author: PRESIDING JUSTICE McCUSKEY

text:
    PETER D. KOCIK et al., Plaintiffs, v. COMMONWEALTH EDISON COMPANY et al., Defendants and Third-Party Plaintiffs-Appellees (Nancy Day, widow of John Day, et al., Plaintiffs-Appellees; Silver Cross Hospital et al., Defendants and Third-Party Plaintiffs; Young Sales, Inc., et al., Third-Party Defendants-Appellants; Ben B. Cabay Construction Company, Third-Party Defendant).
    Third District
    Nos. 3 — 92—0095, 3 — 92—0133 through 3 — 92—0140 cons.
    Opinion filed March 19, 1993.

      Hinshaw & Culbertson, of Chicago (Bruce L. Carmen, of counsel), and Cory D. Lund, of Hinshaw & Culbertson, of Joliet, for appellant Young Sales, Inc.
    Jeffrey S. Pavlovich, of Kiesler & Berman, of Chicago (Lyle F. Koester, of counsel), for other appellants.
    Johnson & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), and Gary L. Wunderlich, of Spesia & Ayers, of Joliet (Neil T. Goltermann, of counsel), for appellee Commonwealth Edison Company.
    Rooks, Pitts & Poust, of Joliet (Robert R. Gorbold, of counsel), for ap-pellee Huber, Inc.
    Gary L. Wunderlich, of Spesia & Ayers, of Joliet (Neil T. Goltermann, of counsel), for appellee Illinois Bell Telephone Company.
    Bradley W. Hayes and Condon & Marsaglia, both of Morris (A. Samuel Black, of counsel), for appellees Nancy Day, Lisa M. Helgeson, and Kelly Day.
    Williams & Montgomery, of Chicago, for appellees Theodore Spiegel and Kathleen Spiegel.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

In nine similar cases, the circuit court of Will County denied the motions filed by the third-party defendants to strike the ad damnum clauses of the third-party complaints. In each case, the trial court, pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308), certified the issue raised for interlocutory appeal. We have granted the third-party defendants’ applications for leave to appeal and have consolidated the nine cases since they involve the same issue.

The only issue raised in these interlocutory appeals is whether the supreme court’s decision in KotecJd v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 585 N.E.2d 1023, applies to causes of action accruing prior to April 18, 1991. Because we conclude that the holding of the supreme court in Kotecki should have been applied to these pending cases, we reverse and remand.

A recitation of the facts of each individual appeal is not necessary for our determination of the sole issue raised before this court. We will therefore provide only a brief summary of the undisputed facts which are common to all of the appeals. The plaintiffs in all nine cases filed complaints alleging that they suffered injuries as a result of the defendants’ negligence and violations of the Structural Work Act (111. Rev. Stat. 1991, ch. 48, par. 60 et seq.). The plaintiffs’ injuries occurred during 1988 and 1989. In all nine cases, the defendants, as third-party plaintiffs, filed third-party complaints against the plaintiffs’ employers seeking contribution in an amount commensurate with the employers’ relative degree of culpability. The employers, as third-party defendants, then filed motions to strike the ad damnum clauses of the third-party complaints. The third-party defendants argued that their contribution liability was limited to the amount of their liability under workers’ compensation pursuant to the supreme court’s decision in Kotecki. The supreme court decided Kotecki on April 18, 1991. The trial court denied all of the third-party defendants’ motions. The trial court determined that Kotecki did not apply to causes of action accruing prior to April 18,1991.

The third-party defendants argue the trial court erred in determining that Kotecki should be applied prospectively only. They note that supreme court decisions are almost always applied retroactively to cases pending at the time of the decision. The third-party defendants contend that supreme court decisions are given prospective application only under extremely limited circumstances and allege those circumstances are not present here. We agree with the third-party defendants’ analysis.

The third-party plaintiffs take the opposite view regarding the proper application of the holding in Kotecki. They argue that prospective application of the Kotecki decision is warranted since Kotecki established a new principle of law and because the equities of the situation require prospective application. We disagree.

In Doyle v. Rhodes (1984), 101 Ill. 2d 1, 14, 461 N.E.2d 382, 388, the supreme court held that an employer could be liable for contribution to a third party, regardless of the immunity provided by sections 5(a) and 11 of the Workers’ Compensation Act (111. Rev. Stat. 1991, ch. 48, pars. 138.5(a), 138.11). The supreme court did not address the question of the extent of this liability. However, the court did state in dicta that “some accommodation” between section 5(b) of the Workers’ Compensation Act (111. Rev. Stat. 1991, ch. 48, par. 138.5(b)) and section 2(a) of the Joint Tortfeasor Contribution Act (Contribution Act) (111. Rev. Stat. 1991, ch. 70, par. 302(a)) “may be in order.” Doyle, 101 Ill. 2d at 15, 461 N.E.2d at 389.

Seven years later, the supreme court decided Kotecki. In Kotecki, the court held that an employer’s contribution liability is limited to the amount of its liability under workers’ compensation. Kotecki, 146 Ill. 2d at 165, 585 N.E.2d at 1027-28.

The supreme court in Kotecki did not agree with the argument raised here that limiting an employer’s contribution liability required a “change” in the law. (Kotecki, 146 Ill. 2d at 160-61, 585 N.E.2d at 1025-26.) The defendant’s argument in Kotecki was based upon indemnity cases. The supreme court determined that those cases were not applicable because the case before the court concerned contribution, not indemnity. (Kotecki, 146 Ill. 2d at 161, 585 N.E.2d at 1026.) The court emphasized in Kotecki that indemnity cases were of no help in resolving the question of contribution liability because indemnity and contribution are mutually exclusive remedies. (Kotecki, 146 Ill. 2d at 161, 585 N.E.2d at 1026.) Thus, the supreme court specifically rejected the argument that its holding in Kotecki was “changing” the law. The supreme court also stated that its holding was the natural “accommodation” which it recognized in Doyle would be necessary to reconcile the Workers’ Compensation Act and the Contribution Act. Kotecki, 146 Ill. 2d at 165, 585 N.E.2d at 1027-28.

In its petition for rehearing, the defendant in Kotecki asked the supreme court to limit its decision to prospective application only. The supreme court denied the petition for rehearing and did not limit its decision. See Kotecki, 146 Ill. 2d at 174-75, 585 N.E.2d at 1032 (Freeman, J., dissenting).

As a general rule, judicial decisions are given retroactive effect. (Deichmueller Construction Co. v. Industrial Comm’n (1992), 151 Ill. 2d 413, 416, 603 N.E.2d 516, 518.) The decision of a court is applied retroactively to pending cases unless the court expressly declares that its decision is a clear break with past precedent or practice. (Marozas v. Board of Fire & Police Commissioners (1991), 222 Ill. App. 3d 781, 788, 584 N.E.2d 402, 406; Pierce v. Tee-Pak, Inc. (1990), 196 Ill. App. 3d 544, 547, 553 N.E.2d 1104, 1106.) Judicial interpretation of a statute does not necessarily constitute a change in the law. Marozas, 222 Ill. App. 3d at 788, 584 N.E.2d at 407; Pierce, 196 Ill. App. 3d at 547, 553 N.E.2d at 1106.

The test for prospective application of a court’s decision was set out in Elg v. Whittington (1987), 119 Ill. 2d 344, 357, 518 N.E.2d 1232, 1238. The first part of the Elg analysis is whether the case establishes a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. According to Elg, the first test must be met before the second part of the analysis is ever considered. The second part of the analysis is: (1) whether, given the purpose or prior history of the rule, its operation will be promoted or retarded by prospective or retroactive application; and (2) whether prospective application is mandated by the balance of equities. Elg, 119 Ill. 2d at 357, 518 N.E.2d at 1238.

We conclude that the third-party plaintiffs have failed to establish that Kotecki should be given prospective application under the first prong of the Elg test. We cannot agree with the third-party plaintiffs that Kotecki established a new principle of law. The third-party plaintiffs insist that, prior to Kotecki, the law in Illinois was that a defendant had the right to recover unlimited contribution from a negligent employer. The third-party plaintiffs have failed to cite any clear, controlling precedent for this assertion. We find the language of the supreme court decision in Kotecki is contrary to the third-party plaintiffs’ position.

The court in Kotecki did not expressly declare that its decision was a clear break with past precedent. In fact, it essentially stated the opposite when it rejected the argument that limiting an employer’s contribution liability required a “change” in the law. In addition, the Kotecki court noted that it was not changing the common law but was reconciling two potentially conflicting statutes. (Kotecki, 146 Ill. 2d at 162, 585 N.E.2d at 1026.) Thus, the issue before the Kotecki court involved the interpretation of statutes, which does not necessarily constitute a change in the law. Also, while the supreme court did squarely decide the issue for the first time in Kotecki, the court strongly indicated that its decision was foreshadowed by its dicta in Doyle. The supreme court stated that its decision was the natural “accommodation” which it recognized in Doyle would be necessary to reconcile the two statutes.

We therefore conclude, based on the language of Kotecki, that the general rule of retroactive application must apply. Accordingly, since the cases here were pending and had not come to trial prior to the Kotecki decision, the Kotecki holding applies retroactively to these cases.

We note that our conclusion is consistent with the recent holding of the First District Appellate Court in Norberg v. Centex Homes Corp. (1993), 247 Ill. App. 3d 267. The court in Nor- berg held “the Kotecki decision applies only to cases in which trial had not yet commenced on the date the Kotecki opinion was released.” (Norberg, 247 Ill. App. 3d at 273.) Therefore, based upon our analysis and the Norberg holding, Kotecki would apply here because the cases before us involve pretrial proceedings. See Norberg, 247 Ill. App. 3d at 273.

For the reasons indicated, the orders of the circuit court of Will County are reversed and remanded. The trial court is directed to strike the ad damnum clauses of the third-party complaints so that the third-party defendants’ contribution liability will be limited to an amount not greater than the third-party defendants’ workers’ compensation liability.

Reversed and remanded.

BARRY and BRESLIN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BRESLIN

license: Public Domain

text:
      In re ESTATE OF ALICE BAKER, Deceased (Sharon Chapman, Ex’x of the Estate of Alice Baker, Petitioner, v. Leland Finnegan, Respondent-Ap-pellee (John J. Wosik, Petitioner-Appellant)).
    Third District
    No. 3 —92—0436
    Opinion filed March 29, 1993.

      Louis E. Olivero & Associates, of Peru (Louis E. Olivero, of counsel), and John J. Wosik, pro se, of Henry, for appellant.
    John R. Pusey, of Vonachen, Lawless, Trager & Slevin, of Peoria (Thomas H. Trager, of counsel), for appellee.
    Eric S. Swartz, of Swengel & Swartz, of Henry, for Sharon L. Chapman.
   JUSTICE BRESLIN

delivered the opinion of the court:

The decedent, Alice Baker, died testate on December 16, 1990. A petition to probate her will and for letters testamentary was filed on January 3, 1991. The executrix of the will filed a final report for the estate on July 17, 1991. Her final report included the payment of $8,000 in attorney fees to the attorney for the estate, John J. Wosik. Leland Finnegan, a residuary heir of the estate, filed objections to the final report contending that the fee taken by attorney Wosik was grossly excessive considering the complexity and size of the estate. Following a hearing on the objections to the final report, the trial court found that Wosik’s fee was unreasonable and unjustified given such a simple estate case. The trial court further found that the time log filed by Wosik was not only “ludicrous but sanctionable pursuant to Supreme Court Rule 137.” The court concluded that a reasonable attorney fee would have been $2,500. The court then awarded Wosik’s $2,500 attorney fee to opposing counsel as a sanction. The trial court denied Wosik’s motion to reconsider. He appeals the court’s sanction order. We reverse and remand for further proceedings.

The record shows that the decedent’s will named Sharon Chapman as executrix of the will and requested that she employ John J. Wosik to represent her estate. The will named Leland Finnegan as alternate executor.

Shortly after the decedent’s death, Finnegan went to the decedent’s apartment thinking that he had been appointed executor of her estate. He obtained a key to the apartment and searched it. According to Finnegan, he did not return to the apartment after he left it that day. A couple of days later, Finnegan went to Wosik’s law office and was informed by Wosik’s secretary that he was not the estate’s executor. About two weeks later, Finnegan gave the decedent’s apartment key to Wosik’s secretary.

Wosik testified at the hearing on the objections to the final report that around December 20, 1990, he talked to his secretary of 20 years on the telephone and directed her to perform certain preliminary work to open the Baker estate. The preliminary work involved establishing the heirship of the decedent, obtaining the necessary addresses of the heirs, and preparing a petition to admit the will to probate. Wo-sik’s secretary prepared the petition to probate the will and for letters testamentary. Wosik explained that he was in Mexico from sometime prior to the decedent’s death until the end of January 1991. He claimed that he was in contact with his secretary on the phone about the case. Wosik testified that phone company records showed that he had had nine phone conversations with his secretary while in Mexico. They were for a total of 87 minutes. He claimed that he made other calls, but they were not included in the phone company records because they were calls that he made to his secretary from Mexico.

Wosik filed his time log on September 3, 1991. It listed a total fee of $9,869.40, which represented 109.66 hours of work at $90 an hour. Wosik’s time log included 23.75 hours for time billed while he was in Mexico. It also included 18.5 hours for time worked after the filing of the objections to the final report. At the conclusion of his time log, Wosik stated:

“[T]he above itemized time log consists of an accurate and correct time consumed by the undersigned legal office as an Attorney at Law required and necessary to fulfill the responsibilities of the Executor in the administration of the Estate of Alice Baker, Deceased, and that the same is reasonable as to this individual estate having unique, individual, unusual, and extraordinary conditions generated by the uncooperative conditions created by a beneficiary to fulfill the obligations of the Executor herein ***.”

Wosik explained at the hearing that it was necessary to bill so many hours because there were 34 potential heirs who had to be given notice. Furthermore, Finnegan’s entry into the decedent’s apartment made it necessary to conduct an extensive inventory to determine if any assets were missing. Wosik admitted that there were no liens, no claims, no Federal estate tax, no contest to collect any assets and no court proceedings necessary to protect or sell any assets of the estate. Wosik further admitted that his final report failed to include $6,700 in interest income earned by the assets of the estate from the date of the decedent’s death until the date of the filing of the final report.

The executrix’s final report listed the total assets of the estate as $90,830. Wosik’s fee amounted to over 8% of those assets.

At the conclusion of the hearing on the objections to the final report, the trial court noted that even with the original difficulty with Finnegan, it would be hard to imagine a more simple estate case. The court found that attorney Wosik’s time log was “ludicrous” and “sanctionable.” The court further found that Wosik was only entitled to $2,500 in attorney fees. The court, however, reduced those fees to zero as a sanction, and instead awarded the opposing law firm $2,133 in attorney fees and $390.40 in deposition costs. The court further ordered that opposing counsel’s fees and deposition costs be paid from the estate.

On appeal, Wosik argues that the probate court erred in imposing sanctions without first conducting a hearing on that issue. He further argues that the court was required to make specific factual findings supporting its order of sanctions. He points out that the court, in deciding to impose sanctions, did not identify any statement in his time log that was untrue. Therefore, he argues, the probate court’s order did not fall under the criteria for imposing sanctions contemplated by Illinois Supreme Court Rule 137 (134 111. R. 2d 137).

A trial court’s decision regarding whether to impose sanctions is entitled to considerable deference, and its decision will not be reversed on appeal absent an abuse of discretion. (Yassin v. Certified Grocers of Illinois, Inc. (1990), 133 Ill. 2d 458, 551 N.E.2d 1319.) However, the predicate to such deference is that the trial court make an informed and reasoned decision. (In re Estate of Smith (1990), 201 Ill. App. 3d 1005, 559 N.E.2d 571.) For that reason, it has been noted that a hearing ought to be held to give the parties involved an opportunity to present any evidence needed to substantiate or rebut the claim for sanctions, and an opportunity to argue their positions. (In re Estate of Smith (1990), 201 Ill. App. 3d 1005, 559 N.E.2d 571.) Furthermore, a trial court’s decision on sanctions must clearly set forth the factual basis for the result reached in order to be afforded deferential treatment. Bertuli v. Gaull (1991), 215 Ill. App. 3d 603, 574 N.E.2d 1390.

In the present case, the record shows that the probate court failed to conduct an evidentiary hearing on the issue of sanctions imposed under Rule 137. We hold that a trial court must allow for an eviden-tiary hearing before imposing sanctions. Accordingly, we reverse and remand the cause for a hearing on whether sanctions are appropriate here.

Additionally, we note that Rule 137 provides in part that the signature of an attorney on a paper constitutes a certificate by him that he has read the paper and that to the best of his knowledge, information and belief formed after reasonable inquiry, it is well grounded in fact. (134 111. 2d R. 137.) Because the rule is penal in nature, it must be strictly construed and accordingly each of its requirements must be specifically proved. (Mancuso v. Beach (1986), 149 Ill. App. 3d 188, 500 N.E.2d 589.) Rule 137 is not meant to punish losing parties who fail to adequately support their legal positions. (Grab v. Keller (1991), 224 Ill. App. 3d 1, 586 N.E.2d 361.) A party requesting attorney fees under Rule 137 has the burden of showing both that statements in the pleading were untrue and that they were made without reasonable cause. (Couri v. Korn (1990), 202 Ill. App. 3d 848, 560 N.E.2d 379.) The standard for evaluating an attorney’s conduct is one of reasonableness under the circumstances existing at the time of the filing of the paper. (Monahan v. Village of Hinsdale (1991), 210 Ill. App. 3d 985, 569 N.E.2d 1182.) Moreover, the facts, circumstances, motive, intent, or purpose of the pleader may be material in determining whether the allegations were made with reasonable cause. Wollschlagerv. Sundstrand Corp. (1986), 143 Ill. App. 3d 347, 493 N.E.2d 107.

Here, we note that on remand of this cause for a hearing on the sanctions issue, the trial court should apply the above-mentioned standards and principles in determining whether sanctions are warranted. We further note that the “time log” filed by attorney Wosik in support of his claim for fees is a “paper” within the meaning of Supreme Court Rule 137. We also note that Wosik’s conduct in submitting the time log would only be sanctionable if the court could point to some specific false statement contained in that paper. In that regard, Wosik represented that his time log consisted of “an accurate and correct time consumed by the undersigned legal office as an Attorney At Law.” The probate court, however, found only that the time log submitted by attorney Wosik was “ludicrous” and “sanction-able,” and that Wosik billed for time while he was not in the United States. The court did not make any specific factual findings that anything in the time log amounted to a false statement or a fraud upon the court. Furthermore, the court did not conduct a hearing at which the question of sanctions was at issue.

Accordingly, we hold that the cause must be reversed and remanded for further proceedings consistent with this opinion.

Reversed and remanded.

SLATER and STOUDER, JJ., concur.


author: JUSTICE LUND

text:
    JOHN M. BETTIS, Plaintiff-Appellant, v. OSCAR MAYER FOODS CORPORATION, Defendant-Appellee.
    Fourth District
    No. 4 — 92—0741
    Opinion filed March 30, 1993.

      Willoughby & Latshaw, RC., of Decatur (Richard A. Hopkins, of counsel), for appellant.
    Rammélkamp, Bradney, Dahman, Kuster, Keaton, Fritsche & Lindsay, P.C., of Jacksonville (Nancy Lindsay, of counsel), for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Plaintiff sought a workers’ compensation award as a result of carpal tunnel syndrome and received an award of 15% of the loss of the use of each hand, resulting in an order of $282.25 per week for 57 weeks ($16,088.25). This was an award for permanent partial disability. The Industrial Commission (Commission) also provided that defendant should have a $6,207.04 credit under section 8(j) of the Illinois Workers’ Compensation Act (Act) (111. Rev. Stat. 1989, ch. 48, par. 138.8©). Defendant unsuccessfully sought relief in the circuit court and the appellate court (Oscar Mayer Foods Corp. v. Industrial Comm’n (4th Dist. 1992), No. 4 — 91—0396WC (unpublished order under Supreme Court Rule 23)). Plaintiff did not object to the credit in either the circuit court or the appellate court.

No further appeals were possible after May 14, 1992. A check for the award of $16,088.25, less $6,207.04 and plus interest, was not tendered until July 6, 1992. Plaintiff had filed a petition in the circuit court under provisions of section 19(g) of the Act (111. Rev. Stat. 1991, ch. 48, par. 138.19(g)) on June 29, 1992. Section 19(g) of the Act provides for judgment to be entered pursuant to the Commission’s award in “a case where the employer refuses to pay compensation^] *** [T]he court shall in entering judgment thereon, tax as costs against him the reasonable costs and attorney fees in the arbitration proceedings and in the court entering the judgment for the person in whose favor the judgment is entered.” 111. Rev. Stat. 1991, ch. 48, par. 138.19(g).

In the section 19(g) proceedings, plaintiff sought to deny defendant the $6,207.04 credit and sought to recover additional costs provided by the section. The circuit court denied both, holding that it lacked jurisdiction to consider the section 8© credit, stating such would be a collateral attack on the Commission decision and that plaintiff should have raised the issue on direct appeal. As to the costs factor in the section 19(g) petition, the circuit court held that defendant had not refused to pay and the delay in payment was not egregious.

There is no question but that credits under section 8(j) of the Act are “to or against any compensation payment for temporary total incapacity.” (111. Rev. Stat. 1989, ch. 48, par. 138.8(j)(l).) In other words, the $6,207.04 credit could not, as a matter of law, be deducted from the permanent partial disability award of $16,088.25. However, if the Commission clearly entered an erroneous order directing that section 8(j) of the Act credit be made to or against the permanent partial disability award, then that order would be enforceable unless attacked by the plaintiff by direct review. Collateral attack is not possible under section 19(g) of the Act. See Ahlers v. Sears, Roebuck Co. (1978), 73 Ill. 2d 259, 268, 383 N.E.2d 207, 211.

Plaintiff was in a position, if aware of the statutory provision limiting the offset, of having reason to believe it was not deductible from the permanent partial disability award. To determine that the Commission had intended to create an improper offset would have required an assumption that the Commission was not aware of its own limitations. Plaintiff was not required to appeal from an order which was not necessarily erroneous.

We conclude the $6,207.04 credit did not, and could not, apply to the $16,088.25 award, and the circuit court could enter judgment under section 19(g) of the Act for the deficiency with interest thereon.

As to the section 19(g) costs issue, we conclude the mere filing of a petition under the section, before payment of the award, does not automatically require an award of additional costs. To so hold would render meaningless the provision, “In a case where the employer refuses to pay ***.” (111. Rev. Stat. 1991, ch. 48, par. 138.19(g).) Our courts have held that a harsh result is not mandated by the Act. (Evans v. Corporate Services (1990), 207 Ill. App. 3d 297, 565 N.E.2d 724.) The facts in this case indicate counsel for defendant was obtaining the funds.

We agree with the trial court that the delay was not egregious and do not find its denial of additional costs an abuse of discretion. In so determining, we recognize that the nature of the award of the credit could reasonably lead to opposite conclusions by the opposing counsel. The decision to deny additional costs should be affirmed. See Wirth v. Industrial Comm’n (1976), 63 Ill. 2d 237, 241-42, 347 N.E.2d 136,138.

The circuit court’s order granting the motion to dismiss is reversed. The cause is remanded to the circuit court in Cass County for further proceedings consistent with this opinion.

Reversed and remanded.

McCULLOUGH and COOK, JJ., concur.


author: JUSTICE COOK

text:
    GUARANTY NATIONAL INSURANCE COMPANY, Plaintiff-Appellant, v. DONALD M. KOCH, d/b/a Koch Trucking, et al., Defendants-Appellees.
    Fourth District
    No. 4 — 92—0367
    Opinion filed March 31, 1993.

      Joseph R. Davidson and Peter M. Gannett, both of Bernard & Davidson, of Granite City, and Schindel, Cooper & Farman, of New York, New York (Laurence J. Rabinovich, of counsel), for appellant.
    J. Todd Hayes, of Burroughs, Simpson, Hepler, Broom & MacDonald, of Edwardsville (Gordon R. Broom, of counsel), for appellees CILCORP, Inc., and Central Illinois Light Company.
    David V. Dorris, of Jerome Mirza & Associates, Ltd., of Bloomington, for appellee George Miller, Jr.
    Gregory A. Becker and Ronald S. Motil, both of Becker & Motil, PC., of Granite City, for appellee Aleece Opel.
    Randy Koch, of Alhambra (Donald M. Koch, of counsel), appellees pro se.

    Jon G. Carlson, of Jon G. Carlson & Associates, P.C., of Edwardsville, for appellee Everett Gecht.
   JUSTICE COOK

delivered the opinion of the court:

Guaranty National Insurance Company (Guaranty) brought this declaratory judgment action to determine whether the policy it issued to Donald Koch and Koch Trucking provided coverage for an accident occurring outside the policy’s 50-mile coverage radius and, if so, the appropriate amount of coverage. After a bench trial, the trial court found that the policy issued to Koch was modified by an endorsement filed by Guaranty with the State of Illinois, which had the effect of providing coverage up to the amount of $750,000. The only issue raised by Guaranty on appeal is the amount of coverage.

Koch operates a motor carrier business, Koch Trucking Company, Alhambra, Illinois. To comply with the Illinois Commercial Transportation Law (Transportation Law) (111. Rev. Stat. 1991, ch. 951/2, par. 18c — 4202), Koch applied for and received a “Certificate of Public Convenience and Necessity as a Common Carrier of Property by Motor Vehicle” which allowed him to serve the entire State of Illinois. The certificate of public convenience allowed Koch to pick up loads within a 50-mile radius of Alhambra and deliver them anywhere in the State; it further allowed Koch to pick up loads anywhere in the State and deliver them within a 50-mile radius of Alhambra. The Transportation Law requires insurance coverage for all vehicles operated by a motor carrier. (111. Rev. Stat. 1991, ch. 951/2, par. 18c— 4901.) The statutory minimum liability insurance coverage which an intrastate carrier such as Koch must have is $100,000 for the injury or death of each person with a maximum of $300,000 for all claimants in one accident. (92 111. Adm. Code § 1425.30(a) (1991) (eff. October 1, 1987).) From June 1, 1986, until June 1, 1987, Koch had insurance coverage for his trucking business with limits of $750,000 for accidents within a 300-mile radius of Alhambra, at a premium of $8,864. For 1987-88, Koch purchased $750,000 worth of coverage with “a radius in excess of 200 miles,” at a premium of $7,616. Both policies were sold to Koch by David Alender, an insurance broker, whom the trial court found to be an agent of Koch.

In February 1988, Koch again sought to purchase insurance. Alen-der contacted Snyder General Agency, a managing general agent of Guaranty in the State of Wisconsin. Snyder had authority to “bind” and issue policies on behalf of Guaranty up to a $500,000 liability limit. Since Koch desired a $750,000 limit, Snyder contacted Guaranty and received authority to issue a policy with that limit. At that time, Snyder believed the Illinois Commerce Commission (the Commission) required a minimum of $750,000 of insurance for motor carriers of property. Snyder quoted Alender premiums for policies with a 300-mile radius and with a 50-mile radius. At Alender’s request, Snyder issued a policy insuring Koch for accidents within a 50-mile radius of Alhambra, Hlinois, and a liability limit of $750,000. The premium was $8,200.

On February 16, 1988, Guaranty filed a certificate of insurance (form E) with the Commission as proof of insurance as required by the Transportation Law (111. Rev. Stat. 1991, ch. 951/2, par. 18c — 4901) and the Illinois Administrative Code (92 111. Adm. Code § 1425.20(a) (1991)). The form E certificate states “by attachment of the uniform motor carrier bodily injury and property damage liability insurance endorsement” (form F), the policy has “been amended to provide automobile bodily injury and property damage liability insurance covering the obligations imposed upon such motor carrier by the provisions of the motor carrier law of the State.” (49 C.F.R. pt. 1023, app. (form E), at 101 (1991).) Additionally, form F provides:

“1. The certification of the policy, as proof of financial responsibility under the provisions of any State motor carrier law or regulations promulgated by any State commission having jurisdiction with respect thereto, amends the policy to provide insurance for automobile bodily injury and property damage liability in accordance with the provisions of such law or regulations to the extent of the coverage and limits of liability required thereby.” (Emphasis added.) 49 C.ER. pt. 1023, app. (form F), at 101 (1991).

On November 16, 1988, a truck owned by Koch and driven by Randy Koch, operating pursuant to the Illinois certificate of public convenience of Koch Trucking, was involved in an accident. The accident occurred more than 50 miles from Alhambra, but involved a load picked up within 50 miles of Alhambra, to be delivered within the State of Illinois.

Guaranty now concedes the effect of its certificate of insurance and endorsement is to require it to protect members of the public from the use of any Koch Trucking vehicle, anywhere in the State of Illinois. Guaranty argues that when an insurer’s liability is based on a statutory endorsement, the measure of its liability is that of the statute, not that of the policy. Guaranty argues that where liability is established through an endorsement, the terms of that endorsement control over those of the policy. (See Vole v. Atlanta International Insurance Co. (1988), 172 Ill. App. 3d 480, 483, 526 N.E.2d 653, 655 (“[i]f there is a conflict between the main policy and the endorsement, the endorsement will control”).) Guaranty argues that here its liability for the accident arose pursuant to the endorsement and not the underlying policy.

The general rule is that an insurer’s liability for an accident for which a statute requires coverage, but the policy does not provide coverage, is limited to the amount of coverage required by the statute. (Landis v. New Amsterdam Casualty Co. (1952), 347 Ill. App. 560, 569, 107 N.E.2d 187, 192; Konrad v. Hartford Accident & Indemnity Co. (1956), 11 Ill. App. 2d 503, 527, 137 N.E.2d 855, 867 (endorsement limited by its terms to $5,000, the statutory limit); see also American Tours, Inc. v. Liberty Mutual Insurance Co. (1986), 315 N.C. 341, 350, 338 S.E.2d 92, 98.) This should be true even though the policy arguably incorporates what is said in the statute. A different rule may apply where the policy is thought not to cover because of an exclusion but the exclusion is held to violate public policy. (Meyer v. State Farm Mutual Automobile Insurance Co. (Colo. 1984), 689 P.2d 585, 592-93.) Koch attempts to distinguish Landis and Konrad as cases where policy language specifically limited coverage to the amount required by the statute. Form F does the same here, however; it amends the policy to provide insurance “in accordance with the provisions of such law or regulations to the extent of the coverage and limits of liability required thereby.” (Emphasis added.) (49 C.F.R. pt. 1023, app. (form F), at 101 (1991).) The emphasized language is almost identical to that in Landis. Department of Insurance regulations further provide that the filing of a certificate binds the insurer to “the minimum terms required.” 92 111. Adm. Code §1425.20(b), at 6847 (1991).

The Landis holding that a financial responsibility endorsement incorporates the provisions of the financial responsibility statute into the policy, even if the named insured is not within the purview of the financial responsibility statute, has been rejected. (McCann v. Continental Casualty Co. (1956), 8 Ill. 2d 476, 134 N.E.2d 302; Bisco v. Liberty Mutual Insurance Co. (1988), 176 Ill. App. 3d 280, 284-85, 530 N.E.2d 1163, 1165; de los Reyes v. Travelers Insurance Cos. (1990), 135 Ill. 2d 353, 359, 553 N.E.2d 301, 304.) The portion of Landis relevant to this case, however, remains intact.

In Smith v. Richard (1985), 134 Ill. App. 3d 378, 480 N.E.2d 859, the insurer of a postal service contract carrier was required to file a certificate with the service, agreeing to notify the service of any lapse in the policy. The insurer cancelled the policy by notice to the insured, but failed to notify the postal service. This court held that the failure to give notice to the postal service kept the policy in force, not at the $10,000 minimum limit required by postal regulations, but at the stated limits of the policy. (Smith, 134 Ill. App. 3d at 386, 480 N.E.2d at 864.) We see a distinction between restrictions on the cancellation of a policy and requirements that a policy cover losses to which it otherwise would not apply. The only issue in Smith was that of cancellation; once the court found the policy had not been cancelled, it remained in effect as written. In the present case the policy never covered liability outside the 50-mile radius limit. The only bases for insurer liability are the statute and the certificate, not the policy. The insurer should not be obligated to provide more coverage than required by the statute. The policy in Smith contained an endorsement which stated: “This endorsement is a part of your policy. Except for the changes it makes, all other terms of the policy remain the same and apply to this endorsement.” (Emphasis in original.) (Smith, 134 Ill. App. 3d at 382, 480 N.E.2d at 861.) This court recognized in Smith that there were arguments in favor of a contrary ruling. (Smith, 134 Ill. App. 3d at 386, 480 N.E.2d at 864.) We see no reason to depart from the general rule expressed in Landis in this case.

Koch argues it was his intent to have policy limits of $750,000. It is, however, the intention of the parties as expressed in 1 their agreement which is controlling, (de los Reyes, 135 Ill. 2d at 358, 553 N.E.2d at 304.) Even if Koch’s private intent were relevant, it is clear that he or those acting on his behalf consciously chose a policy which would provide no coverage for this accident. Koch could have chosen a policy with a 300-mile radius; instead he chose a policy with a 50-mile radius, at a reduced premium.

We hold that the form E certificate and form F endorsement, in accordance with the Transportation Law and the regulations promulgated by the Commission, amended the policy to provide liability coverage up to the statutory and regulatory limits for accidents occurring outside of the 50-mile radius. As liability arose under the Transportation Law, and not the policy, we are bound to apply the minimum requirements set out by the Transportation Law and the corresponding regulations. Accordingly, those limits of $100,000 per injury and $300,000 per accident apply here.

We reverse and remand to the circuit court for further proceedings in accordance with this opinion.

Reversed and remanded.

McCULLOUGH and GREEN, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JASPER C. OFOMA, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0496
    Opinion filed March 18, 1993.

      Ostling, Ensign, Barry & Glenn, of Bloomington (William A. Yoder, of counsel), for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goet-ten, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Following a jury trial conducted in the circuit court of McLean County, the defendant Jasper Ofoma was found guilty of the unlawful possession of more than 30 grams, but not more than 500 grams, of a substance containing cannabis. (111. Rev. Stat. 1989, ch. SGVa, par. 704(d).) Defendant was subsequently sentenced to serve a term of probation of 30 months, conditioned on serving four months’ imprisonment in the county jail, with credit for two days previously served, and paying a street-value fine of $1,500, a $10 monthly probation service fee, $50 as a drug-testing fee, and $245 as costs.

On appeal, defendant raises the following issues: (1) whether the indictment for unlawful possession of cannabis was deficient for failing to include the language “other than as authorized by the Cannabis Control Act” (Act) (see 111. Rev. Stat. 1989, ch. 56V2, par. 711); (2) whether he was denied due process because the State failed to disclose intelligence reports in discovery and the trial court refused to order the State to disclose these documents following an in camera inspection; and (3) whether his conviction for unlawful possession of cannabis must be reversed because the subject cannabis was improperly admitted into evidence for the reason that the State failed to lay a proper chain of custody. We affirm.

Count II of the indictment alleged as follows:

“The Grand Jury of McLean County, Illinois, charges that Jaspar C. Ofoma on or about the 8th day of October, 1991, at Bloomington in the County of McLean, State of Illinois, committed the offense of Unlawful Possession of Cannabis in that he knowingly possessed more than 30 grams but not more than 500 grams of a substance containing cannabis in violation of Section 704 (d), Chapter 56V2, Illinois Revised Statutes (1989). A class 4 Felony.”

Defendant points out that section 11 of the Act (HI. Rev. Stat. 1989, ch. 56V2, par. 711) provides for the legal possession of cannabis by persons engaged in research. Defendant argues that, because he could have been such a person, count II of the indictment is defective for failing to allege that he possessed the cannabis “other than as authorized by the Cannabis Control Act.” This challenge to the sufficiency of the indictment, however, is raised for the first time on appeal.

A criminal charge contained in an indictment may be challenged for the first time on appeal. People v. Pujoue (1975), 61 Ill. 2d 335, 339, 335 N.E.2d 437, 440.

“When attacked for the first time on appeal a complaint is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct. People v. Grant, 57 Ill. 2d 264; People v. Harvey, 53 Ill. 2d 585.” (Pujoue, 61 Ill. 2d at 339, 335 N.E.2d at 440.)

In order to prevail on a challenge to the sufficiency of the indictment raised for the first time on appeal, the defendant must show that the defect actually prejudiced him in the preparation of his defense. (People v. Thingvold (1991), 145 Ill. 2d 441, 448, 584 N.E.2d 89, 91.) Defendant has failed to show such prejudice and the charge is clearly sufficient to allow defendant to pursue his defense and to prevent him from being placed in double jeopardy for the same conduct. This issue provides no basis for overturning defendant’s conviction.

The next issue is whether defendant was denied his right to due process because the State did not disclose intelligence reports from the Illinois State Police, Division of Criminal Investigations (DCI), to him in discovery, pursuant to Supreme Court Rules 412(c) and 415(b) (134 Ill. 2d Rules 412(c), 415(b)). Defendant also argues the trial court erred by refusing to order the State to provide these reports following an in camera inspection.

Defendant was charged by indictment on October 31, 1991. The defendant was arraigned on December 27, 1991. The State’s Attorney and the defendant both filed discovery motions, and an arraignment order was entered setting discovery compliance dates for the State as January 10, 1992, and for the defense as January 24, 1992. Discovery answers were filed by defendant and the State. The State’s answer to defendant’s motion for discovery disclosed prior intelligence information was available to officers investigating this case. No additional disclosures regarding intelligence information were made by the State prior to trial on May 6, 1992.

This case involved defendant receiving a package of cannabis delivered through the United States postal service. Rod Damery, a United States postal inspector assigned to narcotics investigation, revealed on cross-examination that he had heard of the name Jasper Ofoma before defendant came to the post office and signed the receipt for the package because of “some intelligence information.” On defendant’s motion, the jury was directed by the judge to disregard the witness’ statement.

Following Damery’s testimony, defendant moved for a mistrial based on the failure of the State to provide the intelligence information. Defense counsel stated he specifically asked the State to produce this material and did not receive it. The assistant State’s Attorney admitted he had requested the information from DCI, but was told it could not be provided without a court order. The assistant State’s Attorney further admitted he did nothing more than inquire about the information. He explained he understood it did not involve the charge in this case, but admitted he did not know that. The judge told the prosecutor to get the information during the lunch hour and produce it in court. The trial judge reserved ruling on the motion for mistrial, indicating an agreement with the State that defendant had “opened the door” during cross-examination.

The documents were presented for an in camera inspection, and Master Sergeant Frank Charles Walter from DCI testified concerning the reports outside the presence of the jury. The assistant State’s Attorney represented to the court that the documents contained the identity of an individual whose identity should not be disclosed for reasons which included the individual’s safety. The three reports presented at the first in camera inspection all related to the same confidential source. The reports indicated the source provided information and was paid therefor. Walter admitted that the second payment was made after defendant’s arrest because the confidential source thought he deserved to be paid more.

In an interview conducted August 2, 1991, questions were posed of this individual concerning defendant. The informant stated he would reveal no information unless he could be guaranteed his identity would be concealed and he would be paid. In addition to providing information about defendant, the individual provided information on other subjects. The report of August 2, 1991, did not contain information about defendant, but only the informant’s requests for confidentiality and payment. After examination by the court, Walter went back to the DCI office to attempt to determine if there were any other records which would explain how DCI would have become aware of defendant as a person who would be a subject for investigation.

Subsequently, Walter returned with a document dated October 16, 1991, in which Sergeant Michael Bernardini reported a telephone conversation with the confidential source relating that defendant was awaiting a shipment of cannabis from Nigeria. This report was authored on October 16, 1991, and concerned a telephone conversation on that date. This occurred after the events which gave rise to the case at bar. There was also a report which indicated a file was opened after Bernardini was informed on August 8, 1991, that a package would be sent to post office box 491, Normal, Illinois. The source of the information was not included in the report. Subsequent to that, the post office box was identified as being registered to defendant. A photocopy of the application for the post office box was included with the report, and the application had defendant’s address on it. Another report dated August 9, 1991, indicated defendant and another individual left a residence at 1217 Orchard in Bloomington to travel to Chicago to pick up illicit drugs. Subsequently, Damery was questioned by the trial judge outside the presence of the jury and stated he did not recall any notification from DCI to be on the lookout for a package. Damery further testified the package was simply observed in the mail stream and opened in New York. After reviewing all the documents and considering Walter’s testimony and arguments of counsel, the trial judge ruled that these reports did not contain “Brady material that is required to be disclosed to” defendant. This ruling remained in effect following the testimony of Damery.

In Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194, 1196-97, the United States Supreme Court stated as follows:

“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

In conformity with this pronouncement, the Illinois Supreme Court has provided in Rule 412(c) as follows:

“Except as is otherwise provided in these rules as to protective orders, the State shall disclose to defense counsel any material or information within its possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce his punishment therefor.” (134 111. 2d R. 412(c).)

There is a continuing duty to disclose such evidence. 134 111. 2d R. 415(b).

The rule in Brady can be applied in three quite different situations, to wit: (1) where the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony, (2) where, as in Brady, there was a request for specific evidence, and (3) where the request is a general one for “Brady material” or the State fails to disclose sua sponte. {United States v. Agurs (1976), 427 U.S. 97, 103-07, 49 L. Ed. 2d 342, 349-52, 96 S. Ct. 2392, 2397-99.) The second situation, illustrated by the Brady case, is most similar to the case at bar. In Brady, extrajudicial statements by an accomplice were suppressed. Noting the specific request and the materiality of the statement, it was held Brady was deprived of due process. {Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97.) However, interpreting the State court as having ruled the confession to be inadmissible on the issue of guilt and innocence, the entire trial was not lacking in due process, and so only a new trial on the issue of punishment was necessary as that was the only issue to which the suppressed statement was “material.” Brady, 373 U.S. at 89-91, 10 L. Ed. 2d at 219-20, 83 S. Ct. at 1197-98.

In Agurs, the term “materiality” as it applies to a Brady situation was discussed as follows:

“A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial.
* * *
The test of materiality in a case like Brady in which specific information has been requested by the defense is not necessarily the same as in a case in which no such request has been made.” {Agurs, 427 U.S. at 104-06, 49 L. Ed. 2d at 350-51, 96 S. Ct. at 2398-99.)

As defendant points out, the Court in Agurs did state that there is seldom an excuse for the State to fail to respond to a specific relevant request for discovery. {Agurs, 427 U.S. at 106, 49 L. Ed. 2d at 351, 96 S. Ct. at 2399.) However, Agurs should not be interpreted as suggesting that defendant may dispense with a showing of the materiality of the suppressed information in order to obtain reversal of the conviction.

Defendant contends that prior notice of the DCI investigation material would have helped him discredit the evidence and changed the outcome of the trial. Defendant complains he was not able to cross-examine the confidential source or undermine the credibility of the confidential source, particularly in light of the fact the source was paid for supplying the information.

If an informant is not to be called as a State witness and his identity is a prosecutorial secret and the defendant’s constitutional rights will not be infringed, the claimant’s identity need not be disclosed. (People v. Woods (1990), 139 Ill. 2d 369, 377, 565 N.E.2d 643, 648.) However, the propriety of disclosing the informant’s identity must be decided on a case-by-case basis, balancing the public interest in protecting informants against the right of the accused to prepare a defense. Woods, 139 Ill. 2d at 378, 565 N.E.2d at 648.

In this case, the informant was not a witness. Nor has defendant demonstrated how the challenging of the credibility of the informant would have affected a case in which defendant was identified by several witnesses as having been the person who picked up a package at the post office and signed for it. The most defendant could have done was challenge the truth of the information provided to the investigators by the source. Even if the informant was an absolute liar, that fact would not be of consequence to a determination of whether defendant committed the offense in the case at bar. Defendant also does not argue on appeal that the information was material to the sentencing hearing. Therefore, defendant was not deprived of due process in this case, although the State’s failure to comply with requested discovery ought not be condoned.

For the same reasons, the trial court did not commit an abuse of discretion in refusing to order sanctions. Defendant argues the trial court erred in failing to order the State to produce the investigation reports to defendant and by failing to give defendant a continuance to investigate the reports. However, the failure to give defendant a continuance was not raised in the post-trial motion, although defendant did raise therein the issues of the failure to order the State to disclose and the failure to grant a mistrial. Therefore, the only issue raised on appeal which was properly preserved for review was whether the trial court erred by failing to order the State to disclose the documents following the in camera inspection. People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.

When a discovery rule has been violated, the trial court has the discretion to impose sanctions. (People v. Manzo (1989), 183 Ill. App. 3d 552, 557-58, 539 N.E.2d 237, 240-41; 134 Ill. 2d R. 415(g).) Although the trial court’s decision is given great deference, if the defendant has been prejudiced by the discovery violation and the trial court fails to eliminate the prejudice, a reviewing court will find an abuse of discretion. (People v. Weaver (1982), 92 Ill. 2d 545, 559, 442 N.E.2d 255, 260.) In the absence of prejudice to defendant, the failure to issue a sanction is not an abuse of discretion.

The final issue to be considered is whether the defendant’s conviction for unlawful possession of cannabis must be reversed because the subject cannabis was improperly admitted into evidence for the reason that the State failed to lay a proper chain of custody. A ruling on the admission of evidence will not be disturbed on appeal in the absence of an abuse of discretion by the trial court and a showing of prejudice to defendant. People v. Arbo (1991), 213 Ill. App. 3d 828, 833, 572 N.E.2d 417, 420.

Damery testified he was contacted by the United States Customs Service concerning a package containing cannabis. He determined the package was addressed to Mary Ann Radcliff, 1217 Orchard, apartment 2, Bloomington, Illinois. Damery received the package from customs in a locked, registry mail pouch on October 4, 1991. In the pouch was a large box, with a return address from Nigeria. The box contained a cylindrical object that was taped with cloth tape. Three corners of the package had been cut open. Inside the cylindrical object was a green leafy substance that field tested positive for cannabis. Damery then sent a letter addressed to Radcliff informing the addressee that the postal service had received a foreign mail package and that unsuccessful attempts had been made to deliver the package. The letter further advised that the postal service was holding the package for delivery and provided a phone number in St. Louis for the addressee to call. The letter was sent October 4,1991.

Damery received a telephone call on October 7, 1991, concerning the package. The caller identified himself as Mike Radcliff and spoke with an accent and in broken English. Damery informed the caller that the package would be sent to Bloomington for delivery the next day. The caller requested delivery after 4 p.m., and Damery agreed to have a special delivery carrier deliver to 1217 Orchard after 4 p.m. When the package was not delivered, the same person called Damery on October 8, 1991. The caller stated he had been informed by the Bloomington post office that they did not have the package.

Damery then went to Bloomington, met with DCI agents to set up the controlled delivery, and proceeded to the Bloomington post office, positioning himself inside the claims office with the package. Defendant approached postal clerk Tim Adams and displayed identification. Adams retrieved the package from Damery and had defendant sign a receipt for the package. Adams delivered the package to defendant. As defendant left the post office, he was arrested in the parking lot.

Defendant does not contest the chain of custody from the time Damery received the package from customs. However, defendant argues the United States Customs Service seized this package prior to that time and that the State has failed to prove the chain of custody between the seizure by customs and the receipt of the package by Da-mery.

When an actual object which had a direct part in an incident is produced at trial, it is referred to as “real evidence.” (R. Hunter, Trial Handbook for Illinois Lawyers §49.1, at 695 (5th ed. 1983).) “The admission of real evidence is subject to showing that its condition is essentially the same as it was at the time of the transaction in question.” (Emphasis added.) (R. Hunter, Trial Handbook for Illinois Lawyers §49.2, at 696 (5th ed. 1983); see also People v. Terry (1991), 211 Ill. App. 3d 968, 972-73, 570 N.E.2d 786, 788.) There are two ways to establish that the object’s condition is essentially the same at the time of the transaction. If the object is unique and readily identifiable and impervious to change, the item may be admitted on the unimpeached testimony of a witness that the object is the one in question and is substantially unchanged. People v. Winters (1981), 97 Ill. App. 3d 288, 289, 422 N.E.2d 972, 974.

The second way of establishing identity of the object and that it was unchanged is through proof of a chain of custody. This method is to be utilized if the object is not readily identifiable or is susceptible to alteration as a result of tampering or contamination. (Winters, 97 Ill. App. 3d at 289-90, 422 N.E.2d at 974.) It is not required that both methods of identification be utilized. People v. Stewart (1984), 105 Ill. 2d 22, 59, 473 N.E.2d 840, 858.

Defendant argues that there is a missing link in the chain of custody in this case. In essence, his point is that the package could have been tampered with prior to Damery receiving it. In his reply brief, defendant complains that all of the cases cited by the State involved situations where the object sought to be admitted was seized at or near the time of the arrest. However, the whole purpose of introducing the evidence and establishing the chain of custody is to connect the object to the defendant and the crime. (People v. Maurice (1964), 31 Ill. 2d 456, 458, 202 N.E.2d 480, 481; People v. Tribett (1981), 98 Ill. App. 3d 663, 673, .424 N.E.2d 688, 695.) In this case, the crime charged was possession on October 8, 1991. There was no need to establish a connection between defendant and the package when it left Nigeria or when customs personnel intercepted it in New York. The State need only establish a connection between defendant and the package on October 8, 1991, which defendant concedes was properly done.

If defendant is suggesting that the package may have been tampered with before Damery received it and, therefore, that the State has failed to prove that defendant knew it contained cannabis, that element would not be established by a chain of custody. He could still argue he did not know what was in the package. However, that is a different issue than the one raised on appeal.

For the foregoing reasons, the judgment of the circuit court of McLean County is affirmed.

Affirmed.

COOK and LUND, JJ., concur.


text:
    LORNA CAMPBELL et al., Plaintiffs-Appellants, v. A.C. EQUIPMENT SERVICES CORPORATION, INC., et al., Defendants-Appellees.
    Fourth District
    No. 4 — 92—0456
    Opinion filed March 18, 1993.

      Paul Brown, of Brown, Hay & Stephens, of Springfield, and Michael, Best & Friedrich, of Madison, Wisconsin (James Troupis, of counsel), for ap-pellees A.C. Equipment Services Corporation, Inc., and Robert Alemi.

      James K. Zerkle, Corporation Counsel, of Springfield (Gary S. Rapa-port, Assistant Corporation Counsel, of counsel), for appellees City of Springfield, John Davis, Brian Fitzgerald, and Thomas R. Bee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiffs, Lorna Campbell, Dan Duback, Cory Eigenmann, Stephen Jagosh, and Earl Ferguson, appeal from an order of the circuit court of Sangamon County dismissing their third-amended complaint against defendants A.C. Equipment Services Corporation, Inc. (A.C. Equipment), Robert Alemi, the City of Springfield (Springfield), John Davis, Brian Fitzgerald, and Thomas R. Bee. Alemi was an employee of A.C. Equipment, and Davis, Fitzgerald, and Bee were employees of Springfield. Plaintiffs’ employer, Turbine Generator Maintenance, Inc. (TGM), was originally named a defendant, but was not so named as a party in the third-amended complaint.

The issues raised in this appeal are (1) whether any or all of the counts alleging causes of action against A.C. Equipment and Alemi in this case are barred by the Workers’ Compensation Act (111. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.); (2) whether any or all of the counts alleging causes of action against Springfield and its employees in this cause are barred by the Local Governmental and Governmental Employees Tort Immunity Act (111. Rev. Stat. 1989, ch. 85, par. 1 — 101 et seq.); and (3) whether any of the counts in plaintiffs’ third-amended complaint allege causes of action for battery, intentional infliction of emotional distress, negligent infliction of emotional distress, or wilful and wanton misconduct. Because we affirm based on a finding that none of the counts alleged adequately plead a cause of action, no discussion is necessary with regard to the remaining two issues.

In the third-amended complaint, each of the plaintiffs alleged four counts against defendants. The following allegations were included in the third-amended complaint.

The plaintiffs, all employees of TGM, alleged they were employed by TGM to perform work for A.C. Equipment and Springfield’s City Water, Light and Power Division at an electricity generating station known as Lakeside Two. A.C. Equipment, a Wisconsin corporation licensed to do business in Illinois, manufactures turbine generating equipment, and some of that equipment was in use at Lakeside Two. When the equipment is maintained, repaired, or “torn down,” employees of A.C. Equipment oversee the work to ensure it is performed in accordance with standards and specifications. The overseers perform broad and varied duties including “receiving readings from workers.” In the spring of 1989, A.C. Equipment and Springfield scheduled maintenance on the turbines at Lakeside Two. TGM was contracted to be a labor broker and to hire the workers to perform the repairs on the turbines.

Defendants Davis and Fitzgerald were project manager supervisors employed by Springfield, and Bee, also a Springfield employee, was a supervisor in charge of maintenance projects at Lakeside Two. Defendant Alemi was the employee of A.C. Equipment who was overseeing the turbine maintenance project at Lakeside Two. At a pre-job meeting, Davis, Fitzgerald, Bee and Alemi discussed the fact that asbestos insulation was present on and around the turbines, but decided not to have the asbestos professionally removed because that would significantly delay the project. On April 24, 1989, and subsequent thereto, asbestos samplings indicated that significant asbestos was on and around the turbines on which plaintiffs were working. Purchase and repair records maintained at Lakeside Two indicated the types of insulation previously removed during maintenance projects and the types of new insulation used to replace that which had been removed. It was therefore alleged that the defendants knew the plaintiffs were working on and around machinery containing significant amounts of asbestos insulation.

Plaintiffs’ duties involved alignment and maintenance of the turbines. This work was performed in areas where pipes and other structures were insulated with insulation containing significant amounts of asbestos. The insulating material was in a deteriorated condition, causing extensive amounts of dust. Plaintiffs were often coated with white dust and breathed in the white dust, some of which contained asbestos insulation. It was alleged asbestos, a known carcinogen, may cause asbestosis, progressive fibrosis, mesothelioma, cancer of the pleural lining or of the peritoneum, lung cancer, or other serious or fatal conditions. Plaintiffs worked without protective equipment and were unaware the white dust contained asbestos.

Plaintiffs allege four causes of action against defendants. In the battery counts, it was alleged that the defendants intentionally caused plaintiffs to work in this environment and the contact with the dust was not consented to by plaintiffs since they were unaware it contained asbestos. In the intentional infliction of emotional distress counts, it was alleged plaintiffs were caused severe emotional distress and mental anguish in that they now fear for their health and safety and the health and safety of their families as a result of secondary exposure. It is further alleged that the asbestos exposure unreasonably interfered with plaintiffs’ enjoyment of life. In the counts alleging negligent infliction of emotional distress, defendants’ alleged negligence was based on allegations of (1) negligent and careless supervision of the repair and maintenance, thereby permitting exposure to toxic and hazardous substances; (2) failing to warn plaintiffs of the exposure; (3) failing to provide protective equipment; (4) permitting plaintiffs to conduct dangerous work; and (5) failing to stop the work to prevent exposure. In the fourth theory of liability, plaintiffs alleged defendants’ misconduct was wilful and wanton, being a conscious and reckless disregard of plaintiffs’ health, safety, and welfare by permitting plaintiffs to work in an area in which they would be exposed to significant amounts of asbestos fibers. The damages sought in all counts were for medical expenses incurred and ongoing medical evaluations. The question of the sufficiency of damages as would support the causes of action in this case is not discussed herein, and this disposition should not be construed as recognizing a cause of action to recover expenses for medical monitoring without a current physical injury being present.

We deem the portions of the motions filed by defendants which challenge the sufficiency of the complaint to allege the various causes of action to have been filed pursuant to section 2 — 615 of the Code of Civil Procedure (Code) (111. Rev. Stat. 1989, ch. 110, par. 2— 615). The courts have explained the purpose of section 2 — 615 motions to dismiss. (Rowan v. Novotny (1987), 157 Ill. App. 3d 691, 693-94, 510 N.E.2d 1111, 1112-13; Toys “R” Us, Inc. v. Adelman (1991), 215 Ill. App. 3d 561, 564, 574 N.E.2d 1328, 1330.) In considering such motions, all well-pleaded facts alleged in the complaint are taken as true, and allegations which are merely conclusions, unsupported by allegations of specific facts, are not deemed admitted. (Toys “R” Us, 215 Ill. App. 3d at 564, 574 N.E.2d at 1330; City of Marshall v. City of Casey (1989), 177 Ill. App. 3d 1065, 1069, 532 N.E.2d 1121, 1123.) In considering section 2 — 615 motions to dismiss, the general question to be considered is whether the complaint is legally sufficient, meaning whether it appears that no set of facts may be proved which would entitle a plaintiff to recover from a defendant. (Toys “R” Us, 215 Ill. App. 3d at 564, 574 N.E.2d at 1330; City of Marshall, 177 El. App. 3d at 1069, 532 N.E.2d at 1123.) In making this determination, the allegations of the complaint are to be interpreted in the light most favorable to plaintiffs. (Kolegas v. Heftel Broadcasting Corp. (1992), 154 Ill. 2d 1, 9.) On appeal, in addition to considering the arguments of counsel, this court may consider any reason or ground justifying the judgment even though the trial court did not rely on that reason or ground. City of Marshall, 177 Ill. App. 3d at 1069, 532 N.E.2d at 1123.

In proceeding to analyze this case, we must disassociate ourselves somewhat from the fact that it involves allegations of exposure to asbestos, which is currently a subject of intense public interest. The deficiencies in the subject third-amended complaint which are relied on by this court to affirm are rather basic and are not peculiar to asbestos-exposure cases. In light of this caveat, we proceed to discuss whether any of the counts in plaintiffs’ third-amended complaint allege causes of action for battery, intentional infliction of emotional distress, negligent infliction of emotional distress, or wilful and wanton misconduct.

The first cause of action to be considered is battery. In Gaskin v. Goldwasser (1988), 166 Ill. App. 3d 996, 1011-12, 520 N.E.2d 1085, 1094, the court stated:

“A battery is defined as the unauthorized touching of the person of another. To be liable for battery, the defendant must have done some affirmative act intended to cause an unpermitted contact. (Mink v. University of Chicago (N.D. Ill. 1978), 460 E Supp. 713, 717.) “The gist of the action for battery is not the hostile intent of the defendant, but rather the absence of consent to the contact on the part of the plaintiff.” ’ Mink, 460 F. Supp. at 718, quoting W. Prosser, Law of Torts, §9, at 35 (4th ed. 1971).”

In Mink v. University of Chicago (N.D. Ill. 1978), 460 F. Supp. 713, women were given a drug as part of a medical experiment. A closer case on the facts is Hennessy v. Commonwealth Edison Co. (N.D. Ill. 1991), 764 F. Supp. 495, 507, where the court considered a battery action based on exposure to radiation at a nuclear power plant. Summary judgment for defendant was affirmed because plaintiff presented no evidence tending to show defendant intended plaintiff to suffer the contact. A similar result is appropriate in this case.

It is not alleged in the complaint that defendants had a duty to inspect and breached that duty. It is not alleged that defendants knew of the deteriorated condition of the insulation in and around the machinery. The “sample” report attached to the complaint as an exhibit is not alleged to be an air sample such that defendants would be aware of asbestos fibers floating or drifting in the air. It is not alleged that the maintenance of the machinery would, of necessity, cause the asbestos fibers in the insulation material to float or drift in the air or that the defendants were aware of that possibility. It is not alleged that defendants knew of the health risks of inhaling asbestos fibers, although that may be inferred from the allegation that defendants decided not to have the asbestos removed before conducting the repairs. Plaintiffs allege they were exposed to a dust cloud which included asbestos. They do not allege the dust cloud existed before repairs were begun by plaintiffs or how defendants knew or should have known the dust contained asbestos fibers.

In the absence of allegations of such knowledge on the part of defendants, defendants could not have intended the contact. Nor could defendants have intended or known that there was a high probability that their conduct would cause severe emotional distress to plaintiffs.

In McGrath v. Fahey (1988), 126 Ill. 2d 78, 86, 533 N.E.2d 806, 809, the tort of intentional infliction of emotional distress was defined as follows:

“In Illinois the tort of intentional infliction of emotional distress was first recognized in Knierim v. Izzo (1961), 22 Ill. 2d 73, in which a widow was permitted to maintain such an action against the murderer of her husband. It was not until 1976, however, that this court (relying on Restatement (Second) of Torts §46 (1965)) outlined the requirements for the tort.
First, the conduct involved must be truly extreme and outrageous. Second, the actor must either intend that his conduct inflict severe emotional distress, or know that there is at least a high probability that his conduct will cause severe emotional distress. Third, the conduct must in fact cause severe emotional distress. {Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 90.) ‘The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and duration of the distress are factors to be considered in determining its severity.’ Restatement (Second) of Torts §46, comment j, at 77-78 (1965).” (Emphasis in original.)

The court in McGrath■ said that the tort does not arise from threats, insults, indignities, annoyances, or petty oppressions, but coercion, abuse of power or authority, and harassment. (McGrath, 126 Ill. 2d at 86-89, 533 N.E.2d at 809-11.) Instead, the conduct must go beyond all bounds of decency and be considered intolerable in a civilized community. (Kolegas, 154 Ill. 2d at 21.) The tort of intentional infliction of emotional distress does not require a contemporaneous physical impact or injury. Corgan v. Muehling (1991), 143 Ill. 2d 296, 311, 574 N.E.2d 602, 609.

In this case, the counts attempting to allege the intentional infliction of emotional distress were properly dismissed. It is not alleged that defendants knew of the allegedly injurious condition. (At oral argument, the attorney for A.C. Equipment admitted that work was halted as soon as the presence of asbestos was discovered, but that fact was not alleged in the complaint.)

The tort of negligent infliction of emotional distress was also discussed in Corgan (143 Ill. 2d at 306, 574 N.E.2d at 606), where the court reiterated the elements of negligence as follows:

“This court has held:
‘A complaint for negligence, to be legally sufficient, must set out facts that establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. [Citations.] The determination of whether a duty exists — whether the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff — is an issue of law to be determined by the court.’ (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525.)
In determining whether to impose a duty upon a defendant, a court will look at various policy considerations, such as the likelihood of harm, the gravity of the injury, the burden of guarding against the injury, and the relationship between the parties. SeeHorak v. Biris (1985), 130 Ill. App. 3d 140,145.”

In Corgan, the Illinois Supreme Court explained that the zone of danger test does not apply to direct victims (Corgan, 143 Ill. 2d at 306, 574 N.E.2d at 606) and rejected the requirement that, in order to recover for negligent infliction of emotional distress, there must be a physical manifestation of the emotional distress (Corgan, 143 Ill. 2d at 308-12, 574 N.E.2d at 607-09).

Here, the exposure to asbestos is alleged to have resulted in emotional distress on the part of plaintiffs. However, the failure to allege knowledge on the part of defendants of the possibility that plaintiffs could inhale asbestos dust also destroys the negligence counts since a duty to warn, stop the job, or provide protected clothing, et cetera, can only arise if defendants know of the danger, particularly in the absence of any allegations of a duty to inspect or otherwise ascertain the existence of a dangerous condition before causing plaintiffs to be exposed to the risk.

The remaining counts are for wilful and wanton misconduct on the part of defendants. For these counts to be sufficient, plaintiffs must have alleged a duty owed by defendants to plaintiffs and injury proximately caused by a breach of that duty which was “either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare” of plaintiffs by defendants. Adkins v. Sarah Bush Lincoln Health Center (1989), 129 Ill. 2d 497, 518, 544 N.E.2d 733, 743; see also Scarano v. Town of Ela (1988), 166 Ill. App. 3d 184, 187, 520 N.E.2d 62, 64.

“Willful and wanton acts are those which, under the circumstances of the particular case, exhibit reckless disregard for the safety of others, including the failure to exercise ordinary care to prevent an impending danger. (Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583, 69 N.E.2d 293; see also Adkins v. Sarah Bush Lincoln Health Center (1989), 129 Ill. 2d 497, 518, 544 N.E.2d 733; O’Brien v. Township High School District 21b (1980), 83 Ill. 2d 462, 469, 415 N.E.2d 1015; Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 412 N.E.2d 447.) To establish that a defendant was guilty of willful and wanton conduct, plaintiff must show that the defendant had actual or constructive knowledge that his conduct posed a high probability of serious physical harm to others. (Albers v. Community Consolidated No. 20b School (1987), 155 Ill. App. 3d 1083, 1085, 508 N.E.2d 1252.) The evidence must disclose that defendant was reckless, not merely careless, in his disregard of the danger created by the circumstances. (Lynch, 82 Ill. 2d 415, 412 N.E.2d 447.) Whether a defendant’s acts amounted to willful and wanton conduct is a question to be resolved by the finder of fact, based upon the particular circumstances of each individual case. Lynch, 82 Ill. 2d 415, 412 N.E.2d 447; Soucie v. Drago Amusements Co. (1986), 145 Ill. App. 3d 348, 495 N.E.2d 997; Barth v. Board of Education (1986), 141 Ill. App. 3d 266, 490 N.E.2d 77.” Downing v. United Auto Racing Association (1991), 211 Ill. App. 3d 877, 884, 570 N.E.2d 828, 833.

In their brief, plaintiffs state the allegations in these wilful and wanton counts “mirror” the allegations of the negligent infliction of emotional distress counts, with the exception of the paragraph which alleges that the defendants’ breach of duty to plaintiffs constituted an utter indifference to or conscious disregard for the health and safety of the plaintiffs. There is a qualitative difference between negligence and wilful and wanton misconduct. (Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 448-50, 593 N.E.2d 522, 530-31.) Plaintiffs may not merely reallege a negligence count and add a conclusory statément that the defendants’ actions amounted to wilful and wanton misconduct. Facts must be alleged in the complaint which support the allegations’ willfulness and wantonness. See Loftus v. Mingo (1987), 158 Ill. App. 3d 733, 740, 511 N.E.2d 203, 207.

It is defendants’ argument that the probability of harm to plaintiffs is unsupported by the allegations. We agree. Plaintiffs failed to allege sufficient facts which would support an action for wilful and wanton misconduct since, under these allegations, defendants could have been merely careless and not in disregard of a known danger.

For the foregoing reasons, the judgment of the circuit court of Sangamon County is affirmed.

Affirmed.

KNECHT and LUND, JJ., concur.


author: JUSTICE QUETSCH

text:
    AMERICAN NATIONAL BANK AND TRUST COMPANY, Trust No. 55055, et al., Plaintiffs-Appellees, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    Second District
    No. 2 — 92—0323
    Opinion filed March 23, 1993.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for appellant.
    No brief filed for appellees.
   JUSTICE QUETSCH

delivered the opinion of the court:

Plaintiff Jack Kristof was the beneficial owner of a one-half interest in plaintiff American National Bank and Trust Company, trust No. 55055, which owned a parcel of property in McHenry County, Illinois. Plaintiff Zion’s Lighthouse, Inc. (Zion), leased this property and used it for religious purposes. Defendant, the Department of Revenue (Department), denied plaintiffs’ application for a religious tax exemption for the property under section 19.2 of the Revenue Act of 1939 (111. Rev. Stat. 1989, ch. 120, par. 500.2). Plaintiffs then filed a complaint in the trial court for administrative review (111. Rev. Stat. 1991, ch. 110, par. 3 — 103). Without expressly reversing the Department’s order, the trial court entered judgment for the plaintiffs and granted the exemption. The Department appeals, claiming that because Kristof leased the property to Zion for a profit, the property is not exempt from taxation.

On June 14, 1989, Kristof and Zion entered into an agreement whereby Kristof leased the property to Zion for $3,200 per month. Zion had an option to buy the property. The agreement provided that if Zion purchased the property prior to July 30, 1990, Kristof would credit Zion $2,000 for every $3,200 rental payment that Zion had made. If Zion made a $100,000 down payment prior to the July 30, 1990, closing, Kristof would refund all of the rental payments that Zion had'made. Under the agreement, Zion was responsible for paying any property taxes. As of the March 12, 1991, administrative hearing, Zion had not purchased the property but continued to lease the property from Kristof. The property was up for sale on the open market, although Zion had the right to meet any offer and still intended to purchase the property.

The property contained a large building, a smaller building, a parking lot, and open space. During the relevant time period, Zion was a church with a 50-member congregation. Zion used the large building for religious activities, including church services, Sunday school, and religious counseling. Dan Blankenship, Zion’s head pastor, used a portion of the large building as a residence, although Zion did not require that he live there. He used part of the residence as an office where he prepared sermons. He also counseled members of the congregation in the residence. The smaller building was used as a storage shed by both Zion and Kristof. Congregation members parked in the parking lot while they were attending religious activities on the property.

On February 14, 1990, the McHenry County Board of Review recommended denying plaintiffs’ application for a property tax exemption for the period of July 1, 1989, to December 31, 1989. On April 6, 1990, the Department denied the plaintiffs’ application for the exemption. Plaintiffs then requested a formal hearing before an administrative law judge. The hearing was held on March 12, 1990. On April 16, 1990, the Department issued a hearing disposition denying the exemption. The Department based its decision on its finding that Kristof, as an owner of the property, leased the property for a profit.

On May 17, 1991, plaintiffs filed a complaint for administrative review in the trial court. Plaintiffs did not materially disagree with the Department’s findings of fact. Rather, at the core of plaintiffs’ complaint was their argument that Zion’s use of the property for religious purposes entitled them to the exemption under section 19.2 even though Zion did not own the property. The trial court entered its order on February 20, 1992, granting judgment for the plaintiffs and granting plaintiffs a property tax exemption for July 1, 1989, through December 31, 1989. The Department appeals from that order.

Plaintiffs filed no brief in this appeal. Therefore, we will review this appeal under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128,133.

As a preliminary matter, the trial court had no authority to enter a judgment granting an exemption. The trial court’s authority in reviewing administrative decisions is limited to the powers expressed in the Administrative Review Law (111. Rev. Stat. 1991, ch. 110, par. 3 — 101 et seq.). (Momney v. Edgar (1990), 207 Ill. App. 3d 26, 29.) The trial court’s powers, which are enumerated in section 3 — 111 of the Administrative Review Law, do not extend to granting or denying relief but are essentially limited to reviewing the decision of the administrative agency. (111. Rev. Stat. 1991, ch. 110, par. 3 — 111.) Therefore, if the judgment of the trial court is interpreted literally, it is void because the trial court lacked the inherent authority to grant the relief therein. People v. Sales (1990), 195 Ill. App. 3d 160, 162-63.

In Sales, we held that the trial court’s order directing the Secretary of the State to issue a restricted driving permit (RDP) to defendant was void because it exceeded the trial court’s authority and violated the separation of powers. Defendant in Sales pleaded guilty to aggravated criminal sexual abuse. Such a conviction required the Secretary to revoke defendant’s driver’s license. (Sales, 195 Ill. App. 3d at 161; 111. Rev. Stat. 1987, ch. 951/2, par. 6— 205(b)(2).) On defendant’s motion, however, the trial court ordered the Secretary to issue defendant an RDP so that the defendant could attend counselling and work. We determined that the trial court lacked jurisdiction to enter such an order because the issuanee of an RDP was within the Secretary's discretion. Because its authority to issue an RDP was limited by statute, the trial court lacked the inherent power to direct the Secretary to issue an RDP. Sales, 195 111. App. 3d at 162-63.

A court’s order must be construed in a reasonable manner, however, with reference to other parts of the record, including the pleadings, so as to give effect to the apparent intention of the trial court. (Granville Beach Condominium Association v. Granville Beach Condominiums, Inc. (1992), 227 Ill. App. 3d 715, 720.) Technical deficiencies in a judgment can be corrected if such correction does not prejudice the parties. (City of Chicago v. American National Bank & Trust Co. (1988), 171 Ill. App. 3d 680, 687.) Supreme Court Rule 366(a)(3) empowers the reviewing court to amend the record to correct errors. 134 Ill. 2d R. 366(a)(3).

People ex rel. Illinois Department of Human Rights v. Arlington Park Race Track Corp. (1984), 122 Ill. App. 3d 517, 523-24, discusses the reviewing court’s ability to modify an otherwise void order under Rule 366(a)(3). In Arlington Park, the Department of Human Rights petitioned the trial court to enjoin defendant permanently from committing alleged human rights violations during the pendency of the lawsuit. The trial court granted the permanent injunction even though it was only empowered by statute to grant a temporary or preliminary injunction. The reviewing court refused to enter a nunc pro tunc order under Rule 366(a)(3) correcting the trial court’s order so that it would be within the scope of the trial court’s authority. The court determined that the trial court’s order was not merely an inaccuracy or omission. (Arlington Park, 122 Ill. App. 3d at 524.) According to the court, the trial court’s order was “an entirely accurate reflection of what the trial court ordered” and what one of the parties had requested. Arlington Park, 122 Ill. App. 3d at 524.

Contrary to Arlington Park and Sales, the trial court in this case seems to have phrased its order as it did out of inadvertence and not out of a deliberate exercise of power beyond the scope of the Administrative Review Law. Section 3 — 111(a)(5) of the Administrative Review Law authorizes trial courts to reverse or affirm decisions of administrative agencies. (111. Rev. Stat. 1991, ch. 110, par. 3 — 111(a)(5).) In this case, therefore, regardless of whether reversing the Department’s decision would have been error, it would have been within the trial court’s jurisdiction. In addition, because the Department denied plaintiffs’ application for a property tax exemption, reversing the Department would have had the same effect as granting the tax exemption. Conversely, the trial court’s order granting the exemption, if it had been appropriate, would have had the same effect as reversing the Department’s decision. Because none of the relevant facts were disputed, the trial court’s determination turned on the resolution of a question of law, not on a review of the agency’s factual findings. From the trial court’s perspective, therefore, the resolution of the issues in the cause was tantamount to a de novo review of the legal issues. (Lutheran Child & Family Services v. Department of Revenue (1987), 160 Ill. App. 3d 420, 423; Benedictine Sisters of the Sacred Heart v. Department of Revenue (1987), 155 Ill. App. 3d 325, 327.) Although the trial court’s phrasing of its order was grossly inaccurate in light of the trial court’s limited powers under the Administrative Review Law, the substantive effect of the order was the same as if the trial court had reversed the Department, an action that the Administrative Review Law would have authorized.

Furthermore, the record reflects that the parties requested the appropriate relief. In their complaint for administrative relief, plaintiffs asked the trial court to reverse the Department’s decision. In their briefs before the trial court, both parties informed the trial court of the standard for reviewing an administrative agency’s determination. The Department argued that the trial court should affirm its decision and plaintiffs argued that the Department’s decision should be reversed.

Trial courts’ orders are rarely found to be void because the trial court lacked the authority to order a particular type of relief. (In re Application of Cook County Collector (1991), 228 Ill. App. 3d 719, 731.) We must presume that the trial court acted within the scope of its jurisdiction. All indications from the record are that the trial court acted within its authority but used the wrong language in its judgment. Therefore, it is appropriate to treat the judgment of the trial court as a reversal of the Department rather than as an outright grant of the tax exemption to plaintiffs.

We now address whether the trial court’s order reversing the Department’s decision was in error. The scope of review of an administrative agency’s factual findings is limited to whether those findings are against the manifest weight of the evidence. (Resurrection Lutheran Church v. Department of Revenue (1991), 212 Ill. App. 3d 964, 969; Ill. Rev. Stat. 1991, ch. 110, par. 3-110.) However, where, as here, the facts are not in dispute, the resolution of the issues is a question of law. (City of Chicago v. Illinois Department of Revenue (1992), 147 Ill. 2d .484, 491.) The court’s role is to apply the appropriate legal standard to the facts. Salvation Army v. Department of Revenue (1988), 170 Ill. App. 3d 336, 342; Benedictine Sisters of the Sacred Heart v. Department of Revenue (1987), 155 Ill. App. 3d 325, 327.

All property is presumed to be subject to taxation. (Lutheran Child & Family Services v. Department of Revenue (1987), 160 Ill. App. 3d 420, 424-25.) Statutes granting exemptions are construed strictly in favor of taxation. {Faith Christian Fellowship of Chicago, Illinois, Inc. v. Department of Revenue (1992), 226 Ill. App. 3d 322, 325.) The party claiming the exemption has the burden of proving that the exemption applies. Girl Scouts of Du Page County Council, Inc. v. Department of Revenue (1989), 189 Ill. App. 3d 858, 861.

Section 19 of the Revenue Act of 1939 (the Act) provides that “[a]ll property described in Sections 19.1 through 19.23 — 1, to the extent therein limited, is exempt from taxation.” (111. Rev. Stat. 1989, ch. 120, par. 500.) Section 19.2 provides:

“All property used exclusively for religious purposes, or used exclusively for school and religious purposes, or for orphanages and not leased or otherwise used with a view to profit, including all such property owned by churches or religious institutions or denominations and used in conjunction therewith as parsonages or other housing facilities provided for ministers ***, their spouses, children and domestic workers, performing the duties of their vocation as ministers at such churches or religious institutions or for such religious denominations, and including the convents and monasteries where persons engaged in religious activities reside.
A parsonage, convent or monastery shall be considered for purposes of this Section to be exclusively used for religious purposes when the church, religious institution, or denomination requires that the above listed persons who perform religious related activities shall, as a condition of their employment or association, reside in such parsonage, convent or monastery.” (Emphasis added.) 111. Rev. Stat. 1989, ch. 120, par. 500.2.

Section 19.16 of the Act provides:

“Parking areas, not leased or used for profit, when used as a part of a use for which an exemption is provided hereinbe-fore and owned by any school district, non-profit hospital or school, or religious or charitable institution which meets the qualifications for exemption.” 111. Rev. Stat. 1989, ch. 120, par. 500.16.

At issue is whether property leased by a religious organization from a private, for-profit party and used for religious purposes is exempt under the Act.

Without a doubt, the portions of plaintiffs’ property used as a parking lot are not exempt from taxation. Section 19.16, which provides the exemption for parking lots, contains the explicit requirement that the religious organization actually own the parking lot. (111. Rev. Stat. 1989, ch. 120, par. 500.16.) The court recently interpreted section 19.16 to mean that a church which leased its parking lot from a private party could not claim a tax exemption for the parking lot. (Faith Christian, 226 Ill. App. 3d at 325.) By the same token, even if the portion of plaintiffs’ property which is used as a parsonage were used exclusively for religious purposes, it would not qualify for an exemption because it is not owned by a religious organization. See 111. Rev. Stat. 1989, ch. 120, par. 500.2 (“including all such property owned by churches or religious institutions or denominations and used in conjunction therewith as parsonages or other housing facilities”) (emphasis added).

The statutory language is not as clear, however, with regard to the remainder of the property at issue in this case. Certain provisions in the Act, such as section 19.16 relating to parking lots, specify that in order to be exempt, the property must be owned by an exempt organization. (111. Rev. Stat. 1989, ch. 120, par. 500.16.) Section 19.7 provides an exemption for “[a]ll property of institutions of public charity.” (Emphasis added.) (111. Rev. Stat. 1989, ch. 120, par. 500.7.) To qualify for an exemption under section 19.7, the property must be owned by a charitable organization and used for charitable purposes. {Christian Action Ministry v. Department of Local Government Affairs (1978), 74 Ill. 2d 51, 61.) Section 19.1 provides an exemption for “all property of schools.” (Emphasis added.) (111. Rev. Stat. 1989, ch. 120, par. 500.1.) We have held that property which a for-profit entity leased to a school and which the school used for school purposes did not qualify for an exemption under section 19.1. Wheaton College v. Department of Revenue (1987), 155 Ill. App. 3d 945, 948.

Section 19.2, on the other hand, provides an exemption for “[a]ll property used exclusively for religious purposes” and makes no mention of the ownership of the property. (111. Rev. Stat. 1989, ch. 120, par. 500.2.) Arguably, therefore, property which is used for religious purposes but which is owned by a for-profit entity could qualify under this exemption. In 1922, the Illinois Supreme Court held that to qualify for the religious-use tax exemption, a religious institution need not own the property as long as it uses the property for religious purposes. (People ex rel. Bracher v. Salvation Army (1922), 305 Ill. 545, 548 (interpreting a statute substantially similar to the statute that applies to this case).) The church in Salvation Army, however, did not lease the property but instead held the property in a contract for sale. The church had made a down payment on the property, assumed a mortgage, and was to obtain the title to the property as soon as the mortgage was paid off. Although the church did not have actual title to the property, it had all other indicia of ownership. (Salvation Army, 305 Ill. at 546.) The titleholder to the property had, in effect, already sold the property. More recent cases have held that similar finance agreements conferred the equivalent of ownership. See City of Chicago v. Department of Revenue (1992), 147 Ill. 2d 484, 504; Christian Action Ministry, 74 Ill. 2d at 61.

Even if section 19.2 does not require actual ownership, to qualify under that section, the property must not be “leased or otherwise used with a view to profit.” (111. Rev. Stat. 1989, ch. 120, par. 500.2.) Whether property is used for profit depends on the intent of the owner in using the property. (People ex rel. Goodman v. University of Illinois Foundation (1944), 388 Ill. 363, 371; Salvation Army, 170 Ill. App. 3d at 343.) In this case, Kristof leased the property to Zion for a profit. That Zion intended to purchase the property, was liable under its lease to pay owner Kristof a monthly sum for property taxes, and used the property for religious purposes, does not alter the fact that the owner of the property leased the property for a profit. In light of the presumption in favor of taxation, we hold that the Department correctly found that the property owned by Kristof and leased by Zion was not exempt from property tax.

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

Reversed.

INGLIS, P.J., and McLAREN, J., concur.