author: JUSTICE MAAG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL A. NIEMEYER, Defendant-Appellant.
    Fifth District
    No. 5—92—0389
    Opinion filed April 26, 1993.

      Daniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender's Office, of Mt. Vernon, for appellant.
    Kevin Parker, State’s Attorney, of Effingham (Norbert J. Goetten, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE MAAG

delivered the opinion of the court:

The defendant, Michael A. Niemeyer, was convicted by a jury of driving under the influence of alcohol (Ill. Rev. Stat. 1991, ch. 95%, par. 11 — 501(c)) and driving while license revoked (Ill. Rev. Stat. 1991, ch. 95%, par. 6 — 303(a)). Both offenses were charged and tried as Class 4 felonies because the defendant had previously been convicted of driving under the influence of alcohol and driving while license revoked. The trial court sentenced defendant to extended-term sentences of six years’ imprisonment on each conviction with the sentences to run concurrently. (See Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3.2(b)(1).) On appeal, defendant contends that the trial court was not authorized to impose extended-term sentences on him because the offenses of which he was convicted are ordinarily misdemeanors but were enhanced to felonies because of prior convictions for the same offenses.

Defendant was convicted of violating sections 11 — 501 and 6 — 303 of the Illinois Vehicle Code. Generally, these offenses are Class A misdemeanors (see Ill. Rev. Stat. 1991, ch. 95%, pars. 6 — 303(a), 11— 501(c)), which carry a term of imprisonment of less than one year. (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—3(a)(1).) In the instant case, however, these offenses were enhanced to Class 4 felonies because defendant had previously been convicted of driving under the influence of alcohol and driving while license revoked. (See Ill. Rev. Stat. 1991, ch. 95x/2, pars. 6 — 303(d), 11 — 501(d).) The sentence for a Class 4 felony is imprisonment for not less than one year and not more than three years. (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—l(aX7).) The defendant had previously been convicted of burglary, a Class 2 felony, within the 10 years prior to defendant’s instant convictions, excluding the time he spent in custody on the burglary conviction. Using the felony conviction in conjunction with defendant’s Class 4 felonies in this case, the trial court found defendant to be eligible for extended-term sentences pursuant to section 5 — 5—3.2(b)(1) of the Unified Code of Corrections (Unified Code), which provides in pertinent part:

“(b) The following factors may be considered by the court as reasons to impose an extended term sentence ***:
(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, when such conviction has occurred within 10 years after the previous conviction, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(b)(1).)

As previously noted, the trial court found defendant to be eligible for extended-term sentences based upon defendant’s 1989 burglary conviction. It is undisputed that this conviction was obtained within 10 years prior to defendant’s instant convictions. It is also undisputed that burglary is a Class 2 felony. (See Ill. Rev. Stat. 1991, ch. 38, par. 19 — 1(b).) Finally, there is no dispute that the instant conviction and the 1989 burglary conviction stem from completely separate incidents and were tried separately. All of the requirements for imposition of an extended-term sentence under section 5 — 5—3.2(bXl) were satisfied in this case. Nonetheless, defendant challenges the application of this provision on the grounds that it resulted in an impermissible double enhancement of his sentence. See People v. Gonzalez (1992), 151 Ill. 2d 79, 600 N.E.2d 1189.

The defendant relies upon decisions in four of the five judicial districts in Illinois to support his position. Defendant claims that these districts have held that the imposition of an extended-term sentence under similar circumstances was erroneous. (People v. Hurd (5th Dist. 1989), 190 Ill. App. 3d 800, 546 N.E.2d 1096; People v. Nolly (2d Dist. 1985), 134 Ill. App. 3d 865, 480 N.E.2d 1373; People v. Grayson (1st Dist. 1983), 119 Ill. App. 3d 252, 456 N.E.2d 664; People v. Spearman (3d Dist. 1982), 108 Ill. App. 3d 237, 438 N.E.2d 1320 (overruled by People v. Martin (3d Dist. 1992), 240 Ill. App. 3d 260, 606 N.E.2d 1265).) Defendant also relies on People v. Hobbs (1981), 86 Ill. 2d 242, 427 N.E.2d 558. In Hobbs, the defendant’s misdemeanor theft conviction was enhanced to a felony by reason of a prior felony theft conviction. The same prior felony theft conviction was then used to impose an extended-term sentence under section 5 — 5—3.2(b)(1) of the Unified Code. In vacating the sentence, the supreme court stated:

“The crux of this issue is that defendant’s conduct in taking the liquor, standing alone, was not a felony under Illinois law for the value of the liquor was less than $150. It became a felony only because defendant had a prior conviction for the same offense. Since the 1979 conduct itself was not a felony it does not appear to fit within the legislative intent manifested by section 5 — 5—3.2(b). We consider that an extended term could have been imposed if the 1979 offense, exclusive of any other, had constituted a felony, and the earlier conviction had been of a felony at least as egregious. An extended term would have been permissible here, if, for example, the value of the liquor taken in 1979 had exceeded $150 so as to make its taking a felony. But it did not, and its taking became a felony under section 16 — 1(e) solely by reason of the 1978 felony conviction. To again use that 1978 felony conviction to trigger the court’s authority to impose an extended term pursuant to section 5 — 5— 3.2(b) is, in our judgment, incompatible with that section’s requirement that the charges must be ‘separately brought and tried and arise out of different series of acts.’ The logical interpretation of that language indicates an intent to severely punish a recidivist convicted of separate felonies within 10 years where the latest offense consisted of conduct which itself constituted a felony. Here, the 1979 conduct was a simple misdemeanor until the earlier conviction was added by allegation and proof, and these circumstances, in our judgment, are simply not those at which section 5 — 5—3.2(b) is aimed.” (Emphasis in original.) Hobbs, 86 Ill. 2d at 245-46, 427 N.E.2d at 559-60.

Hobbs was expanded upon by the appellate court decisions in Spearman, Grayson, Natty, and Hurd. In Spearman (108 Ill. App. 3d 237, 438 N.E.2d 1320), as in Hobbs, the defendant’s theft conviction was enhanced to a felony by reason of a prior theft conviction, and he was sentenced to an extended term under section 5 — 5—3.2(b)(1) of the Unified Code. But unlike Hobbs, the extended term in Spearman was based on different convictions, whereas in Hobbs the extended term was based on the enhancing conviction. The Spearman court interpreted Hobbs as precluding the imposition of an extended-term sentence whenever the criminal conduct in question would only have been a misdemeanor in the absence of an enhancing prior conviction. (Spearman, 108 Ill. App. 3d at 240, 438 N.E.2d at 1321-22.) This application of Hobbs was followed in Grayson (119 Ill. App. 3d 252, 456 N.E.2d 664), Nally (134 Ill. App. 3d 865, 480 N.E.2d 1373), and by this court in Hurd (190 Ill. App. 3d 800, 546 N.E.2d 1096). The only district which did not adopt this position was the fourth. In People v. Roby (4th Dist. 1988), 172 Ill. App. 3d 1060, 527 N.E.2d 623, the fourth district read Hobbs narrowly and concluded that an extended term is precluded only where the enhancing conviction is the sole conviction available for purposes of imposing an extended term under section 5 — 5—3.2(b)(1). (Roby, 172 Ill. App. 3d at 1065, 527 N.E.2d at 625-27.) Likewise, the Third District Appellate Court recently overruled its prior decision in Spearman and determined that an extended-term sentence is proper in a case where a prior offense is used to enhance a misdemeanor to a felony where other prior offenses are available to provide a basis for an extended-term sentence. (Martin, 240 Ill. App. 3d at 262, 606 N.E.2d at 1267.) The analysis followed by the Roby and Martin decisions is directly in line with the Illinois Supreme Court’s recent decision in Gonzalez (151 Ill. 2d 79, 600 N.E.2d 1189). In Gonzalez, the Illinois Supreme Court determined that no impermissible double enhancement occurs if no single factor is used both to establish the elements of defendant’s crime and to sentence defendant to an extended term of imprisonment. (Gonzalez, 151 Ill. 2d at 85, 600 N.E.2d at 1192.) Furthermore, the Gonzalez court determined that its decision does not conflict with its earlier decision in Hobbs because in Hobbs the same prior felony theft conviction was used both as an element of the offense and as the felony upon which the extended-term sentence was based. (See Gonzalez, 151 Ill. 2d at 88, 600 N.E.2d at 1193.) In Gonzalez, however, the same prior felony conviction was not used both as an element of the offense and to impose the extended-term sentence. (Gonzalez (151 Ill. 2d at 89, 600 N.E.2d at 1194.) Hence, Hobbs is distinguishable from Gonzalez and the instant case. Accordingly, we now adopt the reasoning set forth in the Gonzalez opinion that a defendant is eligible for an extended-term sentence as long as the same prior conviction is not used both to enhance his sentence and serve as the basis for an extended-term sentence. We note, however, that our prior decision in Hurd was made without the guidance of the Illinois Supreme Court’s recent decision in Gonzalez. Therefore, we believe that the circuit court properly sentenced defendant to extended-term sentences of six years’ imprisonment on each conviction, with the sentences to run concurrently.

Defendant further claims that the circuit court abused its discretion in sentencing him to the maximum extended-term sentences of six years because those sentences do not have the objective of restoring the defendant, an alcoholic, to useful citizenship.

We note, however, that the trial court is the proper court to determine an appropriate sentence, and a reviewing court cannot alter that sentence absent an abuse of the trial court’s discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) The defendant contends, however, that the circuit court abused its discretion when it sentenced the defendant because it did not give more weight in mitigation to defendant’s alcoholism, his attempts at rehabilitation, and his potential for rehabilitation. We find defendant’s contentions to be without merit.

Defendant is correct in stating that the trial court did not recognize, as a factor in mitigation, that defendant is an alcoholic. Although defendant argues that this was error because the Illinois Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1991, ch. 111^, par. 6351 — 3) defines alcoholism as a disease and provides treatment for alcoholics, defendant fails to realize that treatment is not a sentencing option for him because he violated section 11 — 501 and the legislature has specifically exempted driving under the influence of alcohol from the types of offenses for which a defendant might elect to undergo treatment as an alternative to incarceration. Ill. Rev. Stat. 1991, ch. lllVz, par. 6360-l(h).

The defendant suggests that his case is similar to People v. Carter (1988), 165 Ill. App. 3d 169, 518 N.E.2d 1068, and People v. Clark (1990), 206 Ill. App. 3d 741, 565 N.E.2d 28, because he had previously sought alcohol rehabilitation on two prior occasions and was unable to complete either program. The case at bar is distinguishable from Carter and Clark. In Carter and Clark, the defendants were sentenced to probation and ordered to participate in treatment programs. In both cases, the defendants were unable to complete the treatment programs because they were subsequently arrested and sentenced on other offenses. The appellate court determined that the failure to complete the treatment program should not have been utilized to show that defendants were unlikely to complete a treatment program so as to justify incarceration instead of treatment. The defendant in the case at bar, however, did successfully complete an inpatient treatment program, participated in an outpatient program for approximately one week before he was sentenced to the Department of Corrections, and attended Alcoholics Anonymous from November 1989 through June 1991 while he was incarcerated. When defendant was released from the Department of Corrections in June of 1991, he began consuming an average of 24 to 36 beers per day and was arrested on the current charges within two months of his release from the Department of Corrections. On December 19, 1991, the court ordered the defendant to refrain from consuming alcohol. On January 17, 1992, the defendant stated at his sentencing hearing that he had not had any alcohol since the trial court had ordered him to abstain from it. Furthermore, we note that even though defendant has twice voluntarily enrolled himself in alcohol-treatment programs, both enrollments occurred after defendant was arrested and prior to the time defendant was to be sentenced. Therefore, the court could have viewed defendant’s attempts at rehabilitation as a mere ruse to avoid incarceration. We further note that although the trial court is required to consider the defendant’s rehabilitative potential when imposing sentence, this consideration need not outweigh the seriousness of the offense or other aggravating factors. People v. Halstead (1987), 164 Ill. App. 3d 1, 8, 517 N.E.2d 667, 671.

In the instant case, a review of the record demonstrates that the court believed that defendant’s offenses were extremely serious. The court told the defendant the following:

“I believe you are not only an alcoholic, but I believe you are in utter disregard for the authority of the court. *** It is a miracle you have not killed someone. The only thing the Court can do is take you off the streets for as long as *** possible.
Perhaps the legislature passes these statutes to the end that people like you will realize that when you have reached the stage that you have with the system, that [sic] you will then seek assistance and seek it with a good heart, a heart that is committed to recovery. *** [E]ventually, I believe that you will kill someone. *** That is tragic. I hope you prove me wrong.”

Additionally, the court noted that defendant’s incarceration is necessary for the protection of the public and that probation would deprecate the seriousness of defendant’s conduct. The court properly considered as factors in aggravation that defendant’s conduct threatened serious harm, defendant has a prior history of criminal activity, and the sentence is necessary to deter others from committing the same offenses. (See Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3.2.) Our review of the record indicates that the circuit court properly exercised its discretion in sentencing the defendant to extended-term sentences of six years’ imprisonment on each offense, with the sentences to be served concurrently.

For the aforementioned reasons, the judgment of the circuit court is affirmed.

Affirmed.

LEWIS and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER RAKOWSKI, WOODWARD, and RARICK, JJ., PRESIDING JUSTICE McCULLOUGH,

license: Public Domain

text:
    LOCK 26 CONSTRUCTORS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Vernon Politte, Appellee).
    Fifth District (Industrial Commission Division)
    No. 5 — 92—0315WC
    Opinion filed April 27, 1993.

      McCULLOUGH, P.J., specially concurring.
    Stevenson, Rusin & Friedman, Ltd., of Chicago (Gregory G. Vacala, of counsel,) for appellant.
    John Gitchoff and Ronald S. Motil, both of Granite City, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The appellee, Vernon Politte (the claimant), filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 1992)), contending he sustained compensable injuries in the course of and arising out of his employment with the appellant, Lock 26 Constructors (the employer). Following a hearing, the arbitrator determined that the claimant suffered an accident arising out of and in the course of his employment and awarded benefits. The arbitrator further found that the claimant’s condition was causally connected to his accident at work. The Industrial Commission (the Commission) affirmed the arbitrator’s decision and award. The circuit court confirmed the Commission’s decision. The employer brought this appeal, asking us to consider the following issues: (1) whether the employee was so intoxicated that he could no longer follow his employment and thus could not be said to be engaged in his employment at the time of the occurrence; (2) whether the Commission’s finding of causation is contrary to the manifest weight of the evidence; and (3) whether the Commission’s award of permanency is contrary to the manifest weight of the evidence.

The claimant was employed as an operating engineer for the employer. On October 21, 1985, the claimant suffered injuries when he fell off of a crane. The claimant had climbed up on the crane in order to fuel a light plant. The claimant testified that his feet slipped on some fuel oil, causing him to fall off the crane and to land partially on a barge and partially on some ties that were sitting on the barge. The claimant felt pain in his arms, the back of his head, and his buttocks. He testified that his whole left side felt numb.

The claimant testified that he had been drinking whiskey on the date of his fall from the crane. He had consumed three or four drinks from the start of his shift until the accident. The claimant, approximated his consumption to be 2V2 inches of whiskey from a pint bottle. The claimant testified that he did not consider himself to be intoxicated at the time of the occurrence. Jeffrey Tepen, one of the claimant’s co-workers, testified that he did not notice alcohol on the claimant’s breath prior to the accident, and that the claimant did not appear to be intoxicated.

The claimant testified that he drank a considerable amount of alcohol after the fall. The claimant went to the employer’s trailer and had four or five large drinks out of a pint bottle. He believed that this would help relieve his pain. There were no witnesses to the drinking after the accident.

The claimant was taken to Christian Hospital Northeast. Upon arrival at the emergency room, the claimant was told by hospital personnel that he was drunk. The claimant had a blood-alcohol content of 290 milligrams per deciliter (.29). At the hospital, the claimant came under the care of Dr. Hoffman. The claimant underwent tests and physical therapy. The claimant was later referred to DePaul Hospital for physical therapy.

The claimant next came under the care of Dr. John Kenney, an orthopedic specialist. Dr. Kenney first saw the claimant on November 13, 1985. Dr. Kenney found degenerative changes in the claimant’s spine but could not state how long those had been present. Dr. Kenney testified that the plaintiff’s complaints of pain could have been either cervical or lumbar. Dr. Kenney had the claimant admitted to St. Anthony’s Medical Center on January 10, 1986. Dr. Gary Myers performed an EMG on the claimant that showed mild denervation of the L4-L5 dermatome levels bilaterally, but worse on the left side.

On April 4, 1986, the claimant again saw Dr. Kenney for complaints of pain in his back and neck. Dr. Kenney stated that the claimant was suffering from a herniated disc at L4-L5. Dr. Kenney testified that he initially had the impression that the claimant was suffering from a herniated disc in January 1986. Dr. Kenney advised the claimant that he might require chemonucleolysis for the disc problem in his lower back. However, Dr. Kenney advised the claimant that he should not undergo this procedure until his liver functions were adequate. A lumbar myelogram was performed on June 24, 1986, which showed a small focal anterior epidural impression at L4-L5 which appeared accentuated since a previous myelogram. Dr. Kenney testified that this change was compatible with a herniated disc. Dr. Kenney performed chemonucleolysis on June 26. Dr. Kenney testified that, in his opinion, the claimant’s fall at work caused the herniated disc. He did state, though, that his opinion might have been different if he would have been advised of previous injuries involving the same areas of the body. Dr. Kenney testified that the claimant’s spinal injuries would prevent him from returning to heavy work.

On July 14, 1986, the claimant was referred to Dr. George Schoedinger for cervical treatment. Dr. Schoedinger testified that a myelogram study performed on January 8, 1986, revealed a disc protrusion at the C5-C6 level. Dr. Schoedinger diagnosed the claimant’s injury as herniated nucleus pulposus C4-C5 and C5-C6. Dr. Schoedinger admitted the claimant to St. Anthony’s Medical Center on October 20, 1986, where he performed an anterior cervical discectomy and fusion at the C4-C5 and C5-C6 levels. Dr. Schoedinger testified that the claimant’s fall at work caused the cervical disc injury, and that the claimant’s condition was permanent. Dr. Schoedinger opined that it would be unwise for the claimant to perform any heavy manual labor.

The claimant was examined at the employer’s request by Dr. Michael Ralph on July 12, 1988. Dr. Ralph reviewed the claimant’s medical records and performed a physical examination that lasted five minutes. In Dr. Ralph’s opinion, the claimant’s lumbar myelogram was normal for a person his age, and the cervical myelogram showed only degenerative changes without impingement on the nerve roots. Dr. Ralph testified that, logically, the treatments rendered by Dr. Kenney and Dr. Schoedinger were not medically necessary as a result of the claimant’s fall. Dr. Ralph further testified that the claimant’s blood-alcohol level of .29 was an oppressive level, and that a level of that magnitude would impair judgment and make a person combative.

The claimant suffered a previous injury in 1983 when he fell on ice-covered steps outside of the operators’ trailer. The claimant suffered a fractured right arm and cervical strain. The claimant settled a workers’ compensation claim in the amount of 10% permanent disability of the right hand and 21/2% of the man as a whole. The employee returned to work in 1988 for Sandau Custom Dredging. In July 1988, the claimant suffered an injury to his left knee and left hand. A workers’ compensation claim was filed for those injuries, and, at the time of arbitration, the claimant was still off of work.

The arbitrator found that on October 21, 1985, the claimant had suffered an accidental injury arising out of and in the course of his employment. The arbitrator found that there was no evidence that a blood-alcohol level of .29 would render the claimant unable to carry out his job duties. The arbitrator found persuasive the claimant’s testimony that he drank a considerable amount after the accident. The arbitrator awarded the claimant temporary compensation benefits in the amount of IOS1/? weeks, $19,176.49 in medical bills, and 40% permanent partial disability of the man as a whole. The Commission affirmed the arbitrator’s decision. On administrative review, the circuit court confirmed the Commission’s decision.

As an initial matter, the employer has filed a motion to strike the statement of facts from the claimant’s brief. This motion was taken with the case. The employer points out that the claimant has included argumentative and conclusional statements in his statement of facts. Further, the claimant has left out citations to the record for a few of his statements. The claimant’s response to this motion was stricken as untimely. Our review of the record indicates that the violations of Supreme Court Rule 341 (134 Ill. 2d R. 341) are relatively minor. A statement of facts will not be stricken when there are no rules violations so flagrant as to hinder or preclude review (Oakleaf v. Oakleaf & Associates, Inc. (1988), 173 Ill. App. 3d 637, 527 N.E.2d 926), and a reviewing court disregards inappropriate statements contained in either brief. (Black v. Iovino (1991), 219 Ill. App. 3d 378, 580 N.E.2d 139.) Therefore, we will not strike the claimant’s statement of facts but will disregard any inappropriate statements. Nevertheless, we strongly recommend that attorneys always strictly comply with the Illinois Supreme Court Rules.

The employer’s first argument on appeal is that the claimant was so intoxicated that he could no longer follow his employment and thus could not be said to be engaged in his employment at the time of the occurrence. The employer’s argument is based on the supreme court’s decision in Paganelis v. Industrial Comm’n (1989), 132 Ill. 2d 468, 548 N.E.2d 1033, wherein it was held that compensation should be denied as a matter of law when an injury arises out of a claimant’s intoxicated condition. The claimant in Paganelis had a blood-alcohol level of .238. The claimant responds that there was no evidence that he could not perform his job duties at the time of the occurrence, and he points out that the employer was unable to rebut his testimony that he drank a considerable amount after the accident.

We believe that the employer has misread Paganelis. The employer seems to suggest that because the claimant had a blood-alcohol level higher than the claimant in Paganelis, these injuries must have necessarily resulted from his intoxicated condition. However, the supreme court did not create a per se level of intoxication in Paganelis. The court held that the Commission’s finding that the accident arose out of the claimant’s intoxicated condition was not against the manifest weight of the evidence. The court chose to follow Professor Larson’s opinion of when intoxication removes a claimant from the scope of employment. Professor Larson has stated the rule as follows:

“Voluntary intoxication which renders an employee incapable of performing his work is a departure from the course of employment. Otherwise, apart from special statute, evidence of intoxication at the time of injury is ordinarily no defense, at least unless intoxication was the sole cause of injury.” (1A A. Larson, Workmen’s Compensation §34.00, at 6-71 (1992).)

The Paganelis court explained that the defense of intoxication could succeed if the employer could show either that the intoxication was the sole cause of the injury or that the intoxication was so excessive as to constitute a departure from the course of his employment. The court in that case found it significant that the claimant was unable to show that he was able to perform his work after he became intoxicated.

Unlike the claimant in Paganelis, this claimant introduced evidence that he was able to perform his work after consuming alcohol. The claimant was specifically performing a job task when he slipped on some oil and fell. Because the claimant slipped in oil and fell off of a crane, it clearly could not be said that intoxication was

_ the sole cause of injury. Further, as the evidence indicated that the claimant was successfully performing his job at the time of injury, it could not be said that he had departed from the course of employment. Professor Larson has explained that, “if the claimant continues actively to perform his duties, even while admittedly intoxicated, he has not abandoned his employment.” (1A A. Larson, Workmen’s Compensation §34.21, at 6-95 (1992).) The employer was unable to introduce any evidence that the claimant’s intoxication was the cause of injury and only speculates from the blood-alcohol level that that was the case. Additionally, the claimant’s testimony that he drank a considerable amount after the fall to relieve his pain went unrefuted. The Commission’s decision on this matter was not against the manifest weight of the evidence.

The employer’s next argument is that the Commission’s finding that the claimant’s condition was causally connected to his alleged accident is against the manifest weight of the evidence. The employer argues that the claimant’s testimony is not worthy of belief because he gave three different versions of what height he fell from. The employer also believes that the testimony of Dr. Ralph should be believed over that of the claimant’s treating physicians, Dr. Schoedinger, Dr. Kenney, and Dr. Hoffman. The claimant responds that the Commission’s decision as to causation was clearly not against the manifest weight of the evidence, and any other conclusion as to causation is sheer speculation on the part of the employer.

Resolving disputes in the evidence and drawing reasonable inferences and conclusions therefrom is the responsibility of the Commission. (Riley v. Industrial Comm’n (1991), 212 Ill. App. 3d 62, 570 N.E.2d 887.) In the presence of conflicting medical opinions, the Commission’s determination is given substantial deference and will be upheld unless it is contrary to the manifest weight of the evidence. General Tire & Rubber Co. v. Industrial Comm’n (1991), 221 Ill. App. 3d 641, 582 N.E.2d 744.

The claimant’s treating physicians all testified to causal connection. The employer wants this court to reverse based on the testimony of Dr. Ralph, who examined the claimant for all of five minutes. The employer made vague references to other injuries but did not introduce any concrete evidence that those injuries could have been the cause of the claimant’s condition. The Commission’s decision to rely on the testimony of the claimant’s treating physicians was clearly not against the manifest weight of the evidence.

The employer’s final argument is that the award of 40% loss of the man as a whole, pursuant to section 8(d)(2) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.8(d)(2)), was against the manifest weight of the evidence. The arbitrator found that the claimant was disabled to the extent of 15% lumbar and 25% cervical. The employer notes that the claimant has returned to gainful employment and is able to drive a truck for distances exceeding 100 miles. The employer also points out that the claimant is no longer treating for, nor taking medication for, the injuries sustained on October 21, 1985. The employer cites decisions of the Commission awarding 25% to 30% for allegedly similar injuries. The claimant responds with the testimony of the doctors that he could no longer engage in heavy manual labor. The claimant further relies on the testimony of Dr. Schoedinger that he will have intermittent discomfort in his neck and arms in the future and will require medication for that discomfort. The claimant also cites Commission decisions awarding 40% to 50% for allegedly similar injuries.

The determination of the extent or permanency of a claimant’s disability is a question of fact for the Commission, whose decision will not be disturbed on appeal unless it is against the manifest weight of the evidence. (Amoco Oil Co. v. Industrial Comm’n (1991), 218 Ill. App. 3d 737, 578 N.E.2d 1043.) The award in this case was supported by the medical testimony that the employer should refrain from heavy manual labor and the claimant’s testimony that he could no longer do some of the everyday chores around the home that he used to do and that he experiences pain when traveling long distances in vehicles. The employer has not made a sufficient showing to indicate that the award was against the manifest weight of the evidence.

For the reasons stated, the judgment of the circuit court of Madison County is affirmed.

Affirmed.

RAKOWSKI, WOODWARD, and RARICK, JJ.,

concur.

PRESIDING JUSTICE McCULLOUGH,

specially concurring:

I agree with the decision reached. As is pointed out, the claimant is not entitled to recover if the intoxication was the cause of the injury or the intoxication was so excessive as to constitute a departure from the course of employment.

The arbitrator found uncontradicted the testimony of claimant “that he drank a lot between the time he was injured and the time he was taken off the barge to the hospital.” There was no evidence the claimant was drunk at the time of the injury even though the evidence shows at the hospital his blood-alcohol level was an oppressive .29.

Had there been evidence his level of intoxication was .29 at the time of the accident, I would find his intoxication was so excessive as to constitute a departure from his course of employment, where the only witness to the incident was the claimant himself.


author: PRESIDING JUSTICE CHAPMAN

text:
    MARION METAL AND ROOFING COMPANY, INC., et al., Plaintiffs-Appellees, v. RODGER WOOD, Defendant-Appellant.
    Fifth District
    No. 5 — 92—0159
    Opinion filed May 5, 1993.

      Frederic M. Grosser and Keith Hays, both of Grosser & Hays, of Champaign, and J. Lawrence Sanders, of Sanders & Sanders, of Marion, for appellant.
    John S. Brewster, of Winters, Brewster, Murphy, Crosby & Patchett, of Marion, and Curtis C. Calloway and John M. Hessel, both of Lewis, Rice & Fingersh, of St. Louis, Missouri, for appellees.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

On May 24, 1988, Marion Metal & Roofing Company, Inc. (Marion Metal), filed a complaint against Rodger Wood, a former employee, seeking an injunction and damages against Wood based on a restrictive covenant. On the same day the complaint was filed, a temporary restraining order was entered barring Wood from engaging in a business similar to Marion Metal’s within a four-State area. On June 24, 1988, the court held an evidentiary hearing on plaintiffs’ petition for a preliminary injunction and granted the petition.

The parties engaged in additional discovery, and on November 22, 1988, Wood filed a motion for sanctions stemming from alleged discovery abuses. At the hearing on the motion, the parties agreed that plaintiffs’ witnesses, Eugene and Richard Porter, were to submit to depositions. During the next few weeks, the parties engaged in settlement negotiations.

At a pretrial conference on September 18, 1989, the circuit court was advised that the injunction claim was moot due to Marion Metal’s sale of its assets. The trial court entered an order dissolving the preliminary injunction by agreement of the parties. On January 18, 1990, defendant filed a second motion for sanctions noting the plaintiffs’ failure to produce the Porters for their depositions in March 1989 and thereafter. On January 18, 1990, defendant also filed a petition for damages claiming that the preliminary injunction had been wrongfully issued. On that same day plaintiffs filed a motion for voluntary dismissal of their complaint including their remaining damage claims.

On February 6, 1992, the trial court dismissed defendant’s motion for sanctions and petition for damages and granted plaintiffs’ motion for voluntary dismissal. The order of the trial court further stated:

“Chapter 110 §11 — 110 [Ill. Rev. Stat. 1991, ch. 110, par. 11— 110 (now 735 ILCS 5/11 — 110 (West 1992))] provides the statutory authority for the Petition for Damages filed herein by the defendant. Such a petition can only be presented after the dissolution of a Preliminary Injunction. The Preliminary Injunction was dissolved by Order of Court on 2/15/90. Defendant filed his Petition for Damages on 1/18/90. Therefore, the defendant’s Petition for Damages was improperly filed herein. Additionally, the law is clear that this particular statute is to be strictly construed and applied by the Court. Not only must the preliminary injunction be dissolved prior to the petition for damages being filed, but also, there must be a prior adjudication by the Court that the preliminary injunction was improperly, or wrongfully, entered. Emerson Electric Co. v. Sherman, 104 Ill.Dec. 151, 150 Ill. App. 3d 832, 502 N.E.2d 414 (1986). Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc., 69 Ill. Dec. 71, 94 Ill. 2d 535, 447 N.E.2d 288 (1983). There was no adjudication by this Court that the preliminary injunction, entered herein, was improperly entered. The preliminary injunction was dissolved by agreement of the parties. This is insufficient to allow a Petition for Damages pursuant to Chapter 110 §11 — 110 to stand.”

Rodger Wood appeals. We reverse and remand.

Marion Metal and Eugene Porter desire to supplement the record with correspondence between counsel and the trial court and with plaintiffs’ memorandum in support of plaintiffs’ application for preliminary injunction. Before discussing the merits of this case, we must address plaintiffs’ motion to supplement the record.

Rodger Wood raises no objection to the supplementation of the record on appeal with the memorandum in support of plaintiffs’ application for preliminary injunction, which apparently was filed in the trial court on June 21, 1988, and for some reason was not included in the record on appeal. We grant the motion to supplement as to the memorandum. See In re Marriage of Anderson (1985), 130 Ill. App. 3d 684, 474 N.E.2d 911.

Defendant objects to the inclusion in the record on appeal of correspondence which was not part of the trial record. Illinois Supreme Court Rule 329 permits a record to be supplemented “to present fully and fairly the questions involved.” (134 Ill. 2d R. 329.) Plaintiffs contend that their alleged failure to send a copy of the proposed order for preliminary injunction is at issue in this case. Plaintiffs argue that the letters to be made part of the record reflect that defense counsel did in fact receive notice of the proposed order before it was entered. We find that the materials plaintiffs seek to make part of the record are properly before this court via Rule 329. (See Schumann v. I P C O Hospital Supply Corp. (1981), 93 Ill. App. 3d 1053, 418 N.E.2d 161.) Accordingly, plaintiffs are granted leave to supplement the record on appeal.

Turning to the merits, defendant argues that the trial court erred in granting plaintiffs’ motion for voluntary dismissal without (1) obtaining defendant’s consent, and (2) conducting a hearing on the merits regarding defendant’s motion for sanctions and his petition for damages.

Defendant argues that his petition for damages constitutes a counterclaim and, therefore, the trial court exceeded its authority in granting the voluntary dismissal without his consent.

Section 2 — 1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 1009 (West 1992)) provides that “[ajfter a counterclaim has been pleaded by a defendant no dismissal may be had as to the defendant except by the defendant’s consent.” A counterclaim is defined in section 2 — 608 of the Code:

“Any claim by one or more defendants against one or more plaintiffs, *** whether in the nature of set-off, recoupment, cross claim or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief, may be pleaded as a cross claim in any action and when so pleaded shall be called a counterclaim.” (735 ILCS 5/2 — 608 (West 1992).)

The question in this case is whether defendant’s claim for damages stemming from the alleged wrongful preliminary injunction constitutes a counterclaim. We find that it does.

A counterclaim differs from an answer or affirmative defense; the former is a cause of action which seeks affirmative relief, whereas an answer or affirmative defense merely attempts to defeat a plaintiff’s cause of action. (Benckendorf v. Burlington Northern R.R. (1983), 112 Ill. App. 3d 658, 445 N.E.2d 837.) Thus, in Heck v. Central Illinois Light Co. (1992), 152 Ill. 2d 401, 604 N.E.2d 939, the court held that the filing of a counterclaim for contribution by a defendant bars plaintiff’s motion for voluntary dismissal. In this case, defendant’s claim for damages arises under section 11 — 110 of the Code of Civil Procedure (735 ILCS 5/11 — 110 (West 1992)). Under section 11 — 110, a party incurring damages by reason of a temporary restraining order or preliminary injunction is entitled to petition for damages. We find that the defendant’s claim in this case constitutes a counterclaim for purposes of section 2 — 1009.

The court in Contract Development Corp. v. Beck (1991), 210 Ill. App. 3d 677, 569 N.E.2d 941, held that the trial court could not permit the voluntary dismissal of the complaint without consent of the defendants who had filed a counterclaim, and the court could not then dismiss the counterclaim without determining whether it stated a cause of action. The court in Contract Development did not determine that the counterclaim failed to state a cause of action. The court merely dismissed the complaint and the counterclaim along with it. In the instant case, the trial court dismissed defendant’s claim for damages on grounds that it was improper. While the facts differ somewhat between our case and Contract Development, given the plain meaning of section 2 — 1009, we find the holding in that case applicable. In view of section 2 — 1009, the trial court erred in voluntarily dismissing plaintiffs’ complaint without defendant’s consent.

Plaintiffs contend that defendant suffered no prejudice by the court’s voluntary dismissal because before dismissing the complaint the trial court properly determined that defendant’s claim for damages was improper. Defendant relies upon that portion of the trial court’s order which reads:

“There was no adjudication by this Court that the preliminary injunction, entered herein, was improperly entered. The preliminary injunction was dissolved by agreement of the parties. This is insufficient to allow a Petition for Damages pursuant to Chapter 110 §11 — 110 to stand.”

While the quoted portion of the order does seem to suggest that the court might ultimately rule in the plaintiffs’ favor on this point, we do not read those sentences as a definitive determination on this issue. We can envision a situation in which a defendant who was damaged by an improperly entered preliminary injunction agrees to a dismissal of the preliminary injunction and reserves its right to seek damages. We are not saying that this is such a case, but we will allow the trial court to make such a determination.

The trial court also premised its dismissal of defendant’s claim for damages on section 11 — 110 of the Code of Civil Procedure, which provides:

“In all cases where a temporary restraining order or a preliminary injunction is dissolved by the circuit court or by the reviewing court, the circuit court, after the dissolution of the temporary restraining order or preliminary injunction, and before finally disposing of the action shall, upon the party claiming damages by reason of such temporary restraining order or preliminary injunction, filing a petition under oath setting forth the nature and amount of damages suffered, determine and enter judgment in favor of the party who was injured by such temporary restraining order or preliminary injunction for the damages which the party suffered as a result thereof, which judgment may be enforced as other judgments for the payment of money. However, a failure so to assess damages as herein-above set out shall not operate as a bar to an action upon the injunction bond.” (735ILCS 5/11 — 110 (West 1992).)

The court ruled that defendant’s petition was improperly filed because a section 11 — 110 petition can only be filed after the dissolution of a preliminary injunction. We disagree. Wfiien construing a statute, the court should look first to the language of the statute, giving the terms of the statute their plain and ordinary meaning. (People v. Ullrich (1990), 135 Ill. 2d 477, 483, 553 N.E.2d 356, 359.) Section 11-110 does not require that a petition for damages be filed after the preliminary injunction is dissolved. The statute merely requires that the judge not determine the petition for damages until after the temporary restraining order or preliminary injunction is dissolved.

A second reason the trial court gave for dismissing defendant’s petition for damages was that the preliminary injunction was dissolved not by adjudication but by agreement of the parties. Section 11 — 110 does not mandate that dissolution of the preliminary injunction be pursuant to court adjudication. The statute provides: “In all cases where a *** preliminary injunction is dissolved by the circuit court ***.” (735 ILCS 5/11 — 110 (West 1992).) It is undisputed that the trial court entered an order dissolving the preliminary injunction in this case. Whether the parties consented to that dissolution or not is of no merit under the language of the statute.

Although the trial court’s reasons for dismissing defendant’s petition were erroneous, we do not reach the issue of whether defendant is in fact entitled to damages. Damages under section 11 — 110 are recoverable only for wrongful issuance of temporary restraining orders and preliminary injunctions. (See Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1983), 94 Ill. 2d 535, 447 N.E.2d 288.) Thus, we reverse the decision of the trial court dismissing defendant’s petition for damages and remand for further proceedings.

We now turn to the issue of whether the trial court erred in dismissing defendant’s motion for sanctions. Had the dismissal of plaintiffs’ complaint been proper, the trial court could have properly dismissed defendant’s motion for sanctions without reaching the merits of that motion. (See Bochantin v. Petroff (1991), 145 Ill. 2d 1, 582 N.E.2d 114; Gibellina v. Handley (1989), 127 Ill. 2d 122, 535 N.E.2d 858; see also McDaniel v. St. Elizabeth’s Hospital (1991), 213 Ill. App. 3d 103, 571 N.E.2d 1203.) In this case, however, the trial court erred in voluntarily dismissing plaintiffs’ complaint. Because it is apparent the trial court dismissed defendant’s motion for sanctions without considering the merits of the motion, we reverse the trial court’s dismissal of the motion for sanctions and remand for further proceedings.

In light of the foregoing, the judgment of the trial court is reversed, and this cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

WELCH and RARICK, JJ., concur.


author: PRESIDING JUSTICE CHAPMAN W.A. LEWIS, J., JUSTICE GOLDENHERSH,

text:
    MICHAEL PALEN, Special Adm’r of the Estate of Melissa M. Palen, Deceased, Plaintiff-Appellee, v. STRADER’S LOGGING et al., Defendants-Appellants.
    Fifth District
    No. 5-91-0257
    Opinion filed April 19, 1993.
    Rehearing denied May 27, 1993.
    GOLDENHERSH, J., concurring in part and dissenting in part.
    Daniel M. Reavy and Michael J. Pitzer, both of Rabbitt, Pitzer & Snodgrass, P.C., of Belleville and of St. Louis, Missouri, for appellants.
    Callis Law Firm, of Granite City, for appellee.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiff, Michael Palen, filed this wrongful death action on behalf of Melissa M. Palen, deceased, who was killed in an automobile accident when her car was struck on September 9, 1987, by a logging truck driven by defendant Brian K. Strader in the course of his employment by defendant Strader’s Logging. The trial court directed a verdict for plaintiff on the issues of defendants’ liability and the decedent’s comparative negligence. On appeal, both defendants contend that the trial court erred in directing a verdict for plaintiff on the issue of decedent’s comparative negligence. Defendant Brian K. Strader also contends that the trial court erred in denying his motion to dismiss plaintiff’s complaint against him because plaintiff failed to exercise reasonable diligence to obtain service prior to the expiration of the statute of limitations. We affirm the trial court’s ruling on the service issue, but we reverse the ruling which directed a verdict on the comparative negligence issue.

I

Because the relevant facts differ for the issues on appeal, we will recite the facts necessary for resolution of the issues as we address each one. We first address Brian K. Strader’s contention that plaintiff failed to exercise reasonable diligence to obtain service on him prior to the expiration of the statute of limitations. Plaintiff’s initial complaint, filed on January 13, 1988, did not name Brian K. Strader as a party-defendant. Plaintiff amended his complaint to add Brian as a defendant on April 20, 1989, and a summons was issued for service by the Macoupin County sheriff’s department. Summons was not served on Brian K. Strader at that time, however. Plaintiff took Brian’s discovery deposition on November 15, 1989. On February 13, 1990, both defendants filed a joint motion requesting a continuance. The cover letter attached to the motion indicated that it was made on behalf of the “defendants” rather than the singular defendant, Strader’s Logging. Defense counsel filed a motion to withdraw as Brian K. Strader’s attorney, stating that he had no authority to enter an appearance for Brian and that service had not been made on him. On May 4, 1990, the trial court granted the motion to withdraw entry of appearance on behalf of Brian K. Strader. On May 15, 1990, plaintiff served Brian K. Strader with the summons and complaint. On June 5, 1990, Brian K. Strader filed a special appearance and motion to dismiss plaintiff’s complaint against him pursuant to Illinois Supreme Court Rule 103 (134 Ill. 2d R. 103). The trial court denied the motion, and Brian K. Strader now appeals that order.

The issue on appeal is whether the trial court abused its discretion in denying Brian’s motion to dismiss. We find that it did not. Rule 103(b) provides:

“(b) Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court’s own motion.” (134 Ill. 2d R. 103(b).)

Plaintiff argues that the trial court correctly denied Brian’s motion to dismiss because Brian participated in discovery when he was deposed by plaintiff’s counsel and Brian’s name was included as a defendant on several pleadings filed by defense counsel. Moreover, plaintiff argues that when the trial court granted defense counsel’s motion to withdraw as attorney for Brian, plaintiff served Brian within two weeks. In support of his argument, Brian cites Womick v. Jackson County Nursing Home (1990), 137 Ill. 2d 371, 561 N.E.2d 25. In that case the plaintiff filed an action against the defendant two days before the statute of limitations expired. The plaintiff did not serve summons on the defendant until approximately nine months later. The trial court found that the plaintiff did not exercise reasonable diligence in serving the defendant and dismissed the action with prejudice pursuant to Supreme Court Rule 103(b). The plaintiff argued that the defendant had actual notice of the civil suit, which is the purpose of Rule 103(b). The Womick court held that actual notice or knowledge of the pendency of a suit or lack of prejudice to defendant are significant because they may affect the judge’s determination as to whether plaintiff was diligent, but they are only two factors the court should consider in making that determination. (137 Ill. 2d at 377, 561 N.E.2d at 27.) The court further stated:

“Other factors include: (1) the length of time used to obtain service of process; (2) the activities of the plaintiff; (3) plaintiff’s knowledge of the defendant’s location; (4) the ease with which the defendant’s whereabouts could have been ascertained; (5) special circumstances which would affect plaintiff’s efforts; and (6) actual service on the defendant [citation], and all of these factors are to be considered with a view toward fulfilling the constitutional mandate of rendering justice fairly and promptly [citation].” (137 Ill. 2d at 377, 561 N.E.2d at 27.)

In the case before us, we have no doubt that Brian had knowledge of the action through actual notice. Additionally, Brian does not show that he has been prejudiced by plaintiffs late service of summons. Therefore, the first two factors discussed by the Womick court clearly favor plaintiff’s position. Applying the other six factors set forth in Womick to the case at bar, we find no abuse of discretion by the trial court in denying defendant’s motion to dismiss. Brian’s participation in the discovery process led plaintiff to believe that Brian was properly served as a party-defendant. Moreover, when the trial court granted defense counsel’s motion to withdraw entry of appearance on behalf of Brian, plaintiff diligently served Brian with an alias summons.. This court will not disturb the trial court’s order denying Brian K. Strader’s motion to dismiss.

II

The next issue we must address is whether the trial court erred in directing a verdict in favor of plaintiff on the issue of the decedent’s comparative negligence. The facts relevant to this issue are as follows. On September 9, 1987, Brian K. Strader was driving a logging truck owned by Strader’s Logging in an easterly direction in the right lane of Route 140 in Alton. The decedent was driving a passenger car in a northerly direction on Powdermill Road. The two vehicles collided when Strader’s truck skidded into the intersection of the two roadways and struck the decedent’s car as she turned west onto Route 140. The decedent died as a result of injuries sustained in the collision. There were several witnesses to the incident who testified at trial.

Brian Prince was driving north on Powdermill Road approaching the “T” intersection of Powdermill Road and Route 140. There are two left-turn lanes at that intersection, and Prince stopped in the farthest left lane to wait for the light to turn green. Prince testified that after coming to a stop, he looked to his right and saw decedent as she approached the intersection in the other left-turn lane. The two made brief eye contact as the decedent looked to her left, and Prince noted that decedent’s car rolled toward the intersection. Prince then looked at the traffic signal and saw that the light was green. Prince also proceeded forward but stopped short of the intersection for a reason unknown to him. Prince looked to his left and saw the logging truck approaching from approximately 80 yards away. Prince also saw decedent’s vehicle as it crossed the eastbound lanes of Route 140. Prince then saw the truck hit decedent’s car.

Gorin Wilde testified that at the time of the accident, he was seated in the right front passenger seat in the car driven by Prince. He stated that he saw the light turn red for the eastbound lanes of Route 140 and then saw defendant’s truck traveling at a rate of approximately 60 miles per hour after the light was red, at a distance of approximately 100 feet from the intersection. Wilde also saw decedent’s car accelerate into the intersection after her signal turned green and get broadsided by the logging truck.

Michael Wolff testified that he was heading westbound on Route 140 at the time of the collision. When Wolff first noticed defendant’s truck coming toward him, the truck was at least 500 feet away and Wolff estimated that the truck was traveling at approximately 55 miles per hour. When Wolff was approximately 200 feet from the truck, he saw the driver of the truck apply the brakes and start sliding into the intersection. Wolff testified that the light was yellow when he saw the truck start to brake. Wolff stated that the decedent was stopped until the light turned green for the cars on Powdermill Road, but he added that she did not hesitate or look to her left once the light turned green.

After the defense rested, plaintiff moved for a directed verdict. The trial court found Michael Wolff’s testimony was not credible and granted plaintiff’s motion. The trial court directed the verdict in favor of plaintiff on the issues of liability and comparative negligence. The only issue that went before the jury was that of damages. The jury awarded plaintiff $215,356.60.

In this appeal, defendants argue that it was reversible error for the trial court to direct a verdict on the issue of comparative negligence. Defendants assert that the trial judge improperly discredited Wolff’s testimony and the evidence presented a factual issue for the jury’s determination. The standard of review for a directed verdict is whether all evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict could stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14; Boatmen’s Bank v. Dowell (1991), 208 Ill. App. 3d 994, 1001, 567 N.E.2d 739, 743.) We must therefore examine the record to determine if there is any evidence to support a finding that the decedent was comparatively negligent in the accident which caused her death.

Michael Wolff testified:

“A. I would say the second that her light — I mean, I can, you know, just judge — the second her light turned green, I mean, she just launched. It was quick. I mean, you know, she didn’t hesitate, she didn’t look, she didn’t do nothing, she just straight ahead.

Q. And were you able to see her face and head?

A. See her clear as day. I could see — she was just right here in my view and just sitting there. I mean, you could see her face.

Q. And where was she looking when she came out?

A. To me she was looking straight ahead at the light poles across the intersection, looking at them watching the light.

Q. And when was that?

A. While he had his brakes on, she was sitting there. When he was sliding through, she’s watching straight ahead. When it turned green, she come right out in front of him.

Q. Now, was there any — was there any sound in that intersection?

A. Oh, heck, you can hear the tires squealing, I mean, brakes sliding. Hell, I could hear it clear as day. That’s what caught my attention to even, you know, really look at him good. I was watching him and watching the cars hoping, you know, that they wouldn’t pull out in front of him.”

This testimony, when coupled with that of the other witnesses, presented sufficient evidence to present a question of fact for the jury on the issue of plaintiff’s comparative negligence. The trial court’s order directing the verdict on the issue of defendant’s negligence has not been challenged on appeal, an understandable position in view of the facts of this case. However, the fact that defendant was clearly negligent does not necessarily mean that plaintiff’s conduct played no part in this incident.

The supreme court reminds us:

“Logic demands that one rule govern both the direction of verdicts and determination of the presence or absence of negligence or contributory negligence as a matter of law, for in both situations the issue is whether a court or the jury should decide the negligence issue.” Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 503, 229 N.E.2d 504, 510.

See also Thompson v. Illinois Power Co. (1992), 237 Ill. App. 3d 273, 603 N.E.2d 1303.

The plaintiff relies upon Salo v. Singhurse (1989), 181 Ill. App. 3d 641, 537 N.E.2d 339, to support the trial court’s ruling, but the case is distinguishable. In Salo the plaintiff was on the preferential highway, the defendant either ran a stop sign or failed to yield the right-of-way, and the jury assessed the plaintiff with 60% of the fault. In reversing that finding, the court stated:

“If we were to follow the jury’s apportionment in this case, every time a driver on a preferential highway saw an approaching car on an intersecting road or drive, he essentially would be required to stop to make sure the other car obeyed the stop sign and stayed there or else be found negligent.” Salo, 181 Ill. App. 3d at 644, 537 N.E.2d at 341.

In this case, the plaintiff was not on the preferential highway. She stopped, she waited for the light to change to green, and according to Michael Wolff, “she just launched *** she didn’t hesitate, she didn’t look, she didn’t do nothing, she just straight ahead.” At the same time, again according to Wolff, a truck was approaching from her left with its tires squealing and obviously unable to stop in response to the red traffic light. A jury that believed Michael Wolff could reduce a verdict in plaintiff’s favor. Therefore, the trial court erred in directing a verdict on the issue of comparative negligence.

On the issue of Wolff’s credibility, the trial court stated that it found that Michael Wolff was not a credible witness. Plaintiff contends that the trial court’s finding had no bearing on the outcome of this case. We cannot agree with that contention. The record reflects the following occurred during the argument on the directed verdict motion:

“[Plaintiff’s attorney]: And I think that even if there is any slight issue created by Mr. Wolff, his testimony is so unbelievable that there could be no issue as to anything he said.

THE COURT: I find Mr. Wolff’s testimony not credible. And I am directing a verdict.

[Defendant’s attorney]: Well, let me show for the record, the credibility is an issue for the jury. The man said under oath that he was just trying to tell the truth, and the Court has simply decided that he was telling the opposite of the truth in total.”

In view of the context of the court’s remark on this point we cannot agree that the finding had no bearing on the outcome. Clearly, the credibility of a witness is for the jury to determine, (Bailey v. Clark (1990), 203 El. App. 3d 1017, 561 N.E.2d 367.) The court erred when it made the determination of Wolffs credibility and when it directed the verdict on the issue of comparative negligence.

We reverse and remand for a new trial on the issue of damages only, but the new trial should also present the issue of comparative negligence to the jury if the same evidence is presented on a retrial. While we remand for a new trial on damages only, we realize that evidence of defendant’s negligence will have to be presented to the jury so that it can make a meaningful judgment of plaintiff’s comparative negligence. See Thompson v. Illinois Power Co. (1992), 237 Ill. App. 3d 273, 603 N.E.2d 1303.

Reversed and remanded.

W.A. LEWIS, J.,

concurs.

JUSTICE GOLDENHERSH,

concurring in part and dissenting in part:

I respectfully dissent from the majority’s disposition of the comparative negligence issue and resultant directed verdict.

We must examine the record to determine if there is any evidence to support a finding that the decedent was comparatively negligent in the accident which caused her death. In doing so, I find no evidence that the decedent illegally entered the intersection. All witnesses testified that she proceeded into the intersection only after the signal turned green. Defendant argues that the decedent was negligent if she did not look both ways before crossing the highway, and Michael Wolff testified that she did not look both ways before proceeding forward, so the jury could infer that the decedent was comparatively negligent based on Wolff’s testimony. The trial judge precluded such finding when he stated that he found Wolff to be an incredible witness and directed a verdict on the issue.

Looking at the evidence in an aspect most favorable to defendants, however, I conclude that a verdict finding the decedent comparatively negligent could not stand. The collision was caused solely by defendant’s negligence in failing to stop his vehicle as the signal turned red. While the preferred motorist was not excused from exercising reasonable care, motorists who have a green light may assume that the intersecting traffic will stop. (Salo v. Singhurse (1989), 181 Ill. App. 3d 641, 537 N.E.2d 339; Brostoff v. Maida (1977), 45 Ill. App. 3d 871, 875, 360 N.E.2d 568, 571.) Therefore, the trial court properly directed a verdict in favor of plaintiff on the issue of comparative negligence. (See Salo v. Singhurse, 181 Ill. App. 3d 641, 537 N.E.2d 339.) The trial court’s ruling concerning Wolff’s credibility was surplusage.

       Justice Henry Lewis participated in oral argument. Justice W.A. Lewis was later substituted on the panel and has read the briefs and listened to the audiotape of oral argument.


author: JUSTICE BOWMAN

text:
    A.F.P. ENTERPRISES, INC., Plaintiff-Appellant, v. CRESCENT PORK, INC., et al., Defendants-Appellees.
    Second District
    No. 2—92—0451
    Opinion filed April 8, 1993.

      Peter D. Michling, Doreen T. Paluch, and Dona S. Lowrimore, all of Weisz & Michling, and William I. Caldwell, Jr., of Caldwell, Berner & Caldwell, both of Woodstock, for appellant.
    Ronald G. Klein and Philip M. Rice, both of Klein, Stoddard & Buck, of Sycamore, for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, A.EP. Enterprises, Inc. (AFP), appeals the circuit court’s denial of its motion to reconsider the involuntary dismissal of its complaint (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(a)(9)) for forcible entry and detainer, foreclosure, breach of contract and foreclosure of a pledge agreement against defendants, Crescent Pork, Inc., Donald R. Huftalin, Saundra J. Huftalin, and Berton C. Huftalin. Plaintiff alleged that defendants defaulted on an installment contract for a warranty deed and loans made in connection with the agreement. In the March 24, 1988, agreement, defendants had agreed to purchase a certain hog farming operation including realty and improvements located in McHenry County, Illinois. The initial sale price stated in the agreement was $600,000. The seller also agreed to loan the purchaser up to $650,000 for the operation. The extensive agreement was executed in conjunction with a secured promissory note, a security agreement, a collateral assignment of land contract interest, and a pledge agreement. Among the documents is a memorandum of agreement executed by A. Franklin Pilchard, president of AFP, and Donald R. Huftalin, president of Crescent Pork.

On May 1, 1991, defendants filed a motion to dismiss the cause. Defendants interposed the affirmative defense of accord and satisfaction based on their tender of a check in the amount of $192,400.48, in attempting to settle disputed amounts due as of April 1, 1991. Having granted defendants’ motion on the basis of an accord and satisfaction, the court subsequently denied plaintiff’s motion to reconsider, and this timely appeal followed.

On appeal, plaintiff argues that, based on the pleadings, affidavits and counteraffidavits, the trial court erred in finding that defendants proved an accord and satisfaction defeating plaintiff’s cause of action. Alternatively, plaintiff argues that the court’s decision was clearly against the manifest weight of the evidence.

We generally agree with plaintiff’s position. We reverse and remand for further proceedings.

The record reveals that sometime prior to March 25, 1991, disputes arose between the parties regarding the amount due under the installment agreement. On March 25, 1991, defendant Crescent Pork, through its attorney, Ronald Klein, sent plaintiff’s attorney, Lori Kruizenga, a letter detailing what defendant believed it owed less expenditures for unspecified repairs and labor. In the letter, defendant offered to pay the sum of $192,400.48 for the payment of principal and interest due as of April 1, 1991, as a settlement of the amounts due. That amount included $102,000 allocated to principal and $90,400.48 allocated to interest at 8%. A check in the amount of $192,400.48 was tendered with the condition that, if plaintiff negotiated the check, it was with the understanding that the payment was in “full and final settlement” of all sums due or alleged to be due as of April 1, and that the remaining balance would be $1,028,006.09. In the letter, defendant also agreed as a part of the compromise to increase the balance due by approximately $60,000 so that the remaining balance would be $1,088,000. The letter also stated that this balance due would be allocated as $378,000 due for the farm loan and $710,000 due for the operating loan.

By letter dated April 1, 1991, plaintiff’s attorney, Lori Kruizenga, returned the check. The letter stated: “Enclosed please find a check dated April 1, 1991, written by Saundra Huftalin, Secretary of Crescent Pork, Inc. Said check is unacceptable due to the wording on the back.”

Defendants tendered another check in the amount of $192,400.48 dated April 1, 1991, and signed by Saundra Huftalin. On the lower left-hand corner were the notations “farm loan principal $51,000.00”; “operating loan princ 51,000.00”; and “interest $90,400.48.” In one version of a copy of the check found in the record the notations appear to have been lined out. Defendants’ check was accompanied by a letter dated April 3, 1991, from attorney Klein to attorney Kruizenga which stated simply: “Enclosed is a check from Crescent Pork, Inc. computed as set forth in my letter to you of March 25,1991.”

The affidavit of Saundra J. Huftalin which was appended to the motion to dismiss stated that, on April 3, 1991, she tendered a check numbered 1002 to Kruizenga and hand delivered the April 3 letter to her concurrently with the tender of the check. She further stated that the check was “tendered in full satisfaction of all claims alleged in A.F.P., Inc.’s Complaint, and was tendered pursuant to the terms of letters dated April 3, 1991, and March 25, 1991, and addressed to Attorney Lori J. Kruizenga.” She also stated: “Neither A.F.P., Inc., nor its attorney have [sic] rejected said check or given any other indication that said check was not acceptable as full satisfaction of all claims A.F.P. Inc., alleged in its Complaint filed herein.”

A second affidavit of Saundra Huftalin states that she is a shareholder of Crescent Pork; that she hand delivered a check to Kruizenga in Sycamore, Illinois, with a letter from attorney Klein and that, at the time of delivery, neither Pilchard nor anyone else was present. Saundra stated at that time to Kruizenga that she was delivering the check and letter to her, and Kruizenga stated that “it was good that Crescent Corp. was making this payment as their failure to do so would look bad.” In her affidavit, Saundra also stated that she did not recall that Kruizenga said that the check was insufficient or that it did not totally cover the amount due and owing to AFP. She further concluded that she tendered the check and letter to Kruizenga in full payment of all sums due by Crescent Pork to AFP as of April 1,1991.

Plaintiff’s response in opposition to the motion to dismiss argued that the second check was not accepted with the understanding that it was payment in full or with notice of a condition because the letter did not mention a condition and there was only a reference to the calculation made. Plaintiff therefore informed defendants that the check was not accepted as payment in full and cashed the check.

The affidavit of A. Franklin Pilchard in support of plaintiff’s response stated that the complaint was filed because defendants were in default on their loan from AFP because on April 1, 1990, there was due and payable the sum of $161,946.36; defendants paid $124,000, leaving $37,946.36 still owing to AFP. On April 1, 1991, there was due to AFP on the loan for the period from April 1, 1990, to March 31, 1991, the sum of $229,850.96; this sum did not include the $37,946.36 over which the suit was filed. On March 26, 1991, AFP’s attorney received a letter from defendants’ attorney which computed the amount he felt was due on April 1. Enclosed with the letter was a check for $192,400.48 with conditions that were unacceptable to AFP, and the check was returned. On April 3, 1991, defendant Saundra J. Huftalin hand delivered a different check with a letter which stated that the check had been computed as set forth in the first letter. At the time of delivery, Saundra was informed that the check was insufficient to cover the amount due and owing and that Saundra did not request that the check be returned to her at that time. AFP negotiated the check in an attempt to mitigate its damages.

On October 8, 1991, defendants filed an answer and counterclaim in which they alleged that the sale price negotiated between the parties was based on the presumption that a hog-waste digester on the premises would be in working order and would be able to produce electricity; that AFP had agreed to bring the digester into working condition and authorized Crescent Pork to make expendítures in excess of $90,000 to bring it into working order, but defendants had not been reimbursed, and, as a result, defendants were damaged in excess of $15,000, plus attorney fees and costs of suit. On October 21, 1991, plaintiff moved to dismiss defendants’ answer and counterclaim and to voluntarily dismiss its suit.

The trial court took defendants’ motion to dismiss under advisement. In an order entered December 24, 1991, the court stated that it had heard the arguments of counsel; the court found that when plaintiff accepted and cashed the second check, it accepted the check pursuant to the conditions of the letter of March 25, 1991, and that the acceptance and cashing of the check constituted an acceptance of the settlement agreement. The court dismissed the cause of action with prejudice.

On January 10, 1992, plaintiff filed a motion to reconsider and emphasized its position that the acceptance of the second check should not be deemed an accord and satisfaction under Illinois law where there were no conditions stated but merely a reference to computations and there was no explicit understanding by both parties that the check was tendered as payment in full. Defendants argued that an accord and satisfaction need not be explicit, but could be inferred from the parties’ words and actions.

The affidavit of attorney Lori J. Kruizenga was filed on March 6, 1992. In it, she states that she had represented AFP, and, on March 25, 1991, she received the letter from defendants’ attorney which stated that the (first) check was sent in full and final settlement of all sums alleged to be then due. After receiving the letter, she returned the check to defendants because AFP would not accept the check with conditional language. Crescent Pork contacted her a second time through defendant Saundra J. Huftalin, on or about April 3, 1991, and offered AFP a check and letter without the conditional language. The second letter was hand delivered by Saundra, and, at that time, Kruizenga stated that the check was insufficient to bring the account current and that it did not cover the amount due and owing. However, since there were no conditions on either the letter or the check, AFP accepted the check in an attempt to mitigate damages, but never indicated that it accepted the check as full settlement to date.

In its decision letter and order dated March 23, 1992, the trial court noted that it had reviewed the pertinent correspondence, the affidavits and memoranda of law, and the oral arguments of counsel and denied plaintiff’s motion for reconsideration of its December 24, 1991, order.

Though the parties have not addressed this issue, we find that we have jurisdiction to hear this appeal as the order of December 24, 1991, dismissed the entire case where the rights and liabilities that were the subject of the complaint and counterclaim were essentially the same, namely, the amounts due pursuant to the agreements made between the parties. Dismissal of the complaint amounts to a resolution of the counterclaim, and no Rule 304(a) (134 Ill. 2d R. 304(a)) finding is required for purposes of appeal. See Lynch Imports, Ltd. v. Frey (1990), 200 Ill. App. 3d 781, 785.

We now consider whether, based on the pleadings, affidavits and counteraffidavits, the trial court erred in finding that defendants proved an accord and satisfaction barring plaintiff’s cause of action.

An accord and satisfaction is an agreement between the parties which settles a bona fide dispute over an unliquidated claim. (Gord Industrial Plastics, Inc. v. Aubrey Manufacturing, Inc. (1982), 103 Ill. App. 3d 380, 383.) To constitute an accord and satisfaction, there must be (1) an honest dispute between the parties as to the amount due at the time payment was tendered; (2) a tender of payment with the explicit understanding of both parties that it is in full payment of all demands; and (3) an acceptance by the creditor with the understanding that the tender is accepted as full payment. (Choi v. Messer (1989), 191 Ill. App. 3d 723, 725; Windlow v. Wagner (1975), 29 Ill. App. 3d 172, 179-80.) However, the partial payment of a fixed and certain demand which is due and not in dispute is no satisfaction of the whole debt even where the creditor agrees to receive a part for the whole and give a receipt for the whole demand. Quaintance Associates, Inc. v. P L M, Inc. (1981), 95 Ill. App. 3d 818, 821-22.

An accord and satisfaction may supersede the terms of the original contract and is typically raised in defense of an action brought on a contract. There must be consideration, a meeting of the minds with the intent to compromise which may be inferred from the parties’ words and actions, and, finally, execution of the agreement. (Gord, 103 Ill. App. 3d at 384; Windlow, 29 Ill. App. 3d at 180.) Thus, where there is an honest dispute of the amount due and the debtor tenders a check with the explicit understanding of both parties that it is full payment of all demands, the acceptance and negotiation of the check is an accord and satisfaction if the creditor takes the check with notice of the condition upon which the cheek was tendered. (Quaintance, 95 Ill. App. 3d at 822; see Nelson v. Fire Insurance Exchange (1987), 156 Ill. App. 3d 1017, 1020.) The creditor must either accept the payment with the condition or refuse it, and it makes no difference that the creditor protests or states that he does not accept the amount proffered in full satisfaction. Under these conditions, a creditor has no right to cash the check and thereby obtain the benefit of such an offer without its accompanying burden of compromise. (Quaintance, 95 Ill. App. 3d at 822.) Where there is substantially no dispute as to the facts upon which the claim of accord and satisfaction is based, the question of the creditor’s assent is one of law to be determined by the court. Quaintance, 95 Ill. App. 3d at 822.

In the case at bar, we believe there is a substantial factual dispute regarding whether the check was negotiated with notice of the conditions upon which it was tendered in full settlement of all claims. Our careful examination of the affidavits persuades us that the trial court should not have decided this factual question solely on the documents in the record which appear to us inconclusive.

A motion to dismiss admits all facts well pleaded, and a cause of action should not be dismissed upon its pleadings unless it clearly appears that no set of facts can be proved under the pleadings which will entitle the plaintiff to recover. (Pennington v. Jones (1977), 46 Ill. App. 3d 65, 67.) Affirmative matter as used in section 2 — 619(a)(9) of the Code of Civil Procedure (Code) is a type of defense that either negates an alleged cause of action completely or refutes conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint. By contrast, where the affirmative matter is merely evidence upon which defendant expects to contest an ultimate fact stated in the complaint, section 2 — 619(a)(9) should not be used. Consumer Electric Co. v. Cobelcomex, Inc. (1986), 149 Ill. App. 3d 699, 703.

When a defendant moves for involuntary dismissal under section 2 — 619 of the Code and no jury demand has been made and genuine disputed questions of fact are present, the court has two options: it may deny the motion without prejudice to the right to raise the subject matter of the motion by answer or it may hear and determine the merits of the dispute based upon the pleadings, affidavits, counteraffidavits, and other evidence offered by the parties. When the latter course is taken, our duty on appeal is to review not only the law, but also the facts, and to reverse the circuit court’s order if it is clearly against the manifest weight of the evidence. Etten v. Lane (1985), 138 Ill. App. 3d 439, 443.

The primary purpose of a section 2 — 619 motion to dismiss is to provide a means to dispose of issues of law or easily proved issues of fact. However, if it cannot be determined with reasonable certainty that the alleged defense exists, the motion should be denied. (Cobelcomex, 149 Ill. App. 3d at 703.) Although similar to a summary judgment motion, a section 2 — 619 motion differs in that the court may, in its discretion, decide questions of fact upon the hearing of the motion. (Cobelcomex, 149 Ill. App. 3d at 703.) However, in deciding the merits of the motion, a trial court cannot determine disputed factual issues solely upon affidavits and counter-affidavits. If the affidavits present disputed facts, the parties must be afforded the opportunity to have an evidentiary hearing. Cobelcomex, 149 Ill. App. 3d at 703-04.

When a material and genuine question of fact is raised, the court must deny the motion if the case is one in which the plaintiff is entitled to a jury trial. If the plaintiff is not entitled to a jury trial, the court may properly decide the question of fact only by resorting either to the record or to a matter so conclusive that a plaintiff cannot deny it. (Ramer v. Storment (1983), 119 Ill. App. 3d 79, 83, citing Stanley v. Chastek (1962), 34 Ill. App. 2d 220, 229.) However, where the documents of record are far too inconclusive to allow disposition of the question, the court is obliged to deny the defendant’s motion to dismiss. Ramer, 119 Ill. App. 3d at 83.

Here, the first affidavit of Saundra Huftalin states that the second check was tendered in person to plaintiff’s attorney in full satisfaction of the debt; and the check was not rejected, and plaintiff gave no indication that the check was not acceptable as full satisfaction of all claims alleged in the complaint. In her second affidavit, she states that she did not recall that plaintiff’s attorney said the check was insufficient to cover the amount due and owing to plaintiff.

A. Franklin Pilchard’s affidavit outlines the disputed sums and states that Saundra was informed at the time of delivery of the second check that it was insufficient to pay the amounts due and Saundra did not request that it be returned. Finally, plaintiff’s attorney Kruizenga states in her affidavit that there was no conditional language on the check and letter tendered the second time and that, at the time of delivery, she stated to Saundra that the check was insufficient to bring the account current. Concluding that there were no conditions attached to the check, plaintiff or its attorney accepted the check in an effort to mitigate plaintiff’s damages. The facts and conclusions of fact in the affidavits raise a genuine and material question of fact regarding the intent and understanding of the parties.

In examining the second letter and check, we find that the cryptic notations on the check are at best ambiguous. The reference in the letter to the computations in the first is similarly ambiguous. Without more, we believe the notations and reference do not show the explicit understanding we believe is necessary to find an accord and satisfaction barring plaintiff’s cause of action. The overall evidence in the record was too inconclusive for the court to find an accord and satisfaction.

Defendants had the burden of proving the affirmative defense. Conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest may not be admitted for purposes of deciding the motion to dismiss. (Kirby v. Jarrett (1989), 190 Ill. App. 3d 8, 12-13.) We believe this case demonstrates a certain amount of gamesmanship between the parties where payment is tendered in such a way as to create an ambiguous situation which may be later used to raise the affirmative defense. If a debtor wishes to obtain the benefit of an accord and satisfaction, we believe it is incumbent that the tender of payment be made in such a way that an explicit understanding of the parties can be inferred from the facts. We cannot help but observe that an accord is a type of agreement and where an agreement is ambiguous, the best recourse is to an evidentiary hearing on the parties’ intent. Alternatively, an ambiguity in an instrument will be construed against the drafter. (See City of Chicago v. Dickey (1986), 146 Ill. App. 3d 734, 738.) Where the facts in the documents and affidavits are insufficient and the factual issues are controverted, a court should not decide the issue in this type of proceeding without an evidentiary hearing; the defendant should be required to meet its burden of proof.

We conclude that the court should have proceeded to an evidentiary hearing or should have denied defendants’ motion without prejudice. Alternatively, the finding of an accord and satisfaction was against the manifest weight of the evidence.

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

Reversed and remanded.

UNVERZAGT and WOODWARD, JJ., concur.