author: JUSTICE GREEN JUSTICE McCULLOUGH,

text:
      In re DELINQUENT TAXES FOR THE YEAR 1985, Certificate No. 147 et al. (The People ex rel. Jim O. Edgcomb, County Tax Collector of Macon County, Plaintiff-Appellant, v. In re Delinquent Taxes for the Year 1985, Certificate No. 147 et al., Defendants-Appellees).—In re DELINQUENT TAXES FOR THE YEAR 1984, Certificate No. 366 et al. (The People ex rel. Jim O. Edgcomb, County Collector of Macon County, Plaintiff-Appellant, v. In re Delinquent Taxes for the Year 1984, Certificate No. 366 et al., Defendants-Appellees).—In re DELINQUENT TAXES FOR THE YEAR 1984, Certificate No. 332 (Jim O. Edgcomb, County Collector of Macon County, Plaintiff-Appellant, v. Dennis D. Ballinger, Petitioner-Appellee).
    Fourth District
    Nos. 4—89—0845, 4—89—0846, 4—89—0948 cons.
    Opinion filed August 23, 1990.

      McCULLOUGH, J., concurring in part and dissenting in part.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, John X. Breslin, and Terry A. Mertel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    Alan D. Bourey, of Decatur, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

These consolidated cases involve the rights of holders of certificates of purchase of unpaid real estate taxes for a single year sold pursuant to the provisions of the Revenue Act of 1939 (Act) (Ill. Rev. Stat. 1987, ch. 120, par. 482 et seq.). More particularly, we are concerned with section 271.1 of the Act, which states:

“No order for the issuance of a tax deed under any of the provisions of this Act shall be entered affecting the title to or interest in any land in which a city, village or town shall have an interest under the police and welfare power by advancements made from public funds until the claimant shall make reimbursement to the city, village or town of the money so advanced. However, in lieu of reimbursement, the tax purchaser or his assignee may make application for and the court shall order that the tax sale be set aside as a sale in error.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 120, par. 752.1.

The precise questions presented are (1) when must a claimant for a deed act, pursuant to section 271.1, to obtain a declaration that the tax sale under which claim for deed is sought was in error; and (2) if the sale was in error, is the claimant entitled to interest on the price paid to purchase the taxes as part of reimbursement? We hold (1) the claimant must act during the course of a proceeding requesting a deed; and (2) in any event, the claimant is not entitled to interest.

In December 1985 and November 1986, sales of unpaid Macon County real estate taxes were held in Macon County by realtor Jim O. Edgcomb, County Collector of Macon County (Collector), pursuant to judgments of the circuit court of that county. Petitioner Dennis D. Ballinger became the assignee of various certificates of purchase from those sales. On September 7, 1989, and September 25, 1989, petitioner filed motions in that court requesting (1) a declaration those sales were in error; and (2) payment to him of the amount paid for those taxes plus interest from the date of sale. Petitioner contended (1) by the terms of section 271.1 of the Act, he was entitled to the relief sought, because the properties covered by his certificates were subject to welfare or police power liens of the City of Decatur; and (2) under section 260 of the Act (Ill. Rev. Stat. 1987, ch. 120, par. 741) he was entitled to reimbursement, because improvements on the real estate in question had been destroyed after the sale of the taxes.

After various amendments to the petition and several hearings and orders, the last of which was entered on November 16, 1989, the circuit court ruled petitioner was entitled to a declaration under section 271.1 of the Act that all sales were in error, and petitioner was entitled to reimbursement for monies advanced for purchase of the taxes together with interest at the rate of V-lz% per month from date of sale. The court did not rule on petitioner’s assertion under section 260 of the Act. The Collector has appealed. We reverse and remand with directions, which we will explain.

At times pertinent, section 266 of the Act (Ill. Rev. Stat. 1987, ch. 120, par. 747) has set forth the procedure by which a holder of a certificate of purchase can obtain a tax deed to the property covered by the certificate if no redemption from the tax sale has taken place. Section 266 states that the certificate holder can petition for a deed “any time within 5 months prior” to expiration of the time to redeem. (Ill. Rev. Stat. 1987, ch. 120, par. 747.) The party seeking to obtain a deed is required to give certain notice to persons interested in the tracts involved at least three months before expiration of the time to redeem. In deciding here that petitioner was entitled to recovery under section 271.1 of the Act because of the existence of municipal liens encumbering all of the properties, the circuit court ruled the existence of the liens on the last day for giving three months’ notice determined whether a property was so encumbered. Here, all of the properties had been encumbered by such a municipal lien on that date, so the court declared all sales were in error.

As to one property, the municipal lien had been released before petitioner’s petition was on file, and the liens were released as to all other properties before the court ruled. The court recognized the difficult problem that would arise if the tax collecting authorities- could release the municipal liens after the time for obtaining a deed had lapsed and then also defeat the certificate owner’s right to any reimbursement.

The circuit court’s determination that petitioner was entitled to interest upon the declaration of a sale in error was probably based upon drawing an analogy to section 260 of the Act. At the time of the tax sales in question here, section 260 of the Act provided for certificate of purchase owners to obtain declaration of sales in error upon such grounds as that the property was not subject to taxation or that the taxes had already been paid. In such instances, the certificate owners were also entitled to interest at the rate of lx/2% per month on the payment made to purchase the taxes. Section 260 also provided declarations for sales in error when, as alleged here, improvements on the property had been destroyed after the date of the sale. Under these circumstances, section 260 expressly prohibited awards of interest. Although section 271.1 made no reference to interest, the circuit court apparently decided analogy of the more general provision of section 260 concerning awards of interest was appropriate.

On appeal, the Collector contends petitioner should not have been permitted to seek a declaration of a sale in error after the time for seeking a tax deed had lapsed. The Collector points out that to allow a petitioner to wait as long as petitioner did here to declare a sale in error under section 271.1 of the Act, while accruing interest at the high rate awarded by the court, encourages owners of certificates of purchase to delay seeking such declarations in order to collect that high rate of interest. The Collector also contends that, in any event, petitioner was not entitled to obtain a sale in error declaration when no municipal liens were outstanding on the property in question at the time the court declared the sales to be in error.

The petitioner maintains that to allow the Collector to defeat a claim for a sale in error by obtaining releases of municipal liens after a petition for a declaration of a sale in error has been filed would be inherently unfair and would defeat the expressed public policy of encouraging persons to purchase at tax sales set forth in City of Bloomington v. John Allan Co. (1974), 18 III. App. 3d 569, 581, 310 N.E.2d 437, 446. Petitioner also maintains the Collector’s contention that petitioner’s right to seek a sale in error could not be made after the time for seeking a tax deed was waived for not being raised in the circuit court.

We conclude the contentions of the Collector have merit. While the circuit court deemed the situation as to liens on the last day for giving notice of intention to seek a tax deed controlled the time for determining the existence of municipal liens entitling an owner of a certificate to a determination of a sale in error, that ruling does not limit the time in which a certificate owner may seek a declaration of a sale in error. Section 271.1 of the Act follows section 271, which speaks of the time within which a deed must be taken out. Section 271 states that a certificate of purchase is void unless the owner thereof “takes out the deed in the time provided by law, and files the same for record within one year” (emphasis added) from the expiration of the period of redemption. (Ill. Rev. Stat. 1987, ch. 120, par. 752.) Here, the petitioner had not petitioned for the issuance of a deed and could not have done so at the time he filed his request for section 271.1 relief. As the time for redemption had expired prior to his petition and he had not and could not take out a deed in the manner provided by law, a strong argument could be made that for that reason alone, petitioner was tardy in seeking section 271.1 relief.

Considering (1) section 271.1 follows and is closely related to section 271, (2) the wording of section 271.1, and (3) the general format of the Act, we conclude the legislature intended requests for section 271.1 relief were to be made in the course of proceedings for the issuance of a tax deed. If such an interpretation is made, the owner of the certificate would never be barred by the requirements of section 270 in regard to seeking a tax deed. Section 271.1 prohibits the issuance of a deed unless the “claimant” makes the required reimbursement. (Emphasis added.) The “claimant” must be someone who has petitioned for a tax deed. The format of the Act seems to indicate that only a certificate owner can apply for a deed. The court must then deny the deed if certain municipal liens exist, unless the “claimant” for the deed reimburses the municipality. However, at that time, in lieu of making reimbursement, the owner of the certificate may request the declaration of a sale in error.

The foregoing interpretation does away with disputes as to when a request for sale in error may be made and gamesmanship in filing for and waiving municipal liens. We conclude petitioner was required here to seek a deed for the properties involved before he could claim relief under section 271.1. If the municipalities chose to stand on their liens as to any or all properties, petitioner would have been entitled to a determination of sales in error as to the liened properties. If the municipalities chose release of any liens, petitioner would have been entitled to tax deeds as to those properties. Thus, we hold that for this reason alone, the judgments of the circuit court granting sales in error status to the various tax sales must be reversed.

We recognize that the complete theory of our holding was not argued by the Collector in the circuit court. The informal record was accompanied by an agreed statement of facts. (107 Ill. 2d R. 323(d).) That statement indicates an argument was made that petitioner waited too long and until after the validity of his certificates had expired to seek a declaration of a sale in error. We deem this contention sufficient to raise the issue to which we have responded. We hold petitioner waited too long because he did not file for issuance of any tax deeds.

As we have indicated, we also hold petitioner would not have been entitled to any interest even if he could have obtained sales in error status under section 271.1 of the Act. Section 271.1 makes no reference to any interest being paid on such sales in error. Section 260 of the Act has provided for interest upon declaration of sales in error at the rate of 1½% per month whenever various listed grounds for such declarations of sales in error exist except in cases where “the improvements upon property sold have been substantially destroyed.” (Ill. Rev. Stat. 1987, ch. 120, par. 741.) The express language of section 260 appears to grant the award of interest only in regard to tax purchases in counties of over one million population, but this court held in People ex rel. Edgcomb v. Ballinger (1988), 174 Ill. App. 3d 196, 528 N.E.2d 264, the interest awards were applicable statewide.

Section 260 of the Act was amended shortly before the filing of petitioner’s request for relief and a new section, section 260.1 of the Act, was added. (Pub. Act 86 — 286, §1, eff. Aug. 30, 1989 (Ill. Rev. Stat. 1989, ch. 120, par. 741.1).) However, the amendatory act provided it concerned only proceedings concerning tax sales occurring after its effective date. (Ill. Ann. Stat., ch. 120, pars. 741, 741.1, Historical and Statutory Notes, at 74, 77 (Smith-Hurd Supp. 1990).) Section 260 makes no substantial change in its description of the grounds for finding a sale in error. Provisions concerning interest were removed to section 260.1, which reduced the interest rate to 1% per month and provided the interest provisions are applicable to “those cases which arise solely under grounds set forth in Section 260, and in no other cases.” Ill. Rev. Stat. 1989, ch. 120, par. 741.1(a).

Even under the provisions of section 260 of the Act applicable to these proceedings, we deem the statutory provision for interest to be clearly limited to sales in error on stated grounds. When section 260 grants interest awards when reimbursement is ordered on some grounds and not on others, we see little reason to assume the drafters of section 271.1 intended that, by analogy, interest would be awarded pursuant to section 260. When the format of the Act is to expressly have interest awarded under some circumstances and expressly deny awarding interest under other circumstances, we conclude that a silence concerning the award of interest under a particular section of the Act is an insufficient basis to justify the award of interest. Thus, interest should not have been awarded here even if petitioner was entitled to section 271.1 relief.

The case of Thornton, Ltd. v. Rosewell (1978), 72 Ill. 2d 399, 381 N.E.2d 249, has been called to our attention. There, the court held a tax purchaser was entitled to have a sale declared to be in error for grounds not listed in section 260 of the Act. There, at the time of sale, certain tax records which the purchaser had examined failed to show the existence of prior taxes being due on the premises, although another book kept by the collector but not examined by the purchaser, gave that information. The court stated:

“Section 260 does not define a ‘sale in error’; it simply lists those circumstances under which the clerk shall declare a sale to be in error, refund the amount paid, and cancel the certificate of purchase which has been issued. Those circumstances are not declared to be exclusive, and the section, by its own terms, does not contemplate a situation such as that here presented. Section 247, on the other hand, permits a refund where a sale is made ‘in error’ and a successful bidder has advanced funds under the special two-payment procedure; it does not limit or define a ‘sale in error’ for the purpose of that section. In our opinion, section 247 authorizes a refund here. Certainly it contains nothing which would preclude such relief under the equitable powers of the court. This court held long ago that equity has jurisdiction to correct the mistake of a county ministerial officer. (Foster v. Clark (1875), 79 Ill. 225.) Having that jurisdiction, the court may award a refund in order to do complete equity to all parties involved.” Thornton, 72 Ill. 2d at 406-07, 381 N.E.2d at 253.

We recognize we are interpreting section 271.1 in a manner not fully contemplated by any of the parties. However, we need not consider equitable relief which might be available to petitioner pursuant to .Thornton. Petitioner is not without remedy. The circuit court has not ruled upon petitioner’s request for reimbursement pursuant to section 260 of the Act, because improvements on the various properties were substantially destroyed after the tax sale. The agreed statement of facts sets forth that the parties agreed “the alternate ground of substantial destruction of the improvements under Section 260 of the Revenue Act applies to all the parcels herein with the exception of parcel 563 which was vacant at the time [petitioner] purchased it.”

Accordingly, we reverse the judgment from which appeal was taken and remand the cause to the circuit court of Macon County with directions to consider whatever relief petitioner may be entitled by the terms of section 260 of the Act.

Reversed and remanded with directions.

STEIGMANN, J., concurs.

JUSTICE McCULLOUGH,

concurring in part and dissenting in part:

I agree the order of the circuit court should be reversed. There is, however, no need for remand.

A review of the record, and considering the arguments of counsel, assumes the time for requesting tax deeds has expired and was expired at the time the application for sale in error was made.

Section 271.1 does not prohibit the issuance of tax deeds where a city has made advancements from public funds. The tax purchaser has two options, reimburse the city the money so advanced and get the tax deed, or apply for a sale in error. The tax purchaser was not required to seek a deed before he could claim relief under section 271.1.

Assuming arguendo the petitioner was required to seek a deed before claiming relief under section 271.1, he is for the same reason too late in applying for a sale in error because of destruction of the buildings.

Any actions taken by the purchaser for any type of relief, tax deed, or sale in error must be taken within the time limits of the Act. He was not prohibited by injunction or order of the court. He cannot now complain. The times for filing a petition for tax deed had passed at the time the application for sale in error had been made.

Section 271 is applicable to the facts in this case. That section in substance holds that unless the holder takes out the deed in the time provided by law and files the same of record within one year from and after the time for redemption expires, the certificate and the sale on which it is based, shall from and after expiration of such one year, be absolutely null and void with no right to reimbursement. (Ill. Rev. Stat. 1987, ch. 120, par. 752.) There is an exception that deals with those cases where there is an injunction or order of the court preventing the holder of the certificate from obtaining a deed. These limitations are not present in the instant case.

The plaintiff finds himself in a position caused by his own actions or inactions. He is not entitled to any relief. A tax purchaser cannot sit back, let the time limits pass to petition for tax deed, and later file an application for sale in error.

Thornton does not stand as authority for the plaintiff to recover under equity. The supreme court, in applying equity in Thornton, found the “plaintiff was not yet the owner of the fee [citation], nor even a certificate holder, but only a bidder in the process of making a purchase.” Thornton, 72 Ill. 2d at 405, 381 N.E.2d at 252.

The critical question is whether the time for applying for a tax deed had passed when the application for reimbursement was made. Pursuant to section 271, the plaintiff is too late to ask for any relief, reimbursement under the Act.

I disagree with the statement by the majority that a difficult problem would arise if liens were released after the time for obtaining a deed has lapsed and also defeat the certificate owner’s right to reimbursement. There is no problem. The purchaser is required by time limits to file the petition for tax deed. At the hearing on the petition, the purchaser knows whether the lien needs to be resolved. With no risk, at the hearing, if the lien is not released or paid, he can ask for the alternative relief of reimbursement.

The purchaser must take action to apply for tax deed within the time limits set by the Act (not more than five months nor less than three months prior to the last day or extended day of redemption). If the petition for deed is filed, the purchaser will have the benefits of section 271.1 until the trial court rules on the petition for deed. Allowing the time limits to pass for petition for deed should also deprive the purchaser of any benefits under section 271.1.

As stated above, section 271 affirmatively states that unless the holder “takes out the deed in the time provided by law,” the “certificate” shall “be absolutely null and void with no right to reimbursement.” Ill. Rev. Stat. 1987, ch. 120, par. 752.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    MARY ANN HOUGH, Plaintiff-Appellee, v. GAIL WEBER et al., Defendants-Appellants.
    Second District
    No. 2—90—0508
    Opinion filed August 30, 1990.

      Jack C. Slingerland, of Gallagher, Klein & Brady, of De Kalb, for appellants.
    Paul E. Gaziano, of Rockford, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Mary Ann Hough, filed suit to prevent the disinterment of the remains of her husband, John W. Hough. The disinterment was being sought by the husband’s adult children, defendants Gail Weber, Earl Hough, and Holly Hough. The Winnebago County Health Department and Joseph Orthoefer in his capacity as local registrar and public health administrator were also named as defendants. After a hearing, the trial court issued a preliminary injunction enjoining the defending children from seeking the disinterment of John Hough’s remains and also enjoining Orthoefer and the Health Department from issuing a permit authorizing the disinterment of his remains. Thereafter, defendant children filed a motion for rehearing and a motion to preserve the evidence, both of which were denied. The children timely appeal raising the following issues: (1) whether defendants’ right to due process of law was violated when the trial court granted a preliminary injunction rather than a temporary injunction; (2) whether plaintiff’s complaint was insufficient as a matter of law to justify the exercise of the extraordinary remedy of injunctive relief; (3) whether plaintiff sustained her burden of proof at the hearing as to the elements necessary to prove entitlement to injunctive relief; and (4) whether the trial court erred in denying defendant’s motion to preserve evidence. We affirm.

On August 13, 1989, at 3:11 p.m, John W. Hough, a 63-year-old man, died at SwedishAmerican Hospital in Rockford, Illinois. An autopsy was requested by the Winnebago County coroner’s office and the family of the deceased. Dr. Robert Carlovsky performed the autopsy the following day on August 14, 1989. According to his report, John Hough’s wife, Mary Ann, had claimed that John had been working out in the yard on the day of his death. At approximately 12:45 p.m. he reportedly came in to eat lunch and was feeling fine. At about 2 p.m., Mary Ann found him lying on the kitchen floor, unresponsive. The paramedics were called and resuscitative measures were initiated. John was transported to the hospital where a “code blue” continued; however, he did not respond and was pronounced dead at 3:11 p.m. John’s blood alcohol at the time of death was .253%.

The autopsy performed by Dr. Carlovsky revealed that John had bruises on his legs and his forehead. Several of his posterior and anterior ribs were fractured; one of the broken ribs was pushed into his lung causing the lung to deflate. John’s liver had a large laceration measuring 8 by 12 centimeters and approximately 3 centimeters deep. Dr. Carlovsky concluded that in his opinion John Hough died of complications secondary to his fractured ribs with perforation of the right lung and laceration of the liver. He commented that, secondarily, John had hemopneumothorax and hemoperitoneum. Carlovsky opined that the injuries from which John suffered were consistent with a fall.

John Hough’s mortal remains were buried at Greenwood Cemetery in Rockford, Illinois, in August 1989. On September 1, 1989, defendant Gail Weber contacted the chief deputy coroner for Winnebago County, Ronald A. Canode, about some questions she had regarding her father’s death. A follow-up investigation was then initiated. The paramedics that were at the scene told Canode that John Hough was found clothed wearing only a pair of pajama bottoms, the top of which was down around the knee area and both his legs were in a single pajama leg. Canode stated that John was conscious when the paramedics arrived. The paramedics asked John what his problem was, and he responded that he was having problems breathing but that he did not have any pain. His condition then rapidly deteriorated.

Ronald Canode contacted the Rockford police department on September 14, 1989, requesting them to accompany him back to the Hough residence to speak to John’s wife. When being questioned, Mary Ann stated that she could not recall anything unusual about her husband’s dress at the time of the incident. She admitted that she had been drinking the day of his death, but no testing was done as to what extent. She claimed that John had made several trips up and down the basement stairs, which are located adjacent to the .kitchen area. These stairs have a thin carpeting material on them, and there is a handrail on one side. Mary Ann claimed that at approximately noon, John was in the kitchen and she had talked to him. She left the kitchen to go to another part of the house and upon returning found John on the kitchen floor. John complained about his difficulty breathing, and Mary Ann called the paramedics. She reported that after returning from the hospital, she found a broken glass at the bottom of the stairs along with a rug that was normally in the kitchen entranceway at the top of the stairs.

Canode reported that John maintained an alcoholic beverage bottle downstairs in the basement located in the ceiling on top of a rafter. Canode stated that John would go at intervals down to the basement and partake of the hidden alcohol.

Secondary opinions were sought. Dr. L.W. Blum, a forensic pathologist from Elgin, Elinois, opined that John Hough suffered a fall down the stairs leading from the kitchen to the basement. Dr. Blum found the injury pattern to be consistent with the mechanism of a fall. He opined that John “could have climbed up the stairs after sustaining the above noted injuries, where becoming weak and apparently confused, he collapsed to the kitchen floor, where he, complaining of shortness of breath, was subsequently discovered by his wife.” Dr. Blum concluded that it was unlikely that the injuries were received from a beating due to their location, size and general appearance. He stated, “[t]he lack of defensive wounds, lack of patterned injuries ***, lack of significant internal injuries in different regions of the body, and lack of a statement by Mr. Hough to the first medical responders other than a complaint of being short of breath, render an opinion of death by a beating tenuous and speculative.”

Dr. Thomas T. Noguchi, a forensic pathologist from Pasadena, California, opined that the laceration of the liver was caused by a “massive blunt force” which could not be attained by bumping up against a table or kitchen appliance. He stated that the force “requires greater speed and a mass of the weight.” Dr. Noguchi explained “this type of massive injury to the liver is usually seen in cases of automobile vs. pedestrian accident or a fall from a greater hight [sic]. In some instances, the force could be delivered from kicking or stumping [sic\ while the victim is laying [sic] on the ground.” Noguchi stated that photographs of the scene reveal no object which would protrude or be strong enough to cause injuries of crushing force as described in the autopsy report. Because severe crushing injury would be unlikely, Noguchi ruled out a fall down the stairs as the cause of injury. Noguchi noted the color of one of the bruises found on John indicated that it was at least a few hours old; thus, the doctor concluded that the crushing injury must have occurred a few hours prior to John being found on the kitchen floor.

Dr. Carley C. Ward, a biodynamic engineer from Pacific Palisades, California, opined that Mr. Hough could not have received the injuries from a fall down the basement stairs. Dr. Ward explained, “[s]uch a fall would have resulted in shoulder and hip contacts, not a single direct blow. There would not have been sufficient force to cause concentrated bruising in the lumbar area. In addition, the stairs were carpeted, and his body showed no evidence of rug burns.” Dr. Ward concluded that “Mr. Hough’s injuries are consistent with a fall from a second story or multiple heavy blows to the body, as in a beating. It is clear that the posterior rib fractures and the bruised trunk with the liver laceration were two separate contacts.”

An inquest was held on December 6, 1989. The jury was given the letters containing the above opinions. In addition, Rich McLaughlin, the Winnebago County deputy coroner, was the first to testify. He stated that he was notified on August 13, 1989, at 3:30 p.m. by the emergency room supervisor at SwedishAmeriean Hospital. McLaughlin was informed that there were some suspicious bruises on John’s body. McLaughlin then talked with Mary Ann Hough. She told McLaughlin that she was not sure how John got the bruises. She said that John had been working out in the yard, that he came in for dinner and went downstairs to get a hammer and nails to put up some pictures or a plaque. Mary Ann said that she went in one of the front bedrooms of the house and, when she returned, she found John on the kitchen floor. He complained of troubled breathing, and she called the paramedics.

McLaughlin testified that after a blood sample was taken, he transported John’s body to the morgue so that Dr. Carlovsky could perform the autopsy.

Dr. Carlovsky then testified to the findings he made from the autopsy and that his conclusion was that “this man had fallen and basically that he had fractured his ribs, the ribs perforated the lung, and when the lung perforated, it created a pneumothorax on that side. And he had some bleeding from those fractures, he had some bleeding from the liver, and basically he went into cardiac arrest, and he died.” Carlovsky opined that the injuries from which John suffered were the result of a single impact.

Ronald A. Canode, the chief deputy coroner for Winnebago County, was the next witness to testify. He testified that he was contacted by defendant Gail Weber and that the follow-up examination then ensued. Canode noted several inconsistencies in the paramedic’s report, namely, whether John was able to speak when the paramedics arrived; what was the Glasgow coma scale rating of John’s health condition when the paramedics arrived; on which hip was his large bruise located; and which direction John’s body was facing when it was found. However, Canode testified:

“We were able to determine the victim’s position at the time of the paramedics’ arrival, which was with his feet toward the stove and his head toward the living room. He was conscious at the time of the arrival of the paramedics and then lapsed into unconsciousness. The amount of time between then and until he was declared brain dead appeared appropriate in this incident.”

Canode noted that they did not find an explanation for John’s inappropriate dress at the time of the incident and “were unable to determine the relatively [sic] of that to this incident or anything of that nature.” They were further unable to determine why the rug, normally located in the kitchen entranceway, was at the bottom of the stairs.

Defendant Gail Weber then testified that her father was an alcoholic, but he was a “very functional alcoholic” in that he always appeared normal and was never drunk. She stated that she never even saw her father take the garbage out without having his shoes and socks on and opined that “[t]he idea of his working out in the yard in his pajamas is ludicrous.” She found it unbelievable that her father would keep a bottle of alcohol on a rafter in the basement because her father “had absolutely no compunction about letting anyone know who cared to know that if he wanted to have a beer, he was going to have a beer whether you liked it or not.”

Weber explained that she moved away from Rockford 20 years ago, but she had visited her father two years ago. Mary Ann Hough is John’s Hough’s second wife; his first marriage ended in divorce. John and Mary Ann had been married for five years. Two years prior to his death, John retired from Ingersoll Milling Machine.

After the conclusion of the hearing, the jury returned a verdict finding that John Hough came to his death by accidental means.

On February 9, 1990, defendant Gail Weber signed an application for disinterment of the remains of John Hough. On February 19, 1990, Joseph Orthoefer, the local public health administrator, issued a disinterment permit to Olson’s Mortuary in Rockford allowing the disinterment. (See Ill. Rev. Stat. 1989, ch. 1111^, par. 73 — 21(5).) On Friday, March 2, 1990, Mary Ann Hough filed a complaint seeking “preliminary” and “permanent” injunctive relief to prevent defendants Gail Weber, Earl Hough and Holly Hough from causing the disinterment of their father’s remains and seeking to enjoin the local health administrator from issuing a disinterment permit. That same day, plaintiff’s attorney notified defendants’ attorney that plaintiff was to appear in Winnebago circuit court on Monday, March 5, 1990, to obtain a date for “hearing on the temporary injunction.”

On March 5, plaintiff’s attorney appeared before the trial court and, in explaining the nature of the action to the court, stated that their purpose was to obtain a date for “hearing on temporary injunctive relief.” The court granted the request for a hearing date, setting the matter for Wednesday, March 7, 1990.

Plaintiff’s attorney notified defendants by mail that a hearing on the “preliminary injunction” would take place on March 7, 1990. In addition, defendants were issued subpoenas for the March 7 hearing. Defendants Winnebago County Health Department and Joseph Orthoefer filed an answer to the complaint on March 6, 1990. No answer was filed by the defending children.

At the March 7 hearing, plaintiff’s attorney opened by stating, “[t]he purpose for being here today is to obtain a temporary injunction prohibiting Dr. Orthoefer from issuing a permit allowing disinterment and from temporarily prohibiting Mrs. Weber and Earl Hough and Holly Hough from seeking to carry out a disinterment pending final hearing on [the] merits.” When plaintiff attempted to call the first witness, defendants objected, arguing that testimonial evidence is not relevant at a hearing for a temporary restraining order. Rather than having the first witness testify, plaintiff’s attorney admitted certain documents in her stead, namely, the certificate of death; the report of proceedings from the inquest; and the coroner’s records, which included the verdict form from the inquest and the reports of Drs. Carlovsky, Blum, Noguchi, and Ward.

Plaintiff’s attorney then called Sergeant Dominic lasparro of the Rockford police department without objection. lasparro testified that the police did not start to investigate the death of John Hough until September 14, 1989, when contacted by Ron Canode of the coroner’s office. lasparro stated that after reviewing the records and medical opinions and after speaking with the investigators and the defending children, it was his opinion that John Hough died as a result of an accident in the home. Iasparro stated, “I personally don’t feel that any additional medical opinion about the size, shape of the wound is going to change my opinion concerning how the incident took place.” Iasparro explained that new physical evidence would only be of interest to him if it was directed toward motive or a suspect. Absent motive or suspect, and in spite of the conflicting medical opinions, Iasparro maintained that the death was accidental, and the police investigation was concluded.

Plaintiff’s counsel then rested stating, “[W]e present no further testimony on the temporary issue.” During arguments, counsel for defendants explained that if the disinterment were allowed, Dr. Noguchi would perform various tests including a computer-assisted tomography of the body, a radiographic documentation of the body, a photographic documentation of the body, and a microscopic examination of the skin’s surface. By performing a microscopic examination of the skin over the wounded hip area, Dr. Noguchi hoped to find some indication as to what caused the injury.

Plaintiff’s counsel argued that there had been no presentation of a clear and convincing need to disinter the body and that plaintiff’s petition for temporary relief ought to be granted and the disinterment prohibited. The hearing was then concluded.

Thereafter, on March 9, 1990, the trial judge held, “there is no strong and convincing evidence to show that there is a reason to disinter the body. From what I can see, really there is nothing more to be gained from doing that.” The judge then stated that he was entering a permanent injunction enjoining defendant children from seeking the disinterment of their father. Counsel for defendants objected, arguing that the hearing held on March 7 was for a temporary restraining order, not for a permanent injunction. Defendants argued that they “would have the right to have Dr. Noguchi appear before the Court and explain in greater detail the basis of his finding as well as the — his opinions of the coroners’ and the pathologists’ findings.” Defendants claimed that they were notified that the order to be entered would be merely temporary. The trial judge then held that a preliminary injunction should issue. An order to that effect was filed April 17,1990.

On May 11, 1990, defendants filed a motion for rehearing and a motion to preserve evidence. A hearing on the motions was held May 14, 1990. As to the rehearing, defendants argued that they were prejudiced by their inability to offer affirmative evidence to contra-diet the offerings made by Mary Ann at the hearing. Defendants maintained that their inability to offer evidence resulted from written and oral representations by plaintiff’s counsel that plaintiff was seeking merely a temporary order to maintain the status quo. In support of their argument as to the type of evidence missing, defendants submitted a statement from Dr. Thomas Noguchi wherein the need and reasons for the second autopsy were explained. Dr. Noguchi explained the key information that was lacking and needed. The doctor stated that a new technology is available for detail documentation called computed tomography, which is a type of X-ray procedure that “can precisely locate the tissue and bony damages by X-ray beam sectioning the body without destroying the tissue ***. The recording of a CT scan can be studied for three-dimensional image and can be reconstructed for more detailed] analysis at a later time.” As a result of the second autopsy, Dr. Noguchi hoped to discover the type of force involved and the sequence of events leading to John Hough’s death.

After hearing arguments on the motion for rehearing, the trial court denied the motion. The court then heard arguments on the motion to preserve evidence. Again, a statement by Dr. Noguchi was submitted in support of the motion. Dr. Noguchi opined that the type of burial vault and casket which hold the remains of John Hough is poorly suited for protection from deterioration. Noguchi recommended that to assure that the remains do not deteriorate at an increasing rate, John’s body should be disinterred and reburied in a manner so as to allow maximum protection against the elements of deterioration. The trial court denied the motion, and defendant children appeal. No appeal was filed by Joseph Orthoefer or the Winnebago County Health Department.

The first issue raised by defendants is whether their right to due process of law was violated when the trial court granted a preliminary injunction rather than a temporary injunction. In her complaint, plaintiff sought a “preliminary” and a “permanent” injunction. The first notice sent to defendants referred to the relief sought as a “temporary injunction;” the second notice referred to it as a “preliminary injunction.” Thereafter, plaintiff’s counsel referred to the issue at bar in the following manners: “temporary injunction,” “temporary issue,” “temporary order,” and “temporary relief.”

While it is true, as defendants point out, that there is no statutory provision for a temporary injunction (see Ill. Rev. Stat. 1989, ch. 110, pars. 11 — 101, 11 — 102), Illinois courts have referred to the terms “temporary injunction” and “preliminary injunction” interchangeably. (See, e.g., Kurle v. Evangelical Hospital Association (1980), 89 Ill. App. 3d 45, 47-48; H.K.H. Development Corp. v. Metropolitan Sanitary District (1964), 47 Ill. App. 2d 46, 51-52.) Here, plaintiff was clearly seeking a preliminary injunction, not a temporary restraining order, and it was a preliminary injunction which the trial court ultimately granted. Because defendants were notified of the hearing on the injunction issue, we find that there was no violation of their due process rights.

Next, defendants allege that plaintiff’s complaint was insufficient as a matter of law to justify the exercise of the extraordinary remedy of injunctive relief. A preliminary injunction is a provisional remedy granted to preserve the status quo. (Ron Smith Trucking, Inc. v. Jackson (1990), 196 Ill. App. 3d 59, 63.) Because a preliminary injunction is an extraordinary remedy, it should be granted only pursuant to the utmost care and should not issue unless the need is clear. (Gold v. Ziff Communications Co. (1989), 196 Ill. App. 3d 425, 430.) In order to establish entitlement to preliminary injunctive relief, the plaintiff must demonstrate that: (1) she possesses a certain and clearly ascertained right which needs protection; (2) she will suffer irreparable harm without the protection of an injunction; (3) there is no adequate remedy at law for her injuries; (4) there is a substantial likelihood of success on the merits; and (5) in the absence of preliminary relief, she would suffer greater harm without the injunction than defendants will suffer if it is issued. (Mister v. A.R.K. Partnership (1990), 197 Ill. App. 3d 105, 110-11.) A complaint for preliminary injunction must plead facts which clearly establish a right to injunctive relief, and allegations consisting of mere opinion, conclusion or belief are not sufficient to support issuance of the writ. Village of Lake in the Hills v. Laidlaw Waste Systems, Inc. (1986), 143 Ill. App. 3d 285, 291.

Plaintiff initially argues that defendants may not attack the sufficiency of the complaint because they failed to raise the issue below and thus it is waived. (See Ill. Rev. Stat. 1989, ch. 110, par. 2— 612(c).) A review of the case law indicates that the waiver rule does not apply to the review of a complaint seeking preliminary injunction (Laidlaw Waste Systems, 143 Ill. App. 3d at 291; Glen Ellyn Savings & Loan Association v. Tsoumas (1976), 41 Ill. App. 3d 292, 294), especially in the case where an answer has not been filed. (See Williams v. Northwestern University (1986), 147 Ill. App. 3d 374, 377.) In Laidlaw Waste Systems, this -court held that while a reviewing court will not reach the merits of the case in an interlocutory appeal, it will determine whether the trial court had a discretionary right to issue the preliminary injunction and whether the complaint was sufficient to sustain it. Laidlaw, 143 Ill. App. 3d at 291.

Thus, we must first look to the sufficiency of plaintiff’s complaint in determining the propriety of the preliminary injunction granted. Defendants raise four issues as to the sufficiency of plaintiff’s complaint: (1) whether plaintiff possesses a protectable interest; (2) whether plaintiff will suffer irreparable harm; (3) whether there is an adequate remedy at law; and (4) whether the verification of the complaint was insufficient to support the injunction.

First, we consider plaintiff’s interest. In order to be granted a preliminary injunction, plaintiff must have standing in the cause, which requires a showing of a clearly ascertainable right or interest which needs protection. (Laidlaw Waste Systems, 143 Ill. App. 3d at 292.) In the context of a complaint for injunctive relief, the doctrine of standing “makes it necessary for a party seeking such relief to allege an injury in fact to some substantive interest he possesses which is recognized by statute or common law.” (Laidlaw Waste Systems, 143 Ill. App. 3d at 292.) The doctrine is designed to insure that the courts are accessible to resolve actual controversies between parties and not address abstract questions, moot issues, or cases brought on behalf of others who may not desire judicial aid. Jenner v. Wissore (1988), 164 Ill. App. 3d 259, 267.

In her complaint, plaintiff simply alleges that she is the surviving spouse of John Hough. Defendants argue that a mere allegation of marital status is insufficient for purposes of standing. We disagree. The substantive interest of plaintiff as wife of the decedent is recognized in common law. The appellate court has held:

“It is generally conceded that on the death of a husband or wife the primary and paramount right to the possession of the body and to the control of the burial or other legal disposition thereof is in the surviving spouse and not in the next of kin, in the absence of a different provision by the deceased.” (In re Estate of Fischer (1954), 1 Ill. App. 2d 528, 533.)

(See also 22A Am. Jur. 2d Dead Bodies §86 (1988); 16 Ill. L. & Prac. Death §72 (1971).) While a person’s interest in a body is lessened once it is buried (Hicks v. Stehl (1986), 149 Ill. App. 3d 1034, 1035), there is no authority to suggest that mere burial eradicates all interests entirely. Thus, we find that plaintiff’s status as a spouse does, in fact, provide her with a protectable interest. Whether plaintiff’s interest is strong enough to prevent disinterment goes to the merits of the case, not to whether plaintiff has standing.

While plaintiff has a recognized substantive interest, she must allege an irreparable injury to prevail on a preliminary injunction. The injury to plaintiff must be in the form of her legal rights being sacrificed if she is forced to await a decision on the merits. (Illinois Federation of Teachers v. Board of Trustees (1989), 191 Ill. App. 3d 769, 772.) In her complaint, plaintiff alleges that “defendant Gail Weber signed an application for disinterment of the remains of John W. Hough,” “[t]hat no circumstances exist which justify the removal of the mortal remains of John W. Hough from its present place of burial,” and “[t]hat plaintiff believes that unless defendants *** are restrained by injunction *** the mortal remains of John W. Hough will be disintered [sic].” Plaintiff concludes that the disinterment of John’s remains will cause her to be irreparably injured. A review of plaintiff’s complaint indicates that she sufficiently alleged irreparable harm. Without the injunction, the disinterment was sure to proceed, thus making plaintiff’s injury actual and imminent. (See Heerey v. Berke (1989), 179 Ill. App. 3d 927, 941.) We do not find plaintiff’s fears and apprehensions to be unfounded (see Arnold v. Engelbrecht (1987), 164 Ill. App. 3d 704, 709), although they must certainly be difficult to place into words for purposes of a complaint.

Defendants’ citation to Mingare v. DeVito (1978), 67 Ill. App. 3d 371, is unpersuasive. In Mingare, the plaintiffs, who were patients in State mental institutions, sought to enjoin the Department of Mental Health and Developmental Disabilities from dismissing all of its limited licensed doctors. In their complaint, plaintiffs alleged “[t]hat the medical care for the plaintiffs must suffer as the logical result of the drastic and dangerous reduction of the number of persons capable of extending care.” (Mingare, 67 Ill. App. 3d at 373.) The trial court dismissed the complaint as fatally defective for failure to establish that irreparable harm would result if the preliminary injunction were not granted. The appellate court affirmed, finding that the complaint did not show a real and immediate danger and that the allegation was completely conjectural. In contrast, plaintiff’s allegations in the instant case are not conjectural as it is certain that if the preliminary injunction had not issued and her deceased husband’s remains were exhumed from their final resting place, transported to another State, and submitted to further analysis, her legal rights would be irreparably harmed. The possibility of her suffering is real and imminent, and thus the matter is ripe for a preliminary injunction.

Next, we consider defendants’ claim that plaintiff has an adequate remedy at law. Defendants first contend that the bare allegation in plaintiff’s complaint that she has no adequate remedy at law is insufficient for injunctive purposes when not supported by factual allegations. However, it is clear that when the complaint is read as a whole, plaintiffs lack of an adequate remedy at law is founded on her claim of “great mental anguish and suffering.”

Defendants argue that, even if the allegations in plaintiffs complaint are supported, damages resulting from such a claim can be compensated for monetarily as demonstrated by the recognition of the tort of intentional infliction of emotional distress. Under this tort a plaintiff may sue for damages caused by a defendant’s actions with regard to a decedent’s body. See Koeller v. Cook County (1989), 180 Ill. App. 3d 425, 434; Hearon v. City of Chicago (1987), 157 Ill. App. 3d 633, 635.

A review of defendants’ argument as to monetary damages indicates that it is flawed in several respects. First, it is unclear whether plaintiffs injury could be monetarily compensated under the tort of intentional infliction of emotional distress. To recover under such a tort, plaintiff must show that (1) defendants’ conduct is so outrageous in character and so extreme in nature as to go beyond all possible bounds of decency; (2) the emotional distress from which plaintiff suffers is so severe that no reasonable person could be expected to endure it; and (3) despite a high probability that such severe emotional distress will follow, defendants went ahead with the conduct in conscious disregard of that probability. (Koeller, 180 Ill. App. 3d at 434; Hearon, 157 Ill. App. 3d at 635.) As demonstrated by the holdings in Koeller and Hearon, these are difficult elements to prove; in both cases it was held that the plaintiff failed to state a cause of action for intentional infliction of emotional distress.

Even if monetary damages were available to plaintiff through such a cause of action, that does not negate the possibility of injunctive relief. To be an adequate remedy at law which will deprive equity of its power to grant injunctive relief, the remedy must be concise, complete, and provide the same practical and efficient resolution as the equitable remedy would provide. (Diamond Savings & Loan Co. v. Royal Glen Condominium Association (1988), 173 Ill. App. 3d 431, 435; Board of Managers of Village Square I Condominium Association v. Amalgamated Trust & Savings Bank (1986), 144 Ill. App. 3d 522, 529.) Further, a preliminary injunction may be granted when damages are difficult to quantify at the time of the hearing. (Eagle Books, Inc. v. Jones (1985), 130 Ill. App. 3d 407, 411.) Certainly in the case at bar, plaintiff’s damages are difficult to quantify. In addition, a remedy at law would not provide the same practical and efficient resolution as would a preliminary injunction. Plaintiff sought temporarily to enjoin defendants from removing the body of John Hough from its final resting place until a hearing on the merits could be held. A money judgment would not have provided similar relief.

Next, we turn to defendants’ argument that plaintiff’s complaint was improperly verified and thus could not support the issuance of injunctive relief. Defendants cite no authority in support of this argument. This court has held that contentions unsupported by citation of relevant authority as required by Supreme Court Rule 341 (113 Ill. 2d R. 341(e)(7)) merit no consideration. (Logan v. West Coast Cycle Supply Co. (1990), 197 Ill. App. 3d 185, 190-91.) Even if we were to consider defendants’ argument, it would seem to be without merit as defendants were notified of the complaint seeking preliminary injunction. This court has held that verified pleadings are not required where a preliminary injunction is sought upon notice. County of Lake v. X-Po Security Police Service, Inc. (1975), 27 Ill. App. 3d 750, 756.

Defendants next contend that, even if plaintiff’s complaint was legally sufficient, she did not sustain the proper burden of proof at the hearing as to the elements necessary to prove entitlement to injunctive relief. In this regard defendants raise the following issues: (1) whether plaintiff sufficiently proved that she would suffer irreparable harm without the protection of an injunction; and (2) whether plaintiff sufficiently proved a substantial likelihood of success on the merits.

We initially note that the decision whether to grant a preliminary injunction rests within the trial court’s broad discretionary powers, and appellate review of the court’s order is limited to a determination of whether the court has abused its discretion. (Mister, 197 Ill. App. 3d at 111.) In making such a determination, the reviewing court is to determine whether the trial court’s findings are contrary to the manifest weight of the evidence. (Jackson, 196 Ill. App. 3d at 63.) It must be remembered that a preliminary injunction does not anticipate or depend upon the ultimate conclusion of the cause; rather, the granting of a preliminary injunction shows only that a sufficient case has been presented to preserve the property or rights in issue until a final hearing on the merits can be held. Gold, 196 Ill. App. 3d at 431.

We first address defendants’ contention that a showing of irreparable harm had not been made. At the hearing on the motion to enter the trial court’s order for preliminary injunction, defendants objected on the basis that there was no evidence introduced to support the findings. In response, the trial judge cited to the preliminary injunction statute (Ill. Rev. Stat. 1989, ch. 110, par. 11 — 102) and stated that a finding of irreparable injury and inadequate remedy at law is “implicit in this case.” The judge explained:

“[I]f we didn’t issue the injunction, and if they issued a little permit, and then the body was disinterred, you have no way you could reverse that. There is your irreparable injury. It happens.
This type of thing is the same thing, with no adequate remedy at law. Money can’t compensate you for that type of problem, that type of thing.”

On appeal, defendants argue that by invoking this “unfounded presumption” as to irreparable injury, the trial court failed to require plaintiff to produce evidence on each of the elements necessary to the issuance of injunctive relief and thereby committed error. Kanter & Eisenberg v. Madison Associates (1987), 116 Ill. 2d 506, 516; People ex rel. Fahner v. Steel Container Corp. (1981), 102 Ill. App. 3d 369, 373.

We disagree. Our supreme court in Kanter explained that “[a] court faced with a request for temporary injunctive relief must first consider whether the plaintiff will sustain irreparable harm by waiting for a decision on the merits.” (Kanter, 116 Ill. 2d at 510.) Thus, as we have stated above, it is not a question of whether plaintiff will ultimately be harmed by the disinterment of her deceased husband’s remains; rather, the question is whether plaintiff’s interest "will be irreparably harmed if the status quo is not preserved until a hearing on the merits can be had. (Illinois Federation of Teachers, 191 Ill. App. 3d at 772; Sports Unlimited, Inc. v. Scotch & Sirloin of Wood-field, Inc. (1978), 58 Ill. App. 3d 579, 582.) Here, the record reveals that plaintiff’s interest is in keeping the remains of her husband undisturbed. If the trial court were to deny the preliminary injunction, a permit for disinterment would likely issue as demonstrated by the previously issued permit, plaintiff’s interest would thereby be irreparably harmed and her damages uncompensable. Thus, we do not view the trial court’s finding as to irreparable harm as being based upon “inferential leaps of logic” and unsupported by the record as defendants argue. (See Steel Container Corp., 102 Ill. App. 3d at 373.) Accordingly, we do not find it to be against the manifest weight of the evidence. Jackson, 196 Ill. App. 3d at 63.

Next, we consider defendants’ contention that plaintiff did not demonstrate a likelihood of success on the merits. In order to obtain preliminary relief, plaintiff must establish a likelihood of success on the merits of her underlying action. While plaintiff is not required to make out a case that would entitle her to relief on the merits, she needs to establish that she raises a “fair question” about the existence of her right and that the court should preserve the status quo until the case can be decided on the merits. Mister, 197 Ill. App. 3d at Ill.

It is the policy of Illinois law that the sanctity of the grave should be maintained and that a body once suitably buried should remain undisturbed, except in cases of necessity or for laudable purposes. (16 Ill. L. & Prac. Death §75 (1971).) Disinterment is not a matter of right, and ordinarily a court will not order or permit a body to be disinterred against the will of those who have a right to object except upon strong and convincing evidence of new and unforeseen events occurring since the burial showing that it would be unreasonable to refuse the removal. (Stehl, 149 Ill. App. 3d at 1035-36.) Where the aid of chancery is invoked to authorize the disinterment of a dead body, due regard will be given to the interests of the public, the wishes of the decedent, and the rights and feelings of those entitled to be heard by reason of relationship or association. 16 Ill. L. & Prac. Death §75 (1971).

In the case at bar, defendants first argue that plaintiff did not establish a likelihood of success on the merits as demonstrated by the failure of the trial court specifically to announce orally or in his written order such a finding. We disagree. In fact, the trial judge initially ruled in favor of plaintiff on the merits, granting her a permanent injunction. The judge stated:

“Basically the Court finds in this case there is no strong and convincing evidence to show that there is a reason to disinter the body. From what I can see, really there is nothing more to be gained from doing that. And in addition, that there is no public necessity to disinter for gathering additional evidence in this — any further investigation.
Therefore, the Court finds the issue in favor of the plaintiff against the defendants and the Court will issue a permanent injunction.”

Later, the trial judge changed his ruling to a preliminary injunction when it was pointed out by defendants that while the complaint prayed for a preliminary and permanent injunction, all notices specified that a preliminary injunction was being sought. Thus, it is clear that if the trial court was willing to grant a permanent injunction, it found that plaintiff had sustained her burden of proof as to the likelihood of success on the merits.

In the alternative, defendants argue that if the trial court did make such a finding as to the likelihood of success, it was against the manifest weight of the evidence. The evidence produced at the hearing included: (1) the autopsy report of Dr. Carlovsky, who concluded that injuries suffered by John Hough were the result of a fall; (2) the opinion of Dr. Blum that John suffered a fall down the stairs leading from the kitchen to the basement; (3) the opinion of Dr. Noguchi that John did not fall down the stairs, rather his injuries resembled an “automobile vs. pedestrian accident or a fall from a greater hight [sic]” or “from kicking or stumping [sic] while the victim is laying [sic] on the ground”; (4) the opinion of a biodynamic engineer that John did not fall down the stairs, rather his injuries were consistent “with a fall from a second story or multiple heavy blows to the body, as in a beating”; (5) a transcript of proceedings from the coroner’s inquest; (6) the coroner’s jury verdict that John died of accidental means; (7) the death certificate of John; and (8) the testimony of Rockford police sergeant Dominic Iasparro that, absent motive or suspect, no additional medical opinion would change his mind that the death was accidental. The only additional information provided that was not provided at the inquest was a statement by Dr. Noguchi explaining what additional information he hoped to seek from a second autopsy, and this statement was not provided until defendants argued their petition for rehearing.

From our review of the record, it appears that plaintiff sufficiently proved the absence of “strong and convincing evidence of new and unforeseen events” (see Hicks, 149 Ill. App. 3d at 1036) so as to warrant a preliminary injunction. Contrary to defendants’ argument, this is the proper standard of proof.

As to burden of proof, defendants make another argument. They claim that it was improper to issue a preliminary injunction enjoining defendant Joseph Orthoefer, his successors, and defendant Winnebago County Health Department from issuing a permit authorizing the disinterment of the remains of John W. Hough. Defendants initially argue that because a disinterment permit was issued, in order to enjoin its effect, plaintiff was required to show that Orthoefer’s act in issuing the permit was induced by fraud or corruption. (Illinois Federation of Teachers, 191 Ill. App. 3d at 773.) However, a review of the record indicates that while a permit was issued, it was later apparently cancelled. Defendants argue that nonetheless the preliminary injunction issued against Orthoefer and the health department interferes with the official acts of the health official absent a showing that such acts are unlawful. We note that defendants Orthoefer and the health department have not appealed the injunction issued against them. We find that we need not consider the propriety of their injunction as it will not affect the outcome of this appeal. The preliminary injunction ordered by the trial court enjoined, in part, the defending children from directly or indirectly seeking the disinterment of John Hough’s remains. A review of plaintiff’s complaint and proofs offered at the hearing indicates that she sufficiently proved the need for the preliminary injunction to issue as against the defending children. In so ordering, we do not find that the trial court abused its discretion. When a hearing is held on the merits, defendants will have a full opportunity to present their evidence.

Finally, we consider defendants’ argument that the trial court erred in denying their motion to preserve the evidence. Defendants contend that their motion was supported by an “affidavit” of an experienced forensic pathologist, Dr. Thomas Noguchi, stating that preservation of the body was necessary to enhance the evidentiary value of any future analysis upon the decedent’s remains. The so-called “affidavit” was titled as such, signed by Dr. Noguchi, and had a declaration stating that the information given was “upon oath.” However, there is no evidence that the statement was sworn to before any officer or was notarized; therefore, the statement must fail as an affidavit. (Kohls v. Maryland Casualty Co. (1986), 144 Ill. App. 3d 642, 645; People v. Smith (1974), 22 Ill. App. 3d 377, 380.) Further, because the statement was apparently given in California, it must appear that the affidavit was sworn to before an officer authorized to administer oaths, and if not the affidavit is a nullity. (Ill. Rev. Stat. 1989, ch. 101, par. 6; Keefer v. Mason (1865), 36 Ill. 406, 408.) Thus, because there was no competent evidence indicating that the evidence needed to be preserved, we affirm the trial court’s denial of the motion.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

WOODWARD and DUNN, JJ., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK FRANCISKOVICH, Defendant-Appellant.
    Second District
    No. 2—89—0740
    Opinion filed August 31, 1990.
    Bruce A. Brennan, of Kalinich, McCluskey, Sullivan & Boylan, P.C., of Glen Ellyn, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Mark Franciskovich, was charged with the offense of driving while under the influence of alcohol (DUI) in violation of section 11 — 501(d)(3) of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501(d)(3)). He was convicted following a stipulated bench trial. On appeal, he contends that the trial court erred in admitting the results of his breath-alcohol test into evidence, because he did not voluntarily consent to the test.

In July 1988 the defendant was driving a truck which struck a pedestrian. The police administered field sobriety tests and took the defendant to the Du Page County jail. During the trip to the jail, the officer told the defendant that he had to take the breath-alcohol test and suggested that the defendant would probably pass the test. At the jail, the officer read the defendant the Code section 11 — 501.1 implied consent “Warnings to Motorists” (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 501.1(c)). The defendant took the test, and his breath-alcohol concentration result was .15%, showing presumed intoxication (Ill. Rev. Stat. 1989, ch. 95^2, par. ll-501.2(b)(3)).

Prior to trial, the defendant filed a motion to quash his arrest and to suppress the results of the test, as well as the statements he made to the police. The court initially granted the motion to suppress the test results, finding that the test was not taken voluntarily. On the State’s motion to reconsider, however, the court reversed its ruling and denied the motion to suppress in its entirety. The defendant brought this appeal.

The defendant contends on appeal that the results of the test should not have been admitted into evidence because his consent was not voluntary. We find that he relies on inapplicable language of section 11 — 501.1 and on a misinterpretation of our decision in People v. Kissel (1986), 150 Ill. App. 3d 283, and we affirm.

Kissel was the State’s appeal. There, the court upheld the trial court’s decision to suppress evidence against the three defendants, who had been arrested individually for DUI on private property. Two of the defendants had refused to take a breathalyzer; one had taken the test and shown a legal level of intoxication. The court found that the implied-consent statute (Ill. Rev. Stat. 1989, ch. 95V2, par. 11— 501.1(a)) established an implied consent to chemical testing only when there was a nexus between driving upon a public highway and a statutory demand for testing. 150 Ill. App. 3d at 285.

Despite its findings on implied consent, the Kissel court did not fully affirm. Rather, pursuant to the State’s request it remanded the cause for, among other things, an evidentiary hearing as to the voluntariness of the consent given by the one defendant who had submitted to testing. In so doing, the court implied that that defendant’s test results would not be admissible if his consent to testing was involuntary. It did not, however, contrary to the defendant’s assertion, hold “that absent implied or voluntary consent, evidence obtained from the breathalyzer test is inadmissible.”

In People v. Brown (1988), 175 Ill. App. 3d 725, we reconsidered Kissel in light of statutory change. In Brown, the police read the defendant the implied consent “Warnings to Motorists” but also explained that the warnings did not apply to him because his alleged offense had occurred on private property. Defendant Brown submitted to chemical breath analysis but argued on appeal that he had not given voluntary consent to the breath analysis because the police warnings had confused him.

This court in Brown held that voluntary consent was not a prerequisite to the admissibility of breathalyzer results in a DUI prosecution. That holding referred to the decision in Village of Algonquin v. Ford (1986), 145 Ill. App. 3d 19, 21. The court also specifically overruled its decision in Kissel to the extent that that holding conflicted with Ford’s ruling that consent was not necessary for test-result admissibility in a DUI prosecution. Brown, 175 Ill. App. 3d at 728.

Section 11 — 501.1, from which the defendant infers a legislative intent to allow an accused the option to refuse chemical-intoxication testing, is the basis for the defendant’s argument. Section 11— 501.1 provides that a driver who is requested to submit to chemical-intoxication testing must be warned of the consequences of refusing to submit. (Ill. Rev. Stat. 1989, ch. 95^2, par. 11 — 501.1(c).) In part, the defendant asserts that Brown must not be read to judicially remove that statutory option to refuse. We find that the defendant’s argument improperly relies on section 11 — 501.1.

In People v. Giere (1989), 192 Ill. App. 3d 520, 524-25, we held that section 11 — 501.1 did not require the defendant’s consent to taking a blood sample for intoxication testing. There, the defendant had refused testing, but the police caused a nurse to draw an involuntary blood sample. In Giere, we did not rely on section 11 — 501.1, and we commented that that section governs only the implied consent to test a DUI arrestee and the statutory summary driver’s license suspension, which may result from failure to both submit to testing and show a result of less than .10% blood-alcohol content. Giere, 192 Ill. App. 3d at 525.

Here, as in Giere, summary suspension was not at issue and section 11 — 501.1 thus was not involved. (Giere, 192 Ill. App. 3d at 525.) The defendant’s arguments are based upon statutory language which does not apply in this DUI prosecution.

The defendant urges that we should distinguish Brown because defendant Brown was arrested on private property and thus was offered a real option not to submit to chemical testing. Despite the alleged police conduct here, we find no reason to depart from our decision in Brown. Any lack of consent was no basis to prohibit admission of the defendant’s blood-alcohol test results. Brown, 175 ffl. App. 3d at 726-28.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS and WOODWARD, JJ., concur.


author: JUSTICE McLAREN

text:
    WILLIAM J. WILLIAMS, Plaintiff-Appellant, v. JERRY STANFILL, Defendant-Appellee.
    Second District
    No. 2—89—1375
    Opinion filed September 12, 1990.
    Rehearing denied October 10, 1990.

      James D. Sparkman, of Vella, Sparkman & Altamore, P.C., of Rockford, for appellant.
    Raphael E. Yalden II and Joseph D. Olsen, both of DeBruyne, Yalden & Olsen, of Rockford, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, William J. Williams, appeals from the trial court’s denial of his motion to reconsider its earlier orders granting summary judgment and judgment on the pleadings in favor of defendant, Jerry Stanfill, on plaintiff’s personal injury complaint. Plaintiff contends that the trial court improperly granted judgment for defendant because defendant, who was plaintiff’s landlord, violated his statutory duty to provide plaintiff with at least two means of egress from plaintiff’s apartment in case of fire. Plaintiff alleges that defendant’s duty arises from the Life Safety Code of 1981 as adopted by the City of Rockford in its Municipal Code and from article 9, section 25.le, of the Winnebago County Code. We affirm in part and reverse in part.

On and prior to October 29, 1985, defendant owned and maintained an eight-unit apartment building located at 418-424 North Fourth Street, Rockford, Illinois. Plaintiff rented and occupied an apartment on the second floor. During the late-night hours on October 29, 1985, defendant’s building caught fire and was totally destroyed. Apparently most of the tenants, with the exception of plaintiff, were able to leave the building without injury. Plaintiff, in his amended complaint, alleged that he found his single exit route blocked by smoke and flame and was obliged to escape out a second-floor window. Plaintiff fell to the ground and sustained serious injuries.

Plaintiff’s amended complaint alleged that defendant negligently failed to comply with the Life Safety Code of 1981 as adopted in sections 61 and 62 of chapter 11 of the Rockford Municipal Code, which required, inter alia:

“Two means of egress, as a minimum, shall be provided in every building or structure, section, or area where the size, occupancy, and arrangement endangers occupants attempting to use a single means of egress which is blocked by fire or more. The two means of egress shall be arranged to minimize the possibility that both may be impassible by the same fire or emergency condition.” (Life Safety Code, ch. 2 — 8 (1981), incorporated by reference in Rockford Municipal Code, ch. 11, §11 — 61 (1983).)

Plaintiff’s amended complaint further alleged that defendant also negligently failed to comply with a similar two-exit requirement contained in the Winnebago County Code. Plaintiff claimed that defendant’s negligence in failing to supply the required number of exits caused plaintiff’s injuries. Plaintiff did not allege any other grounds regarding negligence.

Defendant answered and admitted that he owned and maintained the apartment building. He also admitted that plaintiff’s second-floor apartment had only one exit and had access to only one stairway. Defendant denied plaintiff’s allegations of negligence and asserted several affirmative defenses. Along with his answer, defendant filed a motion for summary determination of a major issue pursuant to section 2 — 1005(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(d)), specifically requesting that the court make a determination that defendant did not violate the Life Safety Code as alleged in plaintiffs complaint. In support of his motion, defendant submitted a copy of Ordinance No. 1983 — 114—0 published by the City of Rockford on September 9, 1983, in which the city adopted by reference the 1981 edition of the Life Safety Code and codified it in section 11 — 61 of chapter 11 of the Municipal Code. The Ordinance further amended the Life Safety Code in section 11 — 62 of the Municipal Code as follows: “This code does not intend to establish requirements more stringent than those contained in the Basic Building Code of the City of Rockford.” Rockford Municipal Code, ch. 11, §11 — 62 (1983).

Defendant further provided portions of the Basic Building Code recommended by the Building Officials and Code Administrators International, Inc. (BOCA), as adopted by the City of Rockford on June 2, 1983, in Ordinance No. 1983 — 73—0 (Rockford Municipal Code, ch. 6 (1983)), with specified amendments not relevant to the instant cause.

Section 804.1 of the Basic Building Code as adopted provides: “Owner responsibility: The owner or lessee of every existing building and structure shall be responsible for the safety of all persons in, or occupying, such premises with respect to the adequacy of means of egress therefrom.” (Basic Building Code, §804.1, incorporated by reference in Rockford Municipal Code, ch. 6 (1983).)

Section 804.2 of the Basic Building Code as adopted provides:

“Unsafe means of egress: In any existing building or structure, not provided with exit facilities as herein prescribed for new buildings and in which the exits are deemed inadequate for safety by the building official, such additional provision shall be made for safe means of egress as the building official shall order.” Basic Building Code, §804.2, incorporated by reference in Rockford Municipal Code, ch. 6 (1983).

In his motion for summary determination, defendant argued that the two-exit requirement contained in the Life Safety Code and relied upon by plaintiff was not applicable to his building, since his building already existed in 1983 when the Life Safety Code was adopted by the City of Rockford and because such a requirement was more stringent than that contained in the Basic Building Code. Defendant reasoned that the sections of the Basic Building Code, quoted above, required modification of a building’s exits only when such exits were deemed inadequate by the city building official who then would order additional exits to be provided. Defendant submitted the affidavit of Bonnie B. Henry, the former acting code administrator of the City of Rockford and the current director of the city building department, in which Henry stated that at no time from 1979 through and including October 29, 1985, did any member of the department or its predecessor division issue a determination that defendant’s building had inadequate exits or order that modifications should be made.

Plaintiff submitted a counteraffidavit, also from Henry, in which she stated, inter alia:

“4. *** I have reviewed the records mentioned in my November 23, 1988, Affidavit concerning this building and have not found, and I am otherwise not aware of any record showing that this building was ever inspected by any City employee concerning the issue of ‘safe means of egress’ under Section 804.2 of the BOCA Basic National Building Code from the time when our records began up to and including at least October 29, 1985.
5. *** [T]he fact that no building official has ever entered an ‘exit order’ pursuant to Section 804.2 of BOCA does not indicate that the building complied with BOCA or with the Life Safety Code with respect to means of egress; it simply means that no inspection was ever made for that purpose by the City of Rockford.”

The trial court struck paragraph 5 above as improperly stating a conclusion pursuant to defendant’s motion to strike.

Further, the trial court granted defendant’s motion for summary determination on the issue of the alleged city ordinance violations. The trial court found “that there is no genuine issue of material fact as to a major issue in this case, namely, that the Defendant did not fail to comply with *** the Life Safety Code as alleged in *** the Plaintiff’s Amended Complaint as a matter of law.”

Defendant then filed a motion for judgment on the pleadings which addressed plaintiff’s allegation that defendant had violated the Winnebago County Code. The trial court granted this motion and dismissed the cause, finding that the portions of the County Code relied upon by plaintiff in his amended complaint did not apply to buildings, like defendant’s, which were located within the city limits of Rockford. Plaintiff filed a motion to reconsider both of the trial court’s orders which the court denied and dismissed the cause with prejudice. Plaintiff’s timely appeal ensued.

The issues presented on appeal are: (1) whether the record establishes that defendant owed plaintiff by ordinance a duty to provide a minimum of two fire exits pursuant to the Life Safety Code as adopted in the Rockford Municipal Code; and (2) whether the emergency exit requirements of the Winnebago County Code applied to defendant’s building, which was located within the Rockford city limits. We consider these issues in order.

Plaintiff contends that the trial court erred in granting defendant summary judgment on the first issue because the two-exit requirement set forth in the Life Safety Code is not more stringent than the exit requirements set forth in the Basic Building Code. Plaintiff further contends that the mere fact that defendant never received a city order deeming his building’s exits inadequate does not establish that, as a matter of law, defendant’s building’s exits were adequate. We agree with plaintiff on both points.

First, the Basic Building Code sections cited by defendant in his motion for summary determination do not relieve an apartment building owner from the responsibility of providing an adequate number of emergency exits. Section 804.1, quoted above, explicitly places this responsibility squarely on an owner’s shoulders. Section 804.2 merely provides a mechanism by which the city may enforce this responsibility.

Neither section specifies the number of exits a building must have in order to be deemed adequate for the safety of persons occupying the premises. Yet, defendant insists that the two-exit requirement set forth in the Life Safety Code is more stringent than these sections with regard to existing buildings, a situation defendant notes is prohibited by the city’s amendment that the Life Safety Code was not intended “to establish requirements more stringent than those contained in the Basic Building Code” (Rockford Municipal Code, ch. 11, §11 — 62 (1983)). We are puzzled by defendant’s assertion because we cannot conclude as a matter of law that two means of egress “where the size, occupancy, and arrangement endangers occupants attempting to use a single means of egress which is blocked by fire or more,” as required by the Life Safety Code, is more stringent than the adequate means of egress, required by the Basic Building Code, unless one exit may always under any circumstance be deemed adequate. “Adequate” has been defined as: “sufficient for a specific requirement; lawfully and reasonably sufficient.” (Webster’s Ninth New Collegiate Dictionary 56 (1987).) We do not believe that the City of Rockford, in adopting section 804.1 of the Basic Building Code, intended such a result. Accordingly, we conclude that the Life Safety Code requirement is not more stringent than the Basic Building Code requirement.

We further reject defendant’s contention that the city’s failure to find his building’s exits inadequate renders them adequate as a matter of law. Defendant’s interpretation of section 804.2 of the Basic Building Code is an imaginative non sequitur. He argues that since he never received orders to modify the exits to his building pursuant to this section, he was not required to modify his building. This assertion is correct. It does not follow, however, that the absence of such an “exit order” acts as the city’s finding that defendant’s building complied with section 804.1. By way of analogy, we offer the following hypothetical situation. An individual is prosecuted for the unauthorized practice of law. He obtains an affidavit from the appropriate State official stating that he never failed the State bar examination. What the affidavit fails to state is whether the individual ever took and passed the bar examination. The same situation obtains in the instant cause. Here, however, Henry’s counteraffidavit establishes that the City never inspected defendant’s apartment building. The fact that the City never issued an “exit order” proves no more than that such an order was never issued. It is incompetent to prove anything more.

Defendant’s entire argument in this regard is nothing more than a negative pregnant, that is, a denial which may imply an affirmative (see People v. Weaver (1980), 90 Ill. App. 3d 299; see also Black’s Law Dictionary 930 (5th ed. 1979)). Henry’s statement in her first affidavit that no order had ever been issued is evasive, ambiguous and ultimately incompetent to support the conclusion defendant urges.

The trial court’s task in considering defendant’s motion for summary determination is to determine whether issues of fact material to the parties’ dispute exist. (See Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112; Thiede v. Tambone (1990), 196 Ill. App. 3d 253, 257.) If the trial court finds that there exists no genuine issue of material fact and, further, that the moving party is entitled to judgment as a matter of law, then the trial court should grant the summary judgment motion. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(d); Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) The trial court is obligated to construe the record before it most strictly against the movant and in the light most favorable to the nonmovant. (Thiede, 196 Ill. App. 3d at 257.) The nonmovant is entitled to rely upon such reasonable inferences as may be drawn from the materials considered by the trial court on the motion. Thiede, 196 Ill. App. 3d at 257.

The trial court erroneously determined, as a matter of law, that defendant did not violate the emergency exit requirement contained in the Life Safety Code. We deem the issue as one of fact. The defendant admitted that plaintiff’s apartment had only one exit and only one access to a stairway. It is the province of the jury to determine if under the circumstances the defendant breached any duty created under the requirements of the Life Safety Code. Thus, we reverse the trial court’s order granting summary determination of this issue in favor of defendant and remand the cause to the trial court for further consideration.

We turn now to consideration of whether the Winnebago County Code emergency exit requirements applied to defendant’s building. Plaintiff contends that article 9, section 25.le, of the Winnebago County Code, which requires that every housing unit have at least two means of egress, is a county public health regulation authorized by section 5 — 1052(1) of the Counties Code (Ill. Rev. Stat. 1989, ch. 34, par. 5 — 1052(1)). Further, plaintiff contends that the Winnebago County exit requirement applies throughout the entire county pursuant to section 5 — 25008 of the Counties Code (Ill. Rev. Stat. 1989, ch. 34, par. 5-25008).

In opposition to plaintiff’s assertion that the county exit requirement applied to his building, defendant correctly relies upon section 5 — 1063 of the Counties Code, which provides:

“For the purpose of promoting and safeguarding the public health, safety, comfort and welfare, a county board may prescribe by resolution or ordinance reasonable rules and regulations (a) governing the construction and alteration of all buildings *** and governing the maintenance thereof in a condition reasonably safe from hazards of fire *** where such buildings *** are located outside the limits of cities, villages and incorporated towns ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 34, par. 5-1063(a).

We believe the county emergency exit requirement falls within the purview of section 5 — 1063(a) above and conclude that it is applicable only to buildings and other structures which lie outside the city limits of Rockford and other municipalities in Winnebago County. Thus, we affirm the trial court’s order granting defendant judgment on the pleadings with regard to this issue.

Before closing, we find it necessary to comment on technical mistakes which appear in both parties’ appellate briefs, i.e., their reference to and discussion of several Illinois statutes, including chapter IIIV2, section 20c, and chapter 34, sections 419(1), 422. A cursory inspection of the Illinois Revised Statutes discloses that no such statutory sections exist. Each was repealed by and replaced with the Counties Code, enacted by Public Act 86 — 962 and effective January 1, 1990 (Ill. Rev. Stat. 1989, ch. 34, pars. 1 — 1001 et seq.). We caution all appellate counsel to use greater care and diligence in the preparation of their briefs and arguments to ensure the accuracy of their citations to authority.

In view of the foregoing, we affirm the circuit court of Winnebago County’s order granting judgment on the pleadings, reverse the circuit court’s order granting summary determination of a major issue and dismissing the cause with prejudice, and we remand the cause for further proceedings not inconsistent with the views expressed herein.

Affirmed in part; reversed in part and remanded.

INGLIS and REINHARD, JJ., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LEE R. RAYMOND, Defendant-Appellee.
    Second District
    No. 2—89—0901
    Opinion filed September 5, 1990.

      Paul A. Logli, State’s Attorney, and John S. Lowry, of Brassfield, Cowan & Howard, both of Rockford (William L. Browers and Martin P.
    Moltz, both of State’s Attorneys Appellate Prosecutor's Office, of counsel), for the People.
    Daniel J. Cain and Peter B. Nolte, both of Sreenan, Cain & Sullivan, P.C., of Rockford, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

The State appeals the order dismissing the indictment against defendant, Lee D. Raymond, who was charged with reckless homicide (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3). The State contends the trial court erred in granting defendant’s motion to enforce a promise that defendant would not be charged with that offense.

Defendant was originally charged in a separate proceeding with a misdemeanor offense of driving under the influence of alcohol (DUI) on December 1, 1988 (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501). DUI is a Class A misdemeanor (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(c)), which may carry any sentence of less than a year’s imprisonment (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—3(a)(1)). Defendant was charged in this proceeding with reckless homicide, which is a Class 3 felony (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(d)(2)), which may carry a term of imprisonment of not less than two years and not more than five years, absent certain aggravating factors (Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-l(a)(6)).

Defendant’s DUI proceeding was assigned to assistant city attorney Barton Henbest of Rockford. In prosecuting offenses under the Illinois Vehicle Code, Henbest was also a special assistant State’s Attorney and often prosecuted misdemeanor DUI cases.' Daniel Cain entered his appearance on behalf of defendant and discussed possible dispositions with Henbest. Henbest informed Cain that Henbest could not agree to any disposition of the case because Assistant State’s Attorney John Lowry told him not to, as Lowry and he were still discussing whether to file felony charges. Later, Henbest informed Cain that Lowry told him the State would not file felony charges against defendant but would request the Secretary of State to revoke defendant’s driver’s license. Henbest did, in fact, send the requisite materials to the Secretary of State to effectuate a revocation.

The Secretary of State revoked the license, and Cain appealed the revocation and requested a hearing for March 10, 1989. Henbest brought several witnesses to the hearing. Cain examined defendant, and the attorney for the Secretary of State cross-examined him. Hen-best was present for the hearing, which lasted five hours, with defendant’s testimony alone taking one hour. The subject of defendant’s testimony pertained to the charges pending in Winnebago County, including whether he had consumed alcoholic beverages and whether he had driven a car.

On April 5, 1989, defendant was indicted for reckless homicide, and Cain filed a motion to dismiss that charge or, in the alternative, to enforce an agreement with the prosecution. Defendant was present but did not testify. Henbest testified that there was no question that he told Cain there would be no felony charge brought. Assistant State’s Attorney Lowry stipulated that Cain, if called to testify, would state that he relied on the representations of Henbest and advised defendant to testify -in the license revocation proceedings and, had he not received the representation, would not have advised his client to testify. The State also stipulated that Cain had always found statements made by the State’s Attorney’s office to be reliable. Cain stipulated that Lowry had no personal knowledge that defendant testified at the license revocation hearing.

The trial court found that, although there was no plea agreement, there was a material representation made to defendant by the State’s Attorney’s office, that defendant relied upon the representation to his detriment and that such reliance was reasonable. The court found defendant’s fifth amendment rights of due process of law were violated, rendering the proceedings unconstitutional. The court also found the State received a benefit because defendant’s testimony could be used against him for impeachment or rebuttal and because additional investigation may have occurred based on his testimony at the license revocation hearing. The court granted defendant’s motion and ordered that there be no felony charges filed against defendant.

The State appeals and contends the trial court erred in dismissing the charges because there was no plea agreement. The State first contends that defendant’s failure to testify is fatal to his motion. This argument is waived because the State did not raise it in the trial court. (Kirby v. Jarrett (1989), 190 Ill. App. 3d 8, 15.) Defendant was present in the courtroom and could have testified had the State objected to the stipulations relied upon by the trial court. The State never argued any infirmities of the proofs presented to the trial court and never objected to the sufficiency of the evidence, and, hence, this argument is waived.

The State also argues that, because there was no bargained-for exchange between the parties which ultimately led to a guilty plea, the trial court could not grant the motion. Plea agreements are enforceable where a defendant enters a guilty plea in reliance on a promise of a prosecutor. (Santobello v. New York (1971), 404 U.S. 257, 262, 30 L. Ed. 2d 427, 433, 92 S. Ct. 495, 499.) However, an agreement is not enforceable until a defendant actually prejudices himself. (Mabry v. Johnson (1984), 467 U.S. 504, 510, 81 L. Ed. 2d 437, 444, 104 S. Ct. 2543, 2548.) A promise by a prosecutor will not be enforced unless a defendant shows he has surrendered a constitutionally protected interest in reliance on the promise. People v. Boyt (1985), 109 Ill. 2d 403, 415.

Although prejudice usually occurs when a defendant pleads guilty (People v. Umfleet (1989), 190 Ill. App. 3d 804, 810), prejudice does not occur until a defendant in fact pleads guilty because a defendant has not prejudiced himself before the State actually revokes its promise. (People v. Navarroli (1988), 121 Ill. 2d 516, 523.) However, entering a plea of guilty is not the only prejudice recognized as a surrendering of a constitutional right. In People v. Starks (1985), 106 Ill. 2d 441, 447, the State agreed to dismiss the charges if the defendant passed a polygraph test. By submitting to the polygraph examination, the defendant surrendered his fifth amendment privilege against self-incrimination. (106 Ill. 2d at 447.) Where a defendant falls short of surrendering a constitutional right, however, the promise cannot be enforced. Navarroli, 121 Ill. 2d at 527.

In the cause before the court, there is no question that defendant surrendered his constitutional right against self-incrimination; there is no dispute over the terms of the unambiguous promise; and the State does not contest that it benefitted from defendant’s testimony. This cause differs from earlier cases because there is no bargained-for exchange for the State’s promise. The State has cited no authority that a defendant may not rely to his detriment on a statement by the State where there was no bargained-for consideration. The State in effect argues that, because it did not receive consideration in return for its promise, the promise is not enforceable. However, a party may be estopped from asserting a lack of consideration where the promise induces actions to the other party’s detriment. (Bank of Marion v. Robert “Chick” Fritz, Inc. (1974), 57 Ill. 2d 120, 124.) In this cause, the promise was unambiguous; defendant relied upon it; the reliance was reasonable; and defendant suffered detriment. Therefore, the State is estopped from asserting a lack of consideration. See Yardley v. Yardley (1985) 137 Ill. App. 3d 747, 754.

In addition, we believe that fundamental fairness dictates that the charges be dismissed. Defendant’s right to a fair trial was impaired because he gave the testimony concerning the events underlying the indictment. (See Navarroli, 121 Ill. 2d at 529.) Even if the testimony was not proved to have led to the indictment and if the testimony were suppressed, there is no way of assuring that the testimony and the fruits thereof would not come to the trial judge’s attention, thus compelling the defendant to elect a jury trial. (Starks, 106 Ill. 2d at 452.) Defendant has suffered prejudice and has relinquished his fifth amendment rights. Therefore, the charge of reckless homicide must be dismissed.

While the State did not purposely gain anything from its promise to refrain from charging defendant with a felony, it still must be accountable for its actions and its role in applying due process of law. “The staff lawyers in a prosecutor’s office have the burden of ‘letting the left hand know what the right hand is doing’ or has done. That the breach of agreement was inadvertent does not lessen its impact.” (Santobello, 404 U.S. at 262, 30 L. Ed. 2d at 433, 92 S. Ct. at 499.) The impact here was substantial as defendant compromised his right against self-incrimination.

For the above reasons, the order of the trial court is affirmed.

Affirmed.

GEIGER and McLAREN, JJ., concur.