author: JUSTICE DUNN

text:
    HOLCOMB STATE BANK, Petitioner-Appellant, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Respondent-Appellee.
    Second District
    No. 2—88—0006
    Opinion filed March 22, 1989.

      Edward T. Graham, of Wheaton, for appellant.
    Michael F. O’Brien and Donald Q. Manning, both of Clark, McGreevy & Johnson, P.C., of Rockford, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Petitioner, Holcomb State Bank, appeals from a grant of summary-judgment in favor of respondent, Federal Deposit Insurance Corporation (FDIC), in this action for payment on a loan participation agreement. Holcomb contends (1) that the trial court improperly applied the doctrine of collateral estoppel in determining that Holcomb’s rights under a participation agreement had already been determined in prior Federal court foreclosure proceedings; (2) that FDIC, in its capacity as receiver of an insolvent bank, was obligated to pay Holcomb the amount of its participation agreement upon sale of an underlying loan to FDIC in its corporate capacity; and (3) that summary judgment was improper because the trial court assumed facts not in the record.

On January 26, 1977, Rochelle Bank & Trust Co. (Rochelle), an Illinois State bank, loaned $200,000 to John W. Tilton Industries, Inc. (Tilton). The loan was secured by a trust deed to real estate consisting of a 50-lot subdivision in Ogle County. Shortly thereafter, Rochelle Bank and Holcomb State Bank (Holcomb) entered into a participation agreement whereby Holcomb agreed to participate in the Tilton loan to the extent of $40,000. They executed a “Certificate of Participation” evidencing Holcomb’s participation in the Tilton loan. The certificate of participation states in relevant part:

“We [Rochelle Bank & Trust] hereby *** confirm your [Holcomb State Bank’s] participation in the [Tilton] note, in the interest to accrue thereon from and after the date hereof, and in the pledged collateral in the proportion which your payment bears to the unpaid principal of the note on the date hereof.
As payments of principal and interest on said note are received by us, we shall remit to you all principal payments until your participation has been repaid in full, plus interest in proportion to the outstanding balances of our respective participa-tions in the loan on the date for which such interest is paid, provided, however, that all amounts realized by us from the collateral, if there shall be an event of default, shall be applied pro rata to the payment of the balances of principal and interest then due on our respective participations in the loan on the date of such default.”

On October 11, 1980, the Commissioner of Banks and Trust Companies of the State of Illinois determined that Rochelle Bank was insolvent, ordered it to be closed, and appointed the FDIC as receiver to dissolve and wind up the affairs of Rochelle.

Upon its appointment as receiver, the FDIC filed, and the circuit court of Ogle County approved, an ex parte “Petition for an Order Approving Sale of Certain Assets and Transfer of Certain Liabilities.” The petition requested the court’s approval of a “Purchase and Assumption” agreement whereby (1) FDIC would transfer Rochelle’s assets, except for its substandard loans, to an assuming bank (United Bank of Rochelle) which, in consideration of that transfer as well as a cash payment from the FDIC, would assume the deposit and certain other liabilities of Rochelle; (2) the FDIC, in its capacity as receiver of Rochelle, would sell all of Rochelle’s substandard loans to the FDIC, acting in its separate corporate capacity, in exchange for payment of the cash necessary to facilitate the transaction with the assuming bank.

FDIC/corporate paid $4,432,600 for the purchase of the substandard loans. This figure represents the amount necessary for the assuming bank to balance the assets it was acquiring against the liabilities it was assuming. FDIC v. Merchants National Bank (11th Cir. 1984), 725 F.2d 634, 637-38, cert. denied (1984), 469 U.S. 829, 83 L. Ed. 2d 57, 105 S. Ct. 114.

A purchase and assumption transaction such as this one is the preferred method of the FDIC in discharging its duties when an insured bank fails. It avoids the numerous disadvantages of the liquidation and deposit payoff alternative. (Merchants National Bank, 725 F.2d at 637.) The FDIC loan purchase was authorized under section 1823(e) of the Federal Deposit Insurance Act (Act) (12 U.S.C.A. § 1823(e) (West 1980)) and is now authorized under section 1823(c) of the Act (12 U.S.C.A. § 1823(c) (West 1980)).

One of the substandard loans transferred to FDIC/corporate was the $200,000 Tilton loan in which Holcomb was participating. As of December 1980, the Tilton loan was in default. FDIC/corporate brought suit in the United States District Court for the Northern District of Illinois against Holcomb and all other interested parties to foreclose upon the real estate collateral securing the note. Pursuant to section 1819 of the Act (12 U.S.C.A. §1819 (West 1980)), the Federal courts have jurisdiction in cases involving FDIC/corporate and its property interests. Holcomb filed a counterclaim in the Federal action seeking declaratory and injunctive relief and asking the court to enjoin FDIC/corporate from foreclosing on the trust deed until Holcomb either released its interest in the trust deed or consented to the foreclosure. On March 19, 1984, the Federal court dismissed Holcomb’s amended counterclaim holding that the participation agreement created an ownership interest in favor of Holcomb in the trust deed and the proceeds of the loan; however, nothing in the participation agreement could be read to imply that the FDIC must fully satisfy Holcomb before foreclosing on the collateral.

During the pendency of the foreclosure action involving FDIC/corporate in Federal court, Holcomb filed its “Petition for Payment of Funds Held by Receiver” in the circuit court of Ogle County. Holcomb’s petition sought an order:

“(a) denying FDIC, as Receiver, authority to sell, transfer or in any manner to impair the rights, titles and interests of HOLCOMB STATE BANK in and to the aforementioned trust deed which is held by the FDIC as collateral security for said certificate of participation until the said certificate of participation is paid and satisfied in full and the rights, titles and interest of HOLCOMB STATE BANK are released to the FDIC;
(b) directing the FDIC, as Receiver for the Rochelle Bank and Trust Company to pay HOLCOMB STATE BANK from the proceeds of the sale of the aforementioned trust deed and note to the FDIC, in its corporate capacity, the sum of $67,038.00, plus any additional accrued interest to the date of such payment; and,
(c) such further relief as the court deems just and proper.”

The parties filed cross-motions for summary judgment on the petition.

On December 4, 1987, the trial court, rendered its decision on the motions for summary judgment. The court entered a memorandum opinion and order granting summary judgment in favor of FDIC/receiver. The court found that the doctrine of collateral estoppel applied to Holcomb’s petition for payment in that the Federal court decision on the foreclosure counterclaim had determined the rights under the participation agreement. Although the Federal court decision was directed to FDIC/corporate, Holcomb, as party to the Federal court proceeding, was estopped on the issues actually determined in the Federal court. Although the judge did hold that collateral estoppel applied in this case, he also stated that even if collateral estoppel did not apply, he was in agreement with the Federal court reasoning and decision, and he ruled on the merits.

The trial judge specifically held that under the participation agreement neither Rochelle Bank nor its receiver was contractually obligated to obtain Holcomb’s permission to sell the Tilton loan, to share the proceeds from the sale of the Tilton loan with Holcomb, or to share ratably any receipts of the Tilton loan unless those payments were applicable to principal and interest. The court specifically held that the FDIC purchased the loan and that it did not make principal or interest payments to reduce the balance due on the loan.

Holcomb contends that the trial court was incorrect in applying the doctrine of collateral estoppel in this case. Holcomb states that the issue of its rights as against FDIC/receiver was not litigated in Federal court and that, pursuant to section 1819, State court is the proper venue for claims against the receiver. Although, indeed, State court is the proper venue for actions against receivers, if the questions presented here were properly presented and adjudicated in the Federal court foreclosure proceedings, then the appellant would be collaterally estopped from presenting the questions here. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 252, 461 N.E.2d 959.) The fact that FDIC/receiver was not a party to the Federal court proceeding would not preclude application of collateral estoppel against Holcomb, the party against whom estoppel is asserted. See Johnson v. Nationwide Business Forms, Inc. (1981), 103 Ill. App. 3d 631, 633, 431 N.E.2d 1096.

In the Federal court proceedings, the trial judge determined Holcomb’s rights as against FDIC/corporate. He found that the participation agreement created an ownership interest in Holcomb which attached to the Tilton trust deed and the proceeds of the real estate collateral and that FDIC/corporate had an obligation to Holcomb to make a pro rata distribution of the proceeds after foreclosure on the trust deed. The Federal court ruling necessarily meant that the obligations and rights under the participation agreement were transferred to FDIC/corporate along with the Tilton note in the purchase and assumption transaction.

Holcomb’s petition for payment from receiver requests that the court deny FDIC/receiver the authority to sell or transfer the Tilton note or to impair Holcomb’s rights. The Federal court proceedings determined that the transfer had already taken place, that the transfer had imposed obligations on FDIC/corporate, and that Holcomb’s rights under the participation agreement were intact. Because the Federal court heard and adjudicated the issues of the transfer to FDIC/corporate and Holcomb’s rights as against FDIC/corporate, pursuant to that transfer, Holcomb is collaterally estopped from relitigating those issues in State court.

Holcomb also requested in its petition for payment, and argues in its brief, that it has a right to repayment of the participation from the money FDIC/corporate paid to FDIC/receiver upon transfer of the substandard loans. It does not appear from the Federal court records whether this specific issue was presented and adjudicated in the Federal court proceeding, so collateral estoppel will not be applied to bar this issue.

Holcomb contends that the $4 million payment from FDIC/corporate to FDIC/receiver for the transfer of the substandard loans constitutes payment on the loan and consequently Holcomb has a right to share in the $4 million to the extent of its participation. Apparently, Holcomb identifies the $4 million as a payment of principal on the substandard loans. Holcomb is incorrect.

The payment by FDIC/corporate to FDIC/receiver cannot in any sense be considered a payment of principal which would trigger Holcomb’s right to repayment. The $4 million paid by FDIC/corporate represented the amount necessary to balance the assets acquired by the assuming bank against the deposits and other liabilities it acquired. (FDIC v. Matheson (5th Cir. 1986), 804 F.2d 1382, 1383 n.1.) The amount paid bears no relationship to the actual value of the substandard loans purchased. Furthermore, the payment did not remain with the receiver but was paid over to the assuming bank to balance its new assets and liabilities.

Principal is defined as an amount of debt. (Black’s Law Dictionary 1073 (5th ed. 1979).) Common sense dictates, therefore, that to constitute a payment of principal, a payment must necessarily reduce the balance due on the debt. Holcomb offers no evidence that this occurred here.

That FDIC/receiver transferred the loan to FDIC/corporate for cash does not mean that a principal payment was made. Financial institutions frequently sell negotiable instruments, but such sales do not affect the balance due on the debts or act to discharge the debts in any sense. Rovak v. Parkside Veterans’ Homes Project, Inc. (1956), 8 Ill. App. 2d 310, 316, 132 N.E.2d 11.

Furthermore, Holcomb did not have a general claim against the assets of Rochelle Bank. It had an interest only in a specific fund, payments of principal or proceeds of collateral on the Tilton note. Holcomb presents no evidence which would identify any part of the $4 million as a fund to which its interest attaches. Without such an identification of funds, Holcomb has not established its right to any part of the $4 million payment. See FDIC v. Mademoiselle of California (9th Cir. 1967), 379 F.2d 660, 665.

Clearly then, no part of the $4 million FDIC/corporate payment can be considered a payment on the Tilton loan principal. Thus, Holcomb has no right to share in the $4 million. Holcomb’s right to repayment arose only in the events of payment of principal or foreclosure on the real estate collateral securing the Tilton note. No principal payment was ever made. It is undisputed that the debtor never made a payment on principal, and we have determined that the FDIC payment was not a principal payment.

In this case Holcomb’s only right to repayment arose when FDIC/ corporate foreclosed on the real estate. Unfortunately, the foreclosure sale resulted in a deficiency. Although our decision here means that Holcomb will not recoup any part of its $40,000 participation, Holcomb was bound by the terms of the agreement it made for itself with Rochelle Bank.

Finally, Holcomb contends that summary judgment was improperly granted in this case because the trial judge erroneously assumed facts which were not before the court. Holcomb contends that the court erred in assuming (1) that FDIC/corporate did not make a principal or interest payment to reduce the balance due under the note and (2) the purchase and assumption transaction did not constitute a payment of the note or result in any amount realized from the collateral. Holcomb’s contention is incorrect.

These “facts” that Holcomb finds fault with are not facts but are legal conclusions as to the effect and application of the money FDIC/corporate paid to FDIC/receiver in consideration of the transfer of the substandard loans. These conclusions were drawn from the uncontested facts the parties presented. Summary judgment based on those legal conclusions was proper.

Respondent FDIC has filed a motion with this court pursuant to section 2 — 611 of the Code of Civil Procedure (111. Rev. Stat. 1985, ch. 110, par. 2 — 611) (Code) for attorney fees and expenses incurred in defending this appeal and responding to Holcomb’s petition in the trial court. The motion contends that both the petition and the instant appeal are frivolous. Respondent did not file a section 2 — 611 motion in the trial court.

With regard to respondent’s request for fees and expenses incurred in responding to Holcomb’s petition in the circuit court, matters which are not raised in the trial court may not be raised for the first time on appeal. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500, 475 N.E.2d 872, 879.) We realize there is precedent for the consideration of such requests when they were made for the first time in the appellate court. (See Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 614, 505 N.E.2d 387, 393; Brooks v. Goins (1967), 81 Ill. App. 2d 12, 21-22, 225 N.E.2d 707, 712.) The motion for sanctions in Brooks was brought pursuant to section 41 of the Civil Practice Act (Ill. Rev. Stat. 1963, ch. 110, par. 41), the predecessor to section 2 — 611 of the Code. The court stated that since section 41 motions had to be brought within 30 days of a final judgment (Eugene Matanky & Associates, Inc. v. Onixt (1966), 74 Ill. App. 2d 53, 55, 219 N.E.2d 865, 867) and defendant’s notice of appeal was filed five days after judgment, plaintiff’s opportunity to file a section 41 motion was cut short. Brooks, 81 Ill. App. 2d at 21-22, 225 N.E.2d at 712.

This court recently held that section 2 — 611 motions must be filed within 30 days of entry of judgment. (Herman v. Fitzgerald (1989), 178 Ill. App. 3d 865, 869.) In the case at bar, Holcomb’s notice of appeal was filed on January 4, 1988, which was the deadline for the FDIC to file a section 2 — 611 motion under our holding in Herman. Thus, unlike Brooks, the period for filing a section 2 — 611 motion was not cut short by the filing of a notice of appeal. Since the FDIC failed to seek sanctions in the trial court relating to its defense of Holcomb’s petition, when it had a full and complete opportunity to do so, it has waived this matter on appeal.

We must now consider whether this court has the authority to impose sanctions pursuant to section 2 — 611 as a result of frivolous appeals or frivolous contentions raised on appeal. In Darnall v. City of Monticello (1988), 168 Ill. App. 3d 552, 522 N.E.2d 837, the Appellate Court for the Fourth District held that it did not have such authority. (Darnall, 168 Ill. App. 3d at 557, 522 N.E.2d at 840-41.) The court stated that section 2 — 611 is found in the portion of the Code dealing with pleadings and does not concern appellate court procedure. (168 Ill. App. 3d at 557, 522 N.E.2d at 840.) The court further stated that under article VI of the Illinois Constitution, our supreme court has the exclusive authority to regulate procedure in the appellate court. (168 Ill. App. 3d at 557, 522 N.E.2d at 840.) Since there is no supreme court rule authorizing awards of fees and costs by appellate courts as a result of frivolous appeals, the court denied defendant’s motion for sanctions. 168 Ill. App. 3d at 557, 522 N.E.2d at 840-41.

The Illinois Constitution states that “[t]he Supreme Court shall provide by rule for expeditious and inexpensive appeals.” (Ill. Const. 1970, art. VI, §16.) The Darnall court apparently relied upon this language in determining that only our supreme court and not the legislature could authorize appellate courts to award sanctions for frivolous appeals. Furthermore, we take note that while Supreme Court Rule 1 (107 Ill. 2d R. 1) states that civil trial court proceedings shall be governed by the rules on trial court proceedings together with the Civil Practice Law, with regard to appeals the rule merely states that “[t]he rules on appeals shall govern all appeals.” While Rule 1 indicates that the legislature and the supreme court have concurrent authority to regulate trial court procedure, it provides further support for the conclusion of the Darnall court that the supreme court has the exclusive authority to regulate appellate procedure.

This court has very recently adopted the Darnall holding that appellate courts do not have the authority to impose sanctions for frivolous appeals or frivolous contentions on appeal. (See Wiley v. Howard (1989), 180 Ill. App. 3d 721, 724-25.) We see no reason to reevaluate our holding in Wiley. Accordingly, since we do not have the authority to award sanctions for unwarranted appeals, the FDIC’s motion must be denied.

The judgment of the circuit court of Ogle County is affirmed, and respondent’s motion for sanctions is denied.

Affirmed.

LINDBERG and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES PETERS, Defendant-Appellee.
    Second District
    No. 2—87—1204
    Opinion filed March 22, 1989.
    J. Christopher Moore and Mary Jo Hunt, State’s Attorneys, of Galena (William L. Browers and Virginia M. Ashley, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      G. Joseph Weller and Francine Harrison, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

The State appeals (107 Ill. 2d R. 604(a)(1)) from an order of the trial court which granted the motion of the defendant, James Peters, to dismiss the charge of reckless conduct (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 5(a)) for failure to state a cause of action. The State’s sole contention in this court is that the criminal complaint properly charged the defendant with the offense of reckless conduct as a result of a reckless act he performed which resulted in bodily injury to himself. We affirm.

On September 22, 1987, the State filed a criminal complaint which stated that the defendant committed the offense of reckless conduct because he “caused bodily harm to himself in that while acting in a reckless manner he discharged a gun striking himself in the chest” in violation of section 12 — 5(a) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 5(a)). The defendant filed a motion to dismiss the complaint on October 20, 1987, in which he asserted that the charging instrument failed to state a cause of action and thus was void. After holding a hearing to adjudicate the motion, the trial court granted the defendant’s motion to dismiss on November 20, 1987, and the State filed a timely notice of appeal.

Section 12 — 5(a) of the Code defines the offense of reckless conduct in the following language:

“A person who causes bodily harm to or endangers the bodily safety of an individual by any means, commits reckless conduct if he performs recklessly the acts which cause the harm or endanger safety, whether they otherwise are lawful or unlawful.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 12— 5(a).)

The main thrust of the State’s appellate argument is that the legislature, by using the words “an individual” instead of “another individual,” did not intend to delimit the scope of the statute to persons other than defendants. According to the State, inasmuch as the purpose of the reckless conduct enactment is to deter certain reckless acts, “jwjhere bodily harm has resulted, the application of the statute should not, as a matter of policy, depend on whether the defendant has harmed himself rather than someone else.” Continuing, the State asserts that the reckless conduct offense focuses on the performance of a reckless act that had the inherent risk of bodily injury rather than on the identity of the person who was harmed or endangered. In response, the defendant draws our attention to the language of both the first-degree murder statute (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)) and the offense of battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 3(a)), both of which use the words “an individual” rather than “another individual” in defining those offenses, and argues by analogy that the reckless conduct statute should be interpreted in the same manner as the murder and battery statutes — as applying only in cases where the victim is someone other than the defendant. The defendant also asserts that there is no basis upon which to predicate the State’s implicit argument that the legislature, when it enacted the reckless conduct statute, sought to proscribe reckless acts that result in bodily harm or endangerment only to oneself. Lastly, the defendant urges that the statute in issue contains two elements: (1) the performance of a reckless act and (2) the causing of bodily injury or endangering the safety of an individual.

For the reasons we explicate below in some detail, we conclude that the State's assignment of error is not meritorious and that its argument flies in the face of the language of the statute itself, the intent of the legislature in enacting the law, Illinois case authority, the Illinois Pattern Jury Instruction defining the offense of reckless conduct, and logic.

The issue the State presents in this appeal requires us to construe the language of the reckless conduct statute (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 5(a)), which we have set forth above. In approaching this task, we are cognizant that the primary objective in interpreting a statutory enactment is to ascertain and give effect to the intent of the legislature. (People v. Dakuras (1988), 172 Ill. App. 3d 865, 869; People v. Gibson (1981), 99 Ill. App. 3d 616, 619, rev’d on other grounds (1982), 91 Ill. 2d 562.) Although we must look primarily to the language of the statute to discern the legislature’s intention, we may also consider the objective of the statute and the evils the legislature sought to remedy and then arrive at a construction that is founded in common sense. (Gibson, 99 Ill. App. 3d at 619.) The law is equally clear that a criminal or penal statute must be construed strictly and may not be extended to encompass conduct which does not, by the strictest interpretation, fall within the ambit of the statute. (People v. Parvin (1988), 125 Ill. 2d 519, 525, affg People v. Parvin (1987), 164 Ill. App. 3d 29, 33-34.) Another relevant cardinal rule of statutory construction is that a court must resolve any ambiguity in a criminal statute in favor of the defendant. People v. Moritz (1988), 173 Ill. App. 3d 498, 504; People v. Spaulding (1988), 172 Ill. App. 3d 484, 485.

We begin our analysis by noting that the crime of reckless conduct is a broad, all-inclusive offense (Carrigan v. Board of Fire & Police Commissioners (1984), 121 Ill. App. 3d 303, 309; People v. Hayes (1979), 75 Ill. App. 3d 822, 825) that “is aimed primarily at the reckless homicide type of conduct where no homicide results” (111. Ann. Stat., ch. 38, par. 12 — 5(a), Committee Comments, at 573 (Smith-Hurd 1979)). However, the committee comments to section 12 — 5(a) do not limit the scope of the statute to such conduct. (People v. Burton (1981), 100 Ill. App. 3d 1021, 1025.) We agree with Professor Decker’s observation that our General Assembly established the offense of reckless conduct to punish criminally those reckless acts “that do not rise to the level of some form of assault or battery.” (J. Decker, Illinois Criminal Law 325 (1986).) As the professor correctly notes, the various offenses of assault and battery are limited, respectively, either to situations in which a defendant places another person in apprehension of an imminent battery or inflicts injury on another. J. Decker, Illinois Criminal Law 325 (1986).

With these legislative purposes in mind, we now turn to the essential inquiry before us: the interpretation to be accorded the words “an individual” included in section 12 — 5(a) of the Code, the reckless conduct enactment. We believe that our legislature intended the words to mean someone other than the person who is charged with the offense of reckless conduct. We emphasize that both the first-degree murder statute and the battery statute, in defining those respective offenses, use the same two words, quoted above, that are used in prescribing the crime of reckless conduct. (Compare Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a), 12 — 3(a), with Ill. Rev. Stat. 1987, ch. 38, par. 12 — 5(a).) The committee comments to section 9 — 1(a) of the Code, which defines the offense of first-degree murder, make it clear that the word “individual” is employed “to designate the victim, to distinguish him from the ‘person’ who is the offender.” (Ill. Ann. Stat., ch. 38, par. 9 — 1(a), Committee Comments, at 17 (Smith-Hurd 1979).) We readily conclude that the same interpretation obtains in the present case.

Given the manifest purposes of the reckless-conduct statute and the use of the words “an individual” in the other criminal statutes mentioned above, it strains the credulity of this court to believe that the legislature intended the offense of reckless conduct to apply in situations where the charging instrument alleges that the offender harmed or endangered himself or herself only. We are satisfied that the legislature, in its wisdom, did not intend such an illogical reading or application of the statute. Rather, we agree with the defendant that although the legislature on occasion will proscribe certain conduct which primarily harms or endangers the person who is charged with the crime, the General Assembly did not intend to punish, through the vehicle of the reckless conduct statute, behavior that only harms the person who is reckless. It is much more likely or reasonable, as the defendant surmises, that the legislature decided that the injury the reckless conduct inflicts on the person who acts in a reckless manner is sufficient punishment and that it was unwise or unnecessary to subject that person to an additional, criminal penalty.

In our view, to adopt the State’s construction of the word “individual” in the current context would necessarily lead, by implication, to the absurd result, which the legislature clearly did not intend and which, to our knowledge, no one has suggested, that a person could be convicted of murdering himself or herself or of committing a battery against himself or herself./We wonder aloud, too, how the State, which did not file a reply brief, would respond to the defendant’s assertion in his brief that the position the State has taken in this case would inevitably lead to the illogical result that an unsuccessful suicide attempt would amount to attémpted murder. Of course, this scenario could ’not come to pass in Illinois because suicide and attempted suicide are not crimes in this State (see Royal Circle v. Achterrath (1903), 204 Ill. 549, 565-66; Ill. Rev. Stat. 1987, ch. 38, par. 1-3; 2 W. LaFave & A. Scott, Substantive Criminal Law § 7.8(a), at 247 (1986)), and the attempted murder statute would not apply to an attempted suicide (83 C.J.S. Suicide §3, at 783 (1953)). Nonetheless, the defendant’s argument in this respect demonstrates further the untenable position the State has advocated both in the trial court and in this appeal.

We note that the State has reminded us that this appeal presents a matter of first impression in Illinois. We agree but observe in turn that the probable reason this is true is because no one before has been so bold to raise this novel argument which, in addition to advancing an unreasonable construction of the language of section 12 — 5(a) of the Code, fails to take into account or address authority in this State which clearly indicates that the State’s interpretation of the statute is manifestly unwarranted. Recently, the appellate court has recognized on at least two occasions that the crime of reckless conduct occurs when the reckless conduct harms or endangers another person or others. (See People v. Khan (1985), 136 Ill. App. 3d 754, 759; People v. Hayes (1979), 75 Ill. App. 3d 822, 825.) Also, we point out that the State has failed even to mention in its brief the fact that every case in Illinois involving the use of a weapon in connection with a reckless conduct charge has implicated a defendant who was charged with harming or endangering another person, that is, the victim (e.g., Carrigan v. Board of Fire & Police Commissioners (1984), 121 Ill. App. 3d 303, 308-09; People v. Smith (1979), 76 Ill. App. 3d 191, 195-96; People v. Broumas (1974), 24 Ill. App. 3d 32; People v. Johnson (1974), 20 Ill. App. 3d 1085, 1087-88; People v. Kent (1974), 18 Ill. App. 3d 357, 358; People v. Thomas (1971), 1 Ill. App. 3d 139, 141-42).

The State has also neglected either to acknowledge or to address the fact that the Illinois Pattern Jury Instruction defining the offense of reckless conduct manifestly states that a person commits this crime when he or she recklessly performs an act that causes bodily harm to or endangers the bodily safety of another person. (Illinois Pattern Jury Instructions, Criminal, No. 11.13 (2d ed. 1981).) It is abundantly clear that this instruction accurately states the law. People v. Inter-coastal Realty, Inc. (1986), 148 Ill. App. 3d 964, 973-74.

Based upon our careful examination of the reckless conduct statute, existing legal authority, the particular facts of this cause, and the contents of both the State’s argument in the trial court and the brief it filed in this court, we candidly admit that we are at a loss to understand why the State initially prosecuted this defendant based on a criminal complaint that did not allege he harmed or endangered someone other than himself or why the State has persisted in appealing this matter after the trial court concluded that the complaint failed to charge an offense under section 12 — 5(a) of the Criminal Code of 1961. We fail to understand how the prosecution of this case could be perceived to be a wise use of the limited resources of both the State and the judiciary.

Inasmuch as the criminal complaint at issue in this appeal asserted that the defendant harmed only himself when he discharged the weapon, the trial court correctly concluded that the complaint failed to charge the offense of reckless conduct and properly dismissed the charge.

In accordance with the views expressed above, the judgment of the trial court of Jo Daviess County is affirmed.

Affirmed.

DUNN and LINDBERG, JJ., concur.


author: JUSTICE LINDBERG

text:
    WILLIAM PARTON, Plaintiff-Appellant, v. A.L. RANDALL COMPANY, Defendant-Appellee.
    Second District
    No. 2—88—0104
    Opinion filed March 6, 1989.
    Robert J. Long and Marcia A. Korducki, both of Law Offices of Robert J. Long, Ltd., of Antioch, for appellant.
    Alfred Y. Kirkland, Jr., and Charles F. Haverty III, both of Brady, McQueen, Martin, Collins & Jensen, of Elgin, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, William Parton (Parton), appeals from an order of the circuit court of Lake County which dismissed his one-count complaint for retaliatory discharge against the defendant, A.L. Randall Company (Randall), pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615) for failure to state a cause of action. In an order pursuant to Supreme Court Rule 23 (107 Ill. 2d R. 23), we reversed the dismissal on the ground that plaintiff’s complaint claiming he was discharged in retaliation for seeking “just compensation” for his work-related injury stated a cause of action where one aspect of the just compensation was a claim for and the settlement of his claim for workers’ compensation relying upon Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.

Defendant filed a timely petition for rehearing contending that we misapprehended the issue raised by plaintiff-appellant in his brief and reply brief, that “plaintiff’s complaint does not include an allegation of discharge for filing a workers’ compensation claim,” and that plaintiff’s contention that he was seeking just compensation referred only to “the pursuit of a common-law suit for damages against a nonem-ployer tortfeasor.”

There is no question but that plaintiff argued in his briefs in this case that the violation of a clearly mandated public policy necessary to support a cause of action for retaliatory discharge (Barr v. KelsoBurnett Co. (1985), 106 Ill. 2d 520, 478 N.E.2d 1354) should be expanded to embrace the filing of the common-law negligence action against a nonemployer alleged to be at least partially liable for the plaintiff’s injury. Plaintiff’s rationale included the fact that such a common-law action is specifically recognized as not being prohibited by section 5(b) of the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(b)). Without question, plaintiff invited us in his briefs to undertake such a determination.

We declined, however, concluding instead that so long as the claim and settlement of his workers’ compensation claim were part of the facts underlying his characterization of his conduct as seeking “just compensation,” it was error to dismiss the complaint for failure to state a cause of action. Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615(a).

Nonetheless, we granted defendant’s petition for rehearing and ordered plaintiff’s response in an effort to determine whether plaintiff’s appeal intended to exclude his claim for workers’ compensation from his definition of “just compensation” pursuant to defendant’s characterization. Plaintiff filed a response but declined to rise to defendant’s bait, relying instead on the arguments in his appellant’s brief and reply brief.

We now withdraw the original order filed November 30, 1988, and submit this opinion as our disposition of the appeal. As before, we reverse the judgment of the circuit court and remand the cause for further proceedings.

Plaintiffs complaint alleged that plaintiff, Parton, was employed by defendant, Randall, from approximately March 1984 to August 17, 1987. On July 3, 1984, plaintiff was severely injured while working in defendant’s warehouse by coming in contact with an electrical power cord. He filed a workers’ compensation claim against his employer. He also filed a common-law negligence action against Marsh Electric Company (Marsh), which had installed the electrical cord. Marsh filed a third-party complaint seeking contribution from plaintiff’s employer, Randall. The common-law negligence action was reached for trial on July 20, 1987, and settled on July 23, 1987, along with Marsh’s complaint for contribution against Parton and the workers’ compensation claim and employer’s lien. Plaintiff’s complaint further alleged that plaintiff received $10,000 from Marsh in settlement of his common-law negligence action and $37,000 from his employer, Randall. On August 17, 1987, plaintiff was discharged by defendant Randall.

Plaintiff’s complaint concluded by alleging that defendant had a duty to refrain from discharging plaintiff in retaliation for his seeking just compensation for injuries received on the job and that the discharge was the proximate cause of injury to the plaintiff for which he seeks compensatory damages in excess of $15,000 and punitive damages in the amount of $100,000.

Defendant Randall filed a section 2 — 615 motion to dismiss. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615.) Defendant contended that plaintiff did not allege that he was fired because he filed a workers’ compensation claim but, rather, because he sought and obtained just compensation for his injuries. Defendant relied upon Barr v. KelsoBurnett Co. (1985), 106 Ill. 2d 520, 478 N.E.2d 1354, as authority for the proposition that not every constitutional or statutory right is protected by the tort of retaliatory discharge. In Kelso, the supreme court reiterated the standard that must be met to implicate the tort of retaliatory discharge, which is the violation of any clearly mandated public policy. Defendant argued in its motion that the complaint must be dismissed because it failed to identify any public policy which is clearly mandated and which was violated by the alleged discharge.

Plaintiff’s response to defendant’s motion to dismiss was that the complaint arose from the alleged wrongful discharge of plaintiff almost immediately following the settlement of his workers’ compensation action in July 1987. Plaintiff contended that defendant was attempting to misstate the facts set forth in the complaint to support defendant’s theory that recovery was sought solely on the basis of the settlement of the third-party claim. Plaintiff contended that his complaint was fully supported as “an action under the penumbra of the retaliatory discharge tort,” noting that he pursued parallel workers’ compensation and common-law actions.

Plaintiff’s response further emphasized that the settlement agreement, which was brought to the attention of the court, demonstrated that the basic thrust of the settlement was that defendant was to pay the sum of $37,000 to plaintiff in addition to waiving any lien it had under the Workers’ Compensation Act. Plaintiff noted that in consideration of the payment of the monies, he agreed to dismiss the workers’ compensation action without further payment or proceedings, to dismiss the common-law action with prejudice and provide a full and general release to defendant for any claims arising from his injury. Plaintiff also observed that there were also terms with respect to Marsh, but they are not relevant to the issues in the case at bar.

Plaintiff concluded his response by stating that the instant action was premised on all of the facts in the complaint. Plaintiff stated:

“The facts are clear, the defendant fired the plaintiff in retaliation for seeking his rights to recovery under the workers’ compensation laws of the State of Illinois. That these rights were and remain inextricably intertwined with the filing and settlement of a third-party action is an intrinsic fact which cannot be brushed aside by the distorted view of the facts that the defendant urges. What is relevant and material in this claim is the entire factual situation regarding the underlying injury, the means and methods of prosecuting a claim for workers’ compensation and the facts relating to eventual settlement crowned with the nearly simultaneous discharge of plaintiff for no articulated reasons. The public policy of this State has been clearly pronounced to be the vigorous protection of the injured workers’ rights to compensation for his injuries, which rights must be freely exercisable or they are lost. Where defendant has allegedly fired plaintiff for exercising these rights, he has a cause of action.”

Finally, defendant replied to plaintiff’s response by contending that plaintiff filed a third-party claim which led to a suit back against the employer for contribution which led to the settlement of plaintiff’s common-law action. Defendant stated that plaintiff’s complaint could only be read to allege the theory that plaintiff was fired for filing the third-party claim and not because of the filing of the workers’ compensation claim. Defendant then argued that in Buechele v. St. Mary’s Hospital (1987), 156 Ill. App. 3d 637, 509 N.E.2d 744, the court held that the right to file a lawsuit claiming individual injury is a purely personal right and does not involve any clearly mandated public policy. It is no tort to fire an employee because the employee filed a lawsuit, directly or indirectly, against an employer, except in the very limited circumstances of the workers’ compensation claim. Defendant concluded that because the complaint was drafted in such a way that would allow recovery on the theory that defendant was liable because it fired plaintiff for filing the third-party complaint, as opposed to a workers’ compensation claim, the complaint must be dismissed.

The circuit court found for defendant. Plaintiff appealed, and we now reverse and remand.

In his appellant’s brief, plaintiff argued that this State has a clearly mandated public policy of protecting persons from discharge in retaliation for “pursuing remedies” under the Workers’ Compensation Act. (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.; Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353; Barr v. KelsoBurnett Co. (1985), 106 Ill. 2d 520, 478 N.E.2d 1354 (and the cases cited therein).) Plaintiff also argued that the clear mandate of public policy extends to the “entire” Workers’ Compensation Act, including “all” the provisions of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). (Ill. Rev. Stat. 1985, ch. 48, par. 138.4(h).) Plaintiff’s third and last issue was that he stated a cause of action for retaliatory discharge “by alleging facts” that he was discharged for exercising his rights under section 5 of the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.5).

Plaintiff describes the nature of the case on appeal as appearing to present a new issue under the retaliatory discharge tort. He described that issue as whether or not an employer has a right to fire an employee for successfully pursuing a common-law suit for damages against a nonemployer tortfeasor.

But, plaintiff also raised in this appeal by clear and unmistakable argument and in the court below that he was discharged for pursuing “just compensation” and that just compensation was not limited to recovery under a common-law suit against a nonemployer, but also recovery for his workers’ compensation claim. Plaintiff observed that in his complaint, he alleged facts demonstrating that he was exercising his rights under section 5 to sue a nonemployer tortfeasor for damages and that he was pursuing a parallel claim for compensation directly against his employer in the Industrial Commission. Plaintiff argued that he had “alleged facts” demonstrating that he was discharged in retaliation for his success on the merits of his suits and claims, satisfying the tests of Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876, Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 478 N.E.2d 1354, and Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 485 N.E.2d 372. Finally, plaintiff distinguished Buechele v. St. Mary’s Hospital (1987), 156 Ill. App. 3d 637, 509 N.E.2d 744, cited to the trial court by defendant, noting that the case involved a complaint for retaliatory discharge based upon the alleged firing of the plaintiff for suing her employer for libel, slander and negligent infliction of emotional distress. The Buechele court concluded that her suit sought to enforce private rights and not clearly mandated public policy as those rights are specifically granted in statutes such as the Workers’ Compensation Act.

As we noted in our withdrawn order, the issue on appeal is whether a complaint states a cause of action when it alleges that the plaintiff was discharged in retaliation for his filing a workers’ compensation claim against his employer and a common-law negligence action against the nonemployer tortfeasor alleged to be liable, or jointly liable, for the injury received in the course of plaintiff’s employment.

In adjudicating motions to dismiss a complaint for failure to state a cause of action, the pleadings are to be construed liberally. (Pfendler v. Anshe Emet Day School (1980), 81 Ill. App. 3d 818, 821-22, 401 N.E.2d 1094, 1095-96.) Motions to dismiss a complaint for failure to state a cause of action admit as true all facts properly pleaded. (Pfendler, 81 Ill. App. 3d at 821-22, 401 N.E.2d at 1095-96.) Pleadings themselves should not be the basis for a dismissal unless it clearly appears that plaintiffs can prove no set of facts which support a recovery. Pfendler, 81 Ill. App. 3d at 821-22, 401 N.E.2d at 1095-96.

The Illinois Supreme Court first recognized the tort of retaliatory discharge in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353. The requirements for this tort are met when an employee is fired for participating in an activity which public policy supports. (Kelsay, 74 Ill. 2d at 181, 384 N.E.2d at 357.) Our supreme court has devised a test to determine whether a complaint states a cause of action for retaliatory discharge:

“The test *** is whether the public policy clearly mandated by the cited provisions is violated by the plaintiff’s discharge. [Citation.] The application of this test necessarily involves determining what the public policy is behind the enactment or adoption of the particular provision.” Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 527, 478 N.E.2d 1354, 1357.

Terminating an employee for pursuing rights under the Workers’ Compensation Act (Act) violates public policy (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353) and is therefore actionable in tort. Barr, 106 Ill. 2d at 525, 478 N.E.2d at 1356.

Plaintiff did not allege in his complaint, as defendant attempts to convince us, that he was discharged only because the non-employer-tortfeasor Marsh filed a complaint against defendant Randall for contribution. Nor did plaintiff limit his allegation to being discharged for filing the common-law negligence claim against Marsh as defendant argues. Rather, plaintiff claimed he was discharged in retaliation for seeking “just compensation” for the injuries he sustained in the course of his employment which was sought by means of a workers’ compensation claim and a common-law negligence action (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b)), the former being specifically authorized, and the latter being specifically not prohibited by the Act. Ill. Rev. Stat. 1987, ch. 48, par. 138.5.

We recognize that counsel for the parties are anxious for a resolution of the issue of whether the tort of retaliatory discharge exists for “taking” (filing) a common-law action against someone other than the employer which section 5(b) of the Workers’ Compensation Act states “may be taken.” (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(b).) However, we need not and do not decide whether issues arising out of the filing of the common-law action would support a cause of action for retaliatory discharge because the instant complaint included an allegation of discharge for filing a workers’ compensation claim which, in itself, supports a cause of action for retaliatory discharge. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) We realize that plaintiff put almost all of his eggs in the common-law-negligence-action basket in his appellate briefs, perhaps hoping for the sought-after resolution. Nonetheless, his complaint and response and his briefs in this court also relied squarely on the “facts alleged” in his complaint and the precedent established by Kelsay that the filing of a workers’ compensation claim is protected as a public policy of this State.

Finally, we note that plaintiff failed to avail himself of the provisions of Supreme Court Rule 367 (113 Ill. 2d R. 367) by filing a petition for rehearing, or by supporting the argument in defendant’s petition for rehearing that this court misapprehended the issues on appeal. We conclude, therefore, that plaintiff acquiesced in our conclusion that in the trial court and on appeal he sufficiently alleged and argued the fact of recovery for this workers’ compensation claim to form a sufficient basis on appeal for a reversal of the judgment of dismissal of the circuit court.

The judgment of the circuit court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

UNVERZAGT, P.J., and REINHARD, J„ concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS WESLEY HOYT, Defendant-Appellant.
    Fourth District
    No. 4—88—0581
    Opinion filed March 30, 1989.
    Rehearing denied April 25, 1989.

      Gary F. Geisler and Jeffrey S. Geisler, both of Geisler, Waks & Geisler, of Decatur, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and James Overholt, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

This case comes to us on appeal from the defendant’s conviction for armed violence in the circuit court of Macon County. Defendant argues the court improperly refused to give jury instructions on the defenses of compulsion and use of force in defense of a dwelling. We disagree and affirm the circuit court.

On April 14, 1988, the defendant was charged by information with the offenses of attempt (first degree murder), two counts of armed violence, and unlawful possession of Cannabis sativa plants. (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4(c)(1), 33A — 2; 111. Rev. Stat. 1987, ch. BGVa, par. 708(c).) The defendant entered a not guilty plea to all counts.

On June 22, 1988, the defendant’s jury trial began. The State and the defendant stipulated the plants confiscated from the defendant’s home were Cannabis sativa plants. The State presented the testimony of police officers as to the events on the night of April 12,1988.

On that night, defendant, his girlfriend Terri Collins, and her daughter were at their home. The daughter was in her upstairs bedroom, the defendant and Collins were in their first-floor bedroom at the back of the house. Collins was asleep and the defendant was lying in bed watching television. The entire house was dark except for the light from the television screen in the bedroom. The defendant had a loaded handgun in its case on the headboard of the bed.

After obtaining a search warrant, five officers of the Decatur police department arrived at defendant’s house at about 11:15 p.m. Following a prearranged plan, three of the officers went to the front door and two secured the rear door. The officers at the front door knocked and announced they were police officers and had a search warrant. Receiving no response, the police broke down the outer door. At a second inner door the police once again knocked and announced they were the police and had a search warrant. Again receiving no response, they broke in the second door. They proceeded to the rear of the residence until one of the officers approached the doorway to the defendant’s bedroom. At that point, the officer shined his flashlight into the bedroom and the defendant fired his pistol. The officer retreated and ordered the defendant to come out of the bedroom. The defendant came out of the bedroom, placed his pistol on the kitchen counter, and was taken into custody.

In the defense case, defendant’s mother testified he had a serious hearing loss from the time of his early childhood. Dr. Joseph Velek, who had tested the defendant’s hearing on two separate occasions, also testified. The doctor’s testimony showed the defendant had a moderately severe hearing loss in both ears resulting in a 43% hearing disability.

The defendant testified in his own behalf. He stated on the evening of April 12, 1988, he was lying in his bedroom watching TV. He noticed two figures walking along the outside of his house and thought they were prowlers. He took his loaded pistol from the headboard of the bed and looked out through a small opening in the window curtains. He could see two figures directly outside his bedroom window, one of them with a gun in his hand. Defendant heard the sound of his front door being broken in. He testified he heard voices but could not make out what they were saying.

Defendant then saw a flashlight being shined into his bedroom. He testified he could not see the person who held the light and did not know it was a police officer. He stated as soon as he saw the flashlight his gun went off. The flashlight then disappeared and he heard voices from the front of the house. It was only at this point that Terri Collins told him it was the police who had entered the house.

At the close of evidence a jury instruction conference took place. The defendant offered instructions on use of force in defense of a dwelling and compulsion. (Illinois Pattern Jury Instructions, Criminal, Nos. 24 — 25.07, 24 — 25.21 (2d ed. 1981) (IPI Criminal 2d).) The State did not object to the defendant’s instruction as to use of force in regard to the attempt (murder) count, but did object as to its use in regard to the armed violence counts. The State objected to the compulsion instruction as to all three counts. The trial court upheld the State’s objections and permitted the use of the force in defense of a dwelling instruction only as to the attempt (murder) count.

On June 27, 1988, the jury returned a verdict of not guilty on count I of attempt (first degree murder), but found the defendant guilty of count II, armed violence (pistol); count III, armed violence (rifle); and count IV, unlawful possession of cannabis.

On August 1, 1988, the trial court vacated the convictions as to counts III and IV subsequent to defendant’s post-trial motions. On that same day, the defendant was sentenced to six years in the Illinois Department of Corrections and filed a notice of appeal.

On appeal, the single remaining conviction is armed violence with a pistol. (Ill. Rev. Stat. 1985, ch. 38, par. 33A — 2.) Defendant argues it was the prerogative of the jury to determine whether he was armed under the statute and he was entitled to a use of force in defense of a dwelling instruction under the facts of this case. Defendant contends he armed himself only in response to the invasion of his home by the police. Because of the defendant’s hearing impairment, he was unaware the invaders were the police until after he had armed himself and fired a shot.

The trial court did in fact permit the jury to be instructed on use of force in defense of a dwelling, but limited it to the count of attempt (murder). A defendant is entitled to appropriate jury instructions which present his theory of the case to the jury when and if such theories are supported by the evidence. (People v. Carreon (1987), 162 Ill. App. 3d 990, 516 N.E.2d 372, appeal denied (1988), 118 Ill. 2d 547, 520 N.E.2d 388.) A defendant may be entitled to an instruction even though it conflicts with his theory of the case. (People v. Creamer (1986), 143 Ill. App. 3d 64, 492 N.E.2d 923.) However, the right of a defendant to instructions is not unlimited. Instructions which inject unnecessary issues into deliberations of juries are properly refused in criminal proceedings. (People v. Baes (1981), 94 Ill. App. 3d 741, 419 N.E.2d 47.) The function of jury instructions is to convey to the jury the correct principles of law applicable to evidence submitted so the jury may, by application of proper legal principles, arrive at the correct conclusion according to the law and the evidence. People v. Morgan (1987), 152 Ill. App. 3d 97, 504 N.E.2d 172, appeal denied (1987), 115 Ill. 2d 547, 511 N.E.2d 434, cert. denied (1987), 481 U.S. 1025, 98 L. Ed. 2d 141, 108 S. Ct. 189.

The defendant here stands convicted of armed violence. Under Illinois law a person commits armed violence when he commits any felony “while armed with a dangerous weapon.” (Ill. Rev. Stat. 1985, ch. 38, par. 33A — 2.) The definition of “armed” provided by statute is “when he carries on or about his person or is otherwise armed.” (Ill. Rev. Stat. 1985, ch. 38, par. 33A — 1(a).) Although the statute does not require the use or even the threatened use of the weapon, it does require the person carry the weapon on or about his person or be otherwise armed. This requirement emphasizes the quality of the relationship between the person and the weapon or the potential hazard which exists when a person is armed while committing a felony. People v. King (1987), 155 Ill. App. 3d 363, 507 N.E.2d 1285, appeal denied (1987), 116 Ill. 2d 569, 515 N.E.2d 119.

The defendant’s tendered jury instruction deals with the use of force. IPI Criminal 2d No. 24 — 25.07 provides in part:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to terminate another’s unlawful attack upon a dwelling.” (IPI Criminal 2d No. 24-25.07 (1981).)

This instruction deals only with the use of force. The crime of which the defendant stands convicted, armed violence, consists of two elements. “Armed violence — Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois law.” (Ill. Rev. Stat. 1985, ch. 38, par. 33A — 2.) The commission of the predicate felony, possession of Cannabis sativa, is not contested by defendant and is a possessory crime not involving the use of force as an element. Defendant argues justifiable use of force in defense of a dwelling should be a defense to the second element of armed violence, armed with a dangerous weapon. As King makes clear, the defendant need not use or threaten to use the weapon to be guilty of armed violence. The jury instruction given on armed violence did not state the use of force or violence was an element of the crime. (See IPI Criminal 2d No. 11.19 (1981).) The State here need only have shown the defendant was armed. The use of force was irrelevant.

In People v. Lenoir (1984), 125 Ill. App. 3d 260, 465 N.E.2d 1027, this court considered a similar fact situation. There the defendant was found in bed at the time of his arrest. Near him on the bed were illegal drugs and a revolver. This court held the presence of the gun in those circumstances was sufficient to sustain the conviction for armed violence. As in Lenoir, a number of hypothetical have been suggested here to suggest the application of the armed violence statute to cases such as this leads to absurd results. We reiterate from Lenoir, the results are severe, not absurd. This is the intent of the statute.

The defendant argues People v. Wells (1982), 110 Ill. App. 3d 700, 442 N.E.2d 1341, stands for the proposition that justifiable use of force is a defense to armed violence. However, the issue in Wells was the failure of the trial court to instruct the jury the State carried the burden of proof in showing the defendant’s actions were unjustified where the predicate offense was involuntary manslaughter. The court, in Wells, was particularly concerned about this oversight where proper instruction was given in a related murder count.

While a defendant is entitled to a jury instruction on a legally recognized defense based on even very slight evidence, it would be absurd to argue he is free to advance any defense whether it is related to the crime charged or not. In this case, the defense which the defendant seeks to interpose does not go to any of the elements of the crime charged. Defendant’s instruction goes to the issue of the use of force, whereas the crimes charged do not require force as an element. For this reason, the trial court acted appropriately in refusing the defendant’s proffered instruction as to justifiable use of force.

The defendant also complains of the trial court’s refusal to give the defendant’s instruction on compulsion on the counts of attempt (murder) and armed violence. The defense of compulsion generally requires an impending imminent threat of great bodily harm together with a demand that the person perform a specific criminal act for which he is eventually charged. (People v. Unger (1977), 66 Ill. 2d 333, 362 N.E.2d 319.) While the terms are sometimes used interchangeably, compulsion and necessity are theoretically distinct defenses. “Compulsion” implies complete deprivation of free will, i.e., an absence of choice, whereas “necessity” involves choice between two or more admitted evils. People v. Bivens (1987), 156 Ill. App. 3d 222, 509 N.E.2d 640.

A defendant is entitled to have the jury instructed on any legally recognized defense which has some foundation in the evidence. (People v. Graves (1985), 133 Ill. App. 3d 546, 479 N.E.2d 10.) In this case, the defendant failed to introduce the requisite minimal evidence to show the defense of compulsion is available to him. There was no demand made on the defendant by a third party to commit a crime as required by the supreme court’s definition in Unger. Likewise, there is no evidence the defendant was completely deprived of free will. While the language of the IPI instruction may have suggested a compulsion defense was available, the definition of compulsion clearly shows it is not available here. There was no outside force or person which compelled the defendant to act in the manner in which he did. Nor were the circumstances such that the defendant was deprived of free will. The trial court acted properly in refusing the defendant’s compulsion instructions.

Finally, the defendant contends by refusing to give the use of force in defense of a dwelling instruction in this case the State has deprived him of his right to defend himself because of his commission of a felony. The court’s refusal to give this instruction in no way abrogates the defendant’s rights. The decision of the court to refuse the instruction was based on the irrelevance of the proffered instruction to the elements of the crime charged. The defendant here was not denied his right of self-defense where the trial court permitted the instruction on justifiable use of force in regard to the attempt (murder) charge. The court was correct in doing so because force was an issue there and an element of the crime charged. The court in no way abrogated the defenses available to the defendant or the defendant’s rights by its refusal to give the instruction. Its refusal only reflected the lack of a nexus between the defense which defendant sought instruction on and the particular crime charged.

Affirmed.

LUND and GREEN, JJ., concur.


author: JUSTICE SCOTT JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOUIS HOLMES, Defendant-Appellant.
    Third District
    No. 3—88—0054
    Opinion filed March 29, 1989.

      HEIPLE, J., dissenting.
    Warren T. McNeill, of Monmouth, for appellant.
    Raymond Kimbell III, State’s Attorney, of Galesburg (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

Following a jury trial, the defendant, Louis Holmes, was found guilty of misdemeanor unlawful possession of cannabis (Ill. Rev. Stat. 1987, ch. 5Q1k, par. 704(c)). The defendant was then sentenced to 12 months’ probation and fined $300. He appeals.

The record reveals that on August 22, 1986, Galesburg police officer John Woolsey was dispatched to investigate an anonymous tip that cannabis was growing in the backyard of the defendant’s residence. Upon arriving at the defendant’s residence, Officer Woolsey knocked on the door. Tiffany Holmes, the defendant’s 11-year-old daughter, answered and advised the officer that her parents were not home. Officer Woolsey explained his reason for being there and asked her if it would be all right to look around the yard and garage area. Tiffany replied that Officer Woolsey could go into the backyard.

Officer Woolsey then proceeded to enter the backyard of the defendant’s next-door neighbor. From this vantage point in the neighbor’s yard, Officer Woolsey observed what appeared to be cannabis plants growing in the defendant’s backyard. Officer Woolsey observed a plant approximately four feet tall growing out of a crack in the cement directly in front of the defendant’s garage. He also observed two pots that appeared to have cannabis growing in them. Officer Woolsey then radioed for assistance, and while waiting, moved his squad car around to the defendant’s garage so that he could secure the evidence.

After Officer Barney Price arrived, the two officers entered the defendant’s property without a warrant and began pulling up cannabis plants. As the two officers were attempting to cut down the large four-foot plant growing through the crack in the cement, Officer Price happened to look through a window in the defendant’s garage door and observed a Styrofoam cooler that had cannabis leaves laid out on top of it. The officers immediately entered the garage and seized the cannabis and cooler.

Three days after the seizure of the cannabis, the defendant appeared at the police station for an interview. During the interview, the defendant acknowledged that he was aware of the two potted plants and the container of leaves in the garage, but he denied knowing it was cannabis. Subsequently, the defendant was arrested and charged with unlawful possession of cannabis. The defendant’s motion to suppress the seized evidence was denied, and he was later tried before a jury.

One of the jurors selected was Irene Welsch, who lived four houses away from the defendant. During voir dire she admitted having heard neighborhood talk about the defendant, but failed to indicate that she had had contact with the defendant’s wife. Welsch also remained silent when the court asked all of the veniremen whether there was “[ajnything I haven’t asked you about, any outside pressure or problems, anything that may be weighing on your mind that might make it difficult for you to decide this case today or give this case your full attention?”

Late on the last day of trial, the defendant became aware of a three-week-old dispute between his wife and juror Welsch. The dispute involved a verbal confrontation between the defendant’s wife and Welsch. The defendant was unable to communicate the existence of this dispute to his counsel until after the jury had retired to begin deliberations.

After deliberating, the jury returned a guilty verdict. As a result, the defendant filed a post-trial motion for a new trial, alleging that the failure of juror Welsch to disclose the altercation denied him his right to an impartial jury. The defendant also asserted that the trial court had erred in denying his pretrial motion to suppress. The court subsequently denied the defendant’s post-trial motion.

On appeal, the defendant argues that he should be granted a new trial because juror Welsch misled him into believing she was impartial. At the hearing on the defendant’s motion for a new trial, the defendant’s wife testified that she had had a number of verbal altercations with Welsch in the several weeks immediately preceding the jury selection. Mrs. Holmes testified that during the altercation Welsch accused the defendant’s children and pets of trespassing on and littering Welsch’s property. Mrs. Holmes further stated that she had not informed her husband of her relationship with Welsch prior to trial because she was not aware that Welsch was being considered as a juror.

The general rule in cases involving information not disclosed during voir dire is that a motion for a new trial will not be granted unless it is established that prejudice resulted; this determination is within the sound discretion of the trial court. (People v. Porter (1986), 111 Ill. 2d 386, 489 N.E.2d 1329.) Mere suspicion of bias or partiality is not sufficient to disqualify a juror. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) However, where a juror affirmatively deceives or misleads the court by falsely testifying that she is unprejudiced or impartial, it is a general rule that upon discovery of the deceit after the verdict, a new trial will be ordered. People v. Oliver (1977), 50 Ill. App. 3d 665, 365 N.E.2d 618.

Applying the above principles to the instant case, we find that the defendant is entitled to a new trial. Juror Welsch did not divulge the whole truth about her relationship with the defendant and his wife. At the hearing on his motion for a new trial, the defendant presented unrebutted evidence showing that Welsch had significant hidden reasons for being prejudiced against him. Further, it is clear that Welsch’s silence effectively precluded the defendant’s earlier discovery of her prejudices. We therefore find that the defendant met his burden of establishing that Welsch’s relationship with him was of such a character that a presumption of prejudice arose. Since the State did not rebut this presumption, the trial court abused its discretion in denying the defendant a new trial. See People v. Porter (1986), Ill 111. 2d 386, 489 N.E.2d 1329.

The defendant’s second argument on appeal is that the trial court erred in denying his motion to suppress the evidence. The defendant argues that no exceptions to the warrant requirement were present in this case. We .will address this contention since it is likely to be an issue on remand.

We agree with the trial court’s finding denying the defendant’s motion to suppress. A minor child living at home is competent to give lawful consent to search; age alone is never an automatic barrier to capacity to consent. (People v. Swansey (1978), 62 Ill. App. 3d 1015, 379 N.E.2d 1279.) It is clear from the record that the defendant’s 11-year-old daughter gave the police her consent to search the backyard. Further, the record shows that Tiffany was often left alone to babysit her younger brother, a fact which supports a finding that Tiffany had sufficient capacity to consent. We therefore conclude that Tiffany validly consented to the search and the trial court correctly denied the defendant’s motion to suppress. Additionally, we note that the defendant’s argument that he was not proved guilty beyond a reasonable doubt is rendered moot by our reversal of his conviction.

We do not deem it necessary to be repetitive by again setting forth the facts since it is evident that at the defendant’s trial there was sufficient evidence presented to support a conviction. For the reasons stated, we do conclude that defendant is entitled to a new trial and, accordingly, we will reverse the judgment of the circuit court of Knox County and remand this case for a new trial.

Reversed and remanded.

STOUDER, J., concurs.

JUSTICE HEIPLE,

dissenting:

The defendant contended that the trial court erred in denying his motion for a new trial based on juror Welsch’s failure to disclose an ongoing dispute she had with the defendant’s wife and children. The majority agrees with the defendant and has reversed the conviction and ordered a new trial. I disagree with the reasoning and result reached.

Initially, the majority should have determined that the defendant waived consideration of the alleged error by failing to bring it to the attention of the trial court during the proceedings at a time when the court could have easily investigated the matter and ascertained whether curative measures were needed. In his motion for a new trial, the defendant admitted that he became aware of juror Welsch’s possible bias late on the final day of trial and that his counsel was aware of the situation after the case was submitted to the jury. Inexplicably, however, the defendant and his attorney sat idly by and raised the issue of juror Welsch’s potential bias only after the jury returned a guilty verdict. Since the defendant failed to bring the matter to the court’s attention before the jury, completed its deliberations, when he could and should have done so, he has waived the point for review. See Zukosky v. Grounds (1980), 85 Ill. App. 3d 355.

With regard to the merits of the appeal, I disagree with the majority’s reasoning and result. The relevant legal rules are correctly stated by the majority. The first rule is that in cases such as this, involving information which is not disclosed by a juror during voir dire, a motion for a new trial will not be granted unless it is established that prejudice resulted. (People v. Porter (1986), 111 Ill. 2d 386, cert. denied (1986), 479 U.S. 898, 93 L. Ed. 2d 272, 107 S. Ct. 298.) Mere suspicion of bias or partiality is not sufficient to disqualify a juror. The second rule is that whether the motion for a new trial is granted is a matter resting within the trial court’s sound discretion. (Porter, 111 Ill. 2d at 403.) The trial court’s decision denying the motion for a new trial in the case before us does not represent an abuse of discretion; the defendant did not sustain his burden of proof on this issue.

The majority stated that the defendant presented evidence that the juror had “significant hidden reasons for being prejudiced” against the defendant. (180 HI. App. 3d at 873.) The majority also determined that the juror’s relationship with the defendant was of such a character that a presumption of prejudice arose. The record is void of support for either of these findings. In fact, the defendant concedes in his brief that “the dispute between Juror Welsch and the defendant’s wife does not mean Welsch was not impartial.” Thus, there is no presumption of prejudice here, and the majority has based its decision on the mere suspicion of bias or prejudice. As noted above and as the majority acknowledged, mere suspicion is not sufficient.

Furthermore, during voir dire, juror Welsch indicated she felt she could be fair and impartial. The juror acknowledged that she had heard neighborhood talk about the case, but indicated it would not interfere with her ability to give the defendant a fair trial. Additionally, in response to a question from defense counsel, juror Welsch indicated that if the State failed to prove the defendant’s guilt beyond a reasonable doubt, she would not hesitate to return a verdict of not guilty. Finally, the dispute was between the juror and the defendant’s wife, not the defendant, whom the juror characterized only as an acquaintance.

In summary, the defendant failed to establish that his relationship with the juror was of such a character that a presumption of prejudice arose, and the defendant did not show that he was actually prejudiced. This court should have ruled that the trial court did not err in denying the defendant’s motion for a new trial. Accordingly, I dissent.


author: JUSTICE McNAMARA

text:
    CRAIG CHRISTMAN, Petitioner-Appellee, v. THE INDUSTRIAL COMMISSION et al. (Walsh Construction Company, Appellant).
    Third District (Industrial Commission Division)
    No. 3—88—0120WC
    Opinion filed March 10, 1989.

      Richard J. Lannon, Jr., of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle, for petitioner.
    Mark A. Schindler, of Law Offices of Peter F. Ferracuti, P.C., of Ottawa, for respondent.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Craig Christman, filed a claim under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.), alleging injuries to his knees as a result of a fall which occurred on October 6, 1982, while working for respondent, Walsh Construction Company. The arbitrator awarded petitioner 6sh weeks of temporary total disability compensation at $335.84 per week, 70 weeks of permanent partial disability for a 35% loss of use of the right leg at $282.25 per week, and medical benefits. On review, the Industrial Commission (Commission) modified the decision of the arbitrator and awarded petitioner 1184/? weeks of temporary total disability at $426.44 per week, medical benefits, penalties under sections 19(k) and 19(1) of the Act, and attorney fees. The Commission found that petitioner’s condition had not yet reached a state of permanency and remanded the cause to the arbitrator for further proceedings on the issue of permanent disability. The circuit court of La Salle County confirmed the decision of the Commission. On appeal, respondent contends that the awards of temporary total disability and of penalties were improper.

Petitioner testified that on October 6, 1982, he injured both knees when he fell while working for respondent. He noticed that there was a nail sticking out of his right leg, just below the kneecap. He was treated at the nurse’s station and then returned to work. After returning to work, his knees became so sore that he left work and went home. Petitioner next reported to work on October 8, 1982. He again went to the nurse’s station and was sent to see the company physician, Dr. Bettasso. Dr. Bettasso took X rays and petitioner returned to work.

Petitioner continued working for respondent but began treatment for “crunching” and pain in his knees. Prior to the end of 1982, he was treated for his knee injuries by Dr. Spenader. Dr. Spenader referred petitioner to an orthopedic specialist, Dr. Al-Masri. Dr. Al-Masri saw petitioner on February 24, 1983, and on March 18, 1983. On each occasion, petitioner complained of pain, swelling, giving out and numbness in both knees. Dr. Al-Masri diagnosed petitioner as having bilateral chondromalacia of the patella. He gave petitioner cortisone injections and prescribed a knee brace for the right knee.

On April 15, 1983, petitioner sustained a back injury while working for respondent. He did not return to work following this injury. While off work, he also received treatment for his knee injuries. In Christman v. Industrial Comm’n (1987), 159 Ill. App. 3d 479, 512 N.E.2d 804, this court found that petitioner’s back injury arose out of his employment. Respondent subsequently began to pay temporary total disability benefits to petitioner.

On August 22, 1983, respondent’s insurance carrier requested that petitioner be examined by Dr. Marquardt. Dr. Marquardt concluded that petitioner was suffering from chondromalacia of the patella and that the injury petitioner sustained may have aggravated this underlying condition. He also stated that it was possible that petitioner’s condition was post-traumatic in nature and secondary to his injury.

On January . 10, 1984, petitioner again was examined by Dr. Al-Masri. Dr. Al-Masri determined that petitioner required immediate surgery on both knees. On January 20, 1984, Dr. Al-Masri performed arthroscopic surgery on petitioner’s left knee. At that time, Dr. Al-Masri contemplated similar treatment for the right knee.

Both before and after the surgery, petitioner requested that respondent’s insurance carrier begin payment of temporary total disability and medical benefits. The carrier replied that no action could be taken until it received additional medical records. Petitioner informed the carrier that petitions for sanctions under section 19(k) and 19(1) of the Act would be filed. The carrier was provided with complete medical records but continued to refuse to pay temporary total disability benefits to petitioner.

Petitioner was released from the hospital on January 23, 1984, and continued to be treated by Dr. Al-Masri. Petitioner’s condition did not improve. As a result, on August 20, 1984, he had a patellectomy of the left knee and on February 25, 1985, he had a patellectomy of the right knee. Dr. Al-Masri stated that petitioner was suffering from degenerative arthritis of the patellofemoral joint and chondromalacia of the patella of both knees. He also stated that an injury could aggravate a previously silent early degenerative arthritis and that direct injury to the patella could cause chondromalacia of the patella. Dr. Al-Masri concluded that the injury most likely was permanent and would prevent petitioner from doing heavy labor, standing on his feet for a full day, and climbing and descending stairs.

On July 31, 1984, the arbitrator ruled that petitioner was entitled to temporary total disability benefits of $335.84 per week for a period of 65/t weeks and medical benefits. At that time, the arbitrator declined to assess penalties against respondent.

On August 15, 1985, at the request of respondent, petitioner was examined by Dr. Smith. Dr. Smith concluded that the treatment rendered subsequent to the initial month or so following petitioner’s accident was not related to the accident. He noted, however, that records relating to petitioner’s medical treatment after the date of the injury were not supplied to him and that it would be worthwhile to review those records.

On August 26, 1985, petitioner was examined by Dr. Wilson. Dr. Wilson opined that petitioner had sustained injuries to both knees, which resulted in an exacerbation of a preexisting osteoarthritic condition. He determined that petitioner had not yet fully recovered.

On September 20, 1984, both petitioner and respondent filed petitions for review of the arbitrator’s decision. At that time, petitioner additionally filed a petition for penalties under section 19(1) of the Act. The Commission found that prior to the August 15, 1985, examination of petitioner by Dr. Smith, respondent presented no evidence that petitioner was not temporarily totally disabled or that the condition of his knees was not causally related to the accident. The Commission ruled that respondent’s failure to pay temporary total disability benefits was unreasonable. Accordingly, the Commission increased petitioner’s award to 1184/? weeks of temporary total disability; $25,623.80 for reasonable and necessary medical expenses; $25,281 as penalties under section 19(k) of the Act; $2,500 under section 19(1) of the Act; and $15,169.08 for attorney fees pursuant to section 16 of the Act.

Respondent first contends that the award of temporary total disability benefits was improper. It alleges that petitioner sustained no current wage loss as a result of the knee injury. In support of this allegation, respondent points to the fact that petitioner already was disabled by an intervening back injury at the time of the corrective knee surgery. Respondent further cites to the fact that petitioner continued working after the knee injury until he sustained the back injury. From these facts respondent concludes that petitioner’s current wage loss was related to the back injury and not to his knee injury.

Temporary total disability exists within the meaning of the Act from the time injury incapacitates an employee for work until he is as far recovered or restored as the character of the injury will permit. (Arbuckle v. Industrial Comm’n (1965), 32 Ill. 2d 581, 207 N.E.2d 456.) An award for temporary total incapacity is justified even though such incapacity does not immediately follow an accidental injury when it clearly can be shown that the incapacity is directly traceable to and the result of the injury. (Bettinardi v. State (1939), 11 Ill. Ct. Cl. 38.) Moreover, an employee should not be denied compensation merely because he attempted to work as long as he could after the date of the injury. Grey v. Industrial Comm’n (1966), 35 Ill. 2d 462, 220 N.E.2d 427.

In Furlong Construction Co. v. Industrial Comm’n (1978), 71 Ill. 2d 464, 376 N.E.2d 1011, the court determined that an intervening nonwork-related disability does not cut off an employee’s right to receive temporary total disability benefits for a prior work-related injury. Similarly, we believe that an intervening work-related disability does not cut off an employee’s right to receive temporary total disability benefits for the first work-related disability.

A review of the record establishes a well-documented, progressive deterioration of petitioner’s knees commencing with the bilateral knee injuries which he sustained on October 6, 1982, and culminating in arthroscopic surgery and the eventual removal of both knee caps. Dr. Al-Masri, Dr. Marquardt and Dr. Wilson all attributed this progression to the knee injury. Only Dr. Smith suggested the disability was not causally connected to the injury. Dr. Smith, however, did not review petitioner’s complete medical record and in fact indicated that a review of these documents would be helpful.

Furthermore, the surgery which petitioner eventually had was contemplated from the outset of his treatment, but was to be implemented only if other therapy was not successful. The fact that petitioner suffered an intervening disability before undergoing knee surgery does not alter our holding. We believe that the intervention of the second work-related disability does not alone justify the denial of benefits for the first.

Respondent suggests that the proper focus of this analysis is loss of wages rather than loss of work-related capacity. Respondent concludes that there is no loss of wages directly related to the knee injury because petitioner continued working after the knee injury, ceasing employment only after the back injury. Thus, respondent argues that petitioner’s wage loss is not due to the knee injury and, therefore, that he is not entitled to temporary total disability benefits for that injury.

The purpose of the Workers’ Compensation Act is to provide compensation for injuries suffered by employees in the course of their employment. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) Generally, an employee’s wage is the standard used to determine the compensation due him. Nonetheless, the compensation is directed at the actual loss occasioned by the injury, not at the loss of wages. Lost wages merely are an objective method of compensating the employee during his period of incapacity. In fact, the temporary total disability section of the Act specifically states that the compensation is meant to address “incapacity.” (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(b).) That the incapacity occurs at a time when the employee, for some other reason, is not receiving wages is not relevant provided the current incapacity can be traced to the work-related injury. See, e.g., Zenith Co. v. Industrial Comm’n (1982), 91 Ill. 2d 278, 437 N.E.2d 628.

Here, the Commission reasonably concluded that petitioner’s initial disability was causally connected to a work-related injury. The Commission was entitled to rely on the conclusions of petitioner’s treating physician and to accord less weight to any contrary conclusions of respondent’s examining physician. Moreover, in our judgment, the Commission’s finding that petitioner was entitled to temporary total disability benefits for the disability resulting from his knee injury was proper. An intervening disability will not cut off an employee’s right to total temporary disability benefits for a continuing work-related disability.

Respondent next contends that the imposition of penalties under Sections 19(k) and 19(1) of the Act (Ill. Rev. Stat. 1981, ch. 48, pars. 138.19(k), (1)) and the award of attorney fees under section 16 of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.16) were improper.

Initially we note that the Commission’s imposition of penalties under section 19(k) and its award of attorney fees under section 16 were unwarranted because petitioner never properly presented these issues to the Commission. The Commission may consider, and oral arguments will be limited to, only those issues raised in both the review proceedings stipulation form or its equivalent, and in the party’s statement of exceptions and supporting briefs. (50 Ill. Adm. Code 7040.70(d) (1985) (as amended at 9 Ill. Reg. 16249 (1985), and corrected at 9 111. Reg. 17459 (1985).) Here, the review proceedings stipulation form did not raise the issue of penalties nor did it raise the issue of attorney fees. Petitioner did, however, file a written petition for penalties under section 19(1) of the Act on the same date that he filed his review proceedings stipulation. Moreover, his brief before the Commission discussed penalties under section 19(1) as did his statement of exceptions. (Section 19(1) penalties are limited to a maximum of $2,500.) Petitioner’s brief and statement of exceptions additionally discussed attorney fees under section 16. There was, however, no mention of penalties under section 19(k).

We believe petitioner’s failure to raise the issue of penalties under section 19(1) in the review proceedings stipulation form was cured by his filing of a written petition seeking 19(1) penalties on the same date that he filed the review proceedings stipulation form. However, petitioner’s failure to raise the section 19(k) penalties issue and the section 16 attorney fees issue both in the review proceeding stipulation form and in the petition for penalties precluded the Commission from properly considering those issues. Accordingly, it was error for the Commission to have imposed penalties under section 19(k) and to have awarded attorney fees under section 16.

Moreover, if we were to find that petitioner adequately raised the issue of attorney fees by including section 16 in his statement of exceptions and supporting brief, we still would find that the Commission erred in ordering respondent to pay petitioner’s attorney fees under section 16. Section 16 provides, in relevant part, that attorney fees may be awarded if the employer “has been guilty of unreasonable or vexatious delay, intentional underpayment of compensation benefits, or has engaged in frivolous defenses which do not present a real controversy, within the purview of the provisions of paragraph (k) of Section 19 of this Act.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 48, par. 138.16.) There is no parallel provision in section 16 for an award of attorney fees based upon the conduct delineated in section 19(1). Thus, attorney fees under section 16 may not be awarded when penalties are imposed pursuant to section 19(1). See Boker v. Industrial Comm’n (1986), 141 Ill. App. 3d 51, 489 N.E.2d 913.

Accordingly, we set aside the decision of the Commission insofar as it imposes penalties under section 16 and 19(k) and need only review the propriety of the penalties imposed under section 19(1).

Penalties properly may be imposed under section 19(1) when it is determined that the employer, or his insurance carrier, has unreasonably delayed the payment of benefits due an employee during the period of temporary total disability. (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(1).) The question to be resolved is whether the employer’s conduct is reasonable. (Board of Education v. Industrial Comm’n (1982), 93 Ill. 2d 20, 442 N.E.2d 883.) The employer bears the burden of justifying any delay in payment of benefits under section 19(1). (Ford Motor Co. v. Industrial Comm’n (1986), 140 Ill. App. 3d 401, 488 N.E.2d 1296.) Penalties will not be imposed when the employer’s reliance upon qualified medical opinion was objectively reasonable under the circumstances. (Ford Motor Co. v. Industrial Comm’n (1986), 140 Ill. App. 3d 401, 488 N.E.2d 1296.) The question of whether there has been an unreasonable delay in payment of benefits is one of fact and, as with other questions of fact, findings of the Commission will not be disturbed unless they are against the manifest weight of the evidence. Board of Education v. Industrial Comm’n (1968), 39 Ill. 2d 167, 233 N.E.2d 362.

In our view, the Commission’s finding that respondent unreasonably delayed payment of petitioner’s benefits was not against the manifest weight of the evidence. Neither respondent’s continued refusal to pay temporary total disability benefits to petitioner nor its reliance on the opinion of Dr. Smith were objectively reasonable. Petitioner immediately reported and documented his accident with respondent. Moreover, respondent was in possession of petitioner’s medical records, letters from Dr. Al-Masri, and the evaluation of Dr. Marquardt, respondent’s first evaluating physician, all of which reflected a disability causally connected to the work-related injury. The only contrary medical opinion which respondent had was that of its second evaluating physician, Dr. Smith, who admitted he had not reviewed petitioner’s complete medical records. We believe that respondent’s reliance on the opinion of Dr. Smith was unreasonable and that its refusal to comply with the decisions of the arbitrator and the Commission directing it to compensate petitioner for the incapacity resulting from the knee injury was unjustifiable. Accordingly, we find the Commission’s imposition of penalties under section 19(1) was not against the manifest weight of the evidence.

For the foregoing reasons the judgment of the circuit court of La Salle County is affirmed as to the award of temporary total disability benefits and as to the imposition of penalties in the amount of $2,500 under section 19(1), and is reversed as to the imposition of penalties under section 19(k) and as to the award of attorney fees under section 16.

Judgment affirmed in part, and reversed in part.

BARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.