text:
    COMMONWEALTH EDISON COMPANY et al., Plaintiffs-Appellants, v. THE ILLINOIS COMMERCE COMMISSION et al., Defendants-Appellees.
    Second District
    No. 2—89—0101
    Opinion filed May 1, 1989.

      Heidi A. Gerstman, of Hopkins & Sutter, of Chicago (Paul F. Hanzlik, of counsel), for appellant Commonwealth Edison Company.
    Weil, Freiburg & Thomas, P.C., of Chicago (James P. Freiburg, of counsel), for appellant Charles T. Walneck.
    Neil F. Hartigan, Attorney General, of Springfield, and Mark L. Gold-stein, of Illinois Commerce Commission, of Chicago (Amy S. Botschner, Special Assistant Attorney General, and Edward P. O’Brien, Assistant Attorney General, of Chicago, of counsel), for appellee Illinois Commerce Commission.
    Holmstrom & Green, P.C., and Roger T. Stelle, of Kech, Mahin & Cate, both of Schaumburg (Angela P. Kline, of counsel), for appellee McHenry County Conservation District.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiffs, Commonwealth Edison Company (Edison) and Charles Walneck (Walneck), appeal from an order of the Illinois Commerce Commission (Commission) denying the proposed conveyance of real property from Edison to Walneck. We reverse and remand.

In 1968, Edison purchased a tract of land in McHenry County consisting of approximately 98.8 acres. The property was intended to be used as a site for a proposed electrical transmission substation. In 1981, Edison determined that a portion of the property would not be needed for that purpose and attempted to sell the property to the Village of Oakwood Hills. However, the village did not express any interest in the property.

Early in 1986, Material Service Corporation (Material) expressed an interest in the property. Material wanted to use the property as a gravel pit. However, Edison did not begin any negotiations with Material. Edison determined that the gravel pit would generate large amounts of dust such that it would be impossible to maintain the electrical substation located on an adjoining parcel of property.

The McHenry County Conservation District (District) also expressed an interest in the property. The District wanted to purchase the property to preserve the natural state of the fen located on the property. A fen is described as a wetland area that has constant streams of mineralized water going into it. The District was especially concerned with the endangered and/or threatened species of flora and fauna found on the property and wanted to purchase the property to protect the species.

Edison also received notice that Walneck was interested in purchasing the property. It was Walneck’s intention to develop the property by building 50 single-family residences on a 76-acre portion of the property. Walneck also expressed a strong desire in leaving the remainder of the property (approximately 22.8 acres) in its natural state.

Edison attempted to reconcile the interests of both the District and Walneck by offering a portion of the property to each party. The District rejected the offer, stating that the proposed residential development would adversely affect the wetlands area. Edison then requested sealed bids for the property. Walneck offered $165,000 and the District offered $130,000. The District also offered to clean up a portion of the property that had been used as a dumping site by local residents. Edison accepted Walneck’s offer and entered into a written contract with Walneck for the sale of the property. Edison then filed a petition with the Commission seeking approval of the sale of real property to Walneck.

On September 30, 1987, a hearing was held before an examiner. The District filed a petition to intervene, which was granted. A total of seven witnesses testified at the hearing. Edison presented three witnesses to testify as to the specifics of the proposed sale to Walneck, including the tax and accounting implications of the sale. The other four witnesses testified as to the effect the proposed sale would have on the fen.

Walneck testified that he planned to build 45 to 50 homes on the property. Each of these homes would possess well and septic systems. Walneck indicated that his proposed development would not damage the fen in any way and in fact would serve to enhance the wetlands area. However, Walneck admitted that he had no expertise in environmental matters and preferred to defer his conclusion to Marvin Frisch, the proposed developer.

Frisch testified that the housing development would enhance and lengthen the life of the fen. It was his opinion that the development would not cause any damage to the fen area. Frisch planned on designing and installing a detention-retention area to eliminate the erosion problem that had been occurring on the property. It was Frisch’s opinion that by developing the property and controlling the soil erosion, the life of the fen would be lengthened.

The District also presented two witnesses at the hearing. Donald Schellhaas, the executive director of the District, testified as to the results of the field study done on the property. Schellhaas noted that approximately 20 acres of the property were used for agricultural purposes, with the fen area consisting of approximately 40 acres. The remainder of the property was a hilly, wooded area separating the fen from the agricultural area. There was a 100-foot difference in elevation between the highest and lowest points on the property.

Schellhaas also noted that the study indicated the existence of two endangered species of plant life, one threatened specie of animal life, and also discovered brook trout in the stream on the property. Schellhaas believed that the fen could be protected from the erosion problem by planting grass on the part of the property currently used for farming. It was his opinion that any development on the property could affect the existence of the endangered and/or threatened species currently living in the fen area. He further noted that the surface runoff water, coupled with the use of septic systems, could have a negative effect on the survival of the fen area.

Dr. Wayne Schennum, a biologist and the District’s natural resources manager, also testified at the hearing. Dr. Schennum testified that the fen area is a very delicate ecological area that could very well be threatened by the development of a part of the property. He stated:

“It involves a lot of communities which are based on this ground water [sic]. We are worried about erosion during construction, which has been addressed by Mr. Frisch.
We don’t know about that. What I heard here is possibly 76 percent of the site is going to be developed. Well, 40 percent of it is wetland. Let’s say all of that was set aside. Then the problem which we are still debating is how much development can you tolerate on the up land in the ground water [sic] based wetland and still not pollute the ground water [sic] with septic systems? And that is the concern.
And other agencies like ours are trying to buy as much buffer as possible to the wetland, the up land buffer, in order to insure that that doesn’t occur.”

On November 6, 1987, the hearing examiner filed his proposed order to the parties. The examiner recommended that the proposed sale should be allowed, subject to certain conditions. These conditions would require the fen area to be preserved in its natural state. This would allow the public the opportunity to enjoy the fen for as long as possible. Both parties filed briefs indicating their objections to the examiner’s proposed order.

On December 22, 1987, the Commission rejected the examiner’s proposed order. The Commission concluded that the public would be best served by denying the sale of Edison’s property to Walneck. The Commission noted that the building of 50 homes on the property would have a detrimental effect on the existence of the fen. Specifically, the Commission was concerned about the protection of the endangered and threatened species found in the fen area.

Edison filed a petition for rehearing, which was denied. The Commission granted Walneck’s petition to intervene, but denied his petition for a rehearing. Both Edison and Walneck filed separate appeals, which have been consolidated for review in this opinion.

The District initially contends that this court is without, jurisdiction to decide this appeal. Edison and Walneck originally filed this appeal in the Appellate Court for the First District. The first district, sua sponte, determined that it lacked subject matter jurisdiction and transferred the case to this court. We believe the transfer was proper under Supreme Court Rule 365 (107 Ill. 2d R. 365) and hold that we do have jurisdiction to decide this appeal. We also determine the appeal was timely filed.

On appeal, plaintiffs contend that the Commission erred in denying the proposed sale of real property. In particular, plaintiffs allege that (1) the Commission’s order exceeded its statutory authority under section 7 — 102 of the Public Utilities Act (Act) (Ill. Rev. Stat. 1987, ch. lll2/3, par. 7 — 102); (2) the Commission’s order was an impermissible taking of property without just compensation; (3) the Commission’s actions amounted to an improper consent to the District’s eminent domain powers; and (4) the Commission’s findings were not supported by the record.

Initially, we note that section 10 — 201 of the Public Utilities Act (Act) governs direct appeals from orders of the Commission. (Ill. Rev. Stat. 1987, ch. lll2/3, par. 10 — 201(a).) Section. 10 — 201 provides that an order of the Commission shall be reversed only if the court determines that the order was not supported by substantial evidence, the Commission lacked jurisdiction to enter the order, or the order was in violation of the State or Federal constitution or laws. Ill. Rev. Stat. 1987, ch. lll2/3, par. 10 — 201(e); Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1988), 171 Ill. App. 3d 948, 956.

The Commission’s decisions are generally entitled to great deference on review, especially when the decision resolves a factual dispute. (Village of Apple River v. Illinois Commerce Comm’n (1960), 18 Ill. 2d 518, 523; City of Chicago v. Illinois Commerce Comm’n (1985), 133 Ill. App. 3d 435, 438-39.) However, when the facts are not in dispute and the issue is one of law, this court is not bound by the Commission’s determinations. (Western Illinois Electrical Coop. v. Illinois Commerce Comm’n (1979), 67 Ill. App. 3d 603, 606.) This case does not involve any factual disputes, but only the Commission’s application of the law. Thus, we do not need to defer to the Commission’s determination in this case.

Plaintiffs first contend that the Commission exceeded its statutory authority in denying the proposed sale of real estate. Section 7—102 of the Act provides the Commission with guidelines to determine whether a petition for the sale of real estate should be approved. Section 7 — 102 states that the petition should be approved if the Commission is “satisfied that such petition should reasonably be granted, and that the public will be convenienced thereby.” Ill. Rev. Stat. 1987, ch. 1112/3, par. 7—102(i); Chicago & North Western Ry. Co. v. Illinois Commerce Comm’n (1970), 130 Ill. App. 2d 352, 362.

Plaintiffs contend that section 7—102 of the Act must be read in conjunction with the Commission’s overall purpose. The purpose and duty of the Commission is to ensure that efficient and adequate utility service is provided to the general public at a reasonable cost. (XTRA Corp. v. Illinois Commerce Comm’n (1987), 156 Ill. App. 3d 297, 303; Village of Hillside v. Illinois Commerce Comm’n (1982), 111 Ill. App. 3d 25, 31.) The Commission’s powers are derived solely from the Act, and its authority is limited by the grants of the Act. City of Chicago v. Illinois Commerce Comm’n (1980), 79 Ill. 2d 213, 217-18.

Plaintiffs argue that the Commission exceeded its statutory authority in denying Edison’s petition to sell the real estate to Walneck. While plaintiffs agree that the Commission must consider whether the proposed sale will convenience the public, they argue that the consideration must be made in a public utility service context. We agree.

We believe the Commission exceeded its statutory authority when it inquired into the environmental impact of the residential development on the fen. We do not agree with defendants’ position that the public convenience factor applies to the public welfare in general. Instead, “public convenience” must be read in the context of the specific purpose of the Act, namely, to provide the public with efficient utility service at a reasonable cost. Our supreme court has stated that the public convenience factor, when read in the context of the Act, includes such factors as costs to customers, simplification of utility service, operating costs, facilities planning, and proximity of service territories. (Illinois Power Co. v. Illinois Commerce Comm’n (1986), 111 Ill. 2d 505, 512, 514.) Each of these factors specifically relates to the regulation of public utility service. As such, these factors come within the particular expertise of the Commission. Ordinarily, this court will not interfere with decisions made within the purview of the Commission’s expertise. (Illinois Power, 111 Ill. 2d at 511.) However, we do not believe that the environmental impact of a residential development is within the particular expertise of the Commission. Had the Commission correctly determined that the sale would somehow adversely affect utility service, then we would defer to the Commission’s expertise. See Illinois Power, 111 Ill. 2d at 514 (merger of two public utilities); Peoples Gas Light & Coke Co. v. Illinois Commerce Comm’n (1987), 165 Ill. App. 3d 235 (regulation of utility rates); Albin v. Illinois Commerce Comm’n (1980), 87 Ill. App. 3d 434 (construction of electrical transmission lines); Knox Motor Service, Inc. v. Illinois Commerce Comm’n (1979), 77 Ill. App. 3d 590 (regulation of trucking companies).

The Commission did not reach its decision after considering the needs in a public utility service context, but instead based its decision on the environmental impact of the proposed sale. The Commission, in its order, stated:

“The greater public interest or convenience is a very subjective determination. On the one hand, the Commission is convinced that it has a Purchaser [Walneck] who is willing to preserve the fen by installing a drainage system to inhibit storm water run off [sic] into the fen; a Purchaser who is willing to form a committee of interested parties to maintain the fen; and, a Purchaser who will provide employment during home construction and provide greater real estate tax revenues to McHenry County.
On the other hand, Intervenor [District] has shown a legitimate concern that the introduction of well and septic systems on the Property will ultimately cause a run-off [sic] of water into the fen and pollute it and adjacent preserve areas. * * *
After reviewing all the testimony and arguments of Edison and Intervenor, the Commission concludes that it is in the public interest to deny the sale of the subject property to the Purchaser. While Purchaser and Mr. Frisch have testified that every attempt will be made to save the fen, the introduction of approximately fifty residences using well and septic systems, can only have deleterious effects on the fen. The fen area has several species of flora and fauna which should be protected. The fen is unique and it is in the greater public interest to protect it from pollution, erosion and other harmful incursions.”

We believe the Commission improperly relied upon the environmental implications of the proposed sale in making its final decision.

Defendants contend that Klopf v. Illinois Commerce Comm’n (1977), 54 Ill. App. 3d 491, supports the position that the Commission may consider the environmental implications of a proposed sale of property. In Klopf, a railroad public utility sought the Commission’s consent to the proposed sale of a 32-mile, 100-foot wide parcel of property. The railroad wanted to sell the property to adjoining landowners. While the petition was before the Commission, the Department of Conservation (Department) expressed a renewed interest in acquiring a 19-mile section of the property. The Department wanted to use the land as a nature trail. However, the railroad informed the Department that the property had already been sold to the adjoining landowners. Klopf, 54 Ill. App. 3d at 494.

The Commission determined that the sale to the adjoining landowners was void because the railroad did not properly secure the Commission’s approval of the sale. The Commission further held that the Department should have the opportunity to acquire the property, either by purchase or condemnation. The appellate court agreed with the Commission’s decision, holding that the public would be conve-nienced by the sale of the property to the Department. Klopf, 54 Ill. App. 3d at 499.

Defendants read Klopf as standing for the proposition that the public convenience factor is sufficiently broad such that the Commission may consider the proposed use of the land. Thus, it is defendants’ position that Klopf supports the Commission’s decision that the public is better served by preserving the entire parcel of property to protect the fen area. We disagree.

In Klopf, the Commission had two separate petitions before it. The adjoining landowners offered to pay $121,625 for 32 miles, while the Department offered $132,500 for 19 miles. (54 Ill. App. 3d at 498.) The Commission evaluated both petitions and determined that the public would be better served by approving the sale to the Department. In particular, the Commission relied on the fact that the Department offered the greater amount of money for the property. The Commission further recognized that it would not be in the public interest to require the Department to institute condemnation proceedings against each adjoining landowner. Such a procedure would result in a multiplicity of lawsuits and would not be in the public interest. 54 Ill. App. 3d at 498.

We believe that the existence of the two petitions, along with the fact that the Department offered a greater purchase price than the adjoining landowners, is what distinguishes Klopf from our case. In the case at bar, the Commission was not asked to decide between two competing petitions, nor was it asked to allow the District to condemn the property, but instead was asked to determine whether Edison’s proposed sale to Walneck should be approved. Klopf does not require the Commission to consider how the property may conceivably be used, but instead to apply the public convenience standard to the specific petition(s) before the Commission. (Village of Hillside, 111 Ill. App. 3d at 33.) We believe the Commission improperly read Klopf as supporting its position that the public convenience factor allows the Commission to consider the environmental impact of a proposed sale of real property, that it could disapprove the sale on this basis, and could recommend the sale of the property to the District.

In addition, Walneck offered to pay a higher purchase price for the property than did the District. The Commission argues that it is entitled to reject the highest bidder if the public will be conve-nienced thereby. The Commission cites XTRA Corp. v. Illinois Commerce Comm’n (1987), 156 Ill. App. 3d 297, to support its position.

In XTRA, Edison entered into negotiations with XTRA to sell a 37.5-acre parcel of property. Edison was unable to reach a deal with XTRA and began negotiations with another party, Transamerica. Transamerica agreed to Edison’s asking price, and Edison petitioned the Commission for approval of the sale. XTRA was informed of Transamerica’s offer and thereupon offered Edison $100,000 more than Transamerica did for the same property. Both offers were consolidated for a hearing before the Commission. XTRA, 156 Ill. App. 3d at 299.

The Commission determined that the sale to Transamerica was reasonable, was in the public’s interest, and would convenience the public. After considering both petitions, the Commission voted to approve the sale to Transamerica. The circuit court reversed the Commission’s order, holding that the Commission disregarded the public’s interest in not securing the highest price for the property. (156 Ill. App. 3d at 300.) The appellate court disagreed, holding that the Commission’s decision was supported by the record. (156 Ill. App. 3d at 302.) Specifically, the appellate court held that the public would be convenienced by the sale to Transamerica. The court noted that, in light of the manner in which XTRA’s higher offer was made, there was no reason to disapprove the sale. 156 Ill. App. 3d at 302.

We agree with the reasoning in XTRA but do not believe XTRA applies to the facts in the case at bar. In XTRA, Edison chose not to sell the property to the highest bidder because the highest bid was not timely submitted. In our case, both Walneck’s and the District’s bids were submitted on time, and Edison chose the higher of the two. We believe Edison’s conduct in both cases was proper and consistent with respect to the bidding process.

Furthermore, the Commission may reject the highest offer only if the public would be convenienced by doing so. (XTRA, 156 Ill. App. 3d at 302.) In our case, the Commission determined that the public would not be convenienced by the sale to Walneck, the highest bidder. Had this determination been made in a public utility service context, we would agree that the Commission could properly reject the highest offer. However, the Commission rejected Walneck’s offer based on his proposed use of the property, and the potential harm such use may have on the fen.

We believe the Commission’s actions in this case were well intended. It is apparent from the record that the Commission attempted to determine whether the proposed sale would benefit the general public. However, the Commission did not examine the sale in a public utility service context, but, instead, in an environmental impact context. This was beyond its authority and was therefore improper.

Our disposition of this issue makes it unnecessary for us to consider plaintiffs’ other arguments on appeal. Accordingly, the order of the Commission is reversed, and this cause is remanded with directions to approve the sale to Walneck. This decision in no way affects the District’s ability to institute condemnation proceedings in a proper forum should it decide to do so.

Reversed and remanded.

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


source: Caselaw Access Project

author: JUSTICE LINDBERG

license: Public Domain

text:
    VOLE, INC., Plaintiff-Appellee, v. JOHN GEORGACOPOULOS, Indiv. and d/b/a Frankfurter Express, et al., Defendants-Appellants.
    Second District
    No. 2—88—0534
    Opinion filed May 1, 1989.

      Timothy J. Murphy, of Meersman, Meersman & Murphy, of Mount Prospect, for appellants.
    Ori, Tepper, Fox & Maley, of Waukegan, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendants appeal from the judgment of the circuit court of Lake County finding defendants in breach of a commercial lease with plaintiff, Vole, Inc., and ordering a forfeiture of the lease and repossession by plaintiff. Defendants’ counsel has failed to comply with Supreme Court Rule 341(e)(4)(ii), which requires a jurisdictional statement indicating a proper basis for appellate jurisdiction. (122 Ill. 2d R. 341(e)(4)(ii).) We expect compliance with this rule in future appeals to this court.

Plaintiff is the owner of a parcel of land located at 23250 N. Milwaukee Avenue, Half Day, Lake County, Illinois. On July 15, 1972, plaintiff entered into a written lease for the parcel with the lessees, Arthur and Silvio DiVito. The lease agreement called for the construction of a building on the parcel by the lessees. The term of the lease was 24 years. The amount of rent was set at $450 a month for two years, $500 per month for the next three years and $600 per month for the balance of the term. All construction costs were to be paid by the lessees. A building was constructed, and the lessees commenced operation of a hot dog stand known as Art’s Beef.

In September 1980, the lease was assigned, with the required consent of plaintiff, to defendant Thomas G. McGrogan. Defendant Mc-Grogan continued the operation of Art’s Beef. In January 1982, defendant McGrogan contracted by sublease with the original lessee DiVito to operate the business for defendant. DiVito operated the business until December 31, 1982. Rent was paid by DiVito to McGro-gan and then McGrogan paid plaintiff. In January 1983, a sublease was entered into between McGrogan and Vernel Reddig for a period of one year.

On December 27, 1983, defendants John Georgacopolous and Mc-Grogan entered into a sublease. Georgacopolous was the owner of Fiddlesticks Saloon and Dining Room (Fiddlesticks), a restaurant located on property adjacent to the premises of plaintiff being leased to defendant McGrogan.

In March 1984, defendant McGrogan sent a letter notifying plaintiff of his intention to erect a new sign on the leased property. He received no response. The sign was erected and advertised both the hot dog stand, now called Frankfurter Express, and Fiddlesticks, the restaurant next door. The part of the sign advertising Fiddlesticks was illuminated and twice the size of the part of the sign advertising Frankfurter Express. The part of the sign advertising Frankfurter Express was not illuminated. The sign also advertised the fact that Fiddlesticks served alcoholic beverages.

McGrogan acknowledged receipt of at least two letters notifying him of plaintiff’s objections to the sign. The first of these letters was received in October 1984. Defendant McGrogan also testified to having received actual notice that plaintiff objected to the use of the leased premises for the parking of cars belonging to patrons of Fiddlesticks and that defendant McGrogan received such notice prior to ever subletting the premises to defendant Georgacopolous in January 1983.

On August 16, 1985, a two-count complaint was filed in the circuit court of Lake County against defendants regarding the use of plaintiff’s property located at 23250 N. Milwaukee Avenue, Half Day, Lake County, Illinois. Count I alleged, inter alia, that defendant Georgaco-poulos, the corporate president of Lincolnshire Inn, Inc., an Illinois corporation, operating the Fiddlesticks Saloon and Dining Room at the premises immediately adjacent to and bordering the westerly edge of the leased premises, had joined the two businesses’ parking lots; used the parking facilities of the leased premises in connection with the operation of Fiddlesticks, wherein alcoholic beverages were sold; erected a sign upon the leased premises advertising Fiddlesticks, without the consent of plaintiff; used the leased premises’ parking lot for eight hours per day solely for the use of the patrons of Fiddlesticks; and used and maintained the sign only to advertise Fiddlesticks. Count II adopted and realleged the foregoing and additionally alleged an unauthorized assignment of the lease and sought a right to reenter and repossess the leased premises.

At the hearing for a preliminary injunction on November 20, 1985, the court entered an order which required defendants to reinstall cement bumpers which effectively divide the parking lots, prohibited the valet parking attendants of Fiddlesticks from parking vehicles on the leased premises, prohibited the sign from advertising or promoting the sale of alcoholic beverages at Fiddlesticks, and prohibited Fiddlesticks’ employees from advising their patrons or prospective patrons to park on the leased premises. Pursuant to a petition for rule to show cause and other relief filed April 7, 1986, the court on April 23, 1986, found that the defendants, Georgacopoulos and Mc-Grogan, willfully failed and refused to install cement bumpers effectively dividing the parking lots, that they advertised and promoted the sale of alcoholic beverages on the sign, and that valet parking attendants from Fiddlesticks parked vehicles on the leased premises; and held defendants in contempt of court. The court again directed compliance with its order and imposed fines. Pursuant to a further petition, the court on December 9, 1986, ordered that the cement bumpers be secured to preclude their being moved.

On February 17, 1988, an agreed order was entered which granted a permanent injunction in favor of plaintiff as requested in count I. The order also provided, “That this cause is set for trial on April 18, 1988, at 10:30 a.m. on the issue of attorneys’ fees and Count II of the complaint.” The case proceeded to trial resulting in the trial court’s order of April 26, 1988, and in a judgment order dated May 2, 1988.

In its decision, the trial court initially found that the defendants breached the lease in two pertinent ways: (1) by causing an alteration to the premises, other than the building, by removal of the outdoor sign and replacing it with a substantially larger sign which advertised, for all practical purposes, the adjacent restaurant; and (2) by changing the primary use of the premises to a parking lot for the adjacent restaurant by removing cement bumpers between the lots, by reducing business hours for the leased premises and by the posting of new signs with restrictions upon parking in any other adjacent lots but not posting such signs on the leased premises. Not only did the trial court find that the evidence was contrary to McGrogan’s sworn allegations in his answer, but in the judgment the court inserted the finding that the testimony of Georgacopoulos and McGrogan was not credible in pertinent part.

The court went on to find that since defendant McGrogan admitted actual receipt of written notice of the lease violations from a representative of plaintiff, plaintiffs failure to send such notice by‘registered mail did not render such notice invalid although the contract provided for notice by registered mail. The trial court entered a judgment granting plaintiff the immediate right to repossess the premises and awarding plaintiff attorney fees as provided for in the lease agreement.

On appeal, defendants contend that: (1) the trial court erred in granting relief under count II based on the same factual allegations which were the basis of count I, where count I was disposed of by the trial court’s entry of a permanent injunction as agreed to by the parties; (2) the trial court erred in ruling that plaintiff’s failure to send defendant McGrogan a written notice by registered mail of alleged breaches of the lease did not result in defective notice; (3) plaintiff waived its right to forfeiture under the lease; (4) the trial court’s construction and interpretation of the lease was against the manifest weight of the evidence; and (5) the trial court erred in awarding plaintiff certain attorney fees.

Defendants argue that the trial court erred when it considered the same breaches of the lease alleged in count I as a basis for granting a forfeiture of the lease as requested in count II of plaintiff’s complaint. Defendants contend that the trial court’s order granting a permanent injunction as requested by count I, entered by agreement of the parties, operated as a compromise and settlement and merged all causes of action or claims of plaintiff with regard to the allegations of fact in count I.

Generally, a valid settlement agreement operates as a bar to all included and prior causes of action. (Keim v. Kalbfleisch (1978), 57 Ill. App. 3d 621, 373 N.E.2d 565.) A settlement agreement is conclusive on the parties as to matters fairly considered and intended to be included within its terms. (Madison Associates v. Bass (1987), 158 Ill. App. 3d 526, 511 N.E.2d 690.) The ordinary rules of contract construction apply to the interpretation of settlement agreements. In re Marriage of Marquardt (1982), 110 Ill. App. 3d 271, 442 N.E.2d 267.

In the instant case, defendants rely on the trial court’s order of a permanent injunction on count I as the written settlement agreement between the parties. This same order sets a date for the trial on count II. Count II contains, in addition to other allegations of breach, reallegation of the same facts as alleged in count I. If the parties intended to preclude consideration by the trial court in the hearing of count II, the breaches enjoined by the trial court’s permanent injunction entered under count I, the order could have easily stated such an intention. We agree with the trial court that no such intention is expressed in the permanent injunction order. The trial court did not err in its interpretation of the injunctive order.

Defendant also argues that principles of res judicata preclude the trial court from relying on the allegations of fact contained in count I as a basis for granting additional relief under count II. A final judgment on the merits by a court of competent jurisdiction is conclusive on the rights of the parties and their privies, and as to them constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. (Rotogravure Service, Inc. v. R.W. Borrowdale Co. (1979), 77 Ill. App. 3d 518, 395 N.E.2d 1143.) Res judicata should only be applied where fairness and justice require and only to facts and conditions as they existed when judgment was entered. (Rotogravure Service, Inc. v. R.W. Borrowdale Co. (1979), 77 Ill. App. 3d 518, 395 N.E.2d 1143.) Before a judgment can bar a subsequent action, it must be a final judgment on the merits. Rotogravure Service, Inc. v. R.W. Borrowdale Co. (1979), 77 Ill. App. 3d 518, 395 N.E.2d 1143.

The trial court’s order granting a permanent injunction as requested in count I of plaintiffs complaint, although a final order on the injunctive issue, was not an appealable order. (Smith v. Goldstick (1982), 110 Ill. App. 3d 431, 442 N.E.2d 551 (permanent injunction entered by trial court, prior to entry of final judgments as to all claims and parties before court, is not appealable under Supreme Court Rule 307(a)(1), but is appealable as a final judgment to fewer than all parties or claims if the required finding of appealability under Supreme Court Rule 304(a) is entered by trial court); Statistical Tabulating Corp. v. Hauck (1972), 5 Ill. App. 3d 50, 282 N.E.2d 524; 107 Ill. 2d R. 304(a).) Since the trial court’s order was not yet appealable without the specific finding required under Supreme Court Rule 304(a), the trial court retained jurisdiction, and the order was subject to revision at anytime prior to entry of a judgment adjudicating all the claims, rights and liabilities of all the parties. (Wilson-Jump Co. v. McCarthy-Hundrieser & Associates, Inc. (1980), 85 Ill. App. 3d 179, 405 N.E.2d 1322.) Such orders are interlocutory in nature. (Catlett v. Novak (1987), 116 Ill. 2d 63, 506 N.E.2d 586; Wilson-Jump Co. v. McCarthy-Hundrieser & Associates, Inc. (1980), 85 Ill. App. 3d 179, 405 N.E.2d 1322.) Orders which are interlocutory in nature are not considered final judgments on the merits for purposes of applying res judicata. (Catlett v. Novak (1987), 116 Ill. 2d 63, 506 N.E.2d 582.) The trial court’s order granting a permanent injunction was in the nature of an interlocutory order and not a final judgment on the merits for purposes of applying res judicata. (See Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App. 3d 972, 387 N.E.2d 785 (dismissal of complaint in chancery with leave to amend and refile at law was in nature of interlocutory order and although second action was based on the same facts and involved the same parties, estoppel by judgment was inapplicable where the order was not intended to finally terminate litigation between the parties).) The trial court did not err in refusing to apply principles of res judicata to bar relief under count II of plaintiff’s complaint.

Defendants next contend that the trial court erred in ruling that actual receipt of written notice by defendant McGrogan was sufficient notice of default to allow plaintiff to reenter and repossess the leased premises as provided for in the lease. Paragraph No. 4 of the lease provided:

“4. Default — In the event that Lessee, within 10 days after receipt from Lessor of notice of any default by Lessee, shall fail to commence correcting such default with reasonable diligence, then Lessor shall have the right immediately to terminate this Lease and shall have the immediate right of re-entry and repossession of all the premises and all buildings, fixtures, and improvements located thereon, without any obligation to compensate Lessee in any manner therefor, and all of such buildings, fixtures, and improvements shall thereupon become the property of Lessor and Lessee shall have no further right, title, or interest therein. Lessee, however, shall only have ten days after written notice from Lessor to correct any default in the payment of rent.”

Paragraph No. 6 provided:

“6. Notices — Whenever it shall be necessary for either party to serve notice on the other respecting this Lease, such notice shall be served by registered mail addressed to Lessee at 502 Etowah Drive, Prospect Heights, Illinois, or Lessor at P. 0. Box 96, Prairie View, Illinois, unless and until different addresses may be furnished in writing by either party to the other.”

Defendant McGrogan admitted receiving written notice from plaintiff that the sign as well as the parking of Fiddlesticks’ patrons on the leased premises were considered violations of the lease. These notices were not sent by registered mail.

In general, the object of notice is to inform the party notified, and if the information is obtained in any way other than formal notice, the object of notice is attained. (Owens v. Second Baptist Church (1987), 163 Ill. App. 3d 442, 516 N.E.2d 712.) Defendants do not argue that the content or substance of the notice was somehow insufficient to declare a default under the lease, nor could we review such a contention where the letters sent to defendant McGrogan by representatives of plaintiff, although introduced at trial, are not contained in the record on appeal. Defendants’ only contention is that plaintiff’s failure to send the written notice by registered mail as required by the lease agreement defeats any right of plaintiff to enforce the provision concerning a default by defendants. A provision requiring sending of notice by registered mail is merely intended to insure delivery. (Goldberg v. Brzezicki (1952), 348 Ill. App. 391, 108 N.E.2d 816 (abstract of opinion).) Although forfeitures are not favored, courts will enforce forfeiture provisions where the right is clearly shown and injustice will not result. (Dahm, Inc. v. Jarnagin (1985), 133 Ill. App. 3d 14, 478 N.E.2d 641.) We find no injustice or prejudice to have resulted by the trial court ruling that defendants received sufficient notice of default, where defendant McGrogan admitted actual receipt of written notice, although such notice was not sent by registered mail as required by the lease agreement.

Defendants also contend that plaintiff waived any right to seek a forfeiture of the lease due to plaintiff’s acceptance of rent. Defendants have waived this issue for the purpose of appeal because the issue was never raised in the trial court. Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872.

Defendants’ next contention on appeal is that the trial court erred in its consideration of certain evidence in construing the lease and that the trial court’s interpretation of the lease, which led to its finding that defendants breached the lease, was against the manifest weight of the evidence. The trial court found in pertinent part that the construction of a sign, substantially larger than the sign removed, which for all practical purposes advertised the adjacent establishment of Fiddlesticks, was not allowed under the lease terms. Additionally, the court found that the leased premises had been effectively used as a parking lot for the adjacent restaurant, Fiddlesticks, and that such use was a use not intended by the parties of the lease agreement.

A contract should be construed as a whole to give effect to the intention of the parties, and great weight should be given to the principal apparent purpose and intention of the parties at the time of contracting. (De Witt County Public Building Comm’n v. County of De Witt (1984), 128 Ill. App. 3d 11, 469 N.E.2d 689.) Whereas in the instant case, the construction to be placed on an agreement is dependent not only upon the meaning of the words employed, but also upon extrinsic facts and circumstances, and upon the construction which the parties themselves have placed upon the agreement, and as these facts are controverted, any inferences to be drawn are for the trier of fact. (Sherbrooke Homes, Ltd. v. Krawczyk (1980), 82 Ill. App. 3d 990, 403 N.E.2d 622.) A reviewing court will not reverse a trial court’s findings of fact unless such findings are against the manifest weight of the evidence. Delasky v. Village of Hinsdale (1982), 109 Ill. App. 3d 976, 441 N.E.2d 367.

The contract was not silent as to alterations, repairs and improvements of the building and real estate. The contract provided in relevant part:

“This is to be a net lease wherein Lessee pays for all maintenance, repairs and replacements required on said building or real estate ***.
Lessee shall have the right from time to time to make alterations and improvements within said building but not to impair the value of the building. The leased premises shall not be used for the sale of alcoholic beverages.” (Emphasis added.)

Defendants argued that the lease made them responsible for maintenance, repairs and replacements to the real estate (i.e., parking lot), and, therefore, they could replace the sign which was damaged. Plaintiff argued that the new sign was larger, advertised the adjacent restaurant and alcohol sales and was not authorized under the lease. Plaintiff argued that the lease only authorized alterations and improvements “within said building” not “on said building or real estate” as used in the preceding paragraph concerning maintenance, repairs and replacements. The trial court agreed with plaintiff’s interpretation, relying in part on the fact that defendant McGrogan sent a letter to plaintiff, prior to erecting the sign, seeking the consent of plaintiff to the erection of the sign. Defendant argues such reliance by the court was error. We do not agree.

When a contract is ambiguous or silent on a disputed issue, a court may, in order to determine the intent of the parties at the time of contracting, consider the contemporaneous or subsequent acts of the parties to the contract. (In re Marriage of Whetstone (1980), 87 Ill. App. 3d 164, 409 N.E.2d 41.) The fact defendant McGrogan sent a letter to plaintiff requesting its consent is evidence that the sign constructed was not within the intent of the parties when the lease was entered and violated the lease. Further, defendant McGrogan testified to his interpretation of the lease that the lease did not give the lessee permission to make any alterations or improvements with regard to signs or structures outside the main building. The trial court’s interpretation of the lease to preclude the erection of a sign, larger than the previous sign, which advertised for all practical purposes the adjacent restaurant Fiddlesticks as well as the sale of alcohol at Fiddlesticks was not against the manifest weight of the evidence.

Defendants also argue that since the lease is silent as to the use of the premises as a parking lot for the adjacent restaurant, the lease should be construed in favor of the lessee to allow any lawful use not materially different from that which the premises are adapted to or for which they were constructed. (See 24 Ill. L. & Prac. Landlord & Tenant §299 (1980) (relied upon by defendants).) The occasional parking of cars by patrons of Fiddlesticks in the lot of the Frankfurter Express may not be a material breach of the lease agreement, and such an allegation was contained in defendants’ answer to plaintiff’s complaint. However, the trial court did not make such a finding. When the lease began in 1972, the premises were used as a hot dog stand and parking for that stand. The premises were used in that manner until defendant McGrogan sublet the premises to defendant Georgacopolous, the owner of Fiddlesticks. Georgacopolous continued to run the hot dog stand but at reduced hours and used the parking lot of the leased premises for parking cars of Fiddlesticks’ patrons. The trial court found that, contrary to defendants’ testimony, the use of the leased premises for parking of Fiddlesticks’ patrons was not an occasional or neighborly accommodation as alleged by defendants in their response to plaintiff’s complaint. The trial court found during the proceedings on this action that: the valet parking attendants of Fiddlesticks parked cars on the leased premises, as well as informed patrons to park on the leased premises; signs were posted on other adjacent lots informing patrons of Fiddlesticks not to park in such lots but no such signs were posted on the leased premises; the hours of operation of the leased premises were reduced drastically; and the barriers separating the leased premises from the adjacent property were removed, further encouraging the use of the premises as a parking lot for Fiddlesticks’ patrons. The trial court’s interpretation of the lease to not allow such a change in use, so materially different from the use contemplated by the parties when contracting, was not against the manifest weight of the evidence. Silas v. Robinson (1985), 131 Ill. App. 3d 1058, 477 N.E.2d 4 (in a bench trial, where testimony is conflicting and contradictory, it is the province of the trial court to determine the credibility and weight to be afforded the testimony, and such determinations will not be reversed unless against the manifest weight of the evidence).

Defendants also contend that the trial court erred in the amount of attorney fees awarded to plaintiff. Defendants cite no authority for their argument as required by Supreme Court Rule 341(e)(7) (107 Ill. 2d R. 341(e)(7)) and have waived the issue for the purpose of appeal. In re Marriage of Anderson (1985), 130 Ill. App. 3d 684, 474 N.E.2d 911.

The judgment of the circuit court is affirmed.

Affirmed.

McLAREN and DUNN, JJ., concur.


author: JUSTICE SCOTT

text:
    OTIS L. BARGMAN, Plaintiff-Appellant, v. ECONOMICS LABORATORY, INC., Defendant-Appellee.
    Third District
    No. 3—88—0023
    Opinion filed April 5, 1989.
    — Rehearing denied May 17, 1989.

      James Walker, Ltd., of Bloomington (James Walker, of counsel), for appellant.
    William V. Kozol, of Garrison, Fabrizio & Hanson, Ltd., of Joliet (Mark E. Hanson, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

Plaintiff’s cause of action for injuries he sustained on defendant’s premises was first tried to a jury in July of 1985. After a verdict for plaintiff, the trial court granted defendant’s post-trial motion for a new trial, which this court affirmed in Bargman v. Economics Laboratory, Inc. (1986), 144 Ill. App. 3d 24. A second jury trial was held in October of 1986, resulting in a verdict in favor of defendant. Plaintiff’s amended post-trial motion was subsequently denied by the trial court on January 6, 1988, and this appeal followed. No questions are raised on the pleadings.

Plaintiff owned a semitractor trailer rig, which he operated as an employee of Chicago-St. Louis Transport Company, and defendant operated a manufacturing plant south of Joliet, Illinois. On August 28, 1982, plaintiff drove his semitractor to defendant’s plant, arriving about 5:45 a.m. to pick up his trailer he had left there the night before to be loaded with defendant’s products. After hooking up to the trailer, plaintiff drove the rig onto a platform of a scale located at the exit which all trucks were required to use when exiting defendant’s premises. Plaintiff stopped his rig on the platform and exited his semitractor. After both feet reached the ground and he started to turn towards the front of the semitractor, plaintiff’s left foot slipped off of the concrete slab bordering the scale, causing him to fall to the ground. The slab bordering the scale was 12 inches wide and was built up four to eight inches above the adjacent ground level.

Plaintiff suffered a rupture of the four large muscles in his leg which extend from the hip to the kneecap. The muscles were reattached by running a heavy thread through the muscles and a hole drilled in plaintiff’s kneecap. Plaintiff subsequently developed throm-bophlebitis in his leg due to the fall and the treatment made necessary by the fall. Plaintiff was unable to work until April 1983 and then worked until he retired at age 62 in March 1984.

The case went to jury on plaintiff’s allegations that defendant failed to provide a safe place for drivers to exit their semitractors and transact the business required of them, failed to fill and elevate the ground adjacent to the concrete slab to eliminate the change in level between the concrete and the adjacent ground, failed to warn of the change in level, and constructed a scale and platform with a concrete slab that was not wide enough to be walked upon with safety. The jury found for the defendant. Plaintiff’s post-trial motion was denied.

Plaintiff raises a number of issues on appeal. As to all of these issues, our standard for review is whether the trial court abused its discretion in making its ruling. Plaintiff first insists that the trial court erred in refusing to give plaintiff’s proposed Illinois Pattern Jury Instruction, Civil, No. 5.01 (2d ed. 1981) (hereinafter IPI Civil 2d) to the jury regarding defendant’s failure to produce a witness. The witness, Jack Pastore, was retained by defendant and identified as an expert prior to the first trial. He was not, however, called by defendant as a witness in that trial, nor was he called as a witness in the second trial. The record reveals that, prior to the second trial, an order was entered on September 8, 1986, requiring the respective parties to disclose their expert witnesses within a stated time period. Plaintiff did not disclose an expert, and defendant disclosed Edmund T. Dorner, Ph.D., as its expert. Plaintiff subsequently subpoenaed Jack Pastore as a witness for trial, prompting defendant to file a motion to bar Mr. Pastore’s testimony. Accordingly, the trial court ordered that plaintiff was barred from calling Jack Pastore as a witness in his case in chief but reserved for the trial judge any ruling on whether plaintiff could call Mr. Pastore as a rebuttal witness. At trial, plaintiff did not call Mr. Pastore as a rebuttal witness; instead, the parties read a stipulation to the jury that defendant had retained Jack Pastore as an expert witness in this case but did not call him as a witness at either trial.

IPI jury instruction No. 5.01, commonly referred to as the “miss- - ing witness” instruction, states:

“If a party to this case has failed to produce a witness within his power to produce, you may infer that the testimony of the witness would be adverse to that party if you believe each of the following elements:
1. The witness was under the control of the party and could have been produced by the exercise of reasonable diligence.
2. The witness was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the testimony would be favorable to him.
4. No reasonable excuse for the failure has been shown.” Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971).

Plaintiff argues that Mr. Pastore was under the control of defendant and therefore unavailable to plaintiff as a witness. Defendant maintains, however, that it had withdrawn Mr. Pastore as an expert witness prior to the second trial in that Mr. Pastore was not listed by defendant as an expert pursuant to court order, moreover, that defendant merely sought to bar Mr. Pastore’s testimony because plaintiff failed to identify him as an expert witness prior to the second trial and after being court ordered to do so. After hearing the arguments of counsel and reviewing case law, the trial court refused to submit plaintiff’s proposed instruction.

Plaintiff cites Hollembaek v. Dominick’s Finer Foods, Inc. (1985), 137 Ill. App. 3d 773, 484 N.E.2d 773, Biehler v. White Metal Rolling & Stamping Corp. (1978), 65 Ill. App. 3d 1001, and Ciborowski v. Philip Dressler & Associates (1982), 110 Ill. App. 3d 981, as authority for the position that Mr. Pastore was unavailable. In Hollembaek, the court determined that the missing witness instruction was properly given by the trial court where a doctor, retained by defendant, was not called to testify at trial. Based on prior decisions, the court determined that “a doctor hired by defendant to examine plaintiff is under defendant’s control for the purpose of testifying, and thus unavailable to plaintiff as a witness.” (Hollembaek, 137 Ill. App. 3d at 777, 484 N.E.2d at 777.) Thus, the court found that the doctor was not equally available to plaintiff. In Ciborowski, the court determined that an expert witness employed by one party with the intention of having him testify was under that party’s control despite the fact that he could have been subpoenaed by any other party. Ciborowski, 110 Ill. App. 3d 981, 443 N.E.2d 618.

Defendant’s citation to Department of Transportation v. Gonterman (1976), 41 Ill. App. 3d 62, 354 N.E.2d 76, as authority is misplaced. In Gonterman, the court held that the missing witness instruction, given on the basis of petitioner’s failure to produce the testimony of two appraisers it had previously employed at trial, was improper on the basis that appraisers are not the property of either party and their prior employment is not relevant to the issue of proper valuation. (Gonterman, 41 Ill. App. 3d 62, 354 N.E.2d 76.) The experts hired in the present case were for the purpose of giving favorable testimony. To the contrary, the expert appraisers in Gonterman were employed for the purpose of obtaining an objective valuation of the property in question.

We likewise consider defendant’s abandonment of the witness argument unpersuasive. Although it is true that defendant did not list Jack Pastore as one of its experts prior to the second trial, it cannot reasonably be disputed that prior to that time Mr. Pastore would have been considered one of defendant’s experts. The importance of this fact is that the court order regarding disclosure of experts entered prior to the second trial required plaintiff to disclose experts first, without knowing whom defendant would disclose. At that point, it was not unreasonable for plaintiff to believe that Mr. Pastore was defendant’s expert. If in fact defendant did abandon Mr. Pastore as an expert, the circumstances were such that plaintiff was unable to reasonably take advantage of it by listing Mr. Pastore as his expert.

Moreover, we believe the stipulation entered into evidence regarding Mr. Pastore verifies that he was under the control of defendant and further provides a basis for the trial court to submit the missing witness instruction to the jury. The stipulation stated that defendant retained Mr. Pastore as an expert witness, that Mr. Pas-tore visited the scene and was supplied with certain documents and photographs, and that Mr. Pastore was available to testify. Under these circumstances, we consider it reasonable that Mr. Pastore’s testimony would have been produced had it been favorable, and defendant has not, despite its statement in its reply brief that the testimony would have been cumulative, provided a reasonable excuse for failure to produce Mr. Pastore as a witness. The trial court should have given the missing witness instruction to the jury.

In addition to refusing plaintiff’s missing witness instruction, the trial court granted defendant’s oral motion in limine to preclude plaintiff from mentioning in closing argument that defendant failed to call Mr. Pastore as a witness. Based on the same rationale regarding the missing witness instruction, the trial court should not have granted defendant’s motion in limine precluding plaintiff from commenting on Mr. Pastore’s absence. In Ciborowski, plaintiff’s attorney at closing asked the jury to infer that defendant’s expert witness was not called because his testimony was adverse. The court held that this comment to the jury was not reversible error. (Ciborowski, 110 Ill. App. 3d 981, 443 N.E.2d 618.) Plaintiff herein was entitled to comment on Mr. Pastore’s absence. “[A] party’s failure to call a witness within its control is a proper subject of comment.” Tonarelli v. Gibbons (1984), 121 Ill. App. 3d 1042, 1048, 460 N.E.2d 464, 469.

Plaintiff’s next allegation of error regards the trial court’s denial of plaintiff’s attempted offer into evidence of portions of the discovery deposition of Ricardo Perez as admissions of a party opponent. Mr. Perez was defendant’s plant manager on the date of the accident but was not called to testify by either party at trial. Plaintiff attempted to introduce deposition testimony of Mr. Perez, wherein Mr. Perez indicated that he did not know what caused plaintiff’s accident, after another employee of the company testified at trial that it was Mr. Perez’ responsibility to investigate the accident and determine its cause. The trial court disallowed plaintiff’s attempt for lack of foundation and reprimanded plaintiff for attempting to introduce evidence without foundation in front of the jury. Thereafter, defendant’s counsel indicated that he had an objection but nowhere do we find what his specific objection was and, therefore, we must assume it was based on relevance. Nonetheless, in its brief, defendant additionally argues that the deposition testimony of Mr. Perez was not admissions.

Supreme Court Rule 212(a)(2) expressly provides that a discovery deposition may be used “as an admission made by a party or by an officer or agent of a party in the same manner and to the same extent as any other admission made by that person.” (107 Ill. 2d R. 212(a)(2).) As to the trial court’s foundation concern, there is generally no foundation requirement predicating the receipt into evidence of admissions made by a party opponent, nor is it necessary that the party opponent be available for trial. (Security Savings & Loan Association v. Commissioner of Savings & Loan Associations (1979), 77 Ill. App. 3d 606, 396 N.E.2d 320.) Nonetheless, purported admissions must be relevant to and have a material bearing on the issues of the case. To this point, plaintiff argues that since defendant by its answer denied plaintiff’s allegations as to the cause of the accident, Mr. Perez’ deposition testimony is relevant because he was responsible for investigating the accident and yet he admitted he did not know what caused the accident. Although there is no requirement that an admission necessarily be against a party’s interest or contradict the testimony of the party who made it (Woodruff v. Pennsylvania R.R. Co. (1964), 52 Ill. App. 2d 341, 202 N.E.2d 113), the deposition statements by Perez are nothing more than neutral statements which neither admit nor deny anything. Moreover, the statements are not relevant in that they do not tend to prove any fact in controversy, and further, are not material in that they do not relate to the issue of what caused the accident. The trial court properly excluded the evidence.

Next, plaintiff charges error in the trial court’s exclusion of all evidence regarding defendant’s remedial repairs to the concrete slab in question. With a few exceptions, it is well settled that evidence of remedial repairs is not admissible evidence to prove negligence on the part of a defendant. (Hodges v. Percival (1890), 132 Ill. 53, 23 N.E. 423.) Plaintiff argues, however, that defendant put at issue the purpose for which the concrete slab was initially constructed and should accordingly be subject to impeachment with evidence of subsequent repairs contradicting the stated reason. In particular, plaintiff states that Phillip Scearcy, defendant’s corporate safety and health manager, testified that the change in level between the concrete slab and the adjacent ground was “to prevent dirt and water from getting into the scale.” Mr. Scearcy’s testimony, however, does not call to question the feasibility of the slabs when they were initially constructed in relation to the purpose for widening the slabs at a later date. If the purpose of the elevated slab was to keep dirt and grass out of the scale, the actual width of the elevated sidewalk has nothing to do with that stated purpose. The trial court properly excluded all evidence of subsequent remedial measures pursuant to well-established law.

Plaintiff additionally asserts that the trial court erred in denying plaintiff’s motion for sanctions and motion to compel defendant to fully answer plaintiff’s interrogatory 15. We affirm the trial court’s decision partly because the evidence to be produced was inadmissible and partly because there is no showing that the supplemental answers to interrogatory 15 were intentionally evasive, incomplete or false.

Plaintiff’s next charge of error regards the trial court’s adoption of defendant’s proposed short-form version of IPI Civil 2d No. 15.01, containing an explanation of proximate cause. The basis behind plaintiff’s assertion is the adoption of comparative negligence in Illinois. IPI Civil 2d No. 15.01 reads as follows:

“When I use the expression ‘proximate cause,’ I mean [that] [a] [any] cause which, in natural or probable sequence, produced the injury complained of. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.]” (Illinois Pattern Jury Instructions, Civil, No. 15.01 (2d ed. 1971).)

Plaintiff’s proposed instruction No. 10 sought to use the word “a” of the three bracketed choices in the first sentence and also included the last two bracketed sentences. The trial court refused plaintiff’s instruction No. 10 and instead gave defendant’s instruction No. 1, which reads:

“When I use the expression ‘proximate cause,’ I mean any cause which, in natural or probable sequence, produced the injury complained of.”

Both parties cite Willson v. Pepich (1983), 119 Ill. App. 3d 552, 456 N.E.2d 882, as authority for their respective positions for and against the submitted instruction. In Willson, as here, the plaintiff argued that adoption of comparative negligence in Illinois necessitates the inclusion of the last two bracketed sentences in IPI Civil 2d No. 15.01. The Willson court, with which we concur, responded as follows:

“We agree that the principal reason for not permitting the inclusion of the bracketed material in IPI Civil No. 15.01 is no longer present under the doctrine of comparative negligence. So long as the doctrine of contributory negligence was a viable doctrine in this State, the negligence of the defendant had to be the sole cause of the injury to the plaintiff when the only other possible contributing cause was the conduct of the plaintiff herself, and it was for this reason that the bracketed material was held to be improper in such cases. (See Budovic v. Eschbach (1953), 349 Ill. App. 163, 167[, 110 N.E.2d 477].) On the other hand, it is equally clear that the bracketed material containing the last two sentences was included in IPI Civil No. 15.01 to address the situations where there was evidence that something or acts of someone other than the negligence of the parties was also a possible proximate cause of the injury. (See Perry v. Chicago & North Western Transportation Co. (1977), 54 Ill. App. 3d 82, 91[, 11 Ill. Dec. 701, 369 N.E.2d 155].) In the absence of such evidence, we agree with the trial court that the additional language contained in the last two sentences can be confusing. We find no error in the trial court’s refusal to give plaintiff’s version of IPI Civil No. 15.01 under the circumstances of this case and in view of the instructions which were given.” Willson, 119 Ill. App. 3d at 556-57, 456 N.E.2d at 885.

Additionally, the submitted instruction contained the word “any” as the choice of the three bracketed words in the first sentence of IPI Civil 2d No. 15.01. As in Willson, we believe that this word in the instruction permitted the jury to determine that there may be more than one cause of injury. We, therefore, affirm the trial court’s decision to deny plaintiff’s instruction No. 10 and to submit defendant’s instruction No. 1.

Plaintiff further submits that the trial court erred in giving defendant’s instruction No. 12A, wherein it stated that “defendant further claims that the foregoing was the sole proximate cause of plaintiff’s injuries.” Plaintiff’s argument is that defendant’s affirmative defense does not assert plaintiff’s negligence was the sole proximate cause of his injuries, but merely a proximate cause that should reduce any recovery. Moreover, plaintiff asserts that the trial judge first refused the purported language in defendant’s first tendered instruction but later allowed that same language over plaintiff’s objection in a subsequently tendered modified instruction. Defendant counters that the instruction merely conforms to its theory of the case and the evidence presented that plaintiff’s actions were the sole cause of his injuries.

The case law cited by plaintiff regarding this point is misplaced in that the cases discuss the submission of jury instructions pertaining to intervening or concurrent causes of injury by a third party. Nonetheless, the record clearly reveals that the proffered language of “sole proximate cause” was initially refused by the trial court after lengthy discussion and was later accepted without comment as to why the change in ruling. Moreover, the notes on use for IPI Civil 2d No. A 20.01 state that “[t]his instruction must be modified to fit the allegations of the complaint and answer. The bracketed materials cover various contingencies that may result from the pleadings.” (IPI Civil 2d No. 20.01, Notes on Use, at 102.) We find no comment as to whether the instruction terminology can be phrased in a manner different than the pleadings and therefore infer that it may not. While defendant is certainly entitled to have instructions in conformity with the theory of its case, the theory must first be evident in the pleadings to be reiterated in the jury instructions. Here, defendant’s affirmative defense does not allege in any manner that plaintiff’s negligence was the sole proximate cause of his injuries, only that plaintiff’s negligence was a proximate cause. The instruction was therefore inconsistent with the pleadings, and the language “sole proximate cause” should not have been allowed.

The trial court also prohibited plaintiff’s introduction into evidence, as admissions, certain allegations contained in defendant’s third-party complaint against Arbanis Construction, Inc. (Arbanis). At the commencement of the second trial, over objection of plaintiff, the trial court allowed defendant’s motion in limine concerning allegations of the third-party complaint. Basically, the third-party complaint charged Arbanis, the company that constructed the scale, with negligence in failing to construct a concrete slab of sufficient width to be walked on safely and in failing to elevate the adjacent ground to eliminate any change in level.

It is well settled that alternative fact pleading made in good faith cannot be used as an admission against interest so as to be admissible against the pleader. (Illinois Casualty Co. v. Turpen (1980), 84 Ill. App. 3d 288, 405 N.E.2d 4. See also Alley v. Champion (1979), 75 Ill. App. 3d 878, 394 N.E.2d 735.) However, where allegations are not pleaded in the alternative or hypothetically, they may be used as admissions against the pleader. See Associated Claims Service, Inc. v. Rinella & Rinella (1979), 79 Ill. App. 3d 1023; Koenig v. 399 Corp. (1968), 97 Ill. App. 2d 345.

Plaintiff attempted to admit only certain paragraphs of defendant’s third-party complaint and makes the argument that those particular paragraphs, being 3 through 6, are not pleaded in the alternative. Our review of defendant’s third-party complaint verifies, however, defendant’s position that the complaint is pleaded alternatively when read as a whole. In Tuttle v. Fruehauf Division of Fruehauf Corp. (1984), 122 Ill. App. 3d 835, 462 N.E.2d 645, it was stated:

“We believe that ‘[a] party wishing to make alternative or contingent claims should not be placed in the perilous situation of either foregoing one claim or having one claim used against another as an admission.’ (Slocum v. Ford Motor Co. (1981), 111 Mich. App. 127, 134, 314 N.W.2d 546, 549; see Continental Insurance Co. v. Sherman (5th Cir. 1971), 439 F.2d 1294, 1298-99.) Moreover, we do not believe there is some magic in labeling inconsistent pleadings ‘alternative’ or ‘hypothetical’ which involves the principle underlying the alternative pleading rule. (See Slate Printing Co. v. Metro Envelope Co. (N.D. Ill. 1982), 532 F. Supp. 431, 436.)” Tuttle, 122 Ill. App. 3d at 842, 462 N.E.2d at 651.

Paragraph 7 of defendant’s third-party complaint against Arbanis clearly states that defendant denies liability to plaintiff, but if found liable then claims that Arbanis is liable. We do not condone plaintiff’s attempt to introduce portions of defendant’s third-party complaint out of context, and the trial court properly excluded this evidence.

The last issue to be addressed regards the trial court’s failure to ask prospective jurors plaintiff’s proposed questions on bias, interest and prejudice. Illinois Supreme Court Rule 234 states:

“The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, or may permit the parties to supplement the examination by such direct inquiry as the court deems proper. Questions shall not directly or indirectly concern matters of law or instructions. The court may acquaint prospective jurors with the general duties and responsibilities of jurors.” (107 Ill. 2d R. 234.)

Absent going specifically into each question asked, we have reviewed the record and are of the opinion that the trial court, on the whole, asked questions which adequately tested the impartiality and qualifications of prospective jurors to render a decision without bias, prejudice or partiality. Benuska v. Dahl (1980), 87 Ill. App. 3d 911, 410 N.E.2d 249.

Finally, plaintiff alleges that the trial court improperly instructed the jury regarding plaintiffs failure to mitigate damages and the burden of proof involved therewith. Inasmuch as the jury had no occasion to consider damages, we do not believe it appropriate to determine these issues.

Taken as a whole, there is a sufficient accumulation of evi-dentiary and instructional errors to believe that the plaintiff was prejudiced. Therefore, the decision of the trial court denying plaintiffs post-trial motion for a new trial is reversed and the cause remanded for a new trial.

Reversed.

HEIPLE and STOUDER, JJ., concur.


text:
      In re T.A., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. T.A., Respondent-Appellant).
    Third District
    No. 3—88—0236
    Opinion filed April 20, 1989.

      Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The minor respondent, T.A., appeals the revocation of his probation and his committal to the juvenile division of the Department of Corrections, on the grounds that the trial court lacked jurisdiction because of improper notice to his mother, father and guardian. We affirm.

The proceedings in this case date back to 1985. We set out only those facts necessary for our decision on the issue presented.

The minor was placed on probation in the spring of 1985. On December 18, 1987, a notice of a December 31, 1987, hearing to review that continuing probation was filed. The notice was addressed to, inter alia, the minor; his mother, Nancy Hellberg; and Elizabeth Schmidt, a representative of his guardian, the Rock Island County Juvenile Court Services. The minor failed to appear at this hearing. As a result, an order for issuance of a warrant was entered. On the order, the minor’s mother and Ms. Schmidt were listed as present.

The minor appeared in court with his attorney on January 6, 1988. At that time, a petition for detention of the minor had been filed. The petition asked that the minor be detained pending a further hearing set for January 21, 1988. The record shows that the minor was placed with the Rock Island County Juvenile Detention Facility and that an adjudicatory hearing was set for January 8, 1988. The minor’s mother was not present at the January 6 proceedings.

On January 8, 1988, the State filed a petition to revoke probation. Neither the minor’s parents nor his guardian was named as respondent to the petition. The record does not reveal any attempt at formal service to these parties. A hearing on the petition was commenced on January 8. The record shows that both the minor’s guardian and his mother were present at this hearing.

Following the January 8 hearing, the court revoked the minor’s probation and continued the case until January 15, 1988, for the dis-positional hearing. The guardian and the minor’s mother were present at the dispositional hearing. There, the minor was committed to the Department of Corrections juvenile division. The minor filed a timely notice of appeal.

On appeal, the minor contends that the orders of the circuit court are void because it lacked jurisdiction. He argues that the court lacked jurisdiction because the petition to revoke probation failed to name his mother, father and guardian as respondents, and that as a result, none of the parties was properly notified of the proceedings.

Due process requires that notice in juvenile proceedings be equivalent to that constitutionally required in civil and criminal cases. (In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428.) The Juvenile Court Act of 1987 (the Act) requires that petitions set forth the names and residences of the minor, the parents and the legal guardian. (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 13(2).) Section 5 — 15 of the Act provides that when a petition is filed, notice shall be directed to the minor’s legal guardian or custodian and to each person named as a respondent in the petition; it also provides that service shall be made at least three days before the petition’s stated appearance date. (Ill. Rev. Stat. 1987, ch. 37, pars. 805 — 15(1), (5).) Where a party is not formally served, but has actual notice and makes a general appearance, any objection to the form of notice is waived and the court has personal jurisdiction over the party. See In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501; In re J.A. (1986), 145 Ill. App. 3d 816, 495 N.E.2d 1340.

The minor argues that his mother and guardian were not properly served according to the requirements of section 5 — 15 of the Act and that, therefore, the court lacked jurisdiction to enter its orders. We find no merit to that argument. The record shows that the mother and the guardian were present at both the January 8, 1988, revocation hearing and the January 15, 1988, dispositional hearing. The court therefore had personal jurisdiction over these necessary party respondents.

Additionally, the minor contends that the failure to make any attempt to notify his natural father deprived the court of jurisdiction. With reference to In re J.P.J. (1985), 109 Ill. 2d 129, 485 N.E.2d 848, we find the minor’s contention to be -without merit.

The minor’s parents were divorced when he was under two years of age. The record reflects very little if any contact between the minor and his natural father. In the fall of 1987, the probation officer’s attempts to contact the father were unsuccessful. The father has never been named or served as a respondent in any of the proceedings concerning the minor, nor has he ever appeared at any of the proceedings.

A pleading that does not name and notify a necessary respondent in a juvenile proceeding fails to invoke the jurisdiction of the court and thereby renders its order void. (People v. R.D.S. (1983), 94 Ill. 2d 77, 445 N.E.2d 293.) The legislature, through the notice provisions of the Act, has already determined that the parents are necessary respondents, who must be named and served with notice in order for the trial court to conduct an adjudicatory proceeding. (People v. R.S. (1984), 104 Ill. 2d 1, 470 N.E.2d 297.) But when someone does not share in the custody of the minor, has so little contact with the minor that he does not learn of the minor’s danger and cannot be found after a diligent search, then his interest is sufficiently slight that he should not be treated as an indispensable party. (In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501.) The State’s diligence in identifying or locating a parent whose identity or address was not known to the State at the commencement of the proceedings may not be attacked on appeal if the question was not also raised in the trial court, where the record on the matter could have been made in the first instance. In re J.P.J. (1985), 109 Ill. 2d 129, 485 N.E.2d 848.

If personal or abode service, or service by certified mail, is possible, the Act requires it. (In re J.P.J. (1985), 109 Ill. 2d 129, 485 N.E.2d 848.) Service of a juvenile petition may be made by publication to a party whose whereabouts are not known. (Ill. Rev. Stat. 1987, ch. 37, par. 804 — 15.) Under section 4 — 15(2) of the Act, notice by publication is excused if the order or judgment issued is not directed against the absent person and if the person having legal custody of the minor is served personally or by certified mail. (Ill. Rev. Stat. 1987, ch. 37, par. 804 — 15(2).) This latter condition is satisfied through actual notice to a parent having actual sole custody of the minor. In re J.P.J. (1985), 109 Ill. 2d 129, 485 N.E.2d 848.

The issue of the State’s diligence in locating the father was not raised by anyone in the trial court; therefore, the issue is waived and the question of whether the notice provisions of the Act were satisfied must be based on the record.

The record shows some indication of the father’s whereabouts, but no address. Thus, the record does not show that the minor’s father could have been served by personal or abode service or by certified mail when the proceedings commenced. (See In re A.H. (1988), 165 Ill. App. 3d 543, 519 N.E.2d 59.) Furthermore, service by publication was excused by section 4 — 15(2). The orders entered were not directed against the father. The mother, who had sole custody of the minor, had actual notice of the proceedings and appeared.

Additionally, the record does not support the minor’s contention that the father’s presence might have changed the outcome. The minor in no way established that he had a significant relationship with the father, and there is no evidence that his father’s absence denied him additional assistance or protection. See In re L.C.C. (1988), 167 Ill. App. 3d 670, 521 N.E.2d 652.

On the facts of this case, and the state of the case law with reference to In re J.P.J., we find no jurisdictional defect in the trial court’s proceedings, because the father was not an indispensable party and the court had personal jurisdiction over the remaining necessary party respondents.

In reaching this conclusion, we also note the lax attention by the trial court to the procedural requirements of the Juvenile Court Act of 1987. These requirements should not be ignored in the future. In re L.C.C. (1988), 167 Ill. App. 3d 670, 521 N.E.2d 652.

Therefore, the judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

WOMBACHER, P.J., and STOUDER, J., concur.


text:
    TOMMIE LEE ROGERS, Plaintiff-Appellant, v. THE PRISONER REVIEW BOARD et al., Defendants-Appellees.
    Third District
    No. 3—88—0402
    Opinion filed April 20, 1989.

      Tommie Lee Rogers, of Joliet, appellant pro se.

    Neil F. Hartigan, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The pro se plaintiff, Tommie Lee Rogers, appeals from an order of the circuit court of Will County dismissing his petition for a writ of mandamus. The defendants in this case are the Illinois Prisoner Review Board, the State of Illinois and Warden Michael O’Leary. Rogers, an inmate at the Stateville Correctional Center, sought an order to compel the defendants to compute his release date according to the day-for-day good conduct provisions set forth in section 3 — 6—3 of the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 6—3).

Rogers was sentenced on April 25, 1973, to an indeterminate sentence ranging from 25 to 50 years for the offense of murder. After his incarceration, the defendants computed Rogers’ release date under the compensatory and statutory good conduct credit system then in place (Ill. Rev. Stat. 1977, ch. 38, par. 1003 — 6—3). On February 1, 1978, section 3 — 6—3’s new good conduct credit provision took effect (Ill. Rev. Stat. 1979, ch. 38, par. 1003 — 6—3). It abolished the old compensatory and statutory good conduct credit system. (Simpson v. Irving (1981), 99 Ill. App. 3d 176, 425 N.E.2d 62.) Nevertheless, the defendants continued applying the pre-1978 system in computing Rogers’ mandatory release date.

Rogers contends that the current section 3 — 6—3 mandates that the defendants use the post-1978 day-for-day system in computing his good-time credits. Section 3 — 6—3 now provides that for each day in prison, a prisoner shall receive one day of good conduct credit against his period of incarceration. Rogers argues that he would be entitled to immediate release if the day-for-day system, rather than the pre-1978 system, were used to compute his mandatory release date. He argues further that the more beneficial of the two good conduct credit systems should be applied to calculate his good-time credits earned after February 1, 1978. Johnson v. Franzen (1979), 77 Ill. 2d 513, 397 N.E.2d 825.

The defendants filed an affidavit in support of their motion to dismiss Rogers’ petition for a writ of mandamus. In the affidavit, Michael Keolikiewicz, records supervisor of the Stateville prison, stated that “Rogers is under the compensatory and statutory system. Under this system Rogers would be released by mandatory release on April 18, 1992 ***. If he was converted to the day for day system, his out date would be April 27, 1995. He would receive a longer sentence under the day for day system.”

Attached to the affidavit were copies of the compensatory plan and the day-for-day conversion worksheet used to compute Rogers’ release date. We find that the affidavit responded to Rogers’ claim with the needed specificity to support a motion to dismiss. See Simpson v. Irving (1981), 99 Ill. App. 3d 176, 425 N.E.2d 62.

Mandamus is an appropriate remedy to compel the Department of Corrections to follow its own regulations. (Taylor v. Franzen (1981), 93 Ill. App. 3d 758, 417 N.E.2d 242.) However, the petitioner must show he has a clear legal right to the writ. (People ex rel. Sanitary District v. Schlaeger (1945), 391 Ill. 314, 63 N.E.2d 382.) The granting of this extraordinary writ rests within the discretion of the trial court. McRell v. Jackson (1977), 49 Ill. App. 3d 86, 363 N.E.2d 940.

The Illinois Supreme Court in Johnson v. Franzen required that the day-for-day system be used in computing a prisoner’s good-time credits after February 1, 1978. Later cases have explained, however, that for any prisoner sentenced prior to the effective date of the day-for-day system, the more beneficial of the two good conduct credit systems should be applied to the post-February 1, 1978, period of incarceration. Williams v. Irving (1981), 98 Ill. App. 3d 323, 424 N.E.2d 381.

The pre-1978 scheme can at times be more beneficial to certain inmates sentenced prior to 1978. Under the pre-1978 formula, inmates are eligible to receive statutory good-time credits at a progressive rate during their first six years of incarceration until they reach an annual maximum of six months of good-time credit in the sixth year of their prison term. During the sixth year and each subsequent year of imprisonment, an inmate is eligible for a maximum of six months’ statutory good-time credit annually. (Ill. Rev. Stat. 1977, ch. 38, par. 1003 — 6—3.) “Therefore, under the pre-1978 system, an inmate could earn in effect ‘day-for-day’ statutory good time credit during that part of his sentence which exceeded five years, plus compensatory good time credit at a rate of 7 and xk days per month for participation in work programs.” (Emphasis in original.) (Barksdale v. Franzen (7th Cir. 1983), 700 F.2d 1138, 1140.) The post-1978 scheme on the other hand allows only day-for-day credit with no credit for participation in work programs. (See Partee v. Lane (N.D. Ill. 1981), 528 F. Supp. 1254.) For this reason, the pre-1978 scheme is more beneficial for some prisoners.

The procedure followed by the defendants in this case in determining which system would be more beneficial to Rogers is essentially the same as that upheld in Williams v. Irving. In the instant case, the defendants initially calculated Rogers’ projected mandatory release date as it would be under the day-for-day system. In order to apply the day-for-day system, the defendants first had to apply the pre-1978 scheme on a pro rata basis to determine how much of Rogers’ sentence remained to be served as of February 1, 1978. (Williams v. Irving (1981), 98 Ill. App. 3d 323, 424 N.E.2d 381.) The defendants therefore determined how much actual time Rogers had served prior to February 1, 1978. Next, they determined how much statutory good-time credit he had earned, based upon the amount of time he had actually served prior to February 1, 1978. Rogers was credited for this pro rata share of statutory good time and he was also credited with any compensatory good time he had earned prior to February 1, 1978. These figures were then added together to arrive at the total time credit figure for the time Rogers served before February 1, 1978. This total time credit figure was then subtracted from Rogers’ court-imposed maximum sentence to determine how much time remained to be served on his sentence as of February 1, 1978. The result of this calculation was that as of February 1, 1978, Rogers had 38 years and 2 months left to serve on the maximum end of his 25- to 50-year indeterminate sentence.

The defendants then calculated Rogers’ mandatory release date by applying the potential good-time credits to be earned after February 1, 1978, under the day-for-day system currently prescribed by section 3 — 6—3 of the Code. In applying this credit the defendants multiplied by one-half the plaintiff’s remaining maximum sentence of 38 years and 2 months to arrive at the figure of 19 years and 1 month, which represents the amount of time left to be served after the day-for-day credit is applied. This figure would place Rogers’ mandatory release date in 1997. However, the defendants further credited Rogers with one year, four months and five days for meritorious good-time credit (Ill. Rev. Stat. 1987, eh. 38, par. 1003 — 6—3(a)(3)), which is available to a prisoner who exhibits extraordinarily good behavior. The defendants then applied yet another credit of six months. This six-month credit is given to a prisoner with an indeterminate sentence who has never been paroled and is nearing his maximum release date. (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 3—3.) After applying these credits, the defendants determined that under the post-1978 day-for-day system Rogers’ projected mandatory release date would be April 27, 1995.

The defendants continued following the procedure approved in Williams v. Irving, by comparing the release date under the day-for-day system with the projected release date as it would be if the pre-1978 system continued to apply after February 1, 1978. The defendants determined that the continued application of the pre-1978 system would be more beneficial to Rogers, because after 1978 he would receive six months of statutory good-time credit for each year served, which is in effect “day-for-day” credit, plus he would receive up to 90 days per year compensatory good-time credit for work participation, which is unavailable under the post-1978 system. (Barksdale v. Franzen (7th Cir. 1983), 700 F. 2d 1138.) Applying the pre-1978 system resulted in a release date of April 18, 1992, which was considerably earlier than the alternative date of April 27, 1995.

Rogers does not set forth any facts which would establish his right to a writ of mandamus. We cannot find any error or prejudice to Rogers in the calculations made by the defendants. Rogers’ only basis for his argument that the defendants’ calculations are wrong or prejudicial is his statement that he is entitled to 20 years and 160 days of credit since 1978 and that he should therefore be immediately released. Since Rogers apparently does not dispute the fact that 38 years and 2 months remained to be served on his maximum sentence after February 1, 1978, it is unclear why he believes he is entitled to immediate release. Day-for-day credit does not accrue or vest until the prisoner actually serves the applicable time with good behavior. (Williams v. Irving (1981), 98 Ill. App. 3d 323, 424 N.E.2d 381.) Accordingly, as of February 1, 1989, if the day-for-day system were applied, Rogers would have 16 more years (less potential good-time credit, meritorious good-time credit and mandatory time credit) to serve on his maximum sentence. Under these circumstances, we find that the trial court correctly denied Rogers’ petition for a writ of mandamus.

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

Affirmed.

STOUDER and HEIPLE, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROSALYNE GILLESPIE, Defendant-Appellant.
    Third District
    No. 3—88—0191
    Opinion filed March 22, 1989.
    — Rehearing denied May 19, 1989.

      Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Masters, State’s Attorney, of Joliet (John X. Breslin and Vicki Seidl, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Rosalyne Gillespie appeals from her conviction for the offense of bribery for which she was sentenced to 36 months’ probation and 750 hours of public service work.

The evidence at her jury trial showed that defendant was a member of the board of Joliet Junior College and was active in many community affairs. She was a longtime friend of Booker Matthews, the chief of security at the Illinois Youth Center in Joliet, Illinois.

According to Matthews, defendant asked Matthews to reassign one of his employees, Sam Jones, to a less stressful position at the Illinois Youth Center, and she offered to pay him for the favor. Matthews declined but then reported the offer to his supervisor. The police were notified and obtained authorization to record conversations with defendant. Matthews called defendant to see if she was still interested in helping Sam Jones, and the two arranged to meet. During their recorded conversation, defendant agreed to pay Matthews $1,000 in return for the reassignment of Jones to some position that would be less stressful for him.

Matthews and defendant met again, and defendant gave Matthews $400, promising to get the rest of the money after Jones received a new job. Matthews did reassign Jones to a job as a driver. Later, at Matthews’ request, he and defendant met with Jones to discuss the job assignment, but no more money was ever paid to Matthews.

Each of the conversations except the first one between defendant and Matthews was tape-recorded. The audio tape was played for the jury, and a transcript of these conversations is in the record on appeal.

Defendant testified in her own behalf. She admitted that she had several conversations with Matthews during which she talked to him about Sam Jones’ problems with the stress of his work, and she also admitted that she gave Matthews $400. According to defendant, she was trying to stage a musical program at the Youth Center, and she discussed this program with Matthews. She said she gave him the money to defray the cost of having the program at the Youth Center. She said that during their conversations, she would discuss the program while Matthews kept talking about Jones.

Defendant requested a jury instruction on the defense of entrapment, but the trial court refused to give the instruction on the ground that defendant had not admitted the commission of the offense, and therefore entrapment would be an inconsistent defense. A verdict of guilty was returned by the jury.

The sole question on appeal is whether defendant was entitled to an instruction concerning the affirmative defense of entrapment. We conclude that she was so entitled.

It was long the rule in Illinois that a defense of entrapment was not available to a defendant who did not admit committing the crime charged. (People v. Fleming (1971), 50 Ill. 2d 141, 277 N.E.2d 872.) However, that rule was abrogated by the United States Supreme Court in Mathews v. United States (1988), 485 U.S. 58, 99 L. Ed. 2d 54, 108 S. Ct. 883, where the Court said:

“We hold that even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment.” (485 U.S. at 62, 99 L. Ed. 2d at 60, 108 S. Ct. at 886.)

We followed the holding in Mathews in People v. Washington (1988), 175 Ill. App. 3d 258.

The State argues that our ruling in Washington was ill-advised since Mathews involved the Federal Rules of Criminal Procedure and Illinois cases do not. However, our reading of Mathews discloses that the Federal Rules of Criminal Procedure contain no provision concerning inconsistent defenses and were not involved in that case. In the absence of any provision by Congress, the United States Supreme Court recognized the appropriateness of a judicial decision on this issue.

The State further contends that the appellate court lacks authority to overrule the Illinois Supreme Court on this matter. That is not what was done. The United States Supreme Court has pronounced a change in the law of the land, and this court in People v. Washington followed that ruling. We now follow People v. Washington.

Additionally, the State attempts to distinguish the instant case from Washington on the ground that, in Washington, the defendant did not testify and thus neither admitted nor denied the commission of the crime charged, while here defendant has explicitly denied paying money to Matthews to obtain a change in job assignment for her friend. We decline to make such an artificial distinction between the facts in Washington and the facts here. In the case before us, defendant admitted giving Matthews money and admitted asking him to give her friend Jones a better job, but she denied that the money was payment for favors granted. Much the same situation was present in Mathews v. United States, where the defendant admitted accepting a loan but denied that it was related to his duties in a government agency.

Defendant should be able to argue to the jury that she did not pay money to obtain a benefit for Jones, but if the jury should find that she did, then they could also find that she was induced to do so by Matthews. Defendant is entitled to instruct the jury as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in her favor, and inconsistent defenses have been permitted in other types of criminal cases. (See discussion in People v. Pagliuca (1983), 119 Ill. App. 3d 906, 915-16, 458 N.E.2d 908.) We believe such a defense should be available here.

We also must consider whether the evidence of entrapment was sufficient to justify the giving of the instruction. The factual question for the jury is whether the criminal intent originates in the mind of the entrapping officer or in the mind of the accused. (People v. Pagliuca (1983), 119 Ill. App. 3d 906, 458 N.E.2d 908.) According to the testimony of defendant, the notion of paying money to Matthews in order to obtain a better job for Jones originated with Matthews and was pursued by Matthews, not by her. Matthews, of course, stated to the contrary that defendant proposed the bribe. The credibility of these two witnesses and the extent to which the tape recordings substantiated their testimony are both matters for the jury.

We hold that the trial court erred in refusing to instruct the jury on the affirmative defense of entrapment. The judgment of conviction is reversed, and this cause is remanded for a new trial.

Reversed and remanded.

WOMBACHER, P.J., and STOUDER, J., concur.