author: JUSTICE KNECHT

text:
    CATHERINE GREESON, Plaintiff-Appellant, v. MACKINAW TOWNSHIP et al., Defendants-Appellees.
    Third District
    No. 3-90-0248
    Opinion filed December 13, 1990.
    — Rehearing denied January 30, 1991.

      Richard L. Steagall, of Nicoara & Steagall, of Peoria, and Daniel M. Harrod, of Harrod Law Firm, of Eureka, for appellant.
    Edwin R. Cummings, of Judge & Knight, Ltd., of Park Ridge, for appellees Mackinaw Township and Curtis Yoder.
    John E. Cassidy III, of Cassidy & Mueller, of Peoria, for appellees Tazewell County and Terry Gardner.
   JUSTICE KNECHT

delivered the opinion of the court:

Catherine Greeson sustained injuries when the car she was driving overturned on an S curve on a township road owned by Mackinaw Township and located in Tazewell County. She filed a complaint against Mackinaw Township (Township), Curtis Yoder, the highway commissioner of Mackinaw Township (Yoder), Terry Gardner, the superintendent of highways for Tazewell County (Gardner), and Tazewell County (County), alleging negligence and seeking damages in excess of $15,000 from each defendant. The circuit court granted summary judgment for the Township and dismissed with prejudice the counts of the complaint against the remaining defendants. We affirm.

The plaintiff’s complaint, filed in Tazewell County on October 31, 1988, contained the following allegations. The Township owned Township Road 1470N, also known as Fast Avenue. The road is a narrow blacktop with an unposted speed limit. It has several small hills and rises which obscure portions of the road, including the S curve, from motorists’ views. The S curve is marked by an S curve yellow warning sign located 407 feet from the beginning of the curve. The complaint alleged, inter alia:

“The roadway in the area of the ‘S’ curve which runs in a generally easterly and westerly direction turns at a severe angle in the northern and southern direction; the severe angle of the turn is unapparent to motorists operating their vehicles in a westerly direction on the roadway at a safe and proper speed at a sufficient intervals [sic] so as to allow the motorist [sic] to slow their vehicle [sic] to negotiate the ‘S’ curve in a safe manner, a condition which renders the roadway unreasonably dangerous to motorists operating their vehicles thereon.”

On October 31, 1987, at 12:30 a.m. plaintiff was driving her vehicle west on Fast Avenue. She was unfamiliar with the road. As she approached the S curve, which she could not see in advance, she realized, in her own words, “her speed was excessive.” When she attempted to brake the car, it slid sideways, rolled over and landed on its wheels, off the road. The plaintiff received severe and permanent injuries.

The plaintiff alleged the Township, through its authorized agent, Yoder, should have known of the existence of the unreasonably dangerous condition on Fast Avenue. The Township, acting through its agents and employees, allegedly committed the following negligent acts or omissions:

“(a) Negligently and carelessly failed to warn the motorists operating their vehicles on the roadway in a westerly direction at a safe interval sufficient to allow them to slow their vehicle [sic] to negotiate the ‘S’ curve in a safe and proper manner;
(b) Negligently and carelessly failed to warn motorists of vehicles operating in a westerly direction on Fast Avenue of the hilly nature and ‘S’ curves existing in the roadway which make operation at a speed of the vehicle [sic] in excess of 45 miles per hour unsafe.”

As highway commissioner for the Township, Yoder’s duties are enumerated in the Illinois Highway Code (Ill. Rev. Stat. 1987, ch. 121, pars. 6 — 201.1 through 6 — 201.18) and included placing, erecting, and maintaining traffic-control devices. Count II alleged Yoder knew, or should have known, of the unreasonably dangerous condition of Fast Avenue and, like the Township, should have placed the warning sign farther from the S curve to allow motorists time to slow down and safely negotiate the curve. He should also have posted a 45-mile-per-hour speed-limit sign.

Count III, against Gardner, alleged he voluntarily assumed a duty to direct highway commissioners, in the road districts in his county, to erect and place proper signs for township roads. He failed to use ordinary care to advise the Township and Yoder of the unreasonably dangerous condition of the road due to improper placement of the warning sign before the S curve, to place the warning sign farther from the S curve, and of the necessity of posting a 45-mile-per-hour speed-limit sign before the curve.

Count IV, against Tazewell County, alleged the County, acting through its agent Gardner, committed the negligent acts and omissions delineated above, though it knew or should have known of the unreasonably dangerous condition of Fast Avenue.

The Township and Yoder filed a motion to dismiss counts I and II of the complaint for failure to state a cause of action (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). The motion contended local public entities and their employees cannot be liable for failing to provide traffic warning signs under section 3 — 104 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 104). The complaint also failed to state a cause of action, according to the Township and Yoder, because it pleaded no facts suggesting the existing warning sign was inadequate or improper, Yoder is immune from liability for discretionary actions under the doctrine of public official immunity, and the sole proximate cause of the accident was plaintiffs excessive speed.

Gardner and Tazewell County filed a motion to dismiss counts III and IV. Gardner alleged he was immune from liability because the plaintiff failed to meet a statutory notice requirement (Ill. Rev. Stat. 1987, ch. 121, pars. 383, 384, 385) and because he is a public employee within the meaning of the Act (Ill. Rev. Stat. 1987, ch. 85, pars. 2 — 201, 3 — 104). Count III was also allegedly defective because it failed to aver Gardner’s advice was requested in writing by the highway commissioner (Yoder) as required by statute (Ill. Rev. Stat. 1987, ch. 121, par. 5 — 205.3).

Tazewell County moved to dismiss count IV because section 2— 109 of the Act immunizes it from liability. (Ill. Rev. Stat. 1987, ch. 85, par. 2 — 109.) Like Gardner, the County also claimed the plaintiff failed to meet the statutory notice requirement of the Illinois Highway Code (Code) (Ill. Rev. Stat. 1987, ch. 121, pars. 383, 384, 385).

Following a hearing, the circuit court denied the Township’s motion to dismiss count I of the complaint, but granted Yoder’s motion and dismissed count II with prejudice. The court dismissed count III, against Gardner, with prejudice.

“Although the motion is not labeled, I have treated it as being brought under section 2 — 619(a)(9) of the Code of Civil Procedure. At the hearing Count III was dismissed with prejudice because the plaintiff did not comply with the six month notice requirement found in Illinois Revised Statutes, chapter 121, paragraph 383. The defendants’ alternative grounds for dismissal, sections 2 — 201 and 3 — 104 of the Local Governmental and Governmental Employees Tort Immunity Act (hereafter the Act), were not ruled on.”

Because the count against Gardner was dismissed, the question was whether count IV could remain against the County. In a written order, the court stated:

“By its nature a unit of local government can act only through its ‘employees’ as that term is defined in section 1 — 202 of the Act, and it can fail to act only when all of its employees fail to act. Given this truth, a literal reading of section 2 — 109 would never allow the imposition of liability on a unit of local government unless some individual working for that government was also personally liable. Such an absurd construction was surely not intended by the legislature and has not been adopted by the courts. In lieu of a literal reading, I conclude that the legislative intent behind section 2 — 109 can clearly and logically be found by viewing the section in its context that is, governmental and governmental employee tort immunity. I believe the shield of section 2 — 109 is only available to a public entity whose ‘employee is not liable [because of an immunity conferred by the Act].’ ”

The court then explored the alternative grounds for dismissal of count III. “If Count III is subject to dismissal because of a provision of the Act which shields the superintendent of highways, then section 2 — 109 would require dismissal of Count IV as well.” The court began by explicitly reaffirming its rejection of the argument that section 3— 104 of the Act immunizes the governmental conduct here. The remaining ground for dismissing count III was section 2 — 201 of the Act, which immunizes government officials for exercises of their discretion in determining policy. The court’s order further stated:

“Accordingly, the. question for decision is whether the superintendent’s conduct in advising the township officials constitutes an exercise of discretion, as opposed to a ministerial act. Clearly this function is discretionary. The superintendent is to advise ‘as to the best method of construction, repair, or maintenance,’ Illinois Revised Statutes, chapter 121, section 5 — 205.3, which obviously requires the exercise of judgment. Accordingly, I conclude that Count III is subject to dismissal based on section 2 — 201 of the Act. [(Emphasis added.)]”

The court granted the County’s motion to dismiss without leave to refile.

The Township filed a motion for summary judgment, pursuant to section 2 — 1005 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005.) The Township contended it owed the plaintiff no duty to position the S-curve warning sign any differently and no duty to reduce the speed limit. Additionally, there was no evidence the Township breached any duty of care owed to the plaintiff and it was immune from liability for the discretionary acts of its highway commissioner.

The court determined sections 2 — 109 and 2 — 201 of the Act applied to the Township and granted its motion for summary judgment. The plaintiff filed a timely notice of appeal.

The first issue is whether common law definitions of “discretionary” and “ministerial” functions are applicable today. The common law extended immunity to municipalities engaged in governmental functions, but held them liable for negligent performance of proprietary or ministerial functions.

“It is well settled, that municipal corporations have certain powers which are discretionary or judicial in character, and certain powers which are ministerial. The powers of such corporations have also been divided into those which embrace governmental duties, such as are delegated to the municipality by the legislature, and in the exercise of which the municipality is an agent of the State; and those powers which embrace quasi private or corporate duties, exercised for the advantage of the municipal locality and its inhabitants. Municipal corporations will not be held liable in damages for the manner in which they exercise, in good faith, their discretionary powers of a public, or legislative, or quasi judicial character. But they are liable to actions for damages when their duties cease to be judicial in their nature, and become ministerial. [Citations.] Official action is judicial where it is the result of judgment or discretion. Official duty is ministerial, when it is absolute, certain and imperative, involving merely the execution of a set task, and when the law which imposes it, prescribes and defines the time, mode and occasion of its performance with such certainty, that nothing remains for judgment or discretion. (People v. Bartels, 138 Ill. 322).” City of Chicago v. Seben (1897), 165 Ill. 371, 377-78, 46N.E. 244, 245-46.

See also W. Prosser, Torts §131, at 978-79 (4th ed. 1971).

The Illinois Supreme Court abolished common law municipal immunity in Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 163 N.E.2d 89. The 1970 Illinois Constitution states: “Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.” (Ill. Const. 1970, art. XIII, §4.) The Act now provides: “A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.” Ill. Rev. Stat. 1987, ch. 85, par. 2 — 109.

Municipal officers, like municipalities, were extended immunity from liability under the common law for discretionary acts, those requiring personal deliberation, decision, and judgment. They were not immune from negligent performance of ministerial acts, those amounting to an obedience of orders or the performance of a task in which the officer had no choice of his own. W. Prosser, Torts §132, at 988-89 (4th ed. 1971).

The Act now states:

“Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.” (Ill. Rev. Stat. 1987, ch. 85, par. 2 — 201.)

Cases considering a municipal employee’s liability decided since the 1970 Constitution have employed common law definitions of discretionary and ministerial functions.

In Lusietto v. Kingan (1969), 107 Ill. App. 2d 239, 246 N.E.2d 24, the plaintiff administrator sued the State highway maintenance supervisor of a particular district, alleging he allowed a large hole to form in the highway. The decedent’s car hit the hole, causing fatal injuries. The jury returned a verdict for the plaintiff but the Third District Appellate Court reversed, stating:

“[T]he defendant’s duties were not ministerial, they were governmental in character and required the exercise of discretion and judgment. With regard to holes in the highway, the defendant must exercise discretion and judgment as to which holes to fill and which holes not to fill. Of the holes to be filled, which holes are to be filled first? He must perform all of this within the limitations of available manpower, equipment and finances. It is a well established principle of the common law that an immunity exists in favor of public officials when they are exercising their official discretion on matters which are discretionary in nature and not ministerial.” Lusietto, 107 Ill. App. 2d at 244, 246 N.E.2d at 27.

The Illinois Supreme Court quoted this portion of the Lusietto opinion favorably in Mora v. State (1977), 68 Ill. 2d 223, 233-34, 369 N.E.2d 868, 873. The plaintiff in the Mora case sued, among others, Blasius, an employee of the Illinois Department of Transportation, seeking to recover for injuries suffered when another motorist struck her car while attempting to pass a third car. The two-lane road had just been resurfaced but not restriped. One-half mile north of the accident site the highway was straight. At the accident location, however, the road went up a small hill and made a double-blind curve.

Testimony revealed there was no S-curve warning sign and no markings for a no-passing zone before the repaving began. The plaintiff claimed Blasius should have ordered a survey of the entire 1,200 square miles in his district to determine whether a no-passing zone should have been designated. “A mere description of what would be involved shows that this activity must be characterized as discretionary, rather than ministerial. That being so, Blasius cannot be charged with individual liability.” Mora, 68 Ill. 2d at 232-33, 369 N.E.2d at 873.

In Larson v. Darnell (1983), 113 Ill. App. 3d 975, 448 N.E.2d 249, the plaintiff sued Darnell, the Illinois Department of Corrections, and a parole officer. Darnell, a minor, was released from the Department of Corrections and placed in the custody of a parole officer. One month later he raped and murdered the plaintiff’s minor daughter. The Third District Appellate Court affirmed the circuit court’s dismissal of the Department of Corrections and the parole officer because each was immune from liability “even if, as alleged, the acts were negligently performed, because in the performance of those acts it was necessary to exercise judgment or discretion.” Larson, 113 Ill. App. 3d at 977, 448 N.E.2d at 251.

Citing Larson, the Second District Appellate Court defined discretionary acts as:

“[Tjhose ‘which are unique to the particular public office and not merely ministerial in nature.’ (111 Ill. App. 3d 729, 731.) Conversely, ministerial acts are those ‘which a person performs on a given state of facts in a prescribed manner, in obedience to the mandate of legal authority,’ and without reference to the official’s discretion as to the propriety of the act. Larson v. Darnell (1983), 113 Ill. App. 3d 975, 977.” Gavery v. County of Lake (1987), 160 Ill. App. 3d 761, 764, 513 N.E.2d 1127,1129.

With these definitions in mind, we turn to the next issue, whether, once a governmental entity decides to place a sign in a particular area, discretionary immunity ends. The plaintiff argues once the Township, through Yoder, decided to post the S-curve warning sign, it had a duty to post it in such a way that motorists would not be injured.

“A [municipal] corporation acts judicially, or exercises discretion, when it selects and adopts a plan in the making of public improvements, such as constructing sewers or drains; but as soon as it begins to carry out that plan, it acts ministerially, and is bound to see that the work is done in a reasonably safe and skillful manner.” Seben, 165 Ill. at 378, 46 N.E. at 246.

The court reached similar conclusions in Roumbos v. City of Chicago (1928), 332 Ill. 70, 163 N.E. 361, and Johnston v. City of East Moline (1950), 405 Ill. 460, 91 N.E.2d 401. These cases predate the 1970 Constitution and subsequent statutes.

The Act immunizes both municipalities and public employees from:

“[A]n injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulating or warning sign, device or marking, signs, overhead lights, traffic separating or restraining devices or barriers.” (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 104.)

This statute does not answer the question because plaintiff does not contest the decision to post an S-curve warning sign. Instead, the plaintiff questions the decision to place the sign in a particular location.

The circuit court struck excerpts of the Manual of Uniform Traffic Control Devices (Manual) from the record because the plaintiff failed to timely present the excerpts. Thus, this court cannot consider whether Yoder complied with the Manual’s requirements for posting warning signs. Arguably, failure to comply with its requirements would subject Yoder to liability for negligent performance of a ministerial duty. On this record, we conclude Yoder’s decision to place the S-curve warning sign where he did was an exercise of his official discretion as it required personal judgment. Yoder is thus immune from liability under section 2 — 201 of the Act (Ill. Rev. Stat. 1987, ch. 85, par. 2 — 201). Because Yoder is not liable, the Township is not liable. Ill. Rev. Stat. 1987, ch. 85, par. 2 — 109.

The plaintiff next argues her allegations the Township owned Fast Avenue and she was a motorist on the roadway were sufficient to indicate she was within the class of people entitled to the benefit of section 3 — 102 of the Act (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 102), and thus her complaint stated a cause of action. The statute states, in pertinent part:

“Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” Ill. Rev. Stat. 1987, ch. 85, par. 3— 102(a).

“Section 3 — 102 of the [Tort Immunity] Act codifies the common law duty of a local public entity to maintain its property. [Citations.] The Act creates no new duties, but simply articulates the common law duty to which the subsequently delineated immunities apply.” (Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 435, 495 N.E.2d 1259, 1264; Havens v. Harris Township (1988), 175 Ill. App. 3d 768, 771, 530 N.E.2d 284, 285, citing Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 445, 410 N.E.2d 610, 612.) The “subsequently delineated immunities” appear in the sections of the Act following section 3 — 102.

We need not determine whether the plaintiff’s allegations may have been sufficient to state a cause of action against the Township, having concluded the circuit court was correct to grant summary judgment for the Township. There were no genuine issues of material fact. The law immunized Yoder from liability for exercising his discretion (Ill. Rev. Stat. 1987, ch. 85, par. 2 — 201) and this, in turn, protected the Township from liability. Ill. Rev. Stat. 1987, ch. 85, par. 2— 109.

The circuit court was also correct to grant Yoder’s section 2 — 615 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). A section 2 — 615 motion is similar to a motion for summary judgment as “both suggest no genuine issue of material fact exists.” (Mitchell v. Waddell (1989), 189 Ill. App. 3d 179, 182, 544 N.E.2d 1261, 1262.) As stated in Mitchell:

“[T]he two motions differ in that a motion for judgment on the pleadings submits that no issue of triable fact existed and the movant is entitled to judgment under the averments and admissions of the pleadings, while a motion for summary judgment may utilize affidavits and other documents to establish the absence of a genuine issue of a material fact.” (Mitchell, 189 Ill. App. 3d at 182, 544 N.E.2d at 1262-63.)

A section 2 — 615 motion to dismiss admits all well-pleaded facts as true. (Towne v. Town of Libertyville (1989), 190 Ill. App. 3d 563, 566, 546 N.E.2d 810, 813.) “A complaint should not be dismissed under section 2 — 615 *** unless, clearly, no set of facts could be proven under the pleadings which would entitle the plaintiff to relief.” (HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1988), 172 Ill. App. 3d 718, 721, 527 N.E.2d 97, 100.) The pleadings in this case raised no genuine issues of triable fact against Yoder and thus the circuit court properly granted Yoder’s section 2 — 615 motion.

Plaintiff next argues the six-month notice requirement of section 3 of the Code and $10,000 damage limitation of section 5 of the Code (Ill. Rev. Stat. 1987, ch. 121, pars. 383, 385) do not operate in favor of Tazewell County. The plaintiff contends Gardner voluntarily assumed the duty to provide advice to township commissioners, such as Yoder, and induced reliance on his advice. He allegedly did this knowing his advice was the exclusive source of information for the highway commissioners as to the safety of their highways. Gardner allegedly knew of the unreasonably dangerous condition of Fast Avenue caused by placement of the S-curve warning sign. Once Gardner decided to provide advice, knowing others relied on it, he was liable for the advice given because this was a ministerial act rather than a discretionary act. We disagree. Advice is necessarily discretionary as it is personal judgment. Again, had the excerpts from the Manual of Uniform Traffic Control Devices been timely presented, the result might be different. Given the record before us, we conclude Gardner is immune from liability because the giving of advice was a discretionary function.

The plaintiff argues Tazewell County is not covered by the Act. The plaintiff is incorrect. The Act defines “Local public entity” as including “a county, township, municipality, municipal corporation.” (Ill. Rev. Stat. 1987, ch. 85, par. 1 — 206.) Because Gardner is not liable to the plaintiff, the County is protected from liability. Ill. Rev. Stat. 1987, ch. 85, par. 2 — 109.

The next issue involves the constitutionality of the six-month notice requirement and $10,000 damage limit on actions against county superintendents of highways under sections 3 and 5 of the Code (Ill. Rev. Stat. 1987, ch. 121, pars. 383, 385). Section 3 of the Code provides, in part:

“Within 6 months after the date that any such injury was received, any person who is about to commence any civil action against any County Superintendent of Highways on account of such injury shall file in the office of such County Superintendent of Highways *** a statement in writing signed by him *** giving the name of the person to whom such cause of action has accrued, the place or location where the injury occurred, the nature of the injury and the name and address of the attending physician, if any.” (Ill. Rev. Stat. 1987, ch. 121, par. 383.)

Section 5 of the Code states:

“In any such civil action where it is found that there was no contributory negligence attributable to the plaintiff and that there was actionable negligence attributable to the defendant, the court or jury, as the case may be, may grant fair and reasonable compensation for the injury sustained but not in excess of $10,000.” Ill Rev. Stat. 1987, ch. 121, par. 385.

The plaintiff contends these provisions are unconstitutional, as they violate her right to equal protection. This court need not decide this issue, given our resolution of the issues involving Gardner and Tazewell County. “A reviewing court will decide a constitutional question only where it is essential to disposition of the case.” (In re Application of the County Collector of Kane County (1989), 132 Ill. 2d 64, 73, 547 N.E.2d 107, Ill.) “[A] court should not decide a cause on constitutional grounds if it can be determined on other grounds.” Lake Louise Improvement Association v. Multimedia Cablevision of Oak Lawn, Inc. (1987), 157 Ill. App. 3d 713, 716, 510 N.E.2d 982, 985.

The circuit court granted the motion made by Gardner and Tazewell County for dismissal of counts III and IV of the plaintiff’s complaint under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). “A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. [Citations.] The standard of review on appeal is whether the complaint alleged facts which sufficiently state a cause of action.” (Alford v. Phipps (1988), 169 Ill. App. 3d 845, 857, 523 N.E.2d 563, 571; Ronning Engineering Co. v. Adams Pride Alfalfa Corp. (1989), 181 Ill. App. 3d 753, 757-58, 537 N.E.2d 1032, 1035.) Counts III and IV of the complaint, against Gardner and Tazewell County, respectively, did not contain sufficient facts to state a cause of action and were properly dismissed by the circuit court.

We decline to address two additional issues raised by the plaintiff: whether the 1970 Illinois Constitution abolished public officials’ common law immunity and whether the Illinois Supreme Court, in Mora, equated common law public officials’ immunity with the immunity provided public employees in section 2 — 201 of the Act. Although we see the two issues are arguably present from the plaintiff’s position, we need not reach them given our conclusions Yoder and Gardner were involved in discretionary functions. Even if the plaintiff were correct on both points, the outcome of the case would not change.

The circuit court of Tazewell County is affirmed.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DALLAS TAYLOR, Defendant-Appellant.
    Third District
    No. 3—90—0429
    Opinion filed January 4, 1991.
    Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    William Herzog, State’s Attorney, of Kankakee (John X. Breslin, and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The trial court convicted the defendant, Dallas Taylor, of misdemeanor theft (Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1(a)(1)) and sentenced him to 11 months in jail. The defendant appeals.

According to an agreed statement of facts contained in the record on appeal, Leverne St. Peter testified at the defendant’s trial that he worked for Bennett & Brosseau Roofing in Kankakee. As he was standing approximately three lots west of Bennett & Brosseau, he saw the defendant dragging some aluminum. St. Peter stated that Bennett & Brosseau kept unmarked scrap aluminum on its property. When asked whether anyone else in the community used this type of aluminum, he stated, “I guess we’re the only ones who use this.” St. Peter identified pieces of aluminum as that which the defendant had been dragging.

Deputy Ken Ponton testified that he found the defendant and St. Peter at the scene and arrested the defendant. He also seized the aluminum in question.

The defendant testified that he found the aluminum in a grassy area of some property belonging to a feed store. He thought it was abandoned and started dragging it away to sell for scrap. He acknowledged that he had not asked the feed store owner for permission to take the aluminum.

The defendant argues on appeal that the State did not prove him guilty beyond a reasonable doubt, since it failed to show that he possessed scrap aluminum belonging to Bennett & Brosseau. In particular, he notes that there was no evidence Bennett & Brosseau was even missing any aluminum, let alone any specific evidence identifying the aluminum as belonging to it.

Proof that one other than the accused owns or has a superior property interest in the property allegedly stolen is an essential element of the offense of theft. (People v. Cowan (1977), 49 Ill. App. 3d 367, 364 N.E.2d 362.) Where property is of such a character that it cannot be positively identified, circumstantial evidence may be used to prove that the items in the defendant’s possession were taken from the victim. People v. Miller (1974), 24 Ill. App. 3d 504, 321 N.E.2d 109.

In the instant case, the State offered no evidence that Bennett & Brosseau was even missing any aluminum. The State argues on appeal, however, that convictions have been upheld in analogous cases. (People v. Rogers (1959), 16 Ill. 2d 175, 157 N.E.2d 28; People v. Miller (1974), 24 Ill. App. 3d 504, 321 N.E.2d 109; and People v. Mertens (1979), 77 Ill. App. 3d 791, 396 N.E.2d 595.) We find that the cases cited by the State are inapposite. Although, as here, the property allegedly stolen in all three cases was of a type which could not be specifically identified as that which had been stolen, every case cited by the State contained evidence that identical property was missing from a specific owner. Given the lack of any such evidence in this case, we find that the State failed to prove the ownership element beyond a reasonable doubt. We must therefore reverse the defendant’s conviction. People v. Cowan (1977), 49 Ill. App. 3d 367, 364 N.E.2d 362.

The judgment of the circuit court of Kankakee County is reversed.

Reversed.

BARRY and GORMAN, JJ., concur.


author: JUSTICE UNVERZAGT PRESIDING JUSTICE REINHARD,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER JAMES PIRRELLO, JR., Defendant-Appellant.
    Second District
    No. 2—89—0062
    Opinion filed January 8, 1991.
    — Rehearing denied February 1, 1991.

      REINHARD, RJ., specially concurring.
    G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Peter James Pirrello, Jr., appeals the judgment of the circuit court of Winnebago County sentencing him to the Department of Corrections for an extended term of 25 years upon his plea of guilty to the offense of voluntary manslaughter. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2(a)(1).) He claims the court abused its discretion in imposing the 25-year extended-term sentence given the evidence of the circumstances of the offense, which showed- his subjective belief in the need to defend himself against the victim, and given the mitigation evidence presented at the sentencing hearing which established his strong rehabilitative potential.

The defendant originally was tried by a jury and convicted of the offense of murder following the shotgun shooting of 23-year-old Mark Thomas. The factual basis for the plea presented by the prosecutor was as follows:

“Shortly before July of 1985, the ex-wife of this defendant, Peter Pirrello, Jr., together with her boyfriend, was killed in her parents’ Rockford home. Pirrello had strong feelings for her in spite of the divorce and told friends he was grieving over her death.
He came to believe that a young man named Mark Thomas was involved somehow in .the double homicide even though the police found no evidence of that.
On July 23, 1985, Pirrello saw Thomas at a Rockford bar and summoned him over to his table. Then and there, Pirrello asked Thomas to get cocaine for him, and Thomas agreed. The two of them left together on a motorcycle. Pirrello had driven to the bar ostensibly to travel to another location to complete the drug transaction.
They went to a private gun club in northern Winnebago County in a wooded, remote area. Once at the gun club, Pirrello produced a shotgun from somewhere on his motorcycle and began shooting at Thomas. Three shots of five that were fired struck Thomas. He was shot once in the left buttock and once in the upper back on the right side. The third shot blew most of his head off.
Thomas was later found by a passer-by lying on his stomach. The location of the five spent shells and one live shell in relation to his body suggested he was trying to get away from Pirrello when the shooting started and that Pirrello was going on after him.
Pirrello returned to a bar in Rockford after killing Thomas. There he bragged to three persons that he had just blown the head off the guy who killed his wife. ***
At the murder trial that was held in this case, Pirrello testified that he and Thomas went to the gun club to complete a sale from Pirrello to Thomas of a shotgun. He said that he handed the gun to Thomas to try out and then that Thomas unexpectedly turned the gun on him and said something about Pirrello’s dying just like Leslie. *** Leslie was the ex-wife of Pirrello. Pirrello told the jury they struggled over the gun and that he managed to get the gun away from Thomas and then shot him.
The murder conviction was reversed on appeal.”

In that appeal, this court found reversible trial errors which necessitated the remandment of the cause for a new trial. (People v. Pirrello (1988), 166 Ill. App. 3d 614.) Pursuant to the terms of the subsequent negotiated guilty plea, the State filed an amended information charging the offense of voluntary manslaughter (acting under a sudden and intense passion resulting from serious provocation by Mark Thomas) to which the defendant pleaded guilty, and the murder charge was dismissed. The plea negotiation did not include any agreement as to sentencing.

Following full admonitions pursuant to Supreme Court Rule 402 (107 Ill. 2d R. 402(a)) — including the admonition that an extended term of up to 30 years could be imposed if the court found the defendant’s conduct was brutal and heinous and indicative of wanton cruelty-acceptance of the defendant’s plea and a sentencing hearing, the court imposed the instant 25-year extended term on December 7, 1988. The court also admonished the defendant concerning his right to appeal as required in Supreme Court Rule 605. 107 Ill. 2d R. 605(b).

On December 12, the defendant filed a motion for reconsideration of the sentence as permitted under section 5 — 8—1 of the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(c)). After argument on December 16 during which the defendant raised the same points he does here, the court denied the motion to reconsider. Immediately thereafter, the defendant tendered a motion pursuant to Supreme Court Rule 604(d) to withdraw his guilty plea. (107 Ill. 2d R. 604(d).) That motion was denied, and this appeal followed.

The defendant asserts that the reasonable likelihood that he acted out of self-defense during the incident in question belies any conclusion that his conduct demonstrated exceptional brutality and precludes imposition of an extended term. He argues the State’s witnesses at sentencing failed to rebut the possibility that he, acting out of self-defense, first fired the fatal shot to the victim’s head, and then — in a panic — fired additional shots as he ran away, striking the victim in the area of the left buttock, lower left back and the back of the right shoulder.

The defendant relies on People v. Evans (1981), 87 Ill. 2d 77, in support of his argument. There, the supreme court found improper an extended-term sentence imposed after defendant’s conviction of voluntary manslaughter of an unintended victim where there was evidence the defendant believed he was acting in self-defense. The victim of the defendant’s voluntary manslaughter, Wilson, was killed by an apparently stray bullet, and none of the defendant’s actions were directed toward him, but, rather, toward another man, Davenport. Accordingly, the supreme court concurred in this court’s determination that the voluntary manslaughter offense was not accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. In dicta, the court opined that, “[AJctions committed under a subjective belief, albeit unreasonable, that the actions were in self-defense do not constitute wanton cruelty.” (Evans, 87 Ill. 2d at 88.) As to Davenport, the court believed the evidence indicated that all the defendant’s actions toward him were committed under the belief, albeit unreasonable, that he was acting in self-defense. Consequently, it could not conclude the aggravated battery upon Davenport was accompanied by wanton cruelty. 87 Ill. 2d at 89.

People v. Fieberg (1982), 108 Ill. App. 3d 665, also cited by the defendant, does not directly support his argument on this issue. In imposing an extended-term sentence on the defendant, who was convicted of robbery and of aggravated battery, the trial court relied on the facts surrounding the aggravated battery whereas section 5 — 8—2 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2) permits an extended-term sentence only where the most serious offense of which the offender is convicted is accompanied by exceptionally brutal or heinous behavior. Because the robbery was the most serious offense of which the defendant was convicted, not the aggravated battery, and because the acts which accompanied the robbery did not constitute exceptionally brutal or heinous behavior, this court reduced the defendant’s 14-year extended-term sentence to the 7-year maximum term. 108 Ill. App. 3d at 671.

Defendant acknowledges that Evans has not been read as establishing a per se prohibition against the imposition of extended terms in every voluntary manslaughter case. Noting the decisions in People v. Moore (1987), 159 Ill. App. 3d 1070 (extended-term sentence for conviction of voluntary manslaughter was upheld where, notwithstanding the defendant’s subjective belief in self-defense, his and two other men’s beating of a 14-year-old boy who broke into their home was savage and unrelenting), and People v. Kalec (1982), 109 Ill. App. 3d 696 (extended-term sentence for voluntary manslaughter accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty upheld where the defendant, acting under a sudden and intense passion, shot the victim four times despite the fact any one of the four bullets would have killed him), the defendant argues the instant cause is distinguishable in that there was none of the gratuitous brutality found in Moore and, in Kalec, there was no evidence of self-defense and the sentence was part of the plea negotiation.

We find defendant’s argument unpersuasive. We note preliminarily that defendant pleaded guilty to the offense of voluntary manslaughter premised on his acting under a sudden and intense passion resulting from serious provocation not acting under an unreasonable belief in the need for self-defense. (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 2(a)(1), (b).) Defendant’s version of the incident as related in the factual basis for his plea would not support a conviction under section 9 — 2(b) because there would be nothing “unreasonable” about his belief in the need for self-defense. Defendant’s version is that Thomas grabbed the gun and pointed it at him and threatened to kill him. Clearly, any belief the defendant had in the need for self-defense would not have been unreasonable under those circumstances. On the other hand, the defendant’s version of the events which occurred would, if believed by the fact finder, support his conviction under section 9 — 2(a)(1)' because it shows Mark Thomas admitting — and the defendant suddenly realizing — that Thomas shot and killed the defendant’s wife, Leslie, and, worse, suddenly realizing Thomas was intent on the same ignominous end for the defendant, as well.

Even accepting that the defendant acted under a sudden and intense passion, the court could nonetheless conclude from the factual basis presented that the defendant’s conduct was exceptionally brutal or heinous and indicative of wanton cruelty. Regardless of the sequence in which the shots were fired, one of the five shots fired by the defendant nearly decapitated Mark Thomas, yet defendant fired four other shots, two of which also struck Thomas. Moreover, rather than being utterly shaken by what had occurred, the defendant proceeded to a bar and boasted that he had “just blown the head off the ■ guy who killed his wife.”

Two concurrent 25-year extended-term sentences for voluntary manslaughter were approved in People v. Timmons (1984), 127 Ill. App. 3d 679, both on the ground that the defendant’s shooting of the two victims was indicative of wanton cruelty and, further, that the .defendant had previously been convicted of a Class 1 felony within the past 10 years. A 19-year extended-term sentence for second degree murder (formerly the offense of voluntary manslaughter) was upheld in People v. Lindsay (1990), 193 Ill. App. 3d 983. The defendant there was convicted by a jury of the second degree murder of his wife, whom he had bludgeoned to death in the heat of an argument about finances. He contended on appeal, as does the defendant here, that the court’s extended-term sentence showed it sentenced him for first degree murder and rejected the mitigating evidence which the jury apparently accepted in finding him guilty of voluntary manslaughter rather than murder.

In affirming the extended-term sentence in Lindsay, this court adhered to the Evans court’s holding that an extended-term sentence cannot be imposed on a defendant convicted of voluntary manslaughter whose actions were committed under a subjective belief, albeit unreasonable, that his actions were in self-defense. However, we also observed that the jury in Lindsay was also instructed that it could find the defendant guilty if it found he acted under a sudden and intense passion following serious provocation by his wife. Agreeing with the decision in Kalec in upholding the extended-term sentence, we stated:

“Clearly, a murder performed by someone acting under such sudden and intense passion following provocation by the victim can be accompanied by brutal or heinous behavior indicative of wanton cruelty.” 193 Ill. App. 3d at 989.

We conclude the trial court did not err in imposing the 25-year extended-term sentence for the defendant’s wantonly cruel voluntary manslaughter of Mark Thomas.

A related contention raised by the defendant is that the extended-term sentence is excessive because it is not commensurate with his personal rehabilitative potential as shown by the mitigating evidence presented at the sentencing hearing. That evidence purported to establish, inter alia, that he was remorseful, had personal support from his family based on his commitment to a strong marriage, spiritual support from his church based on his sincere religious beliefs and financial support based on his past job performance and present ability and employment potential.

We find the defendant’s contention, unsupported by citation of authority, is without merit. The sentencing range for voluntary manslaughter, a Class 1 felony, is 4 to 15 years; extended, such term ranges from 15 to 30 years. (Ill. Rev. Stat. 1985, ch. 38, pars. 1005— 8 — 1(a)(4), 1005 — 8—2(a)(3).) At the sentencing hearing, the court expressly acknowledged the defendant’s self-rehabilitative efforts and imposed a 25-year extended-term rather than the maximum 30-year term it could have imposed.

The standard of review of a sentence alleged to be excessive is whether, in fact, the trial court exercised its discretion and, if so, whether this discretion was abused. (People v. Perruquet (1977), 68 Ill. 2d 149, 154; People v. Camp (1990), 201 Ill. App. 3d 330, 340.) Absent an abuse of discretion on the part of the trial court, a sentence imposed within the statutory limits will not be disturbed on review. People v. Noble (1990), 201 Ill. App. 3d 1056, 1058.

The trial court was not required to give greater weight to the defendant’s rehabilitative potential than to the seriousness of this brutal offense. (People v. Mack (1985), 133 Ill. App. 3d 788.) Moreover, the trial court heard evidence of the defendant’s criminal history as a juvenile (disorderly conduct; curfew violation; sale of LSD to a minor on three separate occasions) and as an adult (unlawful use of weapons; obstructing a police officer).

It is clear the trial court here exercised its sentencing discretion when it carefully weighed all the evidence received in aggravation and mitigation and no abuse of that discretion is shown on this record.

Finally, in his reply brief, the defendant argues this extended-term sentence should be disapproved in light of three recent cases, People v. Lucas (1989), 132 Ill. 2d 399, People v. Andrews (1989), 132 Ill. 2d 451, and People v. Anderson (1990), 201 Ill. App. 3d 75. In general, those cases support restrictive application of extended sentencing statutes inasmuch as every offense is not intended thereby to be converted “ ‘into an extraordinary offense subject to an extended-term sentence.’ ” Andrews, 132 Ill. 2d at 466, quoting People v. Evans (1981), 87 El. 2d 77, 88-89.

The issue defendant now seeks to present was not and need not have been included in his motion to reduce his sentence in order to preserve it for appeal. (People v. Thomas (1990), 193 Ill. App. 3d 525, 527.) However, it was not raised in his initial brief, either, and, pursuant to the requirements of Supreme Court Rule 341(e)(7), it is not properly raised in his reply brief. (113 El. 2d R. 341(e)(7).) Although the opinions in Lucas and Andrews were filed shortly after the filing of the defendant’s initial brief and Anderson was filed after all briefs had been filed, those cases do not announce any “new law” which would serve to excuse the defendant’s failure to raise the issue initially. As is evident from the Andrews court’s quote taken from Evans above, the concept that section 5 — 8—2 of the Code is not intended to subsume every offense under the “exceptionally brutal and heinous” conduct which warrants an extended term is not new. Defendant relied on Evans in his initial brief, yet he did not raise the issue at that time when the State would have had an opportunity to respond.

In declining to address the merits of this issue, we note the conduct in Lucas, Andrews and Anderson did not involve the wantonly cruel conduct evident here. In Lucas (132 Ill. 2d at 446), the defendant’s death sentence was vacated and the cause remanded where there was no conclusive evidence that the seven-month-old victim’s suffocation death — which possibly was caused by a single blow — was premeditated, prolonged or tortuous so as to warrant a finding that the defendant’s conduct was exceptionally brutal or heinous and indicative of wanton cruelty. In Andrews (132 Ill. 2d at 466), the defendant’s 70-year extended term for murder was reversed and the cause remanded where the defendant’s point-blank shooting of the victim in the right temple before stealing $7 from the victim’s girlfriend was found not to be “exceptionally” brutal or heinous, and the defendant had no criminal history of violence, there was no evidence of premeditation and the trial court accepted the defendant’s expression of remorse as sincere. In Anderson (201 Ill. App. 3d at 80), the murder defendant’s 75-year extended-term sentence was reduced to 40 years where the trial court made no finding that the killing of the victim, who was shot twice in the neck during a struggle over a gun when she rebuffed the defendant’s sexual advance, was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, and the court observed that the extended-term provision is meant for murders that go beyond the mere infliction of death.

The instant killing cannot be said to have been premeditated because the defendant was convicted of voluntary manslaughter as the result of a sudden and intense passion. However, the excessive firepower unleashed upon the disarmed assailant, the inhumane boasting subsequently engaged in by the defendant concerning the killing, and the defendant’s prior adult criminal history involving the unlawful use of weapons and unprovoked violent conduct in obstructing a peace officer distinguish the instant cause from Lúeas, Andrews and Anderson and support the extended-term imposed.

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

Affirmed.

GEIGER, J., concurs.

PRESIDING JUSTICE REINHARD,

specially concurring:

Although I agree with the majority in affirming the judgment of the circuit court, I am unable to agree with the opinion on three points. First, the majority deemed that an argument in defendant’s reply brief concerning the restrictive application of the brutal and heinous behavior factor for an extended-term sentence has been waived for failing to raise it specifically in defendant’s initial brief. The State has not raised this waiver argument. In its initial brief, defendant argued that the trial court abused its discretion in imposing an extended term pursuant to section 5 — 5—3.2(bX2) of the Unified Code of Corrections (DI. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2(bX2)). Although defendant primarily contended that because he acted in self-defense his actions failed to rise to the level of exceptionally brutal or heinous conduct indicative of wanton cruelty, defendant also generally contended that the imposition of an extended term was improper. On this basis alone, the issue was preserved, and citation of new cases following the filing of the initial brief was proper. In any event, while the majority claims that People v. Lucas (1989), 132 Ill. 2d 399, and People v. Andrews (1989), 132 Ill. 2d 451, fail to announce “new law,” those cases show a narrower application by the Illinois Supreme Court of extended-term sentences for exceptionally brutal or heinous behavior. (Compare People v. La Pointe (1981), 88 Ill. 2d 482, 501, with Lucas, 132 Ill. 2d at 445.) I would not find this argument waived.

Secondly, the majority finds that the killing could not have been premeditated because defendant was convicted of voluntary manslaughter as a result of a sudden and intense passion. However, there is evidence that the killing was planned by defendant to avenge the prior killing of his former wife. Thus, it was premeditated. Even assuming defendant killed the victim as a result of a sudden and intense passion, or as a result of self-defense as defendant appears to argue on appeal, such results are not necessarily inconsistent with premeditation. Premeditation could have occurred prior to either. Because premeditation can show exceptionally brutal behavior indicative of wanton cruelty (Lucas, 132 Ill. 2d at 445), I agree with the majority that an extended term is appropriate.

I note, as did the trial judge, that the obvious dichotomy between premeditation and the lesser mental state for voluntary manslaughter under the evidence adduced at the sentencing hearing resulted because the parties apparently agreed to let each side.present its theory to the court following remand after the reversal of the original conviction. While I view the procedure as unwise, it was the method pursuant to which the parties chose to proceed. Thus, defendant cannot now object to a procedure in which he acquiesced. Cf People v. Schmitt (1989), 131 Ill. 2d 128, 137.

Lastly, the majority considered, inter alia, defendant’s prior adult criminal history in finding brutal and heinous behavior to justify imposing the extended-term sentence. Although our supreme court in one case apparently considered prior criminal history (Andrews, 132 Ill. 2d at 466), section 5 — 5—3.2(b)(2) specifically refers to “the offense” of which the defendant was convicted and does not refer to prior criminal history. I do not consider prior criminal history to be an appropriate consideration to find brutal and heinous behavior under section 5 — 3—3.2(b)(2). On the other hand, once brutal and heinous behavior is found, then prior criminal conduct may be considered in determining the length of the extended sentence.


author: PRESIDING JUSTICE UNVERZAGT

text:
    ALFRED N. KOPLIN, Plaintiff-Appellee, v. HINSDALE HOSPITAL et al., Defendants-Appellants.
    Second District
    No. 2—90—0845
    Opinion filed December 31, 1990.
    — Rehearing denied February 1, 1991.

      Fred I. Feinstein and Bruce H. Weitzman, both of McDermott, Will & Emery, of Chicago (Michael D. Phillips and Douglas C. Tibbie, of counsel), for appellants.
    Fredric Adam Cohen and Theodore A. Shapero, both of Rudnick & Wolfe, of Chicago (Thomas F. Geselbracht, of counsel), for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendants, Hinsdale Hospital and Harris Bank Hinsdale as trustee under trust dated February 1, 1990, and known as trust No. L — 2525 (referred to jointly hereafter as Hinsdale Hospital or the Hospital), bring this interlocutory appeal from the order of the circuit court of Du Page .County preliminarily enjoining it from using its right-of-way over Spinning Wheel Road, a road privately owned by plaintiff, Alfred N. Koplin, for ingress or egress to or from the Office Park of Hinsdale property which is immediately adjacent to Spinning Wheel Road on the west. The Hospital also appeals the court’s order preliminarily enjoining it from using its own property immediately adjacent to Spinning Wheel Road on the east as a temporary parking facility. No issue is raised concerning the further order of the court mandatorily enjoining the Hospital to restore the curb where it was cut on the west side of Spinning Wheel Road. This court has jurisdiction over the Hospital’s appeal under the provisions of Supreme Court Rule 307 (107 Ill. 2d R. 307(a)(1)).

The Hospital contends the court erred when it (1) preliminarily enjoined it from crossing the servient property (referred to hereafter as Spinning Wheel Road) in an east-west direction because its easement provides an unlimited right-of-way “for all purposes”; (2) preliminarily enjoined its use of its own property as a temporary parking lot because Koplin’s original motion for preliminary injunction did not request such relief and it had no opportunity consistent with due process to prepare for or respond to plaintiff’s amended complaint requesting such relief; and (3) preliminarily enjoined the use of its property as a temporary parking lot because there was no evidence of, and it did not find, irreparable injury, a substantial likelihood of success on the merits, or lack of an adequate remedy at law.

Initially, we address the Hospital’s motion to strike the statement of facts included in Koplin’s appellee’s brief, and Koplin’s objections thereto, which we ordered to be taken with the case. The Hospital asserts Koplin’s statement of facts is argumentative, mischaracterizes the various portions of the testimony and aspects of the proceedings, and contains facts unsupported by the record on appeal. The Hospital urges that this court strike the statement in its entirety because the improprieties are so pervasive. Koplin objects, arguing his statement of facts is confirmed by the record or is “based upon reasonable inference[s] drawn from the [rjecord as a whole *** in an effort to state the facts of the case fairly and accurately.”

Supreme Court Rule 341(f) provides in pertinent part that the appellee’s brief need not contain a statement of facts as required in subsection (e)(6) of the Rule except to the extent that the presentation by the appellant is deemed unsatisfactory. Any statement of facts, whether presented by the appellant or the appellee, is to be stated accurately and fairly without argument or comment. 113 Ill. 2d Rules 341(e)(6), (f).

An appellee’s statement of facts which was neither objective nor without comment and which did not identify in what respect the appellant’s statement was deficient was found to offend against the requirements of Rule 341 in People v. Williams (1967), 86 Ill. App. 2d 209, 214. Observing that the material set forth in the statement of facts more appropriately could have been placed in the argument portion of the brief, the court did not strike the statement of facts but, rather, concluded simply that, “a following of the rules as to briefs is to be encouraged.” (86 Ill. App. 2d at 214.) In several other cases, the appellants’ statements of facts were found to be either a mischaracterization of the evidence, argumentative or highly conclusional. (Wald v. Chicago Shippers Association (1988), 175 Ill. App. 3d 607, 616; Oakleaf v. Oakleaf & Associates, Inc. (1988), 173 Ill. App. 3d 637, 646; James v. Shig Yasunaga (1987), 157 Ill. App. 3d 450, 452.) The statements of facts were not stricken, however, where they otherwise were supported by record references and were found to be not so flagrantly violative of the rules as to hinder or preclude review of the cause.

Although we find Koplin’s appellee’s statement of facts fleshes out the evidence more than we believe is justified by the record and tends to be phrased in conclusional terms, it nonetheless is supported by appropriate record references and is not so flagrantly argumentative or conclusional as to hinder or preclude review. Moreover, as Koplin notes in his objections, the Hospital’s statement of facts is not without fault, either, inasmuch as it omits any reference whatever to Koplin’s expert traffic engineer, Dan Goetsch. Both parties — and this court — would have been better served by presentation of a thorough, entirely factual statement of the evidence presented as required by the supreme court rules. “Reasonable inferences drawn from the record as a whole” are simply not facts and do not belong in the statement of facts. Nevertheless, the Hospital’s motion to strike is denied, and we proceed to consider the cause.

A visual depiction of the location of the properties implicated in this appeal is provided in appendix A and will be helpful to an understanding of the case. It is based on plaintiff’s exhibit No. 2 which was admitted at trial. In general terms, the properties involved are located in Hinsdale, north of Ogden Avenue, west of the Tri-State Tollway, east of Salt Creek Lane, and south of Salt Creek itself.

Legal title to parcels A and B shown on appendix A are held in trust by Old Kent Bank and the beneficial owners are Alfred N. Koplin and his wife. Parcel A was improved in 1968 with a 17-story, 156-unit apartment building and has a near-capacity residency rate of about 250 to 300 tenants. Parcel B was improved in 1967 with a five-floor commercial office building and parking lot. Parcel C shown on appendix A was acquired by Alfred. N; Koplin individually in 1967 to provide access to the otherwise landlocked parcels A and B. It is presently a private road known as Spinning Wheel Road which Koplin improved with pavement and curbs and which he maintains.

The trustee’s deed conveying parcel C to Koplin recited that it was subject to: “[a] perpetual right-of-way for all purposes over subject property in favor of [the east property].” The beneficial and legal owners, respectively, of the east property are the defendants, Hinsdale Hospital and Harris Bank Hinsdale as trustee. The front portion of the east property (nearest Ogden Avenue) is presently improved with a building used as a clinic providing health rehabilitation and treatment services and meeting and health education facilities. This building formerly was used and known as the Spinning Wheel Restaurant. There is a parking lot located on the east side of the building which is accessed from County Line Road and Ogden Avenue. A service road in the back (west side) of the building is accessed from Spinning Wheel Road by way of a curb cut on the east side of Spinning Wheel Road. It is used for loading and unloading, and parking of service and maintenance vehicles. Clinic staff sometimes park back there also. A grassy lot located on the rear (north) portion of the east property was used primarily by kids as a baseball field until late May 1990 when the Hospital converted it to a temporary parking facility.

The instant cause was precipitated when the Hospital president, Ken Bauer, sent Koplin a letter dated May 25, 1990, advising him that the Hospital “intends to use its easement over Spinning Wheel Drive [sic], to provide access to the Office Park of Hinsdale property immediately west of the easement [the west property].” With no prior or subsequent permission from Koplin, the Hospital cut an opening in the west curb of Spinning Wheel Road during the week of May 28, 1990. A gravel road extends from that curb cut to the parking lot of one of the office buildings located on the west property in the Office Park of Hinsdale. The west property is owned by the Office Park of Hinsdale Corporation which, in turn, is owned by the Adventist Health Resources, a sister corporation of the Hinsdale Hospital. The gravel road extending from the west curb cut of Spinning Wheel Road affords cars traveling west thereon indirect access to Salt Creek Lane, a private road which intersects at its south end with Ogden Avenue and Oak Street, a signalized intersection. Utilizing this same route in an eastbound direction, cars can access the temporary parking lot on the Hospital’s east property by crossing Spinning Wheel Road from the west curb cut to the service road at the east curb cut and thence to the newly graveled-over baseball field parking lot. Thus, persons traveling eastbound or westbound from the temporary parking lot would have access to the signalized intersection at Salt Creek Lane and Ogden Avenue rather than having to make left-hand turns from or onto Ogden Avenue at Spinning Wheel Road, where there is no traffic signal.

Koplin filed his original single-count complaint seeking to enjoin the Hospital from using its Spinning Wheel Road easement for ingress and egress to the west property. The complaint also sought a temporary restraining order and preliminary injunction enjoining the Hospital’s misuse of the easement and an order directing the Hospital to restore the curb where it had been cut on the west side of Spinning Wheel Road.

On June 8, Hinsdale Hospital filed its answer and affirmative defenses to the complaint. As its first affirmative defense, the Hospital relied on the trustee’s deed granting the easement, and, as its second affirmative defense, it alleged its plan for improved traffic flow to and from its property across its Spinning Wheel Road easement would improve, not harm, the traffic congestion and safety situation at Ogden Avenue and Spinning Wheel Road. On that same date, the parties entered into an agreed order whereby the Hospital agreed to erect a fence at the west curb cut, thus preventing access to Spinning Wheel Road and preserving the status quo. The agreed order set Monday, July 2, as the date for a hearing on Koplin’s motion for a preliminary injunction.

On Friday afternoon, June 29, Koplin served Hinsdale Hospital with a motion for leave to file a six-count amended complaint and placed a phone call to counsel for the Hospital which was not returned. The proposed amended complaint for the first time raised issues concerning, inter alia, the zoning violations engendered by the proposed temporary parking lot use of the Hospital’s east property. On that same date, Koplin notified the Village of Hinsdale that he intended to proceed against the Hospital for its alleged zoning violations as provided in section 11 — 13—15 of the Illinois Municipal Code (the Code) (Ill. Rev. Stat. 1985, ch. 24, par. 11 — 13—15).

At the preliminary injunction hearing on Monday morning, July 2, the Hospital requested leave to file a written response to the plaintiff’s motion for leave to file an amended complaint. The trial court agreed, and it granted the Hospital time to respond in writing to the motion for leave to amend before ruling on the motion to amend. When the parties were unable to agree on an expedited briefing, discovery and hearing schedule as to the motion for leave to amend, the court determined it would proceed at that time with the preliminary injunction hearing pursuant to Koplin’s original complaint. Koplin informed the court that at the close of his proofs, he would seek leave to amend his complaint to conform to the proofs. When the Hospital moved in limine to bar any evidence relating to the proposed amended complaint, the trial court declined to grant the motion, stating that it would consider the evidence as it was offered.

Koplin called Ken Bauer, the Hospital president, as an adverse witness. Bauer testified he drafted and signed the May 25, 1990, letter to Koplin notifying him of the Hospital’s intention to use its easement over Spinning Wheel Road to gain access to the Office Park of Hinsdale property to the west commencing on or about June 10. He described the present and proposed use of the Hospital’s property and its recent development of the back section of the property for use as a temporary parking lot while the parking garage on the main Hospital campus is being rebuilt. Over the Hospital’s objections, Bauer testified there was no intent to pave the lot, light poles had been installed, and the lot is not improved with sewer or drainage facilities. He testified the Hospital’s intent to use its easement across Spinning Wheel Road was to provide a safe means of ingress and egress to the employees who would be parking in the lot by channeling the traffic over to the signalized intersection at Salt Creek Lane and Ogden Avenue. Shuttle buses would run between the lot and the Hospital campus a mile away via the easement over Spinning Wheel Road. Over the Hospital’s objection, Bauer testified the Village of Hinsdale advised the Hospital that no permits were necessary for the lot. A permit for the lights was being sought from the village, however. Also over the Hospital’s objection, Bauer testified the Hospital had worked extensively on its temporary parking plan with the village building commissioner and various village commissions and had not been notified that it was not in compliance with any village zoning ordinances.

Next, Caroline Koplin-Palmer testified to her father’s interests in parcels A, B and C and the condition and uses of those properties. She testified to the Hospital’s recent graveling over of the baseball field and the curb cut made on the west side of Spinning Wheel Road. She testified she called Ken Bauer after receipt of his letter to learn more about the Hospital’s intentions and by what right they intended to use the easement. Over the Hospital’s objection, she testified the east property was zoned “0-3,” a general office district.

Alfred Koplin then testified about his ownership of parcels A, B and C and the improvements he had made on those properties. Koplin stated he never gave his permission or consent to the Hospital’s use of Spinning Wheel Road as a means of access to the property to the west, or to the Hospital’s destruction of Spinning Wheel Road’s western curb.

Dan Goetsch, an expert traffic engineer, testified on Koplin’s behalf as to the likely impact of the actions taken by the Hospital on the traffic and safety in and around Spinning Wheel Road. Based on his study of the area, Goetsch testified the Hospital’s destruction of the western curb of Spinning Wheel Road posed a hazard to north-south traffic on Spinning Wheel Road by virtue of an increased potential for traffic accidents with east-west traffic crossing the easement. He foresaw a traffic conflict occurring within the parking lot on the west property, and .traffic from the west lot availing itself of access to Ogden Avenue via Spinning Wheel Road in order to avoid the traffic at the signalized intersection at Salt Creek Lane and Ogden Avenue. He additionally saw a potential conflict with left-turning traffic at Spinning Wheel Road and Ogden Avenue. On cross-examination, he stated his opinion of the hazard presented by the proposed plan did not take into account traffic control signs or enforcement thereof, but he noted that Spinning Wheel Road is a private road not subject to police regulation.

Over the Hospital’s objection, the court took judicial notice of the Hinsdale zoning code and admitted it in evidence. The code has not been submitted as part of the record on appeal, however. The Hospital’s motion for entry of a directed finding at the close of Koplin’s case was denied, and it proceeded to present its case.

Ken Bauer testified it is the Hospital’s intention that the right-of-way across Spinning Wheel Road be used only by people heading to or leaving the east property. He testified that the Hospital intends to erect signs which would prohibit turns of any nature for people headed to the east so they would have to proceed straight across Spinning Wheel Road to the east property. There would be stop signs installed so that east-west traffic would come to a complete stop prior to crossing the right-of-way on Spinning Wheel Road. Traffic headed west from the east property parking lot would not be turn-restricted. There would be a guard stationed at the east property 12 hours a day, five days a week, to enforce the no-turn signs for eastbound traffic across Spinning Wheel Road. Bauer testified that as to its employees, the Hospital has a mechanism for imposing fines for traffic or parking violations, as well as disciplinary actions for repeated offenses. Bauer testified the route over the Spinning Wheel Road easement was not intended to be a permanent one; the west curb cut will be restored to its original condition and the parking area returned to a grassed condition.

The Hospital next presented the testimony of David Miller, an expert traffic and transportation consultant. He testified that left turns onto Ogden Avenue to head east are very difficult due to the volume of traffic on Ogden Avenue. He testified that Hinsdale Hospital’s plan to use its right-of-way for east-west crossings of Spinning Wheel Road would be safer than traffic trying to make left turns onto Ogden Avenue. Miller also testified that the proposed east-west use of the easement across Spinning Wheel Road would not interfere with north-south traffic using Spinning Wheel Road. In his opinion, the proposed plan would improve the situation for north-south traffic on Spinning Wheel Road because the plan would minimize turns at the intersection of Spinning Wheel Road and Ogden Avenue. He also noted that traffic on Spinning Wheel Road is low volume and that Spinning Wheel Road is designed to accommodate higher volumes of traffic. He did not foresee a problem with people from the Office Park of Hinsdale using what would be a very circuitous route to get to Spinning Wheel Road, and he saw no benefit to the west property as a result of the plan to utilize the easement in this east-west manner. On cross-examination, Miller admitted the safest possible situation would be not to use the east property for this proposed temporary parking lot plan.

After the Hospital rested its case, Koplin moved to amend his pleadings to conform with the proofs. Despite the Hospital’s objection that granting such motion would deprive it of an opportunity to respond to the amended complaint and that the hearing should have concerned only the original complaint filed, the trial court allowed the motion. The trial court then ruled orally that Hinsdale Hospital would be preliminarily enjoined from using the right-of-way in an east-west direction, and it ordered it to restore the curb which was cut on the west side of Spinning Wheel Road. The trial court also preliminarily enjoined Hinsdale Hospital from using the east property as a parking facility based on its grant of Koplin’s motion to amend the pleadings and its determination that Koplin was entitled to such relief pursuant to section 11 — 13—15 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 13—15). Koplin’s subsequently submitted written order was entered by the trial court on July 5, and this interlocutory appeal followed.

The Hospital first contends the court misinterpreted its Spinning Wheel Road right-of-way as a matter of law by restricting its use of the right-of-way to provide only north-south access to Ogden Avenue. It argues that in the absence of any ambiguity, its right-of-way “for all purposes” entitles it to unlimited reasonable or necessary use of the full width of the easement. Further, as the owner of the right-of-way with the right and duty to maintain the easement, its cut in the west curb of Spinning Wheel Road nearly put the servient estate, Spinning Wheel Road, “in a condition in which Hinsdale Hospital may enjoy the full width and extent of its right-of-way, without any harm or prejudice to the plaintiff.” Asserting that the reasonable use of a right-of-way is not restricted to that existing at the time of the grant, the Hospital argues that its proposed expansion of its use of the right-of-way is a sensible development which does not constitute an unreasonable deviation from the original grant.

Koplin responds that the Hospital’s right-of-way “for all purposes” gives it only the right to pass over the easement in some particular line which the evidence shows is the line between Ogden Avenue and the rear service entrance of the building which was in existence at the time of the grant of the easement and which the Hospital now uses for health rehabilitation, treatment and education purposes. Koplin argues there is no evidence Spinning Wheel Road could have been or was ever used for access to the west property because parcel C was vacant and unimproved in 1967, and the western curb of Spinning Wheel Road, which he installed, was continuous and unbroken until May 1990 when the Hospital cut the curb. Moreover, the right-of-way over Spinning Wheel Road which was conveyed here specified no particular width and, thus, the Hospital has the right to use a reasonably necessary or convenient width, but has no right to use the full width of Spinning Wheel Road. Finally, Koplin argues the Hospital’s proposed extension of the easement to accommodate its property to the west is improper in that it exceeds the intent of the easement granted.

We find the court did not err in preliminarily enjoining the Hospital’s use of the easement for ingress or egress to or from the property to the west of Spinning Wheel Road for the reasons which follow.

The trustee’s deed conveyed parcel C subject to “[a] perpetual right-of-way for all purposes over subject property in favor of [the east property].” The words “right-of-way” denote a tenure by which land is held and are descriptive of the easement right, not the land to which it is affixed. (Tallman v. Eastern Illinois & Peoria R.R. Co. (1942), 379 Ill. 441, 446-47.) The instrument creating the easement is construed in accordance with the intention of the parties. (D.M. Goodwillie Co. v. Commonwealth Electric Co. (1909), 241 Ill. 42, 72; Pacemaker Food Stores, Inc. v. Seventh Mont Corp. (1983), 117 Ill. App. 3d 636, 645.) Such intention is ascertained from the words of the instrument and the circumstances contemporaneous to the transaction, including the state of the thing conveyed and the object to be obtained. (Goodwillie, 241 Ill. at 72.) The practical construction given . to the instrument granting the easement by the parties’ conduct is to be considered only if there is an ambiguity. Weaver v. Natural Gas Pipeline Co. (1963), 27 Ill. 2d 48, 50; Goodwillie, 241 Ill. at 73.

The easement created by the instant deed is an “easement appurtenant.” An easement is a right or privilege in real estate of another, and, when exercised in connection with the occupancy of other land, it is said to be appurtenant thereto. (Beloit Foundry Co. v. Ryan (1963), 28 Ill. 2d 379.) The tract , of land benefitted by the easement is the dominant tenement or estate, and the land burdened with the easement is the servient tenement or estate. (Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17.) Here, the east property owned by the Hospital is the dominant estate, and Koplin’s parcel C, Spinning Wheel Road, is the servient estate. As the owner of the dominant estate, the Hospital is entitled to necessary use of the easement; “necessary use” has been defined as such use as is reasonably necessary for full enjoyment of the premises. (Flower v. Valentine (1985), 135 Ill. App. 3d 1034, 1039.) The owner of the dominant estate has the right and duty to maintain the easement; however, he cannot, for the sake of his convenience, materially alter the easement so as to place a greater burden on the servient estate or interfere with the use and enjoyment of the servient estate by its owner. (Flower, 135 Ill. App. 3d at 1039-40; Beggs v. Ragsdale (1983), 120 Ill. App. 3d 333, 337.) In the absence of restrictions, an easement appurtenant may be used for the general benefit of the dominant estate; any attempt to use an appurtenant easement for the benefit of nondominant land may be enjoined, however. WBurby, Real Property §32, at 85 (3d ed. 1965).

The Hospital’s implication that its perpetual right-of-way “for all purposes” over parcel C is coterminus with the boundaries of the parcel itself is specious. Schaefer v. Burnstine (1958), 13 Ill. 2d 464, and Flower v. Valentine (1985), 135 Ill. App. 3d 1034, the Hospital’s own authority, reveal the fallacy of its position. Schaefer and Flower both demonstrate that the owner of the right-of-way or easement is entitled to use the full width specified where the width of the easement or right-of-way reserved is specified in the instrument. The right-of-way in Schaefer was specifically described as “a right of way 40 feet wide for ingress and egress,” thus entitling the owner of the right-of-way to use of the full 40-foot width. (Schaefer, 13 Ill. 2d at 466.) Similarly, the owner of the right-of-way across the strip of land in Flower was entitled to use the full 15-foot width specified in the grant. Flower, 135 Ill. App. 3d at 1036; see also Rudolph Wurlitzer Co. v. State Bank (1919), 290 Ill. 72, 82; The Fair v. The Evergreen Park Shopping Plaza of Delaware, Inc. (1954), 4 Ill. App. 2d 454, 468.

The width of the right-of-way here which was reserved in parcel C was not specified. When no width is specified, the width of the right-of-way is such as is reasonably necessary and convenient for purposes for which the right-of-way was created. (Vallas v. Johnson (1979), 72 Ill. App. 3d 281, 282; 25 Am. Jur. 2d Easements & Licenses §78, at 485 (1966).) Considering the language of the instrument as a whole, the circumstances contemporaneous with the transaction, the state of the thing conveyed and the object to be obtained, the apparent intent of the parties here was to provide access to the rear of the building on the east property which, in 1967, was used as the Spinning Wheel Restaurant. A cut in the east curb of Spinning Wheel Road which Koplin paved in 1967 facilitates access from the rear service entrance of the building on the east property to the service road, to the right-of-way and to Ogden Avenue. It is clear the “reasonably necessary and convenient” width of the Hospital’s right-of-way is considerably less than the full width of Spinning Wheel Road itself. As such, the Hospital’s unauthorized cut in the western curb of Spinning Wheel Road was not “necessary to the proper enjoyment of the easement reserved,” and it had no right to make it. See Doan v. Allgood (1923), 310 Ill. 381, 384.

Moreover, as noted above, any attempt to use an appurtenant easement for the benefit of nondominant land may be enjoined. “[A] right of way appurtenant to a particular lot cannot be used as a mode of access to another lot to which it is not appurtenant.” (25 Am. Jur. 2d Easements & Licenses §77, at 483 (1966).) Stated otherwise, “an easement appurtenant may not be extended by the owner of a dominant estate to accommodate other lands which he may own and for which the easement was not originally intended.” (Beloit Foundry Co. v. Ryan (1963), 28 Ill. 2d 379, 388; see also Department of Transportation v. Smith (1981), 100 Ill. App. 3d 814, 817; Heritage Standard Bank & Trust Co. v. Trustees of Schools (1980), 84 Ill. App. 3d 653, 657.) The rule is thus because no one but an owner of land can create an easement over it. Heritage, 84 Ill. App. 3d at 657; Waller v. Hildebrecht (1920), 295 Ill. 116.

By the terms of the trustee’s deed, the right-of-way over Spinning Wheel Road was appurtenant only to the east property. Accordingly, the Hospital’s attempt to extend it as a mode of access to and from the west lot, albeit such use is intended only for the benefit of the east lot, was properly enjoined. Notwithstanding the traffic control devices the Hospital stated it intends to install to prevent persons other than its employees from accessing Spinning Wheel Road from the west property, no right-of-way on any portion of Spinning Wheel Road exists in favor of the west property, not even if such use could be confined to the Hospital’s employees. Despite the Hospital’s argument that the curb cut providing access to the west property will only benefit the east property and will be a detriment — not a benefit — to the west property, it is clear the cut affords a mode of access over the Spinning Wheel Road right-of-way to “another lot” to which it is not appurtenant.

Diller v. St. Louis, Springfield & Peoria R.R. (1922), 304 Ill. 373, does not support the Hospital’s argument that its right-of-way “for all purposes” means that it may use it to cross to other lands, including property west of Spinning Wheel Road. The easement reserved in the deed in Diller specifically “reserved the right to drive and maintain underground ways under the surface of the lands conveyed, to connect with other lands or mines.” (304 Ill. at 375.) The easement reserved at bar was “for all purposes over subject property [Spinning Wheel Road] in favor of the [east property].” No “ways” or connection with “other lands” as in Diller were specified.

The Hospital’s further argument that its proposed expansion of its use of the right-of-way is a sensible development which does not constitute an unreasonable deviation from the original grant is incredible. It is true that the reservation of the right-of-way entitles the one having the right to adapt it to the improvements of the age (Diller v. St. Louis, Springfield & Peoria R.R. (1922), 304 Ill. 373, 379) and that such adaptation may include an increase in the number of persons using the right-of-way (Logan v. Brodrick (1981), 29 Wash. App. 796, 631 P.2d 429). However, it is assumed that the parties had in mind the normal development of the dominant estate (W. Burby, Real Property §32 (3d ed. 1965); Logan, 299 Wash. App. 796, 631 P.2d 429), and a charge of “excessive use” may be sustained when a use of the dominant estate is undertaken which does not fall within what reasonably might be considered “normal development.”

The proposed increase in the easement use here is not related in any way to a normal development of the dominant estate. The 200-plus parking lot proposed bears no relation whatever to the Hospital’s use of the east property as the site of its health-related facility. It is a temporary parking lot plan developed to accommodate the displacement of employee parking caused by garage construction at the Hospital’s main campus a mile away from the dominant estate. This type of increased use in no way compares with the improvement and expansion of the resort facilities on the dominant estate in the Logan case which caused increased traffic on the roadway easement which had been granted to the resort owners.

Based on this record, we find the court did not err in preliminarily enjoining the Hospital from using its right-of-way over Spinning Wheel Road for ingress or egress to or from the Office Park of Hinsdale property to the west of Spinning Wheel Road.

We do believe the court erred, however, in preliminarily enjoining the Hospital’s use of the east property for temporary parking lot purposes. The court entered its order in light of its grant of Koplin’s motion to amend the pleadings to conform to the proofs and its determination that the evidence presented showed zoning violations properly enjoined under section 11 — 13—15 of the Code (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 13—15). In pertinent part, that section permits an owner of real property to institute, in addition to other remedies, an action to prevent, restrain or correct imminent or existing ordinance violations on property located within 1,200 feet of the owner’s property. It is intended to afford relief to private citizens whose municipal officials are slow or reluctant to act or whose local authority’s actions are not protective of the interests of adjacent landowners. Launius v. Najman (1984), 129 Ill. App. 3d 498.

The Hospital asserts the court’s order must be reversed and the cause remanded because it was entered in contravention of the applicable rules of procedure (Rule 6.04(d) of the Rules of the Circuit Court of the 18th Judicial District, requiring personal service of a notice of motion be accomplished by 4 p.m. of the second court day preceding the hearing of the motion) and its constitutional right of due process.

It complains the entry of the court’s order under the circumstances at bar denied it a fair opportunity to respond to Koplin’s new claims, to prove the proposed parking lot use was in conformance with the Hinsdale zoning ordinance as interpreted by the village and itself, to seek a zoning variance before using the lot or to otherwise prepare a defense. Koplin responds that evidence of the use of the east property was either offered by the Hospital itself or admitted without objection, thus waiving the error, and that the court properly exercised its discretion in conforming the pleadings to the evidence adduced.

It is indisputable that evidence of the Hospital’s proposed use of the east property for temporary parking lot purposes was introduced by both parties at the hearing. Each party had its own reasons for offering it. The Hospital offered it in support of its second affirmative defense to Koplin’s original complaint that east-west use of the Spinning Wheel Road right-of-way would cause increased traffic congestion and be a hazard to north-south traffic. The Hospital’s evidence tended to show that the traffic plan proposed would improve traffic safety by channeling left-turning traffic to a signalized intersection and that east-west traffic, controlled by appropriate traffic signs, would not interfere with north-south traffic on Spinning Wheel Road. As such, that evidence was relevant and material to the cause of action set out in Koplin’s original complaint.

On the other hand, Koplin’s line of inquiry had at least a twofold purpose: first, to establish misuse of the easement as charged in his original complaint and second, to establish violations of the Hinsdale zoning ordinance as charged, inter alia, in his proposed amended complaint. As noted above, the court granted the Hospital’s motion that it be given time to respond in writing to Koplin’s motion for leave to file his amended complaint. Counts V and VI of the proposed amended complaint ostensibly set forth a cause of action under section 11 — 13—15 of the Municipal Code. Those counts alleged that the parking lot violated section 9 — 104(A) of the Hinsdale zoning code, which provides that off-street parking as a principal use is permitted only when expressly authorized in the zoning district in question; that an off-street parking facility such as the one constructed on the Hospital’s east property, zoned “0-3,” is not an expressly authorized primary use under the general office district zoning classification; that section 9 — 103(C)(1) of the Hinsdale zoning code prohibits the establishment or maintenance of any temporary use without application for and issuance of a certificate of zoning compliance; that the parking facility on the east property was constructed without such certificate of compliance; that certain temporary uses provided for in section 9 — 103(D) of the Hinsdale zoning code do not include an off-street parking facility such as the one constructed by the Hospital on the east property; that the parking facility violates section 9 — 103(F)(4) of the Hinsdale zoning code in that it will generate undue detrimental effects on surrounding uses and streets; that the parking facility violates section 9 — 104(C)(3)(c) of the Hinsdale zoning code in that it is not paved; and that the parking lot violates section 9 — 104(B)(2)(c) of the Hinsdale zoning code in that it is intended to serve a principal use not in the same or an adjacent zoning district and within 1,000 feet of the lot on which the principal use to be served is located.

When the hearing on Koplin’s original complaint commenced, the Hospital moved in limine to exclude any matters relating to the proposed amended complaint. The court declined to grant that motion, stating it would rule on the evidence as it was offered, and Koplin stated his intent to ask at the close of the evidence that the pleadings be amended to conform to the proofs.

During the hearing, the court overruled the Hospital’s objections to evidence concerning (1) the Hospital’s intention not to pave the lot; (2) its installation of light poles; (3) the lack of sewer or drainage facilities; (4) the Hospital’s understanding that no building permit was necessary for the construction of the parking lot; (5) its lack of notification that it was not in compliance with the zoning ordinance with respect to construction of the lot; (6) the “0-3” zoning classification of the east property; (7) the propriety of an off-street parking facility in an “0-3” zoning district; (8) the temporary uses permitted under the Hinsdale zoning code; and (9) the accessory uses permitted with respect to a primary use. The Hospital also objected to zoning issues raised by Koplin during argument in the course of trial on the motion for the admission of the Hinsdale zoning code, during the motion for a directed finding and during the motion to conform the pleadings to the proofs. As the Hospital points out, it objected so often to testimony relating to issues which it argued were outside of the scope of Koplin’s original complaint that the court at one point allowed a continuing objection to such questioning.

Under these circumstances, we cannot conclude the Hospital waived the error either by adducing evidence concerning the use of its property or by failing to object. As noted above, evidence of its use of the property was relevant to its second affirmative defense, and it objected to all evidence which would have been relevant and material to the zoning issues raised by Koplin’s proposed amended complaint. Evidence of the zoning issues was not material to Koplin’s original complaint, and the court had already determined that it would allow the Hospital to respond in writing to Koplin’s motion for leave to file the amended complaint. Notwithstanding that, the court overruled all of the Hospital’s objections made to evidence concerning the zoning issues to which the Hospital had not yet had a chance to respond.

Section 2 — 616 of the Civil Practice Law provides that “[a] pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 616(c).) “The power to amend under [subsection (c)] cannot *** be applied to deprive either party of a trial upon the merits of issues made.” Ill. Ann. Stat., ch. 110, par. 2 — 616, Historical & Practice Notes, at 528 (Smith-Hurd 1983).

Koplin offered no excuse at trial for his eleventh-hour filing of the motion for leave to amend his one-count complaint with five more counts, the latter two of which concerned not the Hospital’s use of the easement, but, rather, the use of its own property. The constitutional right to due process requires notice and an opportunity to be heard and defend in an orderly proceeding. U.S. Const, amend. XIV; Ill. Const. 1970, art. I, §2; City of Chicago v. Cohn (1927), 326 Ill. 372, 374-75; Diamond Mortgage Corp. v. Armstrong (1988), 176 Ill. App. 3d 64, 69.

In Pettigrew v. National Accounts System, Inc. (1966), 67 Ill. App. 2d 344, Pettigrew’s declaratory judgment action against National, and National’s and another’s suit for injunction against Pettigrew and another defendant, were consolidated at the time the parties appeared in court on National’s motion for a temporary injunction. The court continued the consolidated cases to the following morning at which time it intended to start hearing evidence. Despite being advised by Pettigrew and National that the only matter before the court was National’s motion for temporary injunction, Pettigrew’s repeated objections during the hearing to testimony which was not pertinent to the issue of whether a temporary injunction should issue, and Pettigrew’s protestations that it had not yet had an opportunity to examine National’s answer to his declaratory judgment complaint (which was filed that morning) or to answer National’s complaint for injunction, the court nonetheless entered a decree the day after the hearing dismissing Pettigrew’s complaint for declaratory judgment and granting National a permanent injunction against Pettigrew. 67 Ill. App. 2d at 354.

On appeal, the injunction was dissolved and the cause remanded for proper proceedings. The court found Pettigrew had not been afforded due process:

“Without sufficient opportunity to examine the answer filed to his complaint, Pettigrew could not determine what evidence he should present to establish his contention on the issues made by the pleadings. As to the injunction complaint, he was not permitted the time allowed by the Civil Practice Act to file his answer and thereby put matters at issue. Under this posture of the case, it was not proper to proceed with the hearing on the merits prior to issues having been formed by the pleadings. The right to plead, according to the general law and established rules, is implicit in any concept of ordered liberty and fairness and is required by a right sense of justice. [Citation.] The action of the trial court in compelling the litigants to proceed on the merits of the case, at a time when both parties asserted they were before the court only on a motion for temporary injunction, without permitting them to plead in the manner prescribed by the Civil Practice Act and Rules of Court, and in denying them the opportunity to prepare and present their case fairly and fully, was a denial of due process.” 67 Ill. App. 2d at 352.

In general, the granting or denying of leave to amend a complaint prior to judgment is a matter within the sound discretion of the trial court, and its decision will not be disturbed on appeal unless there is an abuse of that discretion. (Bridgeman v. Terminal R.R. Association (1990), 195 Ill. App. 3d 966, 972.) Under the circumstances at bar, we conclude it was an abuse of the court’s discretion to permit Koplin to amend his pleadings to conform to the proofs where it served to deprive the Hospital of its due process right to prepare and offer a defense to a cause of action different from that stated in the original complaint.

For the foregoing reasons, the court’s judgment granting the preliminary injunction enjoining the Hospital’s use of its property is reversed. The cause is remanded for further, proceedings at which Koplin may pursue anew the matter of amending his complaint to include a cause of action challenging the propriety of the Hospital’s proposed use of the east property. In light of this result, it is unnecessary to address the Hospital’s further contention there was insufficient evidence and no findings to support the preliminary injunction.

Accordingly, the judgment of the circuit court of Du Page County is affirmed in part and reversed in part, and the cause is remanded for further proceedings as noted above.

Affirmed in part; reversed in part and remanded.

WOODWARD and-McLAREN, JJ., concur.