author: JUSTICE NICKELS

text:
    PHIL VERDONCK, Plaintiff-Appellant and Cross-Appellee, v. LES SCOPES, Defendant-Appellee and Cross-Appellant.
    Second District
    No. 2—91—0584
    Opinion filed April 15, 1992.

      Maureen Flaherty, of Lehrer, Flaherty & Canavan, P.C., of Wheaton, for appellant.
    Glen E. Berman and Thomas Wilson Waters, both of DiTommaso & Berman, P.C., of Oak Brook, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiff, Phil Verdonck, purchased a used 1984 Cadillac El Dorado from defendant, Les Scopes, in August 1987. Plaintiff subsequently filed a four-count complaint alleging that defendant had induced plaintiff to buy the car by misrepresenting the car’s mileage. The complaint alleged causes of action under (1) the odometer requirements of the Federal Motor Vehicle Information and Cost Savings Act of 1972 (Federal Act) (15 U.S.C.A. §1981 et seq. (West 1982)); (2) the odometer certification requirements of the Illinois Vehicle Code (Illinois odometer law) (Ill. Rev. Stat. 1987, ch. 95½, par. 3—112.1); (3) the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1987, ch. 121½, par. 261 et seq.); and (4) common-law fraud.

After the trial court directed a verdict for defendant on the Consumer Fraud Act count, a jury found for plaintiff in the amount of $64,400 compensatory damages based on actual damages of $16,000 plus treble that amount and $37,000 punitive damages. The trial judge reduced the compensatory damage finding to $6,100 and, pursuant to the requirements of the Federal Act (see 15 U.S.C.A. § 1989(a) (West 1982)), tripled the compensatory damages to $18,300 and awarded plaintiff $18,975 in attorney fees and $912.22 in costs. Pursuant to the Consumer Fraud Act (see Ill. Rev. Stat. 1989, ch. 121½, par. 270a(c)), the trial court awarded defendant attorney fees based on the directed verdict on the Consumer Fraud Act count. The trial court later vacated both attorney fee awards and entered judgment. Plaintiff now appeals, and defendant cross-appeals.

Plaintiff argues that (1) the trial judge erred in vacating the award of attorney fees, as such an award is mandatory under the Federal Act; and (2) the trial court erred in directing a verdict for defendant on the Consumer Fraud Act count of the complaint. Defendant claims that (1) awarding plaintiff both statutory treble damages and common-law punitive damages amounted to an impermissible double recovery; (2) the size of the punitive damage award was excessive because plaintiff put on no evidence of defendant’s financial means; and (3) the trial court erred in allowing plaintiff to recover $2,400 actual damages for the cost of repairs to the car, as no evidence showed that these repairs were the result of defendant’s fraudulent misrepresentations.

We hold that (1) plaintiff was entitled to attorney fees under the Federal Act; (2) plaintiff’s actual damages are modified to exclude the $2,400 in repair bills; (3) the trial court properly awarded plaintiff $37,000 in punitive damages; and (4) plaintiff was not entitled to both an award of punitive damages and statutory enhancement of his actual damages. We need not and do not decide whether the trial court properly directed a verdict on the Consumer Fraud Act count.

We discuss the evidence presented at the trial only as it is necessary to an understanding of the issues on appeal. Early in August 1987, defendant purchased the automobile from Richard and Gail Newman for $10,000. At this time, the car had been driven a total of approximately 51,000 miles. About two weeks afterward, according to evidence that the jury credited, defendant sold the car to plaintiff for $13,700. In purchasing the car, plaintiff relied on the odometer reading of 28,780 miles driven. According to plaintiff, defendant did not tell plaintiff that the odometer was inaccurate and later admitted to plaintiff that he had set back the reading on the odometer. After defendant refused to rescind the purchase, plaintiff brought this action.

At the close of plaintiff’s evidence, the trial court granted a directed verdict for defendant on plaintiff’s Consumer Fraud Act count. The judge explained that, although defendant had attempted with partial success to sell several other automobiles late in 1987, defendant was not an automobile dealer or otherwise in the business of selling automobiles; therefore, the Consumer Fraud Act did not apply to this single transaction.

The jury returned a general verdict for plaintiff, finding that plaintiff was entitled to $64,400 compensatory damages and $37,000 punitive damages.

Both parties filed petitions for attorney fees. The trial court initially entered an order that found that the jury’s verdict clearly reflected a finding for plaintiff on the Federal and State statutory causes of action. The court found that, under the Federal Act, plaintiff was entitled to reasonable attorney fees of $18,975 and costs of $912.22, and that, under the Consumer Fraud Act, defendant was entitled to reasonable attorney fees of $2,436.50. The court incorporated the jury’s verdict into the order.

Pursuant to defendant’s motion, the court issued a modified judgment order. The court vacated the attorney fee award to defendant, concluding that defendant was not entitled to fees for prevailing on the Consumer Fraud Act count as plaintiff did not bring the count in bad faith.

The court also reduced the compensatory damage award from $64,400 to $18,300. The court found that defendant’s alteration of the odometer caused plaintiff actual damages of $6,100, the sum of the $3,700 difference between the price plaintiff paid for the car and the car’s fair-market value and the $2,400 that plaintiff paid for repairs to the car. The court tripled this $6,100 figure pursuant to the Federal Act.

The court found further that the award of $37,000 punitive damages was proper and that the directed verdict on the Consumer Fraud Act count was correct. However, the court vacated the award of attorney fees to plaintiff. The judge explained that although the amount plaintiff’s attorney requested was necessary and reasonable, an award of attorney fees was not warranted in view of the $37,000 punitive damages already awarded plaintiff. Plaintiff timely appealed, and defendant timely cross-appealed.

Plaintiff argues first that the trial court lacked discretion to deny him reasonable attorney fees for his successful claim under the Federal Act. Plaintiff relies on the language of section 1989:

“(a) Any person who, with intent to defraud, violates any requirement imposed under this subchapter shall be liable in an amount equal to the sum of—
(1) three times the amount of actual damages sustained or $1,500, whichever is greater; and
(2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with reasonable attorney fees as determined by the court.” (Emphasis added.) 15 U.S.C.A. § 1989(a) (West 1982).

Plaintiff maintains that the foregoing language makes the award of attorney fees mandatory. He argues that similar language in the State odometer law (see Ill. Rev. Stat. 1989, ch. 95½, par. 3—112.1(e)) makes the award of fees mandatory under that statute also. We agree.

Where the language of a statute is clear, the duty of a court is to enforce the unambiguously expressed intent of the legislature. (Norfolk & Western Ry. Co. v. American Train Dispatchers Association (1991), 499 U.S. 117, 128, 113 L. Ed. 2d 95, 106, 111 S. Ct. 1156, 1163; Kraft, Inc. v. Edgar (1990), 138 Ill. 2d 178, 189.) The word “shall” generally indicates a mandatory legislative intent. (Fumarolo v. Chicago Board of Education (1990), 142 Ill. 2d 54, 96.) There is no reason to deviate from this rule in the present case, as courts have recognized that awarding attorney fees to successful plaintiffs is necessary to encourage the diligent pursuit of claims often involving only a small amount of actual damages. (Duval v. Midwest Auto City, Inc. (D. Neb. 1977), 425 F. Supp. 1381, 1388, aff'd (8th Cir. 1978), 578 F.2d 721.) Almost without exception, therefore, courts have concluded that a plaintiff who prevails under the Federal Act is entitled under section 1989(aX2) to reasonable attorney fees. See, e.g., Haluschak v. Dodge City of Wauwatosa, Inc. (7th Cir. 1990), 909 F.2d 254, 258; Duval, 578 F.2d at 726; Force v. McGeachy (1988), 186 Ga. App. 781, 786, 368 S.E.2d 777, 781-82; Kostel Funeral Home, Inc. v. Duke Tufty Co. (S.D. 1986), 393 N.W.2d 449, 452; Rice v. Mike Ferrell Ford, Inc. (W. Va. 1991), 403 S.E.2d 774, 777.

Defendant argues, however, that in Hall v. Riverside Lincoln Mercury-Sales, Inc. (1986), 148 Ill. App. 3d 715, 721, this court held that whether to award attorney fees under the Federal Act is within the discretion of the trial court. In Hall, this court upheld the trial court’s award of fees after the plaintiff successfully moved for summary judgment. We held that such a result was “successful action” within the meaning of section 1989(aX2) of the Federal Act. In noting at the outset of the discussion of this issue that the award of fees was within the trial court’s discretion, Hall cited Hathcock v. G & M Builders, Inc. (5th Cir. 1979), 601 F.2d 846, 851, an opinion that did indeed so state. However, the statement in Hathcock was dictum and was unsupported by any discussion of the statutory language or citation to authority. Moreover, in upholding the amount of fees awarded, Hall cited the reasoning of Duval that mandatory fee awards to successful plaintiffs are a necessary part of the Federal Act. (Hall, 148 Ill. App. 3d at 722.) Other courts have cited Hall as authority that fee awards under section 1989(aX2) of the Federal Act are mandatory rather than discretionary. Force, 186 Ga. App. at 786, 368 S.E.2d at 781; Rice, 403 S.E.2d at 777.

We conclude that, under the relevant provisions of both the Federal Act (15 U.S.C.A. §1989(a)(2) (West 1982)) or the Dlinois odometer law (Ill. Rev. Stat. 1989, ch. 95½, par. 3—112.1(e)(2)), the trial court is required to award attorney fees when the statutory conditions have been met. There is nothing in either statute conditioning the award of fees on the absence of punitive damages; indeed, as we shall discuss, the statutes themselves mandate punitive awards in the form of treble damages. Thus plaintiff is entitled to attorney fees of $18,975.

Plaintiff’s second argument on appeal is that the trial court erred in directing a verdict for defendant on the count of his complaint alleging that defendant violated the Consumer Fraud Act. Plaintiff argues that defendant need not be either an automobile dealer or one engaged in a pattern of commercial activity to be liable under this statute, as it was in force at the time of the transaction, for his fraudulent misrepresentations in connection with this particular sale. Plaintiff also asserts that, even if defendant may not be held liable for an isolated transaction, the evidence at trial showed that defendant dealt in used cars sufficiently to be engaged in “trade or commerce” (see Ill. Rev. Stat. 1987, ch. 121½, par. 261(f)), and thus to be liable for his deception and fraud (see Ill. Rev. Stat. 1987, ch. 121½, par. 262).

We decline to decide this issue as it has absolutely no practical significance in the present case. A reviewing court need not pass on abstract questions the resolution of which will not affect the outcome of the litigation. (Barth v. Reagan (1990), 139 Ill. 2d 399, 419; Russell v. Good Shepherd Hospital (1991), 222 Ill. App. 3d 140, 146-47.) Plaintiff’s complaint advanced four bases for holding defendant liable for the same fraudulent conduct; three of these bases went to the jury, which awarded plaintiff both actual and punitive damages. The trial court refused to award defendant fees under the Consumer Fraud Act, and defendant has not appealed that decision. We thus cannot discern how plaintiff could benefit from a reversal of the directed verdict on this particular count. In the context of this appeal, that count is simply redundant.

We now turn to defendant’s cross-appeal. Defendant attacks the award of damages in three respects. For clarity, we deal first with defendant’s argument that the award of $37,000 in punitive damages was excessive. Defendant argues that because plaintiff introduced no evidence of defendant’s financial condition or ability to pay punitive damages, it was improper to award plaintiff punitive damages in excess of that which would deter or punish an individual without pecuniary resources. We disagree.

Defendant relies foremost on Mullin v. Spangenberg (1884), 112 Ill. 140. In Mullin, the defendant in a civil trespass action attempted to introduce evidence of his meager economic resources in order to lessen the award of damages against him. However, it was not completely clear whether the damages awarded were entirely compensatory or in part punitive. The supreme court held that he was not entitled to introduce such evidence where the plaintiff had not initially raised the issue of the defendant’s wealth in order to enhance the damages. The court stated:

“Where a plaintiff entitled to vindictive damages offers no evidence of the defendant’s wealth with a view of enhancing them, he in effect says, T ask no damages against the defendant except as a mere individual, without any regard to his property or estate, whether it be much or little,’ — and in that kind of a case the jury have no right to give any more damages than they would if it had affirmatively appeared the defendant was without pecuniary resources.” 112 Ill. at 145-46.

Defendant also invokes Black v. Iovino (1991), 219 Ill. App. 3d 378, in which the Appellate Court, First District, relied in part on Mullin to reduce a punitive damage award from $20,000 to $1,000, an amount appropriate against a defendant without pecuniary resources. Black reasoned that under Mullin the plaintiff had the right not to introduce evidence of the defendant’s financial resources and thus the right to foreclose the defendant from doing so. However, having elected not to do so, the plaintiff could not receive damages in excess of those available against an impecunious defendant.

The Illinois Supreme Court has not explicitly overruled Mullin. However, we believe that in Deal v. Byford (1989), 127 Ill. 2d 192, it implicitly overruled or disapproved that part of Mullin on which defendant relies. In Deal, the plaintiff recovered punitive damages of $25,000. On appeal, the defendants challenged the award as excessive, in part because the plaintiff introduced no evidence of their financial resources. Without specifically citing Mullin, the supreme court held:

“Contrary to the defendants’ assertion, the absence of any evidence regarding their financial status does not mean that the jury’s award must be set aside. Evidence regarding the financial status of a defendant is simply one relevant consideration to be weighed by the judge or jury in determining an appropriate award of punitive damages. The plaintiff was not required to present such evidence, and the defendants made no attempt to do so.” 127 Ill. 2d at 204-05.

This language plainly states that a plaintiff who introduces no evidence of the defendant’s financial circumstances is not thereby limited to a minimal level of punitive damages. (See also Jines v. Seiber (1990), 193 Ill. App. 3d 390, 394 (applying rule that plaintiff is not required to introduce evidence of defendant’s financial status and upholding award of $6,500 against defendant who argued that the award was excessive).) Black does not distinguish Deal, and we believe that its holding on this issue is inconsistent with the higher authority of our State’s supreme court. We therefore hold that plaintiff was not required to introduce evidence of defendant’s financial circumstances to recover the punitive damage award here.

We agree with defendant, however, that plaintiff may not recover both punitive damages and statutory treble damages, as such a dual award amounts to double recovery, or double punishment, for the same wrongful behavior. We thus vacate the award of treble damages and hold that plaintiff instead is entitled to actual damages, punitive damages, and attorney fees and costs.

Both the statutory enhancement of actual damages and the common-law remedy of punitive damages serve the same functions: to punish and deter certain types of especially wrongful behavior by assessing damages in excess of those necessary to compensate the plaintiff for the harm he has actually suffered. (Deal v. Byford (1989), 127 Ill. 2d 192, 203; Turnbull & Turnbull v. ARA Transportation, Inc. (1990), 219 Cal. App. 3d 811, 826, 268 Cal. Rptr. 856, 865.) To award both statutory treble damages and common-law punitive damages for the same act is therefore an impermissible double recovery or excessive penalty. Turnbull & Turnbull, 219 Cal. App. 3d at 827, 268 Cal. Rptr. at 865; Stoner v. Houston (1979), 265 Ark. 928, 933, 582 S.W.2d 28, 30-31; Bill Terry’s Inc. v. Atlantic Motor Sales, Inc. (Fla. App. 1982), 409 So. 2d 507, 509; Eastern Star, Inc. v. Union Building Materials Corp. (Haw. App. 1985), 712 P.2d 1148, 1159-60; Bjorgen v. Kinsey (N.D. 1991), 466 N.W.2d 553, 562; Wagoner v. Bennett (Okla. 1991), 814 P.2d 476, 479; John Mohr & Sons, Inc. v. Jahnke (1972), 55 Wis. 2d 402, 411, 198 N.W.2d 363, 368.

The Federal Act does not preempt causes of action for common-law fraud based on odometer tampering or misrepresentation. (Edgar v. Fred Jones Lincoln-Mercury of Oklahoma, Inc. (10th Cir. 1975), 524 F.2d 162, 165-66; Bill Terry’s, 409 So. 2d at 509.) The Illinois odometer law is patterned on the Federal Act, and nothing in that statute indicates an intention to preempt preexisting causes of action for common-law fraud. In any event, defendant has not argued that either statute preempts common-law fraud actions. The proper remedy here is to award plaintiff his actual damages plus the punitive damages, as the total award here is larger than the treble damages under the Federal Act. See Turnbull & Turnbull, 219 Cal. App. 3d at 826, 268 Cal. Rptr. at 865; Eastern Star, 712 P.2d at 1159-60; Bill Terry’s, 409 So. 2d at 509.

Defendant’s final claim of error involves the amount of compensatory damages plaintiff is entitled to receive. Defendant concedes that plaintiff is entitled to $3,700, representing the difference between what plaintiff paid for the car and the car’s fair-market value. However, defendant argues that plaintiff is not entitled to the additional $2,400 that represents plaintiff’s expenditures for repairs to the car. Defendant argues that plaintiff did not establish that these outlays were attributable to defendant’s fraudulent acts.

Plaintiff responds that the trial court specifically found that the repair expenses were the consequence of the odometer fraud; that defendant did not object to the introduction of the repair bills; and that plaintiff’s testimony established that at least certain repairs for which plaintiff paid out of his own pocket would have been covered by warranty had the car’s mileage been as low as defendant represented to plaintiff. We conclude that plaintiff did not establish that any of his repair bills were recoverable.

We agree with the parties that the proper measure of damages in this case is that set out in Beachy v. Eagle Motors, Inc. (N.D. Ind. 1986), 637 F. Supp. 1093. There the plaintiff purchased an automobile for $7,150. The defendant told the plaintiff that the car had 33,274 miles on it; the actual figure was over 75,000 miles. The court adopted the reasoning of Duval v. Midwest Auto City, Inc. (D. Neb. 1977), 425 F. Supp. 1381, 1388, aff’d (8th Cir. 1978), 578 F.2d 721, that “actual damages” under section 1989(a) of the Federal Act should have the meaning commonly applied in fraud cases. Actual damages thus have two components: (1) the difference between what the plaintiff paid for the car and the fair-market retail value of a car purchased with the number of miles actually traveled; and (2) such outlays as are legitimately attributable to the defendant’s acts. Beachy, 637 F. Supp. at 1094-95.

The court in Beachy awarded the plaintiff damages under the first prong of its test but denied him any damages under the second prong even though the plaintiff produced numerous bills for repairs done on the car after he purchased it. Although the court acknowledged that repair bills can be part of a defrauded purchaser’s actual damages, it held that in this case the plaintiff had not shown that the repairs would not have been needed had the car actually had the mileage indicated by the odometer. The court explained that the risk of extra repair expense is already factored into the relatively low-market price of a car with greater previous use. Thus, a purchaser is already compensated for added repairs caused by normal wear and tear. However, a purchaser is entitled to recover for the cost of any repair that he can prove would not have been incurred had the mileage been as the seller had represented. The plaintiff in Beachy made no such showing. Thus, although both his repair bills and the disparity between the actual and represented mileages were substantial, he was entitled to no damages for the cost of repair.

We believe that a similar result must obtain here. Plaintiff did not make the specific showing required by the Beachy test. Plaintiff argues that the repairs would have been covered by the manufacturer’s warranty had the mileage been as defendant represented and that his expenditures are thus the result of defendant’s misrepresentations. This argument is sound in principle but lacks support in the record. Plaintiff himself testified that of all his repairs, only work involving the catalytic converter would have been covered by the warranty. There is no evidence of what, if any, cost plaintiff incurred as the result of any repair work on the catalytic converter. Also, the manufacturer’s warranty is not included in the record. We must agree with defendant that the trial court lacked a proper basis to conclude that plaintiff incurred his repair expenses as a result of defendant’s odometer fraud. We therefore reverse that part of the damage award.

In sum, plaintiff is entitled to $3,700 in actual damages, $37,000 in punitive damages, $912.22 in court costs, and attorney fees of $18,975. Pursuant to Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)), we enter an order to that effect.

The judgment of the circuit court of Du Page County is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

DUNN and McLAREN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE INGLIS

license: Public Domain

text:
    MIDLAND ENTERPRISES, INC., Plaintiff-Appellee and Counterdefendant-Appellee, v. THE CITY OF ELMHURST et al., Defendants (The Department of Transportation, Defendant-Appellant; The People ex rel. The Department of Transportation, Division of Water Resources, Counterplaintiff-Appellant; Harold Reskin, Counterdefendant-Appellant).
    Second District
    No. 2—91—0300
    Opinion filed December 10, 1993.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jerald S. Post, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Douglas C. Hancock, of Caluwaert, Panegasser & Hancock, of Elmhurst (John Panegasser, of counsel), for appellees.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

The Illinois Department of Transportation, Division of Water Resources (DWR), appeals from an order of the circuit court of Du Page County denying statutory injunctive relief. The DWR had sought a mandatory injunction against Midland Enterprises, Inc. (Midland), to remove two berms and a lift station it had constructed adjacent to its properties on the Salt Creek. The issues on appeal are: (1) whether the trial court had jurisdiction to review the permit conditions when the permit was subject to review pursuant to the Administrative Review Law (Review Law) (Ill. Rev. Stat. 1989, ch. 110, par. 3—101 et seq.); (2) assuming arguendo that the court had jurisdiction to review the permit conditions, whether the court erred in determining that the permit conditions were unreasonable; and (3) whether the court erred in applying standards for general equitable injunctions when refusing to issue a statutory injunction.

The case began in 1967 when Midland built a shopping center on North Avenue between Route 83 and the Salt Creek in Elmhurst, Illinois. Harold Reskin, president of Midland, applied for a permit with the Department of Public Works and Buildings, Division of Waterways, the predecessor of the DWR. Midland sought a permit to “rip rap” the shoreline of the creek and build a berm. “Rip rap” is a sustaining wall of stones made on an embankment to prevent erosion. After resubmitting the application to request permission only to “rip rap” the shoreline, the application was granted and a permit issued. The permit expired on December 31, 1970, and Midland never “rip rapped” the embankment.

Bruce Hershman, Midland’s vice-president, testified that a berm existed next to the shopping center when he moved into his offices in 1969. The berm allegedly remained until July 1979 when the DWR issued a report defining the Salt Creek floodplain. The DWR was aware of the shopping center berm at that time. On October 8, 1979, the chief of the Bureau of Resource Management wrote to Reskin ordering him to remove the berm he had constructed without a permit. Re-skin responded on November 14, 1979, writing that Midland “brought the berm down to the level to which it existed before.”

A letter from a DWR representative to Reskin dated September 17, 1987, states that Midland never supplied a topographic map to the DWR to verify the berm had been removed. The letter also shows that the two parties met in September 1983 and discussed the construction of a ring berm, which was never done. In this letter, the DWR requests Midland to remove the berm “constructed or raised since July of 1979” and “restore the floodway conveyance and storage capacity that existed on the site in July of 1979.” No other evidence exists to show action on the part of the DWR to inspect or seek injunctive relief concerning this berm between November 1979 and September 1987.

In the summer of 1986, Midland began construction of a hotel on land immediately north of its shopping center. Hershman testified that Midland knew it was building in a floodplain but did not know that a permit was needed to build in a floodplain. Midland had obtained the proper construction permits from the City of Elmhurst.

The DWR first became aware of the hotel construction when a staff member drove by the site in the summer of 1987. At that point, the hotel was nearly 70% completed. The DWR informed Midland it needed a permit, and an application was submitted on August 6, 1987. The plans submitted by Midland called for widening the creek west of the hotel, proposed an area of “newly designated floodway” to the east of the hotel to compensate for lost floodway space due to the hotel’s construction, and proposed a berm along the widened bank.

After a number of revisions to the proposed plans, the DWR granted a permit for Midland’s project. The permit allowed for the widening of the Salt Creek bank west of the hotel and the creation of a new floodway east of the hotel. The permit specifically excluded the construction of the “proposed future grade berm.” The approved plans did not include a lift station, a device used to pump water from an elevated area into a waterway. Midland had already constructed one without a permit, of which the DWR was unaware, that was hidden on the property. Another permit condition relevant to the litigation stated:

“(1). Permittee shall, by agreement with an engineering firm experienced in the field of hydraulics and hydrology, prepare a study on the effect of an existing berm located downstream of the permittee’s proposed hotel site on the capacity of Salt Creek to store and convey flood flows. If such study, to be completed within 120 days or such longer period as agreed on by the permittee and the Department, finds such capacity to be impaired during any flood event up to and including the 100 year frequency flood event, said berm shall be removed within 90 days by permittee or permittee shall be permitted to pursue alternative corrective measures to remove such impairment. The berm to be studied and possibly removed is an earth berm approximately 3 to 4 feet high and adjacent to the vegetated Salt Creek embankment running along the northerly and westerly property line of the North and 83 Shopping Center.”

Midland constructed the hotel parking lots to comply with the compensatory flood storage and conveyance area needed to compensate for the loss of floodway area due to the hotel. Midland also widened the creek in accordance with the permit. The “Compensatory Flood Storage Covenant,” which detailed the compensatory storage area, was recorded by Midland. However, Midland eventually built the hotel berm specifically excluded in the permit. The lift station was placed in the channel in the spring of 1988 when the creek was widened, unbeknownst to the DWR.

The hotel berm is approximately two feet higher than the adjoining curb. The plans permitted by the DWR had the curb height at 671 to 672 feet above sea level, making the hotel berm approximately 673 feet above sea level. Christopher Burke, the engineer hired by Midland pursuant to condition one of the permit, testified that the hotel berm prevents flood waters from reaching the compensatory storage area during a 10-year flood event. In a 10-year flood event, a major flooding that occurs on an average of once every 10 years, the water would rise to between 672 and 673 feet above sea level.

Midland’s vice-president, Hershman, testified that he believed a berm existed west of the hotel before the creek-widening project began. In essence, this berm was a continuation of the shopping center berm. He further testified that the new hotel berm is approximately the same elevation of the berm that existed before the creek was widened. However, Hershman conceded that he was informed by the DWR on more than one occasion that the bank of the creek, where it had been widened, was to be no higher than .10 feet above the curb.

Before building the hotel berm, Midland had complied with condition one of the permit and had a hydraulic study done by Burke. Burke’s report, issued on January 18, 1988, stated that the DWR’s decision to widen the channel was reasonable and correct. Burke also found that the maximum elevation for the shopping center berm was 673 feet above sea level. Burke testified that the shopping center berm extends from the point where the creek was widened to the southwest comer of the shopping center. Burke also testified that the shopping center berm was made of unsuitable silty material and should be made of clay. A 673-foot berm would not protect the shopping center from a 100-year flood event. If the shopping center berm remained at 673 feet, unimproved forest preserve property and five residential properties upstream, four of which no longer have homes, would have an increased flood elevation of .10 feet during a 10-year flood event.

Burke further testified that the hotel berm prevented flood waters from reaching the designated flood storage area created to compensate for the hotel construction. The lift station also decreased flood storage.

On February 26, 1988, Midland filed a complaint against the City of Elmhurst and the DWR seeking an occupancy permit for the hotel and a determination by the court as to the proper “[e]ast embankment level as described in IDOT Permit #19075, item number 3.” Condition three of the permit specially excluded Midland from building a berm west of the hotel site. At the time of this action, the hotel berm had not been constructed.

The court ordered the City of Elmhurst to issue the occupancy permit. The court never determined the proper level for the creek bank adjacent to the hotel. Midland voluntarily dropped this request and subsequently built the hotel berm at its own chosen elevation.

On March 22, 1988, after the DWR had received Burke’s report, the DWR ordered Midland to lower the shopping center berm elevation and return it to 670.25 feet above mean sea level. The level would be returned to the height as it existed on plans submitted to the Department of Public Works and Buildings when Reskin applied for a permit to “rip rap” in the late 1960’s. On April 29, 1988, the DWR wrote Midland recognizing that a lift station had also been constructed without a permit and ordered that it be removed. Midland failed to comply with either order.

On June 28, 1988, the DWR filed a counterclaim to Midland’s action, seeking a mandatory injunction for the removal of the shopping center berm. Within a few months after this counterclaim was filed, Midland also built the hotel berm. On March 29, 1989, the DWR amended its counterclaim to also seek removal of the hotel berm and lift station.

On February 13, 1991, the circuit court denied the DWR’s claims for injunctive relief. The trial judge made a specific finding of fact that Midland removed a portion of the shopping center berm when widening the creek. Without reconstructing the removed portion of the shopping center berm, the resulting gap permits flood waters to flow to the shopping center. A timely appeal was filed on March 12, 1991.

The first issue we will address is whether the circuit court had jurisdiction to review the permit conditions when, pursuant to statute, the permit was subject to review pursuant to the Review Law. Thus, we must decide whether the circuit court had jurisdiction to review the permit when Midland did not first seek administrative review. The DWR contends that the permit issued by it was a “final administrative decision” subject to review under the Review Law, citing section 26c of “An Act in relation to the regulation of the rivers, lakes and streams of the State of Illinois” (Rivers Act) (Ill. Rev. Stat. 1987, ch. 19, par. 75a). Midland contends that the DWR’s action in issuing a permit was not an “administrative decision.” As such, Midland argues that the Review Law was not the only method available to review the permit conditions.

Section 3 — 101 of the Review Law defines an “[administrative decision” as “any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency.” (Ill. Rev. Stat. 1987, ch. 110, par. 3—101.) Section 3 — 102 states that in all cases where the Review Law applies, “any other statutory, equitable or common law mode of review of decisions of administrative agencies heretofore available shall not hereafter be employed.” (Ill. Rev. Stat. 1987, ch. 110, par. 3—102.) Section 26c of the Rivers Act states that “[a]ll final administrative decisions” of the DWR are subject to judicial review pursuant to the Review Law. Ill. Rev. Stat. 1987, ch. 19, par. 75a.

Pursuant to section 18f of the Rivers Act, the section pertaining to construction in floodplains (Ill. Rev. Stat. 1987, ch. 19, par. 65f), the DWR promulgated Rule 11.1 of the Rules and Regulations, Illinois Department of Transportation, Division of Water Resources, which states:

“The report of the Department which establishes this flood plain regulation, and, subsequently, the issuance or denial of flood plain construction permits by the Department shall be considered final administrative decisions and are subject to judicial review in accordance with the provisions of the Administrative Review Law.” (Emphasis added.) 92 Ill. Adm. Code §706.1110 (1991) (filed on February 18, 1975, and amended on November 27,1978, and July 21,1979).

The DWR claims that Midland failed to seek administrative review of the permit within the required 35-day period after the permit was issued. (See Ill. Rev. Stat. 1987, ch. 110, par. 3—103.) Midland waited nearly four months until it sought judicial action pertaining to the embankment west of the hotel. The DWR cites Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 211, as authority that the 35-day period in the Review Law is a jurisdictional limitation.

Midland argues that the issuance of the permit was not a final administrative decision. Midland cites Lenard v. Board of Education of Fairfield School District No. 112 (1975), 26 Ill. App. 3d 188, and People ex rel. Vestuto v. O’Connor (1953), 351 Ill. App. 539, for the proposition that there can be no administrative decision without a hearing. These cases are distinguishable on their facts. In Lenard, a teacher was informed by the Board of Education that her employment was being terminated. The Review Law was not the proper source for review of the Board’s decision because there had been no proceeding before an administrative agency. In O’Connor, a probationary police officer was discharged by the police commissioner. Because the police commissioner did not have the power under law to make administrative decisions, a mandamus suit for reinstatement was not barred by the Review Law.

Here, the DWR has the statutory power to make administrative decisions to designate floodplains and issue permits under section 18f of the Rivers Act. Rule 11.1 of the DWR rules and regulations specifically states that the Review Law is the vehicle used to seek review of permits. Also, section 26c of the Rivers Act reiterates that final decisions of the DWR are subject to review pursuant to the Review Law. We believe that it cannot be any clearer in the statutory language that the Review Law is the applicable avenue for review.

Midland further contends that it was not required to exhaust its administrative remedies by using the Review Law before seeking independent judicial action. Midland argues that the exhaustion of administrative remedies is not a jurisdictional requirement, but a judicial policy within the court’s discretion, citing Peoples Energy Corp. v. Illinois Commerce Comm’n (1986), 142 Ill. App. 3d 917, and First National Bank & Trust Co. v. City of Rockford (1977), 47 Ill. App. 3d 131. Midland also cites numerous appellate court cases as authority that requiring exhaustion of administrative remedies in this case would result in irreparable harm, onerous delay, and would allow the DWR to use the judiciary to enforce unlawful permit conditions.

“The doctrine of exhaustion of administrative remedies applies where a claim is cognizable in the first instance by an administrative agency alone.” (Peoples Energy Corp. v. Illinois Commerce Comm’n (1986), 142 Ill. App. 3d 917, 931.) Exceptions to the exhaustion requirement are found where a statute is attacked as unconstitutional on its face or where the agency’s authority or jurisdiction is challenged. (County of Kane v. Carlson (1987), 116 Ill. 2d 186, 199.) Exhaustion of administrative remedies is not required where administrative review would be futile or where irreparable harm would be caused from a delay to pursue administrative remedies. Schlenz v. Castle (1985), 132 Ill. App. 3d 993, 1004, aff’d (1986), 115 Ill. 2d 135.

We believe that the exceptions to the exhaustion requirement do not exist here. Midland has not attacked the DWR’s authority or jurisdiction. Midland’s attack on the permit conditions was not an attack on the constitutionality of the Rivers Act. Seeking review under the Review Law would not have been futile and would not have caused irreparable harm or onerous delay. Midland was required to exhaust its administrative remedies by seeking review of the permit under the Review Law.

Midland relies on County of Lake v. MacNeal (1962), 24 Ill. 2d 253, as authority that exhaustion of administrative remedies does not prevent the assertion of a defense ordinarily subject to exhaustion. In MacNeal, a property owner challenged a zoning ordinance. The rule that a property owner must seek local relief from a zoning ordinance before going to court is a judicial policy rather than a legislative rule. (24 Ill. 2d at 259.) Unlike MacNeal, the rule in the case at bar requiring review of permits through the Review Law is not a judicial policy, but is an administrative rule promulgated with legislative authority. Further, Midland was not simply defending an action brought by the DWR. Midland was the first party to use the courts to seek a determination of the proper level of the embankment west of the hotel. Midland realized independently that the permit condition was adverse to its goals, but sought review in circumvention of the Rivers Act.

We find that the trial court lacked jurisdiction to review the permit conditions because Midland failed to seek review pursuant to the Review Law within the designated 35-day period. To hold otherwise would result in usurping the DWR’s administrative authority. The issuance of permits would be a futile exercise if the party receiving the permit could ignore the conditions and proceed as it wished. In every case, the DWR would have to bring an injunctive action to enforce its permits. Based on this court’s holding, the DWR’s decisions would be subject to review only by following the designated statutory and administrative channels.

Having determined that the permit was not subject to review by the trial court, we need not address Midland’s second issue on appeal concerning the trial court’s finding that the permit conditions were unreasonable. However, our disposition of the first issue only precludes review of the permit conditions challenged by Midland: (1) the condition prohibiting the building of the hotel berm; and (2) the requirement to have a hydraulic study performed. The condition requiring the hydraulic study did not automatically require removal of the shopping center berm. If the permit is to be considered a “final” decision, the subsequent determination by the DWR that the shopping center berm impairs flood capacity must be a separate decision. Otherwise, there is no guarantee that this issue could be subject to review. The hydraulic study most likely would not be completed within the 35-day period in which Midland was to seek review of the permit.

Midland had 35 days in which to review the affirmative duties placed on it by the permit — to refrain from building the hotel berm and to have the hydraulic study done. Because Midland failed to seek review properly, the trial court did not have jurisdiction to review the permit conditions. We hold that the portion of the trial court’s order denying the DWR injunctive relief as to the hotel berm be reversed.

We will address the DWR’s third issue, whether standards for general equitable injunctions should be used in refusing to issue a statutory injunction, only as it relates to the lift station and the shopping center berm. The DWR does not claim that its decision on March 22, 1988, to lower the shopping center berm was an “administrative decision” subject to the Review Law. As such, we will not address that issue. Our holding on the first issue only extends to finding that a permit issued by the DWR is a final administrative decision subject to review under the Review Law.

Section 18f of the Rivers Act states, in pertinent part:

“All construction undertaken on a defined flood plain subsequent to the effective date of this amendatory Act, without benefit of a permit from the Department of Transportation, shall be unlawful and the Department, may in its discretion, proceed to obtain injunctive relief for abatement or removal of such unlawful construction.” (Ill. Rev. Stat. 1987, ch. 19, par. 65f.)

Midland never obtained a permit to construct the shopping center berm or the lift station placed in the widened embankment sometime in the spring of 1988. The DWR contends that injunctive relief expressly authorized by statute need not satisfy the traditional elements necessary to obtain an injunction, citing, among other cases, Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1988), 171 Ill. App. 3d 948. The court in People v. Van Tran Electric Corp. (1987), 152 Ill. App. 3d 175, stated, in a similar situation arising under the Environmental Protection Act (Ill. Rev. Stat. 1985, ch. 111½, par. 1042(e)):

“An action for injunctive relief by the State or an agency thereof pursuant to section 42(e) of the Act is not governed by general equitable principles. The plaintiff need only allege and show the defendant’s violation of the Act and that the plaintiff has standing to bring the action; there is no necessity to prove irreparable damage or the absence of an adequate remedy at law. No discretion is vested in the court to refuse to issue an injunction to enforce the terms of the Act.” Van Tran, 152 Ill. App. 3d at 184.

Midland argues that the DWR did not request injunctive relief based on the statute, but sought the relief based on the permit conditions only. Midland further claims that there is no statutory provision enabling the DWR to compel performance of the permit conditions, thereby necessitating that equitable principles be considered. Midland also argues that People ex rel. Baise v. Harris (1988), 177 Ill. App. 3d 1027, a case relied upon by the DWR as authority that mandatory injunctions may be issued to remove unpermitted culverts placed in streams, is distinguishable on its facts. Finally, Midland cites a New York case as authority that mandatory injunctions are generally not granted solely upon the failure to obtain a permit.

The general rule that a statutory claim need not satisfy the traditional principles of equity is based upon the presumption that public harm occurs when the statute is violated. (People ex rel. Hartigan v. Stianos (1985), 131 Ill. App. 3d 575, 580.) The State or agency need only show that the statute was violated and that the statute relied upon specifically allows injunctive relief. Sadat v. American Motors Corp. (1984), 104 Ill. 2d 105, 110-12.

Midland’s assertion that the DWR was not seeking injunctive relief pursuant to a statute is unpersuasive. The entire process of issuing permits is based on the Rivers Act, in this particular case, section 18f of the Rivers Act. We agree with the trial court that the DWR cannot claim violations of section 18g of the Rivers Act, the section concerning floodways, because that section of the Rivers Act was not effective until two weeks after the permit was issued to Midland on November 4, 1987. However, the DWR’s permit was issued pursuant to the preexisting section 18f of the Act. The DWR was relying on its authority in section 18f to seek injunctive relief for unlawful construction in a floodplain.

Further, Midland’s claim that no statute exists enabling the DWR to require that the permit conditions be performed is also without merit. Midland claims that the DWR is seeking to compel that the permit conditions be performed, but it can equally be said that DWR was seeking to enjoin unlawful construction. The DWR has statutory-authority to enjoin unlawful construction pursuant to section 18f of the Rivers Act.

The Harris case cited by the DWR was a case in which the Department of Transportation was granted a mandatory injunction to remove a stream enclosure constructed without a permit. Midland seeks to distinguish this case by the fact that the landowner never completed an application for a permit and the enclosure would cause damage to nearby property that would not occur here, an equitable consideration. However, the only question in Harris was whether the defendant’s situation came within the scope of the statute. The court engaged in statutory construction, not an analysis of general equitable principles. Harris, 177 Ill. App. 3d at 1032-33.

Finally, Midland cites Finger Lakes Health Systems Agency v. St. Joseph’s Hospital (1981), 81 A.D.2d 403, 442 N.Y.S. 219, for the proposition that statutory injunctions are not generally granted solely for failing to obtain a permit. In fact, the court in Finger Lakes refused to issue an injunction because there was no demonstrated public harm from the statutory violation. In the appeal at bar, there is a presumption that public harm occurs when a statute is violated. (Stianos, 131 Ill. App. 3d at 580.) The evidence shows that the existence of the berm increases flood waters upstream. This fact makes Finger Lakes distinguishable, and, also, Finger Lakes lacks precedential value in the Illinois courts.

We find that the trial court erred in applying general equitable principles in refusing to issue a statutory injunction. Thus, we reverse the trial court’s decision not to enjoin the construction of the lift station. However, the issue concerning the removal of the shopping center berm calls for additional analysis. We may affirm the order of the trial court, or a part thereof, for reasons other than those stated by the trial court. Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 502.

We believe that it would be unjust to require Midland to remove the shopping center berm that has existed at least since 1979 and possibly as far back as the late 1960’s. Between the time the shopping center berm was constructed and the time the hotel project began, the DWR was not diligent in requiring Midland to remove the unlawful construction. A few inquiries were made by the DWR, but the record reflects that it never followed through with an inspection of the site or a timely action to enjoin the construction. Also, the situation has changed in the area surrounding the shopping center. In the mid-1980’s, the elevations of the roads adjacent to the shopping center and the North Avenue bridge were raised. The shopping center property has become more flood prone than it was when the berm was first built. Requiring Midland to remove the berm could be disastrous for the shopping center, even in flood events less extreme than a 10-year flood event.

Under the doctrine of laches, equitable relief such as a mandatory injunction will not be granted where the failure to assert the right, coupled with a lapse of time and changed circumstances, would cause prejudice to an adverse party. (Finley v. Finley (1980), 81 Ill. 2d 317, 329.) The doctrine of laches is ordinarily not applied to the State (Pavlakos v. Department of Labor (1985), 111 Ill. 2d 257, 265), but may be in extraordinary circumstances (Haeflinger v. City of Wood Dale (1984), 129 Ill. App. 3d 674, 679).

Based on the facts stated above, we believe this is a proper case in which laches may be applied against the State. We hold that the portion of the shopping center berm that remains may not be enjoined and the trial judge’s ruling concerning the shopping center berm will stand. We recognize that the trial court found that flood waters will flow down to the shopping center because a portion of the old berm was removed to widen the creek. However, Midland had to make the appropriate changes to compensate for the addition of the hotel by widening the creek west of the hotel and creating the new floodway storage east of the hotel. These changes necessitated the removal of a portion of the berm that, according to Midland officials, existed before the creek was widened. If the water rising above the curb west of the hotel fails to flow into the newly designated floodway, Midland may seek a permit to regrade the area or come up with another permitted solution to prevent water from reaching the shopping center.

For the foregoing reasons, we affirm the trial court’s denial of a mandatory injunction as it pertains to the remaining shopping center berm and reverse the order as it pertains to the hotel berm and lift station and remand to the Eighteenth Judicial Circuit Court, Du Page County, Illinois, to order Midland Enterprises, Inc., and Harold Reskin, its president, to immediately remove the berm and lift station constructed along the Salt Creek adjacent to the Comfort Inn motel at Route 83 and North Avenue in Elmhurst, Illinois, and to return the elevation of that bank to the level specified on the permit issued to Midland Enterprises by the Department of Transportation, Division of Water Resources.

Affirmed in part; reversed in part and remanded.

GEIGER and QUETSCH, JJ., concur.


text:
    RAYNER COVERING SYSTEMS, INC., Plaintiff-Appellee and Counter-defendant-Appellant, v. DANVERS FARMERS ELEVATOR COMPANY, Defendant-Appellant and Counterplaintiff-Appellee.
    Second District
    No. 2—91—0609
    Opinion filed March 20, 1992.

      Frederick J. Steffen and F. John Steffen, both of Steffen & Carroll, of Elgin, for appellant.
    William H. Weir and Daniel E. Compton, both of Brittain, Ketcham, Strass, Terlizzi, Flanagan, Weir & Johnson, P.C., and Lawrence I. Crisanti, of Muscarello, Crisanti & Young, both of Elgin, for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Danvers Farmers Elevator Company (Danvers) appeals after a full trial in this contract damages action. Danvers argues that the trial court erred in granting partial summary judgment to the seller, Rayner Covering Systems, Inc. (Rayner). The court found that a limitation of damages clause in the contract for the sale of a com storage tarpaulin insulated Rayner from liability for consequential damages. We affirm.

In the summer of 1986, Danvers contracted with Rayner for the custom manufacture and delivery of a tarpaulin intended to cover a temporary outdoor corn storage facility. Rayner delivered the tarpaulin late and it was the wrong size. Much of the unprotected corn spoiled due to heavy rain showers. Rayner sued Danvers for the remainder of the purchase price and costs. Danvers filed a counterclaim for return of the $7,000 down payment and other damages.

After a full trial on the merits, Danvers appeals from a partial summary judgment order that the trial court granted to Rayner prior to trial. In that partial summary judgment order, the trial court interpreted a contract clause as insulating Rayner from liability for consequential damages. This court dismissed an earlier appeal from that partial summary judgment order for lack of jurisdiction (Danvers Farmers Elevator Co. v. Rayner Covering Systems, Inc. (1990), 196 Ill. App. 3d 1104 (unpublished order under Supreme Court Rule 23)). In the final order of the case, the trial judge found that Rayner had breached the contract because it delivered an improperly sized tarpaulin. He ordered Rayner to return the $7,000 down payment to Danvers in exchange for Danvers’ return of the tarpaulin. The trial judge found that the late delivery was immaterial since Danvers did not start filling the storage facility until three days after actual delivery. Danvers made a timely appeal.

Danvers argues that the trial court erred in concluding that the clause at issue barred recovery of consequential damages from Rayner. Rayner urges this court to affirm the partial summary judgment order as a proper interpretation of the clause based on the record before the trial court at that time. Rayner also urges this court, in a motion that we ordered to be taken with the case, to strike certain portions of Danvers’ brief which Rayner claims are not supported by the record.

RAYNER’S MOTION TO STRIKE

As a preliminary matter, we first address Rayner’s motion to strike all or part of Danvers’ brief. Rayner argues that Danvers’ brief contains citations to material not of record at the time of the summary judgment hearing and new arguments that were not presented or heard at the hearing. Danvers summarily argues that the material and arguments used in its brief are in the record as a whole and should therefore be considered by this court. Danvers did not submit any depositions or affidavits in opposition to Rayner’s motion for partial summary judgment. However, Danvers argues that the affidavit of James Vierling, the manager of the Danvers Company, which was submitted to the trial court with Danvers’ motion to reconsider the partial summary judgment order, should be considered by this court.

Rayner correctly states that upon appellate review of a summary judgment ruling the appellant may only refer to the record as it existed at the time the trial court ruled, outline the arguments made at that time, and explain why the trial court erred in granting summary judgment. (See Certified Mechanical Contractors, Inc. v. Wight & Co. (1987), 162 Ill. App. 3d 391, 397.) We agree with Rayner that Danvers’ brief improperly refers to various parts of the record which were not yet of record at the time the trial court granted Rayner’s motion for partial summary judgment. We note that the statement of facts and argument section in Danvers’ brief contains citations to trial testimony and to Vierling’s affidavit, all of which were not of record when the trial court decided Rayner’s motion. For purposes of this opinion, we will therefore limit our review of the record to the record as it existed when the trial court granted Rayner’s motion for partial summary judgment. We will also limit our reading of Danvers’ brief to those sections which rely on the record as it existed at that time.

Rayner also argues that Danvers should be limited to the arguments that it presented to the trial court at the hearing on Rayner’s motion. As authority, Rayner cites Rahill Corp. v. Urbanski (1984), 123 Ill. App. 3d 769, where the court stated a two-tier standard of review for summary judgment cases. Initially, the appellate court reviews de novo the initial summary judgment decision (Rahill, 123 Ill. App. 3d at 777), that is, whether the trial court here erred as a matter of law in interpreting the contract clause. The Rahill court then stated:

“However, when an argument is first brought to the trial court’s attention by way of a post-judgment motion, the issue on appeal is whether the trial court has abused its discretion in denying that motion. [Citation.] Moreover, when the motion is supported by evidence not presented prior to judgment, it is properly denied where it appears that the evidence was in the movant’s possession and could have been presented before judgment was rendered [citation], or could have been discovered through the exercise of due diligence [citation], or where the evidence is not so conclusive or decisive as to render it probable that a rehearing would result in a different judgment.” Rahill, 123 Ill. App. 3d at 777.

We find Rahill instructive in that it states that the parties should make a full presentation of evidence and arguments at the initial summary judgment hearing, rather than at a later hearing on a motion to reconsider or, even later yet, when the case is on appeal. Danvers’ response to Rayner’s motion consisted of a two-page memorandum which contained minimal invocation of supporting case law, and to which no deposition excerpts or affidavits were attached. Danvers could have easily attached an affidavit or the relevant sections from the deposition of James Vierling. We conclude that the trial court did not abuse its discretion in denying Danvers’ motion to reconsider. We also limit our consideration of Danvers’ arguments on appeal to those which were also made to the trial court at the initial summary judgment hearing. See Hux v. Raben (1967), 38 Ill. 2d 223, 225 (appellate court should not consider different theories or new arguments if proof might have been offered to refute them had they been presented at trial); Cardamone v. Allstate Insurance Co. (1977), 49 Ill. App. 3d 435, 441 (the theory upon which a case is tried in the lower court cannot be changed on review; an issue not presented to or considered by the trial court cannot be raised for the first time on appeal).

WAS THE LIMITATION OF DAMAGES CLAUSE ENFORCEABLE?

We now address the substance of this appeal. Danvers argues that the trial court erred by granting Rayner’s motion for partial summary judgment on the issue whether the limitation of damages clause insulated Rayner from liability for consequential damages. The clause at issue is on page 2 of the three-page contract, the second of 11 “Terms and Conditions,” and states:

“2. Under no circumstances will Rayner Covering Systems be responsible for the condition of the product being covered, either before or after covering same and liability for same is expressly denied.”

We briefly note the parameters of our review. Summary judgment is proper where there is no genuine issue of material fact and judgment may be granted as a matter of law. (Mitchell v. Jewel Food Stores (1990), 142 Ill. 2d 152, 165.) The court must construe all pleadings, depositions, affidavits and admissions strictly against the movant. (Mitchell, 142 Ill. 2d at 165.) Where other facts are not in dispute, construing a contract clause as a matter of law may be suitable for partial summary judgment. See National Underground Construction Co. v. E.A. Cox Co. (1991), 216 Ill. App. 3d 130, 134.

Danvers raises five arguments in support of its position: (1) the clause is unenforceable since it would render the contract meaningless if enforced; (2) the essential purpose of the contract would fail if the clause is enforced; (3) the clause bars recovery of tort damages, but not contract damages; (4) the contract fails to state the intentions of the parties since the clause is unclear; and (5) the clause is procedurally unconscionable for three reasons: the parties did not bargain for it, Rayner never brought it to Danvers’ attention, and the clause is not conspicuous. However, pursuant to our previous disposition of Rayner’s motion to strike, we will limit our consideration of Danvers’ arguments on appeal to those that it also presented to the trial court when the court decided Rayner’s motion. Therefore, we will address Danvers’ arguments that the limitation of damages clause should not be enforced because it is vague, overly broad and not conspicuous.

In Illinois, parties can limit remedies and damages for breach if their agreement so states and no public policy bar exists. (Harris v. Walker (1988), 119 Ill. 2d 542, 548-49; McClure Engineering Associates, Inc. v. Reuben H. Donnelley Corp. (1983), 95 Ill. 2d 68, 71-74.) While exculpatory or limitation of damages clauses are not favored and must be strictly construed against a benefitting party (Harris, 119 Ill. 2d at 548), the basis for their enforcement is the strong public policy favoring freedom of contract (Harris, 119 Ill. 2d at 548; McClure, 95 Ill. 2d at 72). In McClure, our supreme court upheld the validity of a contract clause limiting the liability of a telephone company sales agent for failure to place a listing in the yellow pages. The court stated:

“The decisions of this court have consistently reflected a judicial concern with balancing the need to respect the right to freely contract with the need to protect parties from unfair provisions in contracts involving publicly regulated activities. [Citations.] However, in the nonregulated areas the decisions of this court and those of other jurisdictions reflect a widespread policy of permitting competent parties to contractually allocate business risks as they see fit. [Citations.] ‘This accords to the individual the dignity of being considered capable of making and standing by his own agreements.’ [Citation.]” (McClure, 95 Ill. 2d at 72-73.)

We will examine the limitation of damages clause at issue in light of the above principles.

We find the 30-word clause to be a simple and enforceable limitation of damages clause. It plainly states in clear and unequivocal language the parties’ agreement: that Rayner will not be liable for the condition of the corn, either before or after being covered. We fail to find any vagueness in the clause as Danvers argues. We also fail to find a public policy bar to the clause. Furthermore, we find that Danvers’ “conspicuous” argument is misplaced. Danvers seems to argue that under the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1989, ch. 26, par. 1—101 et seq.), the clause at issue was not conspicuous and thus not enforceable. However, such an argument would be more appropriate in a breach of warranty action, of which this action is not, since the word “conspicuous” is most notably found in section 2 — 316 of the UCC, which governs the exclusion or modification of warranties. Ill. Rev. Stat. 1989, ch. 26, par. 2—316(2).

Danvers’ reliance on Frank’s Maintenance & Engineering, Inc. v. C.A. Roberts Co. (1980), 86 Ill. App. 3d 980, for the proposition that the clause at issue had to be conspicuous to be enforceable is also misplaced since the cause of action there was based on a breach of the warranty of merchantability. In Frank’s Maintenance, the court held that a clause limiting damages in the event of a seller’s breach could be found to be unconscionable and remanded the case to the trial court to make that determination. The court determined that the clause may not have been brought clearly to the buyer’s attention, since it was on the reverse side of an acknowledgement form which did not legibly refer to the presence of terms on the reverse side. (Frank’s Maintenance, 86 Ill. App. 3d at 991-92.) In contrast to the breach of warranty situation in Frank’s Maintenance, this action is a suit for contract damages, a large part of which turned on the trial court’s interpretation of the limitation of damages clause in the fairly straightforward, three-page contract.

Two other cases cited by Danvers, Shorr Paper Products, Inc. v. Aurora Elevator, Inc. (1990), 198 Ill. App. 3d 9, and Contact Lenses Unlimited, Inc. v. Johnson (1988), 176 Ill. App. 3d 875, are also distinguishable from this case and thus not controlling. In both Shorr Paper Products and Contact Lenses Unlimited, the exculpatory clause attempted to exclude all liability on the part of the seller, at times in conflict with other portions of the contract. In contrast, the clause at issue here does not seek to exclude any and all liability on Rayner’s part. The limitation of damages clause here merely limits Rayner’s liability for damage to the product to be covered, Danvers’ com.

We conclude that the trial court properly granted Rayner’s motion for partial summary judgment and properly denied Danvers’ motion for reconsideration. A plain reading of the limitation of damages clause at issue leads this court to conclude that it operated to bar any recovery by Danvers for damage to the corn.

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

Affirmed.

WOODWARD and BOWMAN, JJ., concur.


text:
    ELENA CASTENADA, Plaintiff-Appellant, v. COMMUNITY SCHOOL DISTRICT UNIT No. 200 et al., Defendants-Appellees (Virginia Parrish, Defendant).
    Second District
    No. 2—91—0625
    Opinion filed March 20, 1992.
    James W. Holman, of Cellucci, Yaeobellis & Holman, of Naperville, for appellant.
    James P. Hynes, of Modesto, Reynolds & McDermott, of Wheaton, and Modesto, Reynolds & McDermott, of Chicago, for appellees.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Elena Castenada, appeals the order of the circuit court dismissing count II of her complaint against defendants, Wheaton Central High School and Community Unit No. 200 (defendants). The issue on appeal is whether the trial court properly found that section 3 — 108 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 3—108) immunized defendants from their alleged negligent failure to supervise their students on public property not owned by them. We affirm.

In her complaint, plaintiff alleged that the defendants allowed the physical education students to take a bicycle trip on a portion of the Illinois Prairie Path in Wheaton, Illinois. The instructor was a quarter mile ahead of some of the students, including Virginia Parrish, a defendant not participating in this appeal. Parrish was riding two abreast and failed to yield the right-of-way to plaintiff, who was travelling in the opposite direction. Parrish collided with plaintiff, causing plaintiff to sustain personal injuries. In count I, plaintiff alleged Parrish was negligent. In count II, plaintiff alleged defendants were negligent for failing to supervise the students and for failing to require them to follow the rules of the road. In count III, plaintiff alleged that defendants’ failure was willful and wanton.

Defendants moved to dismiss count II based on section 3 — 108 of the Tort Immunity Act. The trial court granted the motion. After the court entered a finding that there was no just cause to delay enforcement or appeal of the order, plaintiff filed a timely notice of appeal.

Section 3 — 108 states, in pertinent part:

“[Njeither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property.” (Ill. Rev. Stat. 1989, ch. 85, par. 3—108.)

Section 3 — 101 of the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 3—101) provides:

“As used in this Article unless the context otherwise requires ‘property of a local public entity’ and ‘public property’ mean real or personal property owned or leased by a local public entity, but do not include easements, encroachments and other property that are located on its property but that it does not own, possess or lease.”

Section 1 — 206 of the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 1—206) provides:

“ ‘Local public entity’ includes a county, township, municipality, municipal corporation, school district, school board, community college district, community college board, forest preserve district, park district, fire protection district, sanitary district, and all other local governmental bodies.”

The trial court interpreted section 3 — 108 to mean that immunity applies on all public property, whether owned by the public entity or not. Plaintiff maintains that the statute should be applied only to the public property owned by or relevant to the public entity. Plaintiff contends that there is no nexus between the school district and the Illinois Prairie Path and that there is no purpose in applying the immunity off the school property. We agree that an incongruity might result if plaintiff could sue only if the students hit her when they detoured off the path to a privately owned frozen yogurt store or hit her while on private property, but not if the accident occurred on the public path itself. In effect, plaintiff argues that the legislature did not draft the statute to provide the immunity to “all property of any local public entity.”

We note that defendants followed the correct procedure by filing a motion to dismiss under section 2 — 619(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)) because the cause of action is completely negated by an affirmative matter not apparent on the face of the complaint. (See Bloomingdale State Bank v. Woodland Sales Co. (1989), 186 Ill. App. 3d 227, 232-33.) Section 2 — 619(a) requires the introduction of an affidavit proving the affirmative defense. (Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a).) Defendants failed to submit an affidavit proving their allegation that the accident occurred on public property or that the Illinois Prairie Path was the property of a local public entity. Nevertheless, plaintiff did not contest the allegation in the trial court and does not contest the allegation on appeal, and we consider the deficiency in defendants’ pleading waived. For the purposes of this appeal, the Illinois Prairie Path is a public property although its owner is not named in the record.

When interpreting a disputed statutory provision, this court must ascertain and give effect to the true intent and meaning of the legislature, considering first the actual language of the statute. (Waste Management of Illinois, Inc. v. Illinois Pollution Control Board (1991), 145 Ill. 2d 345, 348.) “Those terms which are unambiguous, when not specifically defined, must be given their plain and ordinary meaning. [Citation.] Moreover, this court shall not insert words into legislative enactments when the statute otherwise presents a cogent and justifiable legislative scheme.” Waste Management, 145 Ill. 2d at 348.

Using these principles, we affirm the trial court’s dismissal. The plain language of the statute governs this situation despite plaintiff’s argument. (Davis v. Chicago Housing Authority (1990), 136 Ill. 2d 296, 300.) Section 3 — 108 specifically states that the immunity exists on any public property. In delineating the scope of the immunity, the legislature did not include a requirement that the property be owned by the supervising defendant. Cf. Davis, 136 Ill. 2d at 300 (the court must apply the definition of “public property” as written by the legislature).

There is a possible cogent legislative scheme in extending immunity for conduct on property other than that owned by the supervising entity. High school athletic teams visit other schools to compete in events. These visits occur hundreds of times each week throughout the year and throughout the State. The legislature may have intended to protect the visiting team’s supervisors as well as supervisors of the home team. The legislature may have also declined to interfere with private property by extending the immunity to conduct occurring outside public property. Thus, owners of private areas need not fear that customers will be driven away by roving bands of unsupervised students. Third parties who step inside public property then may assume the risk of injury caused by negligent supervision.

We restrict our analysis only to that argument raised by plaintiff. She argues that the interpretation of the statute is contrary to the result of numerous decisions by the Illinois courts. Claims of negligent supervision have been upheld in O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, Tanari v. School Directors of District No. 502 (1977), 69 Ill. 2d 630, and Griffis v. Board, of Education, District 122 (1979), 72 Ill. App. 3d 784. In these cases, the courts analyzed only sections 24 — 24 and 34 — 84a of the School Code (Ill. Rev. Stat. 1989, ch. 122, pars. 24—24, 34— 84a). These sections provide that a teacher is in loco parentis to his or her students. Since a teacher or instructor stands in the place of the students’ parents, the instructor is not liable for ordinary negligence but only for willful and wanton conduct. (See O’Brien, 83 Ill. 2d at 467.) Further, sections 24 — 24 and 34 — 84a do not provide direct immunity for the school district, but provide vicarious immunity when the cause of action against the district is predicated on the teacher’s negligence. Sidwell v. Griggsville Community Unit School District No. 4 (1992), 146 Ill. 2d 469, 472-73.

In Tanari, the injured plaintiff was not a student, and thus the in loco parentis doctrine did not apply. (Tanari, 69 Ill. 2d at 636-37.) In O’Brien, the instructor’s conduct lay outside the ambit of his supervisory role. (O’Brien, 83 Ill. 2d at 467-68.) The supreme court stated that public policy, as expressed in the Tort Immunity Act, militates in favor of holding public employees liable for negligence when no interests of student-teacher harmony are involved. (83 Ill. 2d at 468.) In Griffis, the school was liable for negligent acts caused by its agents who were not the student’s teacher. Griffis, 72 Ill. App. 3d 789.

All of the injuries in these cases arose on public property, but section 3 — 108 was not raised as a defense. In those cases cited by plaintiff where section 3 — 108 was raised, the supervising defendant owned the property where the injury occurred. (Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473 (city owned street on which plaintiff was struck); Jarvis v. Herrin City Park District (1972), 6 Ill. App. 3d 516 (city owned playground equipment upon which plaintiff was injured).) No cases we have found apply section 3 — 108 to property with no nexus to the defendant. However, in a case cited by neither party, Mancha v. Field Museum of Natural History (1972), 5 Ill. App. 3d 699, the injured plaintiff sued the school for negligent supervision of students on a field trip. The court did not apply section 3 — 108 but applied section 2 — 202 (Ill. Rev. Stat. 1989, ch. 85, par. 2—202) to rule that the teachers were exercising the laws of this State in supervising the students and thus the teachers were not liable in negligence. Mancha, 5 Ill. App. 3d at 703.

Plaintiff argues that the cases cited above show that there is a trend in the case law moving toward a narrow interpretation of section 3 — 108 of the Tort Immunity Act. We do not recognize such a trend. In Bowers v. Du Page County Regional Board of School Trustees District No. 4 (1989), 183 Ill. App. 3d 367, 377, we noted that the School Code and the Tort Immunity Act should be interpreted independently of one another. Thus, the cases cited by plaintiffs that discuss section 24 — 24 of the School Code in no way contemplate a narrowing interpretation of section 3 — 108 of the Tort Immunity Act. Moreover, the dissenting opinion in a recent Illinois Supreme Court case suggests that the Tort Immunity Act may provide immunity for school districts in certain situations. Sidwell, 146 Ill. 2d at 475-76 (Heiple, J., dissenting) (majority should have addressed, and held, that section 3 — 106 of the Tort Immunity Act provides immunity for school district for injuries occurring on the playground due to district’s ordinary negligence).

We apply the plain language of section 3 — 108 of the Tort Immunity Act and hold that the section applies on any public property whether owned by a negligent supervising entity or another public entity.

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

Affirmed.

UNVERZAGT and GEIGER, JJ., concur.


author: PRESIDING JUSTICE INGLIS JUSTICE BOWMAN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICTOR WATTS, Defendant-Appellant.
    Second District
    No. 2—90—0230
    Opinion filed March 18, 1992.

      BOWMAN, J., dissenting.
    G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Charles R. Hartman, State’s Attorney, of Freeport (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Victor Watts, was indicted in the circuit court of Stephenson County on one count of delivery of less than one gram of a substance containing cocaine (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(c)). Following a jury trial, defendant was found guilty and sentenced to a four-year term of imprisonment. The sole issue raised by defendant on appeal is whether he was denied the effective assistance of counsel. We affirm.

The following facts were adduced at defendant’s trial. Agent Gary Cooper of the Illinois State Police testified that on July 26, 1989, he was assigned to work undercover with a confidential source, Ms. Gaylene Forth, in an effort to make contacts in Freeport bars for the purpose of purchasing small quantities of cocaine.

At about 2:54 p.m. on that date, Agent Cooper and Ms. Forth entered Club 26, a bar located in Freeport. They immediately walked to a booth where defendant and a white male were seated. As they approached, defendant stood up and conversed with Ms. Forth, after which Ms. Forth introduced Agent Cooper to defendant.

While they were standing beside the booth, they negotiated with defendant for the purchase of a half gram of cocaine. Defendant told them it would be no problem and asked Ms. Forth for the money. Agent Cooper then handed Ms. Forth $50 in “prerecorded official advanced funds.” Ms. Forth in turn handed the money to defendant.

Agent Cooper and Ms. Forth then sat at a booth with the white male while defendant went to the front of the bar area. Defendant returned and sat on the opposite side of the booth from Agent Cooper and directly across from Ms. Forth. Defendant indicated he wanted to pass the cocaine under the table, and Agent Cooper leaned back in the booth so he could see trader the table. As defendant slid his hand under the table towards Ms. Forth, Agent Cooper observed a small, blue packet in defendant’s hand. Agent Cooper leaned forward, placed his hand next to Ms. Forth’s, and then took possession of the blue packet. On cross-examination, Agent Cooper conceded that his report does not state that he took the packet from defendant’s hand. After reviewing his report on redirect examination, Agent Cooper explained that his report stated that he placed his hand next to Ms. Forth’s and “took delivery of the cocaine.”

On direct examination, Agent Cooper described the packet as being shaded blue and looking like a miniature Ziploc baggie. It contained a white powder substance. Agent Cooper identified the blue packet at trial as the one he received from defendant. A forensic scientist employed at the State crime laboratory testified that the substance in the blue packet weighed one-tenth of a gram and tested positive as cocaine.

Ms. Forth testified on behalf of defendant. She stated that on the date in question she went to Club 26 with Agent Cooper. She and Agent Cooper ordered beer and sat alone at a table. Agent Cooper then asked her if she could get him any “coke.” Ms. Forth told him that she knew a few people in the bar that might have some or would know somebody who did.

Forth testified that she then approached defendant and asked if he could get her some “coke.” Defendant said he did not have any but would ask around. After asking a few people, defendant came over to the table and told her that he knew somebody who might be able to get it. Defendant then asked if the drugs were for her, to which she responded that the drugs were for her friend “Cody” (Agent Cooper). Defendant said he would not sell it to “Cody” and did not think anyone else would because “we don’t know the guy.” Ms. Forth assured defendant he could trust her friend “Cody.” Defendant told Ms. Forth to wait about 5 or 10 minutes while he asked a friend of his to get the “coke.”

About 10 minutes later, defendant came over and handed the “coke” to Ms. Forth, who in turn handed it to Agent Cooper. On cross-examination, Ms. Forth identified the packet of cocaine previously admitted into evidence as the item defendant handed her in Club 26. She elaborated that she received the blue packet from defendant and gave it to Agent Cooper. She testified that she pointed out to defendant that the cocaine was for Agent Cooper. She also stated that it was Agent Cooper who handed the money to defendant.

Defendant testified that he was seated with a friend at Club 26 when Ms. Forth introduced him to her friend (Agent Cooper). According to defendant, Ms. Forth told defendant that she knew her friend was an undercover agent and that she wanted to “rip this guy off” and split the money with defendant. Defendant testified that he did not participate in “ripping off” Agent Cooper. He denied supplying any cocaine or taking any money from Agent Cooper. He also denied telling Ms. Forth to wait 10 minutes. On cross-examination, defendant stated he never had contact with Agent Cooper.

During closing argument, the prosecutor pointed out the discrepancy between Ms. Forth’s testimony and that of defendant as to whether a delivery of cocaine occurred. He also noted that the “believability lies with the State’s witnesses and those that indicate that yes, he did, in fact, deliver a controlled substance.”

Defendant’s attorney, in his closing argument, pointed out that Agent Cooper, Ms. Forth and defendant all related different versions of what happened. He argued that there were serious questions as to what actually took place that afternoon. Finally, in rebuttal, the prosecutor pointed out that two witnesses testified that defendant delivered cocaine and only defendant said that he did not.

The jury was instructed that the State need only prove that defendant knowingly delivered a controlled substance containing cocaine. The jury found defendant guilty, and he was sentenced to four years in prison. Defendant filed this timely appeal.

Defendant presents two contentions regarding his claim of ineffective assistance of counsel. He first maintains that a per se denial of his right to the effective assistance of counsel resulted from his trial attorney eliciting testimony from Ms. Forth that contradicted his testimony that he did not deliver cocaine to anyone. Second, he argues that he was denied the effective assistance of counsel even if there was no per se denial.

A defendant who alleges a denial of his sixth amendment right to the effective assistance of counsel must generally meet the two-pronged test set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, to establish a valid claim. (People v. Chandler (1989), 129 Ill. 2d 233, 242.) To prevail on such a claim, “a defendant [must] prove (1) that his counsel’s performance was deficient by having made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the sixth amendment, and (2) that his counsel’s deficiencies prejudiced the defendant.” (Chandler, 129 Ill. 2d at 242.) “[A] defendant must show that his counsel’s errors were so serious that they deprived the defendant of a fair trial, [that is,] a trial whose result is reliable.” (Chandler, 129 Ill. 2d at 242.) The scrutiny of counsel’s performance must be highly deferential, and a reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Chandler, 129 Ill. 2d at 242-43.

In rare cases, the ineffectiveness of counsel will be presumed without application of the two-part Strickland test. (Chandler, 129 Ill. 2d at 243.) Where counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, there has been a denial of sixth amendment rights that makes the adversary process itself presumptively unreliable. (Chandler, 129 Ill. 2d at 243; see People v. Hattery (1985), 109 Ill. 2d 449, 461.) This rule must be narrowly construed, however, to avoid a defense attorney conceding his client’s guilt for the purpose of laying the groundwork for a later reversal. People v. Johnson (1989), 128 Ill. 2d 253, 269.

The facts in this case do not establish a per se denial of defendant’s sixth amendment right to counsel such that defendant is excused from meeting the burden of the two-pronged ineffective assistance of counsel test. This is not a case where defendant’s attorney failed to subject the prosecution’s case to a meaningful adversarial test. He did not at any time concede defendant’s guilt. Furthermore, he cross-examined Agent Cooper as to the particulars of the delivery and attempted to point out discrepancies between Agent Cooper’s trial testimony and his written report. He also introduced evidence, by way of Ms. Forth’s testimony, that contradicted various facets of Agent Cooper’s testimony. Finally, he argued that Agent Cooper’s testimony was not credible because it varied from Ms. Forth’s and defendant’s testimony. Having concluded that trial counsel’s representation of defendant was not per se ineffective assistance of counsel, we next consider defendant’s claim under the two-part Strickland test.

Our supreme court has stated that “[c]laims of ineffective assistance of counsel may be disposed of on the ground that the defendant suffered no prejudice from the claimed errors, without deciding the first prong, whether the errors were serious enough to constitute less than reasonably effective assistance.” (Johnson, 128 Ill. 2d at 271.) In this regard, defendant argues that he was prejudiced by the testimony of Ms. Forth, because, without it, the jury would have been left to assess his credibility solely on the basis of Agent Cooper’s testimony.

The decision to have Ms. Forth testify as to the particulars of the cocaine delivery did not prejudice defendant in this case. Agent Cooper’s testimony, standing alone, would have been sufficient to support a guilty verdict. While the case hinged on the credibility of the witnesses, we cannot conclude to a reasonable probability that the jury would have acquitted defendant had Ms. Forth not testified. See Johnson, 128 Ill. 2d at 272; People v. Caballero (1989), 126 Ill. 2d 248, 262-63.

Even were we to address the reasonableness of trial counsel’s decision to have Ms. Forth testify regarding the details of the delivery, we conclude that such decision was within the range of competence demanded by criminal attorneys and was not so serious an error that counsel failed to provide the assistance of counsel required by the sixth amendment. We also note that to establish a deficiency, defendant must overcome the strong presumption that the challenged action or lack of action might be the product of sound trial strategy. (Caballero, 126 Ill. 2d at 260; see People v. Albanese (1984), 104 Ill. 2d 504, 525-26.) It is apparent from Ms. Forth’s testimony and defense counsel’s closing argument that defendant’s counsel attempted to create a doubt about the credibility of Agent Cooper’s testimony regarding the particulars of the drug transaction. Considering the nearly unequivocal testimony of Agent Cooper, defense counsel had few, if any, options available to him. While Ms. Forth’s testimony also was contrary to defendant’s in that defendant testified that he made no delivery to anyone and accepted no money from anybody, we cannot say that defense counsel’s effort to paint three versions of what happened, two of which countered Agent Cooper’s, was not a sound trial strategy in light of the evidence against defendant. As such, defendant has failed to overcome the strong presumption that defense counsel’s conduct fell within the wide range of reasonable professional assistance.

For the foregoing reasons, we affirm the judgment of the circuit court of Stephenson County.

Affirmed.

WOODWARD, J., concurs.

JUSTICE BOWMAN,

dissenting:

I respectfully dissent from the majority opinion. Our supreme court has pointed out that the two-pronged test for ineffectiveness of counsel should not be viewed as “mechanical rules” and that the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. (People v. Caballero (1989), 126 Ill. 2d 248, 282.) While there is a strong presumption that the challenged action or lack of action might be the product of “sound trial strategy” (Caballero, 126 Ill. 2d at 260), not all conduct committed under the guise of trial strategy should be excused if it denies a defendant the effective assistance of counsel. Even when presented with a difficult case, counsel must provide reasonably effective assistance to a defendant. People v. Chandler (1989), 129 Ill. 2d 233, 250.

While at first blush counsel’s conduct appears to be justifiable as trial strategy, it is a strategy that effectively denied defendant a reasonable defense. By allowing Ms. Forth to testify that defendant delivered the cocaine to her rather than to Agent Cooper, defendant’s own attorney introduced evidence sufficient to convict him absent Agent Cooper’s testimony. (See People v. Bell (1978), 58 Ill. App. 3d 197, 198.) As a result of defendant’s attorney’s strategy, the jury was presented with two bases of guilt, the State’s version that defendant delivered the cocaine to Agent Cooper directly and Ms. Forth’s version that he delivered it to her first.

Moreover, Ms. Forth testified that the cocaine was for defendant and that Agent Cooper gave money to defendant for the cocaine. Consequently, Ms. Forth’s testimony bolstered the State’s theory that defendant intended to deliver the cocaine to Agent Cooper. This was prejudicial to defendant’s defense regardless of whether defendant testified.

Furthermore, defendant’s case suffered in the eyes of the jury by virtue of the seemingly inconsistent stories presented by his counsel. His first witness, Ms. Forth, told one version. He told a completely different story. There is a strong likelihood that such internal inconsistencies in the defense would not have been received favorably by the jury.

While defense counsel’s approach, attempting to attack the credibility of the State’s occurrence witness, would seem to be a reasonable defense under the circumstances, it was rendered completely unreasonable by Ms. Forth’s testimony that defendant delivered the cocaine to her with the knowledge it was for Agent Cooper. Ms. Forth’s testimony was sufficient to support a guilty verdict absent any evidence by the State. The ineffectiveness of such an approach was accentuated by defendant’s testimony, which consisted of a denial of any delivery or transaction.

Had Ms. Forth not testified, the jury would have been left to decide whether to believe defendant or Agent Cooper. While such a decision is ultimately beyond this court’s contemplation, it is evident that the jury must have been heavily persuaded in favor of the State after hearing defendant’s own witness testify that he delivered cocaine to her.

Finally, defense counsel’s apparent motivation for having Ms. Forth testify, to create a contradiction with Agent Cooper’s testimony, was misguided at best. Rather than contradicting Agent Cooper’s testimony, Ms. Forth offered a version very similar to Agent Cooper’s with only immaterial differences. Under the law, and consistent with the instructions in this case, the State need only prove a knowing delivery. Whether the delivery was to Agent Cooper or to Ms. Forth is of no consequence to the crime charged. The immateriality of any discrepancies between Agent Cooper’s and Ms. Forth’s testimony is further evidenced by the prosecutor’s closing argument wherein he pointed out that two witnesses testified that defendant delivered cocaine. Thus, defense counsel assisted the State in proving its case rather than attacking it. Under these circumstances, defendant was denied a fundamentally fair proceeding, the outcome of which was the direct result of defense counsel’s conduct. Accordingly, I believe that defendant was denied the effective assistance of counsel under the sixth amendment.