruling on petitioners’ objections was made by a fair and unbiased decision maker. Because the decision maker was fair and unbiased, we conclude that petitioners’ complaint regarding Burkey is without merit. Accordingly, we find no error in the trial court’s resolution of this issue.

Petitioners also argue they were denied their constitutional right to a free and equal election. This argument is based upon the same violations of the Township Act previously asserted by petitioners. As we have already concluded that these technical violations did not affect the fairness of the caucus or the result of the caucus, we find petitioners’ argument without merit.

For the reasons indicated, we affirm the judgment of the circuit court of Will County.

Affirmed.

STOUDER and SLATER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BRESLIN

license: Public Domain

text:
    AGRIBANK, F C B, Successor by Merger to Farm Credit Bank of St. Louis, Successor by Merger to the Federal Land Bank of St. Louis, Plaintiff-Appellee, v. RODEL FARMS, INC., Defendant-Appellant (Delbert Snyder et al., Defendants).
    Third District
    No. 3—93—0352
    Opinion filed November 19, 1993.

      Stansell, Whitman & Baber, of Monmouth (James G. Baber, of counsel), for appellant.
    Mustain & Lindstrom, of Galesburg (Robert Lindstrom, of counsel), for appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

The defendant, Rodel Farms, Inc., appeals from an order in a foreclosure action granting post-judgment possession of certain farm real estate to the plaintiff, Agribank, FCB. We affirm, finding that Rodel had constructive notice of the foreclosure proceeding and that the issues raised by Rodel on appeal are now moot.

In 1981, Agribank made a loan to defendants Delbert Snyder, Deanna Snyder, and Robert Snyder (Snyders). The loan was secured by a mortgage on certain real estate in Fulton and Peoria Counties. The Snyders defaulted on the loan, and in April 1988, Agribank filed a foreclosure complaint against the Snyders in the circuit court of Fulton County. At that same time, Agribank recorded a notice of foreclosure pursuant to section 15 — 1503 of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15 — 1503 (West 1992)). The complaint for foreclosure did not name Rodel as a party, even though Rodel had an interest in the property under a January 1988 lease with the Snyders. Rodel, however, did not record this lease.

In May 1988, the Snyders filed bankruptcy under chapter 11 of the United States Bankruptcy Code and were placed as debtors in possession of the property. (11 U.S.C. §101 (1988).) In January 1989, the Snyders and Rodel entered into another lease which provided that Rodel would pay increased rent and that the lease was automatically renewable from year to year, but could be terminated by either party upon six months’ notice. In October 1989, the bankruptcy court dismissed the bankruptcy cases. Upon the dismissal of those cases, the circuit court of Fulton County entered a foreclosure judgment on January 9, 1990. This judgment was subsequently stayed by the bankruptcy court pending appeal of the bankruptcy cases. On February 10, 1993, the bankruptcy court granted Agribank’s motion for relief from the stay, thereby allowing Agribank to proceed with the enforcement of the previously entered judgment of foreclosure.

On February 26, 1993, Rodel recorded the January 1989 lease agreement it had with the Snyders. In April 1993, Agribank filed a motion for post-judgment possession of the real estate under section 15 — 1701 of the Illinois Mortgage Foreclosure Law (735 ILCS 15/15— 1701 (West 1992)). Because Rodel had recorded its lease, Agribank gave Rodel notice of the hearing on the motion for post-judgment possession. Rodel filed a special and limited appearance and contested jurisdiction since it was not named as a party in the foreclosure action. The court found that it had jurisdiction over Rodel, and Rodel then argued the merits of Agribank’s motion. After hearing arguments, the trial court granted Agribank’s motion finding that Rodel’s tenancy interest derived from the 1989 lease, and thus, Rodel’s tenancy rights were subject to the trial court’s rulings after the notice of foreclosure was filed in April 1988. Rodel appealed from that decision, but it did not seek a stay of the post-judgment possession order in the trial court or in this court. Further, Rodel did not seek a stay of the foreclosure sale scheduled for April 21, 1993. Thereafter, a foreclosure sale was held as scheduled and a report of sale was filed in the foreclosure action. Agribank filed a motion to confirm the sale and gave notice of the hearing on the motion to Rodel. Rodel did not appear at the hearing, and the trial court entered an order confirming the sale. Rodel did not appeal from that order or request that it be stayed pending its appeal of the court’s post-judgment possession order.

On appeal, Rodel first contends that it had a valid tenancy interest pursuant to the 1988 lease entered into with the Snyders prior to the foreclosure proceeding. Rodel argues that in order to bind it to the rights adjudicated in the foreclosure proceeding, the bank had to make Rodel a party to the proceeding and that the lis pendens notice provision of section 2 — 1901 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 1901 (West 1992)) was not effective to give Rodel constructive notice in this case because Rodel did not fall within the terms of that provision since it was in possession of the property at the time Agribank filed the foreclosure proceeding. Section 2 — 1901 of the Code provides in relevant part that a lis pendens notice filed in the county recorder’s office is:

“constructive notice to every person subsequently acquiring an interest in or a lien on the property affected thereby, and *** every person acquiring an interest or lien as above stated, not in possession of the property and whose interest or lien is not shown of record at the time of filing such notice, shall, for the purposes of this Section, be deemed a subsequent purchaser and shall be bound by the proceedings to the same extent and in the same manner as if he or she were a party thereto.” (Emphasis added.) 735 ILCS 5/2 — 1901 (West 1992).

In its reliance on section 2 — 1901, Rodel ignores the fact that that section is not the only Illinois statutory Us pendens provision. Section 15 — 1503 of the Illinois Mortgage Foreclosure Law is another Us pendens provision and specifically applies to foreclosure proceedings and by its own terms takes precedence over a section 2-1901 notice. (See 735 ILCS 5/15-1503 (West 1992).) Section 15-1503 of the Foreclosure Law specifically provides:

“A notice of foreclosure *** made in accordance with this Section and recorded in the county in which the mortgaged real estate is located shall be constructive notice of the pendency of the foreclosure to every person claiming an interest in or lien on the mortgaged real estate, whose interest or lien has not been recorded prior to the recording of such notice of foreclosure.” (Emphasis added.) (735 ILCS 5/15 — 1503 (West 1992).)

Furthermore, that section provides:

“A notice which complies with this Section shall be deemed to comply with Section 2 — 1901 of the Code of Civil Procedure and shall have the same effect as a notice filed pursuant to that Section; however, a notice which complies with Section 2 — 1901 shall not be constructive notice unless it also complies with the requirements of this Section.” (735 ILCS 5/15 — 1503 (West 1992).)

Here, Rodel did not record its lease interest until 1993, which was five years after the lis pendens notice filed by the bank. Rodel’s recording of the lease was also after a judgment of foreclosure was entered in the case. Unlike section 2 — 1901 of the Code, section 15— 1503 of the Foreclosure Law provides that the constructive notice is effective regardless of possession if the party claiming an interest fails to record that interest before the foreclosing party files its lis pendens notice. Thus, we find it immaterial whether Rodel relies on the 1988 lease or the 1989 lease, or both, since it did not record any lease interest until after the lis pendens notice, and thus, Rodel was deemed to have constructive notice of the foreclosure action and the circuit court could adjudicate rights affecting Rodel.

Rodel cites Mid-town Petroleum, Inc. v. Dine (1983), 114 Ill. App. 3d 112, 448 N.E.2d 596, and Niles Construction Co. v. La Salle National Bank (1969), 119 Ill. App. 2d 1, 254 N.E.2d 535, for the proposition that the lis pendens doctrine applies only to those acquiring an interest subsequent to the notice being filed. We find, however, that Rodel’s reliance on those cases is misplaced. They do not involve foreclosure proceedings or notices pursuant to section 15 — 1503 of the Foreclosure Law.

Next, Rodel argues that Agribank waived any right to rely on the lis pendens doctrine. Rodel contends that Agribank had actual knowledge of the existence of Rodel’s leases because the Bank had access as early as 1988 in the bankruptcy action to Snyder’s records which listed an “executory contract” with Rodel.

We find Rodel’s argument unpersuasive. Rodel does not cite any authority stating that a mortgagee waives the constructive notice provision of section 15 — 1503 by having actual knowledge of a lease interest nor are we aware of any such authority. Under the circumstances presented here, we find that Agribank did not waive its right to rely on the lis pendens doctrine.

We agree with Agribank’s contention that the remaining issues raised by Rodel on appeal are moot because the reviewing court cannot rule where there are no justiciable issues or where relief cannot be granted. In that regard, we note that Rodel appealed from the order granting post-judgment possession to the bank. Rodel did not request a stay of any further proceedings in the trial court nor did Rodel petition this court for a stay of further proceedings in the trial court. The cause proceeded to a foreclosure sale and an order was entered confirming the sale, which is a final order. Rodel did not appeal from that order nor did it seek a stay. The issue is now moot because the cause proceeded to sale without Rodel requesting a stay.

Rodel argues on appeal that it is entitled to damages. We disagree. Again, Rodel did not request a stay and it did not mention damages in its notice of appeal. The Bank was entitled to rely on the trial court’s judgment and proceed with the sale. Moreover, this is a foreclosure proceeding and it is not the appropriate forum for Rodel to seek damages for its alleged injury. There is nothing in the Illinois Mortgage Foreclosure Law which would award damages to an aggrieved lessee.

Additionally, we find that Agribank correctly argues that Rodel’s tenancy interest was terminated by the order confirming sale. Section 15 — 1701(d) of the Foreclosure Law provides that 30 days “after the foreclosure sale is confirmed, the holder of the certificate of sale or deed *** shall be entitled to possession of the real estate, without notice to any party, further order of the court, or resort to proceedings under any statute.” (735 ILCS 15/15 — 1701(d) (West 1992).) Under Illinois law, title to land sold under a mortgage foreclosure remains in the mortgagor until conveyance of the deed to the purchaser of the sale and the lessee retains a leasehold interest until the purchaser is entitled to possession (which now is 30 days after the sale is confirmed). See Scott v. O’Grady (N.D. Ill. 1991), 760 F. Supp. 1288, 1296.

Moreover, at the time of the proceeding in question, section 15— 1701(e) of the Foreclosure Law provided that “[a] lease subordinate to a mortgage shall not be terminated during the pendency of a foreclosure solely by virtue of a mortgagee’s entry into possession.” (Ill. Rev. Stat. 1989, ch. 110, par. 15 — 1701(e).) This section does not mean that the mortgagee cannot obtain post-judgment possession and proceed to a final sale. It merely provides that the mortgagee cannot terminate the lease while the foreclosure proceeding is pending. However, the completion of the final sale is a final order, and at that time, the lease is automatically terminated without resort to any further action by the mortgagee or the new purchaser. Section 15 — 1701(e) of the Foreclosure Law was recently amended to change the law on this. The newly amended section 15 — 1701(e) now provides that lawful occupants cannot be removed, except by forcible entry and detainer or if made a party to the foreclosure proceeding. (735 ILCS 5/15— 1701(e) (West 1992).) Unfortunately for Rodel, that change does not apply retroactively. See Clouse v. Heights Finance Corp. (1987), 156 Ill. App. 3d 975, 510 N.E.2d 1; Dworak v. Tempel (1959), 17 Ill. 2d 181, 161 N.E.2d 258.

Rodel relies on language in section 15 — 1501(d) of the Foreclosure Law (735 ILCS 5/15 — 1501(d) (West 1992)) that states that an appearance by “a lessee whose interest in the real estate is subordinate to the interest being foreclosed shall not result in the termination of the lessee’s lease unless specifically ordered by the court in the judgment of foreclosure.” That language, however, does not support Rodel’s position. The requirement of specific termination in the judgment of foreclosure only applies to a lessee who is a party to the foreclosure proceeding and who appears. (735 ILCS 5/15 — 1501(d) (West 1992).) Under section 15 — 1501(e) of the Foreclosure Law, Rodel could not become a party to the proceeding because at the time it contested Agribank’s motion for post-judgment possession, the judgment of foreclosure had already been entered. Furthermore, Rodel concedes that it was not a “party” to this action.

For the the above-mentioned reasons, we hold that Rodel had constructive notice of the foreclosure proceeding pursuant to section 15— 1503 of the Illinois Mortgage Foreclosure Law. We further hold that the issues raised by Rodel are moot given that the cause proceeded to a final sale without Rodel requesting a stay in the proceedings. We also find that our resolution of the above-mentioned issues makes it unnecessary to address the remaining issues raised by Rodel on appeal.

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

Affirmed.

BARRY and STOUDER, JJ., concur.


text:
    RONNIE F. FRYE, d/b/a Ron’s Circle Tap, Plaintiff-Appellant, v. ILLINOIS LIQUOR CONTROL COMMISSION, Defendant-Appellee.
    Third District
    No. 3—93—0280
    Opinion filed November 12, 1993.

      Michael E. Brandt and Jack Boos, both of Brandt & Boos, of Peoria, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

Following a hearing, the liquor commissioner of the Village of Bartonville (the local Commissioner) revoked the plaintiff’s liquor license. Thereafter, the plaintiff filed a petition for administrative review to the Illinois Liquor Control Commission (the Commission). The Commission found that the local Commissioner’s decision was supported by the evidence except as to the penalty. Accordingly, the Commission modified the penalty by imposing a 10-day suspension with three days served. The plaintiff subsequently filed a complaint for administrative review of the Commission’s decision in the circuit court of Peoria County. The complaint named only the Illinois Liquor Control Commission as a defendant. The circuit court granted the Commission’s motion to dismiss finding that the plaintiff’s failure to name the local Commissioner as a party and to issue summons on the same within 35 days was a fatal defect. We affirm.

The sole issue presented on appeal is whether the local liquor control Commissioner is a necessary party so that the plaintiff’s failure to name him as a party and issue summons thereon was grounds for dismissal.

It is well settled that the failure to name a necessary party and have summons issued within the 35-day period for administrative review is a fatal defect and requires that the action be dismissed. Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266.

The plaintiff argues that the local Commissioner was not a necessary party because he was part and parcel of the agency itself rather than a party of record.

We disagree. The local Commissioner and the liquor commission are two separate entities. They have different jurisdiction. The local Commissioner has the initial responsibility of determining whether a liquor license should be revoked or suspended for a violation of the law (Ill. Rev. Stat. 1991, ch. 43, par. 149), while the Commission is charged with the responsibility of reviewing the local Commissioner’s decision (Ill. Rev. Stat. 1991, ch. 43, par. 149). In the instant case, it is undisputed that the local Commissioner appeared as a party of record before the Commission. Moreover, it has been specifically held that a local liquor control commissioner is a party of record for seeking administrative review. (Daley v. Zebra Zone Lounge, Inc. (1992), 236 Ill. App. 3d 511, 603 N.E.2d 785.) The plaintiff relies on Greer v. Illinois Liquor Control Comm’n (1989), 185 Ill. App. 3d 219, 541 N.E.2d 216, and Carbondale Liquor Control Comm’n v. Illinois Liquor Control Comm’n (1992), 227 Ill. App. 3d 71, 590 N.E.2d 1044, for authority to the contrary. However, the holdings in Greer and Carbondale Liquor Control Comm’n were based on the absence of a statutory provision for the local liquor commissioners to appeal an adverse ruling of the State liquor commission. The legislature has since responded to those two cases by amending section 7—11 of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1991, ch. 43, par. 154a) to allow a local liquor commissioner as a party in interest to appeal the decisions of the State liquor commission. We elect to follow the precedent in Daley and the recent statutory amendment and to hold that the local liquor control commissioner is a necessary party who must be named. Accordingly, we find that the trial court properly dismissed the plaintiff’s complaint.

Additionally, we note that this court’s recent pronouncement in McGaughy v. Human Rights Comm’n (1993), 243 Ill. App. 3d 751, 612 N.E.2d 964, is distinguishable from the present case in that here the local liquor Commissioner was clearly treated as a party in the administrative proceeding while in McGaughy the Department of Human Rights was not treated as a party.

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

Affirmed.

SLATER and STOUDER, JJ., concur.


author: JUSTICE LYTTON

text:
    ROBERT CHARLES, Adm’r of the Estate of Lynn Sue Charles, Deceased, Plaintiff-Appellant, v. ALAN SEIGFRIED, Defendant-Appellee.
    Third District
    No. 3—92—0869
    Opinion filed November 19, 1993.
    Stephen B. Morris, of Hamilton, for appellant.
    Michael T. Reagan and Michael C. Jansz, both of Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., of Ottawa, for appellee.
   JUSTICE LYTTON

delivered the opinion of the court:

Robert Charles, administrator of the estate of his daughter, Lynn Sue Charles, brought a wrongful death action against defendant Alan Seigfried. The circuit court of Hancock County granted defendant’s motion to dismiss the complaint, as amended, for failure to state a cause of action. Plaintiff appeals. We reverse and remand.

According to plaintiff’s second amended complaint, defendant, an adult, hosted a party at his home in rural Hancock County on the evening of February 15 and early morning hours of February 16, 1991. Lynn Sue Charles, a 16-year-old minor, attended along with numerous other persons under the legal age for consuming alcohol. Defendant provided alcoholic beverages to decedent and others and encouraged them to drink. Defendant knew that decedent arrived by driving her own automobile, and during the party defendant had personal contact with decedent so as to know of her condition. Decedent consumed alcohol to the point of extreme intoxication. The complaint alleged that “defendant knew or should have known that allowing the plaintiff’s intestate to drink to the point of intoxication and leave in her automobile would expose her to an unreasonable risk of harm,” and that he allowed her to leave in her automobile. Defendant’s acts and omissions were alleged to be the direct and proximate cause of decedent’s death.

Count I of the complaint is based upon a theory of premises liability, while count II alleges plaintiff’s negligence in violation of a social host’s statutory duties under section 6 — 16(c) of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1991, ch. 43, par. 131(c)). Section 6 — 16(c) provides:

“(c) Any person shall be guilty of a petty offense where he or she knowingly permits a gathering at a residence which he or she occupies of two or more persons where any one or more of the persons is under 18 years of age and the following factors also apply:
(1) the person occupying the residence knows that any such person under 18 is in possession of or is consuming any alcoholic beverage; and
(2) the possession or consumption of the alcohol by the person under 18 is not otherwise permitted by this Act; and
(3) the person occupying the residence knows that the person under the age of 18 leaves the residence in an intoxicated condition.”

The trial court dismissed the complaint with prejudice after ruling that the decisions of the Appellate Court, Third District, do not recognize social host liability where minor guests have become intoxicated and injure themselves or others.

When considering a motion to dismiss, the court must take as true the allegations of fact in the complaint, and in determining the propriety of a dismissal, the reviewing court is concerned only with the questions of law presented by the pleadings. (Lowe v. Rubin (1981), 98 Ill. App. 3d 496, 497, 424 N.E.2d 710, 711.) The question of law presented here is whether an exception to the general rule against social host liability should be recognized in accord with Cravens v. Inman (1991), 223 Ill. App. 3d 1059, 586 N.E.2d 367, a decision of the Appellate Court, First District.

The court has had numerous occasions to consider the question of social host liability for damages resulting from intoxication. In Richardson v. Ansco, Inc. (1979), 75 Ill. App. 3d 731, 732, 394 N.E.2d 801, 802, we summarized the law as follows:

“Noncommercial suppliers of liquor are not liable under the Dramshop Act (see Ill. Rev. Stat. 1977, ch. 43, par. 94, et seq.), and Illinois courts have consistently refused to enlarge the scope of the Act to impose statutory liability upon anyone not engaged in the liquor business. (Camille v. Berry Fertilizers, Inc. (1975), 30 Ill. App. 3d 1051, 334 N.E.2d 205; Annot., 8 A.L.R.3d 1412 (1966).) Furthermore, Illinois has never recognized a common law remedy against the supplier of liquor; the only remedy is that provided by the legislature in the Dram-shop Act. Cunningham v. Brown (1961), 22 Ill. 2d 23, 174 N.E.2d 153.”

In a case where a minor was given intoxicating liquor in the defendant’s home and injured the plaintiff while driving a motor vehicle in an intoxicated condition, this court adhered to previous decisions denying social host liability and observed that any extension of liability for damages arising from intoxication should come from the legislature, not the courts. Coulter v. Swearingen (1983), 113 Ill. App. 3d 650, 654, 447 N.E.2d 561, 564.

We again denied social host liability where a minor guest died of acute alcohol intoxication in Estate of Ritchie v. Farrell (1991), 213 Ill. App. 3d 846, 848-49, 572 N.E.2d 367. There we observed, “The reason Illinois courts have adhered to this policy of nonliability for social hosts is that the proximate cause of the intoxication is the act of drinking, not the supplying of alcohol.” We also stated:

“We agree with the plaintiff that the increasing loss of life and property due to intoxicated persons may well warrant a reexamination of the liabilities and immunities embodied in our laws. However, the determination to expand Illinois liability to include social hosts who supply liquor to their guests requires an analysis of competing interests and factors more appropriate for the legislature.” Estate of Ritchie, 213 Ill. App. 3d at 850, 572 N.E.2d at 369-70.

However, not long after the Estate of Ritchie decision, this court did recognize a common law cause of action in a case where excessive consumption of alcoholic beverages was required of initiates to a college club and as a result a student died of alcohol intoxication. In Ha-ben v. Anderson (1992), 232 Ill. App. 3d 260, 597 N.E.2d 681, we held that the two essential elements of the cause of action were that (1) the student was required to drink to obtain a desired membership in the club and (2) that the legislature had enacted a statute against hazing, thus indicating a social policy against embarrassing or endangering young people through thoughtless or meaningless activity. Those social host-guest cases where the minor guest voluntarily drank to the point of intoxication were distinguished, and we noted that, under principles of comparative negligence, liability can be transferred to the plaintiff in a hazing case to the extent plaintiff acted willingly.

In another hazing case, decided before Haben, the Appellate Court, Fourth District, ruled that a complaint stated a cause of action where a fraternity pledge suffered neurological injury as the result of an evening of required drinking. (Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill. App. 3d 231, 507 N.E.2d 1193.) There the court reviewed the purpose and intent of the Hazing Act, a statute making the practice of hazing a Class B misdemeanor (Ill. Rev. Stat. 1991, ch. 144, par. 221), and analyzed those cases holding that the violation of a statute or ordinance designed for the protection of human life or property is prima facie evidence of negligence. See First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 9, 373 N.E.2d 1326, 1330; Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93; Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881.

Thus, in both Haben and Quinn, the appellate court has recognized an exception to the former rule which immunized social hosts from liability for injuries resulting from the intoxication of a guest.

In the groundbreaking case of Cravens v. Inman (1991), 223 Ill. App. 3d 1059, 586 N.E.2d 367, the Appellate Court, First District, ruled that the plaintiff did have a cause of action for the wrongful death of her minor daughter against the defendants who served alcohol at a party in their home to plaintiff’s daughter and. her friend, both of whom were under the age of 16. Plaintiff’s daughter died as a result of injuries sustained in an automobile accident while riding as a passenger in the car allegedly driven recklessly by her intoxicated friend.

In a well-reasoned and scholarly opinion, Justice McMorrow, speaking for the court, examined the history of social host immunity in Illinois, analyzed the economic and social pressures flowing from changing needs of our society, and summarized judicial and legislative action in 24 other States that recognize social host liability where a minor becomes intoxicated. The court stated:

“Although we are firmly dedicated to the notion that the legislature and the court should exercise a shared responsibility to cooperatively develop the common law in response to the changing needs of our society, we believe that the injustice of the present jurisprudence places upon this court the imperative duty to rectify that injustice through reevaluation of our current legal precedent.” Cravens, 223 Ill. App. 3d at 1073, 586 N.E.2d at 418.

We find the holding of Cravens v. Inman to be persuasive. We do not undertake lightly the overturning of longstanding precedent. However, we cannot ignore the increasingly serious problems arising from minors having ready access to intoxicating liquor and the human tragedies associated with alcohol-related accidents. (See Puckett v. Mr. Lucky’s Ltd. (1988), 175 Ill. App. 3d 355, 360-61, 529 N.E.2d 1169, 1172-73 (Knecht, J., dissenting).) Furthermore, we are cognizant of the historical development of the common law by judicial decisions. In the landmark decision abolishing contributory negligence and recognizing comparative negligence, the Illinois Supreme Court said:

“We believe that the proper relationship between the legislature and the court is one of cooperation and assistance in examining and changing the common law to conform with the ever-changing demands of the community. There are, however, times when there exists a mutual state of inaction in which the court awaits action by the legislature and the legislature awaits guidance from the court. Such a stalemate is a manifest injustice to the public. When such a stalemate exists and the legislature has, for whatever reason, failed to act to remedy a gap in the common law that results in injustice, it is the imperative duty of the court to repair that injustice and reform the law to be responsive to the demands of society.” (Alvis v. Ribar (1981), 85 Ill. 2d 1, 23-24, 421 N.E.2d 886, 896.)

We conclude that the “imperative duty” of this court in this case is to recognize social host liability under the facts alleged in plaintiff’s complaint.

Several arguments have been offered in support of the application of precedent in this case. One traditional argument against social host liability is that intoxicated persons are responsible for the injuries that follow from their intoxication since it is the drinking of liquor that causes intoxication, not the serving of it. This theory, cited as the “able-bodied man” doctrine, essentially states that adults should take responsibility for their own alcohol consumption. (Cruse v. Aden (1889), 127 Ill. 231, 20 N.E. 73; Gora v. 7-11 Food Stores (1982), 109 Ill. App. 3d 109, 111, 440 N.E.2d 279, 281. See also Bradley, Social Host Liability in Illinois: An Exception for Minors?, 81 Ill. B.J. 362 (1993).) However, a minor can hardly be placed in the same category as an able-bodied adult. Inexperience, peer pressure, and physical and psychological differences aggregate to distinguish the situation of a minor from that of an adult when alcoholic beverages are offered.

When the legislature deemed social hosts who served minors with alcohol guilty of a petty offense in section 6 — 16 of the Liquor Control Act, it recognized that the adult who provides intoxicating liquor might well be responsible for the intoxication since an underage person lacks the experience and judgment to appreciate the risk of becoming intoxicated. Cravens, 223 Ill. App. 3d at 1074-75, 586 N.E.2d at 419.

Another reason often advanced in favor of stare decisis is that a decision recognizing social host liability by one district of the appellate court will result in confusion and chaos throughout the State as different rules apply in different districts. (Puckett v. Mr. Lucky’s Ltd. (1988), 175 Ill. App. 3d 355, 357-58, 529 N.E.2d 1169, 1170.) That contention loses its persuasiveness now that the appellate court is already divided. Two cases decided since Cravens have implicitly or explicitly recognized Cravens as the law of this State concerning social host liability. Robertson v. Okraj (1993), 250 Ill. App. 3d 848; First of America Trust Co. v. McMurray (1993), 250 Ill. App. 3d 876.

It is also argued that it is unfair for a social host to face unlimited liability while the liability of a commercial dramshop is strictly limited by statute, and the plaintiff’s decedent, as the driver, would have no cause of action under the Dramshop Act. However, any apparent unfairness to the social host is mitigated by the fact that the dramshop’s liability arises from the act of selling liquor without regard to fault (Stevens v. Lou’s Lemon Tree, Ltd. (1989), 187 Ill. App. 3d 458, 464, 543 N.E.2d 293, 297), while the social host’s liability must be established by proof of negligence and will be subject to possible setoffs under the doctrine of comparative negligence.

The Cravens court carefully explained the limits of its decision:

“We emphasize that our holding is limited to the facts alleged in plaintiff’s pleading, i.e., where (1) a social host has knowingly served alcohol, and permits the liquor to be served, to youths under 18 years of age at the social host’s residence, (2) the social host permits the minors’ consumption to continue to the point of intoxication, and (3) the social host allows the inebriated minors to depart from the residence in a motor vehicle.” Cravens, 223 Ill. App. 3d at 1076, 586 N.E.2d at 420.

In both Cravens and section 6 — 16(c) of the Liquor Control Act, an age limit is specified as under the age of 18 years. Thus, both the judiciary and the legislature have recognized that such minors are not deemed capable of appreciating the risk of alcohol consumption and should be afforded special protection under the law.

We find Cravens to be compelling. Accordingly, we adopt the rule set forth in Cravens and hold that the complaint filed herein sets forth a cause of action against defendant in both counts I and II. We, therefore, reverse the dismissal order of the circuit court and remand for further proceedings.

Reversed and remanded.

McCUSKEY, P.J., andBRESLIN, J., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DELBERT REINER, Defendant-Appellant.
    Third District
    No. 3—93—0086
    Opinion filed November 12, 1993.
    Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.

      Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and J. Paul Hoffmann, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Following a jury trial, defendant Delbert Reiner was convicted of aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 4(a)) and sentenced to an extended prison sentence of eight years. On appeal, defendant contends that the trial court erred in sentencing him to an extended term of imprisonment. We agree and therefore reduce his sentence pursuant to Supreme Court Rule 615(bX4) (134 Ill. 2d R. 615(bX4)).

On the evening of August 29, 1992, Quentin Swadinski, his girlfriend Peggy, and her son Josh were at a bar in Peoria. Defendant was also at the bar that evening. Defendant threatened and argued with Peggy, got into a fight with another patron, and was eventually asked to leave. Shortly thereafter, Peggy decided to leave the bar to take Josh to a baby-sitter’s house nearby. Quentin noticed defendant following them, so he followed the defendant from the bar and down a street. When Peggy and Josh reached the baby-sitter’s house, Quentin and defendant had a conversation. Quentin then turned to go back to the bar. While Quentin’s back was turned, defendant struck him on the right side of the face, apparently with his bare fist. Defendant fled the scene and Quentin sat down on the curb where Peggy found him on her return trip to the bar. He was later taken to the hospital.

Quentin suffered severe trauma to the right side of his face. His nose was badly broken and nearly all of the supporting bones of his right eye were fractured. The retina in his right eye was completely detached, causing permanent blindness in that eye.

The jury found defendant guilty of aggravated battery, a Class 3 felony carrying a prison sentence of two to five years (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—1(a)(6)). The trial court sentenced defendant to an extended-term sentence of eight years in prison, finding that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.

On appeal, defendant contends that the trial court erred in imposing an extended sentence of eight years. He argues that the aggravated battery was not so brutal or heinous as to warrant tiré imposition of an extended term of imprisonment.

Section 5 — 5—3.2(b)(2) of the Unified Code of Corrections provides that a trial court may impose an extended-term sentence when a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5— 3.2(bX2)). Conduct is “heinous” if it is hatefully or shockingly evil, grossly bad, or enormously and flagrantly criminal. “Brutal” means conduct which is grossly ruthless, devoid of mercy or compassion, or cruel and cold-blooded. (People v. La Pointe (1981), 88 Ill. 2d 482, 501, 431 N.E.2d 344, 353.) The statute clearly states that the heinousness or brutality must be “exceptional” to warrant an extended term. (People v. Nester (1984), 123 Ill. App. 3d 501, 504, 462 N.E.2d 1011, 1014.) While a trial court’s decision regarding sentencing should not be reversed absent an abuse of discretion (People v. Benkowski (1991), 215 Ill. App. 3d 615, 620, 575 N.E.2d 587, 590), our supreme court has held that extended-term sentencing was not intended to enhance the punishment for every offense. People v. Evans (1981), 87 Ill. 2d 77, 88-89, 429 N.E.2d 520, 525.

The State argues that the trial court properly found defendant eligible for an extended-term sentence, characterizing the instant offense as “callous,” “cowardly,” and “unprovoked.” While we have no quarrel with these characterizations, they are not, in and of themselves, a sufficient basis for the imposition of an extended term. The State also relies upon the degree of injury inflicted upon the victim. We again agree with the State that the victim suffered severe and permanent injuries as a result of the defendant’s attack. However, the infliction of “great bodily harm or permanent disability or disfigurement” was a requisite element of the aggravated battery offense (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 4(a)). Courts have repeatedly held that it is improper for a trial court to rely on factors constituting elements of the offense to show brutal or heinous behavior. (See People v. Green (1988), 177 Ill. App. 3d 492, 532 N.E.2d 442; People v. Olesch (1986), 143 Ill. App. 3d 577, 492 N.E.2d 1381.) Moreover, the severity of the victim’s injuries is but one factor to consider in our analysis of defendant’s conduct.

We are of the opinion that, under the circumstances of this case, defendant’s conduct was not exceptionally brutal or heinous indicative of wanton cruelty. The evidence established that defendant and the victim had a discussion or argument and that when the victim turned his back, defendant struck him once on the side of the face. In light of the severity of the injuries inflicted, the attack could arguably be characterized as brutal. We find, however, that it was not exceptionally so as required by the statute. Nor was this offense, “shockingly evil” or “enormously criminal.” To hold otherwise would be to ignore our supreme court’s caveat that extended-term sentencing was not intended to enhance the punishment for every offense.

We therefore find that the trial court abused its discretion in imposing an extended-term sentence. Accordingly, pursuant to the authority granted by Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)), we reduce the defendant’s sentence for aggravated battery to five years in prison, the maximum nonextended sentence allowable for a Class 3 felony (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—l(aX6)). We order issuance of an amended mittimus consistent with the modified sentence.

Sentence modified.

McCUSKEY, P.J., and LYTTON, J., concur.


author: PRESIDING JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENSEY F. ROSS, Defendant-Appellant.
    Third District
    Nos. 3—92—0408, 3—93—0274 cons.
    Opinion filed November 12, 1993.

      Daniel Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

Following a jury trial, the defendant, Kensey F. Ross, was found guilty of first degree murder and second degree murder. Ross subsequently pleaded guilty to a severed charge of unlawful use of weapons by a felon. The trial court set aside the verdict of guilty of first degree murder and entered a judgment on the verdict of second degree murder. The court then sentenced Ross to an extended term of 30 years’ imprisonment for second degree murder and a consecutive five-year term for unlawful use of weapons by a felon. Ross appeals.

We reverse and remand for a new trial. We conclude that the verdicts finding the defendant guilty of first degree murder and second degree murder were legally inconsistent because they involved mutually inconsistent mental states. The trial court should not have accepted both jury verdicts. Instead, the court should have instructed the jury to deliberate further and return a verdict on only one of the two charges.

The record reveals that Ross was charged with armed robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18 — 2) and three counts of first degree murder (Ill. Rev. Stat. 1991, ch. 38, pars. 9 — l(aXl), (a)(2), (aX3)). Ross was charged with first degree murder based upon his intention to kill or do great bodily harm (intentional murder) (Ill. Rev. Stat. 1991, ch. 38, par. 9 — l(aXl)), based upon his knowledge that his acts created a strong probability of death or great bodily harm (knowing murder) (Ill. Rev. Stat. 1991, ch. 38, par. 9 — l(aX2)), and based upon his performing the acts which caused the death while attempting or committing a forcible felony (felony murder) (Ill. Rev. Stat. 1991, ch. 38, par. 9 — l(aX3)).

The State presented evidence that on January 1, 1992, a confrontation occurred between Ross and Arlando Pitchford. Ross was attempting to rob Pitchford during the course of a drug deal when a struggle ensued. Ross then struck Pitchford in the head with a gun and proceeded to shoot Pitchford several times. Pitchford died as a result of his wounds.

Ross testified that he had gone to purchase some crack cocaine from Pitchford. He found Pitchford sitting on the steps of an apartment building with the drugs between his legs and a pistol in his right hand. After Ross purchased some crack cocaine from Pitchford, a loud and heated argument occurred concerning the amount of cocaine that had been sold. When Pitchford was distracted by an apartment door opening, Ross pulled out a gun and shot Pitchford. The two men struggled and Ross shot Pitchford several more times, killing him. Ross then fled, taking Pitchford’s gun but not Pitchford’s cocaine or money.

Following the presentation of evidence and closing arguments, the jury was instructed on armed robbery, felony murder, knowing murder, and intentional murder. With respect to the knowing and intentional murder charges, the jury was instructed on both first degree and second degree murder. The first degree murder instruction was premised on Ross’ actions being without lawful justification (Ill. Rev. Stat. 1991, ch. 38, par. 9 — 1(a)), while the second degree murder instruction was premised upon Ross having an unreasonable belief in the need for self-defense (Ill. Rev. Stat. 1991, ch. 38, par. 9 — 2(aX2)).

The jury returned verdicts of not guilty with regard to armed robbery and felony murder. However, the jury also returned guilty verdicts on first degree knowing murder and second degree intentional murder. As soon as the verdicts were announced, the trial judge and the prosecutor discussed the inconsistency of the verdicts. The State urged the court to send the jury back to deliberate further and return a verdict on only one of the two charges. Unfortunately, the court decided not to follow the State’s recommendation. Instead, the court accepted the verdicts, entered them into the record, and discharged the jury. The court stated that the inconsistency of the verdicts could be resolved in post-trial motions.

Ross then filed a post-trial motion seeking to set aside the first degree murder verdict because it was legally inconsistent with the second degree murder verdict. The State conceded that the verdicts were legally inconsistent. The State argued that both guilty verdicts should be set aside and Ross should be retried for first degree murder. The trial court agreed with Ross and entered judgment on the second degree murder verdict and not the first degree murder verdict. Ross was subsequently sentenced. He now appeals.

On appeal, Ross argues the trial court erred in entering judgment on the legally inconsistent verdicts of first degree and second degree murder. (See People v. Hoffer (1985), 106 Ill. 2d 186, 195, 478 N.E.2d 335, 340.) In response, the State argues Ross invited this error at the post-trial motion hearing by asking the court to vacate the first degree murder verdict and enter judgment on the second degree murder verdict. The State concedes that in the absence of invited error Hoffer controls and the verdicts were legally inconsistent.

In Hoffer, the jury returned verdicts finding the defendant guilty of murder, voluntary manslaughter and involuntary manslaughter. (Hoffer, 106 Ill. 2d at 189, 478 N.E.2d at 337.) We note that section 9 — 2 of the Criminal Code of 1961 was amended in 1987 and gave the offense of voluntary manslaughter a new name, second degree murder. (Ill. Rev. Stat. 1991, ch. 38, par. 9—2; People v. Russell (1991), 215 Ill. App. 3d 8, 14, 574 N.E.2d 258, 261.) Thus, the offense of voluntary manslaughter discussed in Hoffer must be considered the same offense as the second degree murder offense involved in the instant case.

Our supreme court in Hoffer stated:

“By finding the defendant guilty of murder ***, the jury specifically found that defendant did not believe his conduct was justified. At the same time, by finding him guilty of voluntary manslaughter, the jury determined that he did believe, although unreasonably, that his conduct was justified.” (Hoffer, 106 Ill. 2d at 195, 478 N.E.2d at 340.)

The supreme court therefore concluded that the verdicts were legally and logically inconsistent. Hoffer, 106 Ill. 2d at 195, 478 N.E.2d at 340.

Based upon Hoffer, we agree with the parties that the verdicts here were legally inconsistent because they involved mutually inconsistent mental states. Consequently, both verdicts should not have been accepted by the court. Rather, the court should have instructed the jury to deliberate further and return a verdict on only one of the two charges. See People v. Spears (1986), 112 Ill. 2d 396, 410, 493 N.E.2d 1030, 1036; People v. Almo (1985), 108 Ill. 2d 54, 62-64, 483 N.E.2d 203, 207.

We also conclude that Ross did not invite the error. Here, the error occurred when the trial judge accepted the verdicts and discharged the jury. By the time of the post-trial motion hearing, the only cure for the error was to order a new trial.

Accordingly, we vacate Ross’ conviction for second degree murder and remand this cause for a new trial on both the first degree and second degree murder charges. Because we are reversing and remanding for a new trial, we need not reach Ross’ other contentions concerning the propriety of his sentences.

For the reasons indicated, the judgment of the circuit court of Peoria County is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

SLATER and LYTTON, JJ., concur.