author: JUSTICE CHAPMAN JUSTICE RARICK,

text:
    PAUL L. CARVER et al., Plaintiffs-Appellants, v. BOND/FAYETTE/EFFINGHAM REGIONAL BOARD OF SCHOOL TRUSTEES et al., Defendants-Appellees.
    Fifth District
    No. 5 — 89—0091
    Opinion filed August 21, 1990.
    Rehearing denied September 26,1990.

      Patrick J. Hitpas and John Hudspeth, both of Patrick J. Hitpas, P.C., of Carlyle, for appellants.
    Don Sheafor, State’s Attorney, of Vandalia, for appellee Bond/Fayette/ Effingham Regional Board of School Trustees.
    Dennis Middendorff, State’s Attorney, of Carlyle, for appellee Clinton/ Washington Regional Board of School Trustees.
    David L. Miller, of Corbell & Miller, of Vandalia, for appellee Mulberry Grove Community Unit School District No. 1.
   JUSTICE CHAPMAN

delivered the opinion of the court:

A joint petition for detachment and annexation was filed on behalf of the Carvers and the Barths (appellants), who sought detachment of certain real property from the Mulberry Grove Community Unit School District No. 1 (Mulberry School District), and annexation to the Carlyle Community Unit, School District No. 1 (Carlyle School District). After an administrative hearing conducted before the Regional Board of School Trustees of Bond, Fayette and Effingham Counties (B/F/E Board), and before the Regional Board of School Trustees of Clinton and Washington Counties (C/W Board), the two boards took separate votes on the issue presented by the petition. The B/F/E Board voted four votes against and three votes in favor of detachment and annexation. The C/W Board voted four votes in favor and zero votes against the petition. The regional superintendent of schools of Bond, Fayette and Effingham Counties thereupon entered an order denying the prayer of the petition. Appellants filed a complaint for judicial review in the circuit court. The circuit court denied the relief sought. It is from the circuit court’s decision that the Carvers and the Barths appeal.

The appellants first contend that it was error for the B/F/E Board and the C/W Board to vote separately on the petition and to render separate orders. Appellants argue that a reversal of the cause is mandated because the requirements of the School Code were not followed.

Appellants refer in particular to sections 7 — 2 and 7 — 6 of the School Code. (Ill. Rev. Stat. 1989, ch. 122, pars. 7 — 2, 7 — 6.) Appellants point out that the statutory language in sections 7 — 2 and 7 — 6, referring to joint hearings, was recently added with the enactment of Public Act 85 — 260. (Pub. Act 85 — 260, eff. Jan. 1, 1988.) Pertinent provisions of section 7 — 2 of the School Code as they read prior and subsequent to the enactment of Public Act 85 — 260 are as follows:

“Boundaries of existing school districts lying within two or more counties may be changed by detachment, annexation, division, dissolution or any combination thereof by the concurrent action of, taken following a joint hearing before, the regional boards board of school trustees of each region affected. *** (a) the region in which the regional superintendent of schools has supervision ever the district from which the petition seeks to have territory detached 444 and (fe) the regional board of school trustees of the region in which the regional superintendent of schools has supervision ever the district to which the territory is proposed to he annexed.” (Additions in text are indicated by underline; deletions by strikeouts.) 1987 111. Laws 1550.

Prior to changes implemented by Public Act 85 — 260, section 7 — 6 also did not include any reference to a joint hearing by the regional boards of school trustees. The pertinent changes implemented by the act with regard to section 7 — 6 are:

“Within 10 days after the conclusion of a joint hearing required under the provisions of Section 7 — 2, each regional board of school trustees shall meet together and render a decision with regard to the joint hearing on the petition. If the regional boards of school trustees fail to enter a joint order either granting or denying the petition, the regional superintendent of schools for the educational service region in which the joint hearing is held shall enter an order denying the petition ***.
* * *
When more than one regional board of school trustees rv*| n flf O /it f n A ATI A A An m tt a* 1a a V\ a! ill AA A Afll 1 «T t! ATT aa! AHI A A1 1x1 Uo t d vLi 111 v v 11U 11Uul illg LIIU jU U 1>11/1U11 oilcv11 clX LUI Ull lJUl lllc its final order send forthwith a certified copy of the transcript ef the hearing and rehearing, if any, te the other regional board who shall within 30 days conduct a hearing as provided in this section en the transcript and cither grant or deny the request in the petition/’ (Additions in text are indicated by underline; deletions by strikeouts.) 1987 111. Laws 1552-53.

The primary rule of statutory construction is that the court must ascertain and give effect to the intent of the legislature. (People v. Robinson (1982), 89 Ill. 2d 469, 475, 433 N.E.2d 674, 677.) This is to be done primarily from a consideration of the statutory language itself, which affords the best means of its exposition, and if the legislative intent can be ascertained therefrom it must prevail and will be given effect without resorting to other aids for construction. Franzese v. Trinko (1977), 66 Ill. 2d 136, 139, 361 N.E.2d 585, 587.

Appellants argue that the current statutes include numerous references to “joint hearing” and “decision,” as opposed to the statutory language prior to Public Act 85 — 260, regional boards of school trustees meeting jointly must vote as a single deliberative body and render a single decision on a petition.

An examination of the language used in the statutes reveals that the legislature did not intend the regional boards to vote as one body or to render a single decision based on a cumulative tally of their votes. The substantive change implemented in the current version of section 7 — 2 is the requirement that the regional school boards hear and consider the evidence at a joint hearing, instead of the former practice of one board hearing the evidence first hand, and then forwarding a transcript of the proceedings to the other board for review. We note that both the current version of section 7 — 2 and its predecessor provide that the action to be taken by the regional boards is concurrent. The words “concurrent action” do not mean or imply joint action, but the independent action of each board, acting separately, each agreeing to such change. (Compare People ex rel. Chamberlin v. Trustees of Schools of Township No. 1 (1943), 319 Ill. App. 370, 378, 49 N.E.2d 666, 671 (interpreting similar statutory language of Ill. Rev. Stat. 1941, ch. 122, par. 47).) Had the legislature intended the boards to act jointly, both during their hearings and their voting, it is illogical that the statutes would have referred only to joint hearings while referring to the board’s actions as concurrent in section 7 — 2. We cannot hold to the contrary because we are not authorized to declare that the legislature did not mean what the plain language of the statute imports. Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350,167 N.E.2d 169, 173-74.

Recognizing that statutory provisions relating to the same subject matter should be construed harmoniously (Howard v. Board of Education of Freeport School District No. 145 (1987), 160 Ill. App. 3d 309, 312, 513 N.E.2d 545, 546), we note that the language of section 7 — 6 lends support for this interpretation; While the statute reads “each regional board of school trustees shall meet together and render a decision,” the implication that “a decision” contemplates a cumulative tally of the votes is weakened by the last sentence of section 7 — 6. Had the legislature intended the regional boards to vote as one body with the votes cumulatively tabulated, this sentence would be meaningless. We will not assume that the legislature engaged in a meaningless act. Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 388-89, 415 N.E.2d 1034, 1041, cert, denied (1981), 451 U.S. 921, 68 L. Ed. 2d 312, 101 S. Ct. 2000.

Based on the foregoing, we find that the regional school boards did not err in voting separately and rendering separate decisions on the petition.

Appellants next argue that the administrative and judicial decisions denying the petition for detachment and annexation are contrary to the manifest weight of the evidence.

Section 7 — 2.6 outlines the factors to be considered by the regional boards of school trustees in cases of a joint hearing on a petition for detachment and annexation:

“The Hearing Board (a) shall hear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto, and as to the ability of the districts affected to meet the standards of recognition as prescribed by the State Board of Education, (b) shall take into consideration the division of funds and assets which will result from any change of boundaries, and the will of the people of the area affected, and (c) shall determine whether it is to the best interests of the schools of the area and the educational welfare of the pupils should such change in boundaries be granted.” (111. Rev. Stat. 1989, ch. 122, par. 7-2.6.)

In determining whether the change in boundaries will be in the best interest of the educational welfare of the pupils, the hearing boards must consider:

“(1) the differences between the districts’ facilities; (2) the effect detachment will have on either district’s ability to meet statutory standards of recognition; (3) the effects on tax revenues; (4) the relative distances of the districts from students’ homes; (5) identification of the detaching area with the annexing district; (6) the likelihood of child and parent participation in school activities, and (7) the convenience and personal desires of parents and children.” (Phillips v. Special Hearing Board (1986), 154 Ill. App. 3d 799, 805, 504 N.E.2d 1251, 1255.)

With these factors in mind, we will examine the report of proceedings to determine whether the decision below was contrary to the manifest weight of the evidence.

The boundary line between the Mulberry School District and the Carlyle School District lies immediately south of an 80-acre tract owned and occupied by the Barths. The Carvers reside on a tract approximately one acre in size, lying immediately north of the Barth property. Both parcels of property are in the Mulberry School District.

At the hearing on the petition for1 detachment and annexation, appellants testified that they were the only residents and registered voters of the area sought to be annexed. Both the Carvers and the Barths live approximately three miles from Keyesport, and identify vfith the City of Keyesport, which is in the Carlyle School District. The Carvers attend church in Keyesport, have relatives in that area, and are active in the Keyesport community.

Both the Carvers and the Barths testified that they each have one child of school age. Christine Carver testified that their son Nicolas, age six, had just completed kindergarten. He had been in a daycare preschool setting for V-k years before he started kindergarten and did very well in that program. She testified, however, that when he began kindergarten he started to exhibit aggression and would often complain about not wanting to attend school. Nicolas would often cry, fuss, wet his bed, and was generally uncooperative to the point where Mrs. Carver “did not know what to do with him.” Mrs. Carver testified that at Mulberry grade school Nicolas had difficulty learning some of the letters of the alphabet, but that he did not seem to have as much trouble learning his numbers. When asked on cross-examination whether Mrs. Carver questioned Nicolas’ teacher’s disciplinary tactics and her evaluation of his knowledge of letters and numbers, Mrs. Carver stated, “My question was that a certain amount of wiggling is to be expected in most five year olds. *** There were some letters that he had demonstrated both to his father and I [sic] that he did know at home that were reported as not being learned *** throughout the school year.”

Mrs. Carver consulted with a doctor, and with the school principal at both Mulberry grade school and the Carlyle grade school, regarding her son’s behavior and academic progress. She testified that Nicolas’ doctor determined that his bed-wetting was not due to any physical problem. She stated that the doctor agreed that it might be necessary to remove Nicolas from the Mulberry kindergarten class. Mrs. Carver testified that when she consulted with the Mulberry grade school principal in January, it was suggested to her that it might be necessary to test Nicolas for the special education program.

After consulting with the Carlyle school principal, the Carvers enrolled Nicolas at Carlyle in February of his kindergarten year. At Carlyle he was placed in the “at risk” program at the recommendation of the school principal. The “at risk” program, which Mulberry grade school does not have, provides a classroom setting for grades kindergarten through third, where there are in full-time attendance a teacher, a remedial teacher, and a teacher’s aid. The Mulberry grade school principal described the “at risk” program as one providing an ideal classroom.

Mr. and Mrs. Carver testified that after their son enrolled at Carlyle, they noticed a marked difference in his attitude and behavior. He has calmed down, has a much more pleasant personality, and has for the most part stopped wetting his bed. Although the Carvers expressed no ill will toward the Mulberry School District, they believe it in their son’s best interest that he attend school in the Carlyle School District.

James and Maxine Barth each testified as to why they desired to have their property annexed into the Carlyle School District. Their daughter Barbara had done reasonably well her first eight years of school. Mr. Barth testified that through grade school Barbara earned A’s and B’s. In junior high school Barbara earned B’s and C’s. When she reached her sophomore year, however, she barely passed, earning D’s and F’s. During her sophomore year Mr. Barth was called to conferences with the school principal regarding his daughter’s truancy and disciplinary problems. Mr. Barth testified that although solutions to Barbara’s problems were suggested at Mulberry High School, nothing worked. He testified, “She hated the school. She hated to go. She was 16. She could have quit; but, I’m not going to let her.”

The testimony of Mr. Barth also revealed that Barbara had a drug dependency problem. The Barths testified that Barbara ran with a circle of friends at Mulberry that contributed to many of her problems. Bill Donaldson, the Mulberry Junior-Senior High School principal, confirmed this. He testified that he believed Barbara’s problems stemmed from “the four individuals that she was running with” at school. Donaldson testified that whenever Barbara was truant or was cited for other disciplinary infractions, he would telephone either Mr. or Mrs. Barth. Donaldson stated that although he perceived that Barbara had a problem with either drugs or alcohol, to his knowledge she “has never *** been involved in our school district as far as discipline is concerned as it relates to drug[s] or alcohol.”

James Barth testified that when Barbara attended the Mulberry school he never received a telephone call on the same day Barbara was truant or violated a disciplinary rule, but that he did receive letters from the school a few days later. When Barbara enrolled at Carlyle High School her truancy problems stopped. Mr. Barth recalled that Barbara was truant one afternoon, but within the hour Mrs. Barth received a telephone call from the school. The Barths were aware of no other disciplinary problems once Barbara enrolled at Carlyle High school. Her grades improved and her attitude toward school also improved.

The Barths testified that they believed the Carlyle School District to have a much broader curriculum than Mulberry School District because Barbara was amazed at the alternatives she had to choose from when she enrolled at Carlyle. Mrs. Barth testified, however, that they are not critical of the educational environment at Mulberry. She stated that Barbara’s problems were “her own doing. It wasn’t the teachers or anything at the school.”

Neither the Barths nor the Carvers expressed any dissatisfaction with the bus service in the Mulberry School District. Furthermore, annexing into the Carlyle School District would not appear to pose a burden on the district, as Robert Evans, superintendent of Carlyle Unit 1 testified that the Carlyle school buses currently run up to the Barth property.

At the time of the hearing, Nicolas Carver and Barbara Barth were attending school in the Carlyle School District. The Carvers and the Barths were paying tuition to enable their children to attend the Carlyle schools. Both the Carvers and the Barths testified that they would continue to pay tuition if necessary. Robert Evans testified that as long as they pay tuition and the students are residents of the district, the students would be calculated into the formula to determine the amount of State aid the Carlyle School District would receive. Paul Seymour, superintendent of the Mulberry School District, testified that the loss in State aid for the coming school year should the two children attend Carlyle schools would amount to approximately $3,500. Although the detachment would not affect the district’s ability to meet statutory standards of recognition, he stated that detachment would result in a financial loss to the district of somewhere between $1,300 and $1,500 in property tax revenues.

Our supreme court has ruled that much more is needed to support a change in established boundaries than the personal desires or convenience of the petitioners. The welfare of the affected districts and their students as a whole must control rather than the wishes of a few, and petitions should be granted only where the benefit derived by the annexing and affected areas clearly outweighs the detriment resulting to the losing district and the surrounding community as a whole. Oakdale Community Consolidated School District No. 1 v. County Board of School Trustees (1957), 12 Ill. 2d 190, 193-94, 145 N.E.2d 736, 737; Board of Education of Golf School District No. 67 v. Regional Board of School Trustees (1982), 89 Ill. 2d 392, 397, 433 N.E.2d 240, 243.

The record supports the conclusion that the only significant gain which would result were the petition allowed would be to the petitioners. As it is the welfare of the students and the districts as a whole which must govern in the consideration of an annexation petition (Oakdale, 12 Ill. 2d at 193, 145 N.E.2d at 737), we conclude that the decision of the regional superintendent and the circuit court was not contrary to the manifest weight of the evidence.

Finally, appellants argue that the order of the regional superintendent should be reversed for failure of the B/F/E Board to examine or review the exhibits submitted by the petitioners.

Section 7 — 6 of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 7 — 6) provides that the regional boards of school trustees “shall base their decision upon the transcript, maps and information and any presentation of counsel.” The record reflects that an advance written report of the financial and educational conditions of the school districts and the probable effects of the proposed change was submitted to the school boards, as well as maps showing the districts involved and the area described in the petition. The exhibits submitted by appellants at the hearing included grade reports of the children, bus route schedules for the Carlyle School District, a Carlyle High School course catalog, and appellants’ 1987 real estate tax bills. While there is nothing in the record to indicate that either of the regional boards received or discussed the appellants’ exhibits prior to taking their vote, the report of proceedings demonstrates that the substance of these exhibits was presented to the board. (See Board of Education of Pearl City Community Unit School District No. 200 v. Regional Board of School Trustees (1981), 98 Ill. App. 3d 599, 603, 424 N.E.2d 808, 811-12; Savanna Community High School District No. 200 v. County Board of School Trustees (1966), 73 Ill. App. 2d 202, 205, 218 N.E.2d 811, 812.) We note that although there is no indication that either regional board examined appellants’ exhibits, the C/W Board voted in favor of detachment. We find that no showing of prejudice has been made by the appellants and that there was substantial compliance with the requirements of section 7 — 6.

In light of the foregoing, we affirm the judgment of the Circuit Court of Bond County.

Affirmed.

WELCH, J., concurs.

JUSTICE RARICK,

dissenting:

Because I disagree with my colleagues’ interpretation of section 7 — 2 of the School Code, I respectfully dissent. The majority reads section 7 — 2 to require a joint hearing by both boards, but separate action by each board. They find support for this position in section 7— 6. While acknowledging that the phrase “each regional board of school trustees shall meet together and render a decision” implies a cumulative tally of votes, the majority maintains that the second sentence of section 7 — 6 weakens such interpretation. The second sentence of section 7 — 6 states that “[i]f the regional boards of school trustees fail to enter a joint order either granting or denying the petition, the regional superintendent of schools for the educational district service region in which the joint hearing is held shall enter an order denying the petition.” (Emphasis added.) (1987 Ill. Laws 1552.) Far from supporting the majority’s opinion, section 7 — 6, I believe, clearly demonstrates the legislature’s intent that the regional boards involved meet and vote as a single body. Furthermore, given that the school trustees are to hear the petition jointly, logic dictates that where a majority of those trustees hearing the petition are in favor of it, the petition should be approved. For this reason, I dissent.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    MARATHON OIL COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Joseph Broussard, Appellee).
    Fifth District (Industrial Commission Division)
    No. 5 — 89—0738WC
    Opinion filed August 22, 1990.

      Gregory C. Ray, of Craig & Craig, of Mattoon, and Thomas C. Lowry, of Marathon Oil Company, of Robinson, for appellant.
    Serkland & Muelhausen, of Chicago (James C. Serkland, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Joseph Broussard, sought workers’ compensation benefits following an injury suffered while working for respondent, Marathon Oil Company. An arbitrator awarded $344 per week for 596/? weeks as temporary total disability benefits, and $344 per week for life as permanent total disability benefits. The Industrial Commission (Commission) modified that decision. It affirmed the award of $344 per week for 606/? weeks as temporary total disability. However, it awarded $293.61 per week for 250 weeks after finding him permanently disabled to the extent of 50%. The trial court reversed the Commission’s decision, finding it against the manifest weight of the evidence, and remanded with directions to compensate petitioner for permanent and total disability. On appeal, respondent contends that the trial court erred in holding that the Commission’s finding of 50% permanent disability was against the manifest weight of the evidence.

On November 1, 1984, the 46-year-old petitioner was at work, helping move oil tanks from a truck when a 1,000-pound skid slipped off a truck, hit him on the head, knocked him to the ground and landed on his pelvis. Petitioner suffered a fractured pelvis, a sprained ankle and a cervical contusion.

Dr. Turner treated petitioner. He performed an insertion of external pelvis fixation with closed reduction of pelvic suprapubic symphysis diastasis on November 7, 1984. In February 1985, petitioner returned to work for three weeks, but testified that he could not perform the duties, and complained to his physician of tingling in his hands when he bent his neck.

In March 1985, Dr. Turner referred petitioner to Dr. Emil Weber, a neurologist. Dr. Weber examined petitioner and diagnosed a probable spinal cord contusion associated with the accident, and with the osteoarthritic ridging and a narrowed spinal canal leading to the electricity sensation which Dr. Weber referred to as a “Lhermitte’s Phenomenon.” On March 28, 1985, Dr. Weber performed a laminectomy at CS, C4, C5 and C6.

On April 3, 1985, petitioner reported some improvement in the Lhermitte’s Phenomenon. On June 7, 1985, petitioner reported these symptoms had ceased except when triggered by light percussion on the back of his neck in the surgical incision area. On July 28, 1985, petitioner was readmitted to the hospital for tests when the symptoms persisted. A myelogram was normal, as was a CT scan. A cervical collar relieved any further symptoms of Lhermitte’s Phenomenon. On September 3, 1985, petitioner reported to Dr. Weber that the collar helped, but that he experienced intermittent parethesia to the extremities with a jolt or concussive force.

On September 3, 1985, Dr. Weber released petitioner for work, with the limitation that he not climb ladders or be in a position from which he might fall if the electric phenomenon occurred. Thus, he should not work near moving gears and belts in case he collapsed into the machinery. Petitioner did not return to work. He saw Dr. Turner again, complaining of left knee problems. On September 19, 1985, Dr. Turner performed an arthroscopic examination of petitioner’s knee. Dr. Turner released petitioner for work, from an orthopedic standpoint, on October 14, 1985.

On December 26, 1985, petitioner returned to work, sweeping, mopping, waxing, dusting and carrying things. He did not climb ladders or work near machinery. Petitioner testified he could perform the janitorial duties, but continued to experience problems. On January 7, 1986, petitioner complained that the electricity sensations and numbness in his shoulder, neck and arm bothered him. On January 7, 1986, Dr. Kirkwood, the company doctor, examined petitioner and sent him back to work. Petitioner has not returned to work since that day.

On January 14, 1986, Dr. Michael Laws, a neurologist, examined petitioner. He diagnosed chronic neck pain with evidence of Lhermitte’s Sign. He found an inconsistent sensory loss in the arms and legs and a decrease in flexion and extension and rotation of the neck. Dr. Laws referred petitioner back to Dr. Weber.

On February 6, 1986, petitioner told Dr. Weber that at work he was involved in vigorous physical activity such as lifting, pushing and pulling. Dr. Weber stated that, “he felt like he could not do this kind of work, that he physically was incapable of doing it and there was no objective way I had to make an evaluation other than that.” Dr. Weber believed petitioner could perform sedentary work such as stock clerk duties. Petitioner has not since returned to Dr. Weber.

Dr. Weber testified that he believed petitioner should be restricted to light duty. The Lhermitte’s condition was probably permanent. Maximum healing had been reached by February 6, 1986. Since September 1985, the condition was essentially the same.

On May 7, 1986, Dr. Barry Lake Fischer examined petitioner. In an evidence deposition, Dr. Fischer opined that petitioner was not employable in any recognized branch of the labor market. The disability was due to the electric shock phenomenon, which Dr. Fischer “could obviously not objectively demonstrate during the physical examination.” Petitioner also had hip and knee problems. Dr. Fischer agreed with the restrictions suggested by Dr. Weber, with the addition of no driving.

On cross-examination, Dr. Fischer testified that petitioner could perform a well tester job, depending on the question of driving and the use of tools and the weight of meters. Petitioner could perform light duty work, if consistent with his vocational capacity. Dr. Fischer did not believe that petitioner simply was not interested in returning to work.

Dr. John Gapsis testified for respondent that he examined petitioner on March 4, 1986. He found no gait abnormality or deviation. Cervical range of motion was full and complete. Neurologic examination was overall normal. Dr. Gapsis found that petitioner was not totally disabled. He opined that, “for whatever reason, this man is not interested in returning to gainful employment no matter how his job is modified or adapted to his capabilities by the employer.” Petitioner would need some restrictions, but he could perform in some physical capacity.

Petitioner testified that he had a 10th-grade education. He drove his car most days. He walked frequently, and also went mushroom hunting. Each time he took a step, he felt tingling through his neck and shoulders. He could carry laundry and a few grocery bags to the house, but it bothered him. He could mow the lawn for 45 minutes to an hour, using a riding and a power mower. Petitioner could not perform the well tester job because it involved driving a pickup truck, taking meters off and using a wrench. Driving a truck could jar his neck, causing electricity to run through his body. Even when he drove his car this occurred. Petitioner also testified that his weak knee, ankle and hip, and the electricity phenomenon and numbness in his arms, hands, chest and neck, still troubled him.

On September 3, 1986, the arbitrator found that petitioner was temporarily totally disabled to December 26, 1985, and permanently totally disabled after that date.

In April and June 1987, the Commission heard additional evidence.

Anna Collins, an outreach worker for a community action agency, testified for respondent that petitioner had helped unload a commodity/cheese truck nine times in July, October, November and December 1986, and in January, February and April 1987. He unloaded cartons of cheese, rice, honey, milk and cornmeal. The cartons each weighed 25 to 51 pounds. Petitioner told Collins he did not care if he was observed working. Petitioner never complained of neck problems while working.

Howard Kirchoff testified for respondent that in July 1986, he was working as a private investigator and undertook a surveillance of petitioner at the request of respondent. On July 7, Kirchoff saw petitioner driving and unloading several cartloads of smashed aluminum cans from a pickup truck. On July 10, he saw petitioner driving. In December 1986, Kirchoff saw petitioner driving and apparently working under the hood of his car. On January 8, 1987, he saw petitioner unloading boxes from a truck and carrying them into a building, for 1 to V-k hours. The bed of the truck was four feet high. Petitioner walked 25 to 30 feet into the building, and stacked boxes from four inches off the ground up to shoulder height.

Terry Reed testified for respondent that he performs personnel duties for respondent. On January 8, 1987, Reed saw petitioner unloading a cheese truck.

Fred Newman testified for respondent that he was an employee relations representative for respondent. In December 1986, Newman spoke with petitioner and John Farrell. Petitioner reported that he could not return to work on a light duty basis. On March 2, 1987, Newman spoke with petitioner, who said he knew an investigator had been following him. Petitioner admitted unloading the cheese truck, cutting wood, and riding a motorcycle. Petitioner said that he did it to “test” himself and determine his limitations.

Dr. Robert Kuhlman, an orthopedic surgeon, testified for respondent in an evidence deposition. He examined petitioner on February 9, 1987. His objective findings were largely negative and did not support a need to impose work restrictions. There was a 20-degree loss of right lateral rotation and a 10-degree loss of full flexion of the cervical spine. Petitioner had excellent strength in both hands, and no muscle atrophy was noted. Sensation was intact over both upper extremities, and his reflexes were equal and active at the level of the elbow. Dr. Kuhlman could not duplicate the electrical shocks.

Dr. Kuhlman believed petitioner appeared able to return to many types of work. Any limitations or restrictions would be related to subjective complaints in regard to the neck. He should be able to perform janitorial functions, or work involving travel by light truck or car, or work involving walking or standing for periods of 15 minutes to an hour. Petitioner should be able to do such work as mopping, sweeping, or cleaning windows, since it was quite unlikely that such activities would generate the subjective complaints petitioner made.

Certain types of manual labor might lead to problems and would put petitioner at more risk than a normal individual. However, Dr. Kuhlman saw no evidence of instability in the cervical spine. Objectively, he could find no specific reason why petitioner could not engage in work involving relatively normal activities. He should perhaps avoid violent types of jerking activities to the neck. Otherwise, his abilities would have to be determined on a trial and error basis. In regard to petitioner’s subjective complaints, Dr. Kuhlman could not duplicate the symptoms upon examination.

Petitioner testified on review that he helped unload the cheese truck three or four times. The first time was in January 1987. The reason his name appeared on the list prior to that date is because his wife helped, but his name was put on the list. He only carried things that were not heavy. It was only 10 feet from the truck to the pallet where he stacked the boxes. The work bothered him quite a bit. He experienced a strain on his body, with electricity and numbness running through him. He had to go home and rest after unloading the truck.

On cross-examination, petitioner stated that he did not recall whether he unloaded the cheese truck before January 1987. In spite of the videotape taken by the investigator, petitioner refused to say whether or not the videotape showed him unloading the cheese truck. He would only say it looked like him.

Petitioner testified that when he referred to cutting grass in speaking to respondent’s employees, he meant he showed his son where to start cutting, and how to turn the gas on and check the oil. It was hard for him to bend down and show his son these things. On cross-examination, petitioner testified that he partially mowed his mother-in-law’s lawn in July 1986. In 1985, he cut only one to three logs and did no other wood cutting. After that, petitioner held the wood while the neighbor cut it. Even that bothered his neck, shoulder, arm and fingers. In the fall of 1986, he stood around while his neighbor cut wood, but he denied cutting the wood himself.

Petitioner stated that no matter what activities he performed, he still had the same symptoms. He had ridden his motorcycle since the accident, but it jarred him. In 1985 he stopped riding it, on his doctor’s advice. Even when petitioner performed sedentary work such as Bible study, it strained his neck, shoulder and arm. Reading and writing caused tension in his neck and arms. He could only, do such work for 15 or 20 minutes at a time.

At one point, petitioner did a lot of walking, but he tired easily, his left ankle became swollen, his left hip weakened and his left knee felt weak. Up until three weeks before the June 26, 1987, testimony, petitioner had walked every evening for an hour, with four or five breaks. Petitioner stated that his pelvis feels like it is grinding. He has trouble with his neck if he rides in a car too long.

The Commission found petitioner temporarily totally disabled from the date of the accident until February 6, 1986. It found him permanently partially disabled to the extent of 50% of the man as a whole.

On October 10, 1989, the trial court reversed the Commission, finding its decision was against the manifest weight of the evidence. It found that petitioner fell into the “odd lot” category, and that respondent did not sustain the burden that shifted to it to show appropriate work was available to petitioner. The court ordered the arbitrator’s award reinstated.

On appeal, respondent maintains the decision of the Commission that petitioner did not fall into the “odd lot” category was not against the manifest weight of the evidence.

An employee is totally and permanently disabled under workers’ compensation law where he is unable to make some contribution to industry sufficient to justify payment of wages to him. (Freeman United Coal Mining Co. v. Industrial Comm’n (1984), 99 Ill. 2d 487, 459 N.E.2d 1368.) He must show that he is, for practical purposes, unemployable. (Freeman United Coal Mining Co. v. Industrial Comm’n, 99 Ill. 2d 487, 459 N.E.2d 1368.) A person need not be reduced to a state of total physical helplessness, but is totally disabled when he cannot perform services except those that are so limited in quantity, dependability or quality that there is no reasonably stable market for them. A.M.T.C. of Illinois, Inc. v. Industrial Comm’n (1979), 77 Ill. 2d 482, 397 N.E.2d 804.

The employee bears the burden of proving each element of his case, including the extent and permanency of the injury. (A.M.T.C. of Illinois v. Industrial Comm’n, 11 Ill. 2d 482, 397 N.E.2d 804.) It is within the province of the Commission to determine the factual issues, to decide the weight to be given to the evidence and reasonable inferences to be drawn therefrom, and to assess the credibility of witnesses. The Commission’s determination of these issues will not be set aside unless it is against the manifest weight of the evidence. General Electric Co. v. Industrial Comm’n (1989), 190 Ill. App. 3d 847, 546 N.E.2d 987.

Based on the medical evidence, the Commission was entitled to find that petitioner was not totally disabled. Dr. Weber prescribed limitations of no climbing ladders or working at heights where petitioner might fall if the electric phenomenon occurred. He also could not work near moving gears. While Dr. Fischer testified that petitioner was not employable, he agreed with these restrictions. Respondent’s attempts to offer janitorial or office work were refused by petitioner.

Dr. Weber believed petitioner could perform sedentary work such as stock clerk duties. Dr. Kuhlman believed petitioner could perform many types of work, including some types of manual labor. The mere fact that a worker cannot perform very strenuous physical labor does not, standing alone, entitle him to an award as permanently and totally disabled. A.M.T.C. of Illinois, Inc. v. Industrial Comm’n, 11 Ill. 2d 482, 397 N.E.2d 804.

Thus, Drs. Kuhlman, Weber, Kirkwood, and Gapsis believed petitioner could perform various jobs, with some restrictions. Dr. Gapsis was of the opinion that petitioner simply did not wish to return to “gainful employment no matter how his job is modified or adapted to his capabilities by the employer.”

The Commission could find petitioner’s subjective claims of inability to perform any work not credible. No doctor was able to find objective evidence of a disability. A Back-To-Work Center which tested petitioner indicated that petitioner had the capacity to work. In addition, petitioner’s statements to physical therapists and at the Center varied as to the level of pain he experienced. Moreover, when petitioner returned to work for a few weeks in December 1985, he was able to do the assigned work.

Other witnesses testified about petitioner’s performing various physical activities, including riding a motorcycle, unloading a cheese truck, and cutting wood. He said he did these things to “test” himself. Petitioner told Newman he had been mowing the lawn. At the arbitration hearing, petitioner testified he could mow for 45 minutes to an hour. At the hearing before the Commission, however, petitioner testified that he had never mowed the lawn and that his son had done it.

Petitioner testified that he could not drive a car or truck, because it jarred his neck. Yet, he also testified that he drove nearly every day. There was also contradictory testimony in regard to whether petitioner chopped wood and performed other physical activities.

In December 1986, petitioner said he had no ability to perform any function, even office work. Yet in December 1986, he had been unloading the cheese truck, which was also videotaped in January 1987. Petitioner admitted he had been unloading the cheese truck in January 1987, but refused to acknowledge that he was the person in the videotape. He initially stated the first time he unloaded the truck was in January 1987, but then testified that he could not recall. Petitioner testified he carried nothing heavy, but Collins testified the cartons weighed 25 to 51 pounds each. Petitioner testified that the work bothered him quite a bit, but Collins testified petitioner never complained of neck problems while working.

The trial court erred when it found the Commission’s decision was against the manifest weight of the evidence. We hold that the evidence amply supports the Commission’s determination that petitioner suffered a permanent disability of 50% of the man as a whole. We remand the case with directions to reinstate the Commission’s decision.

For the foregoing reasons, the judgment of the circuit court of Lawrence County is reversed, and the cause is remanded with directions.

Judgment reversed and remanded.

BARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


text:
    TINA MITCHELL OWENS et al., Appellants, v. THE INDUSTRIAL COMMISSION et al. (Bollmeier Construction Company, Appellee).
    Fifth District (Industrial Commission Division)
    No. 5 — 89—0786WC
    Opinion filed August 24, 1990.

      Gerald D. Owens, of Benton, for appellants.
    Edward M. Vokoun, of Evans & Dixon, of St. Louis, Missouri, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioners, Tina Mitchell Owens, Rickie Shane Owens, Loran James Owens and Kimberly Dawn Blair, the minor children of decedent, Rickie L. Owens, sought workers’ compensation benefits after decedent died of a drug overdose eight months after suffering an accident while working for respondent, Bollmeier Construction Company. An arbitrator found the claim was barred as a matter of law because a judgment in prior litigation resolved the identical issue between the same parties. (Owens v. Consolidation Coal Co. (1986), 144 Ill. App. 3d 88, 494 N.E.2d 274.) The Industrial Commission (Commission) affirmed the arbitrator’s decision, and the trial court confirmed the Commission’s decision. On appeal, petitioners contend that the workers’ compensation claim is not barred by the prior litigation.

The facts are detailed extensively in Owens v. Consolidation Coal Co., and therefore we shall only summarize them.

On October 31, 1981, decedent suffered a back injury while working for respondent. Dr. A. Sethakorn treated decedent during a 21-day hospitalization with physical therapy and medication. After being released from the hospital, decedent received a prescription for Darvon for pain, and a prescription for Tranxene, a tranquilizer. Dr. Sethakorn continued to treat decedent until his last visit on January 4,1982, when he again prescribed Darvon and Tranxene.

Dr. Sethakorn testified in an evidence deposition that, in his opinion, decedent’s condition had stabilized by January 1982, and he was able to return to work by late January or early February 1982. Decedent did not, however, return to work.

On March 3, 1982, Dr. Sethakorn prescribed a nonrenewable prescription for 30 capsules of Darvon (one every four hours), and 20 capsules of Tranxene (as needed). He instructed decedent not to use the drugs with alcohol.

On June 21, 1982, decedent’s body was found in his home. An autopsy revealed that he had died from an overdose of Darvon, Tranxene and alcohol. Dr. M.A. Gabrawy, a pathologist, opined that, given the various circumstances surrounding the death, it was likely that decedent had committed suicide.

On April 28, 1983, petitioners filed an application for adjustment of claim under the Workers’ Compensation Act (111. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.).

On February 24, 1984, a wrongful death action was filed in Owens, against Consolidation Coal Company, alleging violations of the Structural Work Act (Ill. Rev. Stat. 1983, ch. 48, par. 60 et seq.). A third-party complaint was filed against Bollmeier, respondent here. The parties exchanged interrogatories and deposed the physicians.

On April 25, 1985, the trial court entered summary judgment in Owens in favor of both Consolidation Coal and Bollmeier, finding there was no causal connection between the injury and decedent’s death.

On June 12, 1986, in Owens v. Consolidation Coal, this court held (with Harrison, J., dissenting) that summary judgment was proper because plaintiff was unable to set forth some causal link between decedent’s work-related injury and subsequent death. The court noted that the only connection between the injury and death was that the death resulted in part from drugs which had originally been prescribed for the injury. However, the dosage taken was far in excess of that prescribed; the drugs were combined with alcohol, contrary to warnings; and decedent had recovered from his injury five months earlier. The court found no specific facts or reasonable inferences from the record which could raise a triable issue of fact.

In the present case, on November 21, 1986, an arbitrator granted respondent’s motion to dismiss. On March 28, 1988, the Commission affirmed that decision. On November 1, 1989, the trial court confirmed the Commission’s decision.

On appeal, petitioners argue that the prior litigation does not bar the workers’ compensation claim because they have not had a full and fair opportunity to litigate the issue of causal connection between decedent’s death and his employment.

We find, however, that the present claim is barred under the doctrine of collateral estoppel. The doctrine applies where a prior judgment in a different action prevents relitigation of a fact issue determined on the merits in that prior action. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 461 N.E.2d 959.) The necessary elements of collateral estoppel are that the issue of fact decided in the first case is identical to the issue raised in the present action; that there was a final judgment on the merits in the first case; that the party against whom the estoppel is asserted was a party, or in privity with a party, in the prior action; and that the factual issue was actually and necessarily litigated and determined in the first case. Housing Authority v. YMCA, 101 Ill. 2d 246, 461 N.E.2d 959.

Owens involved a final judgment entered on the merits. In the workers’ compensation claim, the doctrine of collateral estoppel is asserted against petitioners, who were in privity with the parties filing suit in the prior litigation in Owens v. Consolidation Coal. Both cases were brought on behalf of the four minor dependents of decedent.

The focus of petitioners’ argument in this court is whether the claim, demand or cause of action litigated and determined in the first case is identical to the issue raised in the present action.

A cause of action may be the same in two cases, even if the relief sought in each was different. (Edwards v. City of Quincy (1984), 124 Ill. App. 3d 1004, 464 N.E.2d 1125.) Thus, we are not concerned that the previous suit sought recovery under different statutory remedies than a workers’ compensation claim. The key lies in the fact that the basis of recovery is the same under all statutory remedies asserted in the two cases.

Under the Illinois Survival Act (Ill. Rev. Stat. 1983, ch. 1101/2, par. 27 — 6), the Illinois Wrongful Death Act (111. Rev. Stat. 1983, ch. 70, pars. 1, 2), and the Illinois Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.), claimant must prove a causal connection between decedent’s death and his alleged work-related injury. Thus, the same issue was involved in Owens v. Consolidation Coal and in the present case. In Owens, this court held that there were no specific facts or reasonable inferences from the record which raised a triable issue of fact as to whether there was any causal link between decedent’s work injury and his subsequent death.

In the face of that express holding, we must conclude that the Commission properly dismissed the claim in the present suit. The identical issue necessary for recovery here has already been decided in favor of respondent in the prior litigation. The purpose of collateral estoppel and res judicata is to protect litigants from the burden of retrying an identical issue with the same party or privy, and to enhance judicial economy. (Spiller v. Continental Tube Co. (1983), 95 Ill. 2d 423, 447 N.E.2d 834.) To permit this workers’ compensation action to proceed would be contrary to those goals.

Petitioners contend that the prior litigation “was decided on defense motions for summary judgment based solely on medical depositions and interrogatories. The matters considered by the trial and appellate courtfs] dealt only with the cause of death, not the cause of the initial injury.” The only requirement, however, is that the prior decision be actually and necessarily litigated and determined in the first case. We are aware of no requirement that the prior judgment be the result of a full trial.

Petitioners also maintain that the issues in the two cases differ because under workers’ compensation law, the injury need only be a causative factor in the death, and thus the level of causal connection was different in the prior case.

In order for a suicide to be compensable under the act, petitioners must show some evidence from which the reasonable inference can be drawn that the injury was a causative factor in the death. (City of Streator v. Industrial Comm’n (1982), 92 Ill. 2d 353, 442 N.E.2d 497.) While a workers’ compensation claim is not barred as a matter of law where a compensable injury is followed by the suicide of the injured employee, suicide can destroy any alleged causal connection where it is found to be an independent intervening act. Harper v. Industrial Comm’n (1962), 24 Ill. 2d 103, 180 N.E.2d 480.

In the prior case, this court thoroughly examined the record and determined that there was no evidence from which a reasonable inference could be drawn that the injury caused the death. (See Owens v. Consolidation Coal Co., 144 Ill. App. 3d 88, 494 N.E.2d 274.) The court did not hold, for example, that the work-related accident was one causative factor of the death, but not a strong enough factor to permit recovery in the case. Instead, the court found “the absence of any specific facts or reasonable inferences” to establish causation. (Emphasis added.) Owens, 144 Ill. App. 3d at 92, 494 N.E.2d at 277.

For the foregoing reasons, the judgment of the circuit court of St. Clair County, confirming the decision of the Industrial Commission, is affirmed.

Judgment affirmed.

BARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE RARICK

text:
      In re MARRIAGE OF LEON L. LORTON, Petitioner-Appellant, and OPAL B. LORTON, Respondent-Appellee.
    Fifth District
    No. 5 — 89—0707
    Opinion filed August 27, 1990.

      Burger, Fombelle, Zachry & Rathbun, EC., of Decatur (Norman J. Fombelle and Kent A. Rathbun, of counsel), for appellant.
    Mark E. Ferguson, of Harlan Heller, Ltd., of Mattoon, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Leon L. Lorton appeals from the judgment of dissolution of marriage entered by the circuit court of Fayette County. We affirm.

Leon and Opal Lorton were married in April of 1949. They had been separated for several years, however, by the time Leon filed his petition for dissolution of the parties’ marriage in 1985. Opal suffers from Alzheimer’s disease and other medical conditions which necessitate her being confined to a nursing home. One of the parties’ adult sons has been appointed as the guardian of Opal and her estate.

At the hearing for the dissolution of the parties’ marriage in August of 1988, Leon’s attorney presented to the trial court the terms of a purported oral settlement agreement. This agreement provided Leon would pay maintenance of $2,300 per month; convey all his real estate excepting 36 acres where his business and home were located to Opal’s guardian subject to certain restrictions; and tender $30,500 to Opal’s guardian for her benefit plus $4,000 toward her attorney fees. By June of 1989, however, no final judgment had as yet been entered. Through her guardian, Opal petitioned the court to effectuate the settlement agreement as set forth by Leon’s attorney. At the hearing on this petition, Leon contended he misunderstood the provisions of the oral agreement. Leon believed he was either to pay Opal monthly maintenance to cover her nursing home bills or give her the majority of the real estate plus a lump sum payment. The trial court ruled the parties had in fact negotiated a settlement agreement and that any misunderstanding on Leon’s part was unilateral and therefore did not relieve him from the agreement as expressed in open court.

Leon first argues on appeal the trial court’s determination that a settlement agreement existed between the parties is against the manifest weight of the evidence and contrary to law. Leon believes there was no “meeting of the minds,” especially when both parties intended that a signed written agreement was a condition precedent to the formation of a contract between them.

It is well settled in Illinois that the law favors the amicable settlement of property rights in cases of marital dissolution. (See, e.g., In re Marriage of Chaltin (1987), 153 Ill. App. 3d 810, 813, 506 N.E.2d 338, 340.) Only if procured by fraud or coercion or if contrary to any rule of law, public policy, or morals will such agreements be set aside. (See In re Marriage of Perry (1981), 96 Ill. App. 3d 370, 373, 421 N.E.2d 274, 276; Crawford v. Crawford (1976), 39 Ill. App. 3d 457, 461, 350 N.E.2d 103, 107.) It is also well settled that the terms of a settlement agreement are subject to the ordinary rules for the construction of contracts, and that the burden rests on the party asserting the agreement to establish its existence by clear and convincing evidence. (Chatlin, 153 Ill. App. 3d at 813, 506 N.E.2d at 340.) We believe Opal has met that burden in this instance.

It is apparent the parties had been negotiating for some time in an effort to reach some sort of amicable property settlement. Two hours prior to the hearing on Leon’s dissolution petition, the parties again met with counsel to discuss a possible settlement. At the hearing, after the court granted the dissolution of the parties’ marriage, Leon’s attorney presented in open court the parties’ settlement agreement. Each term of the agreement was set forth orally in detail. At the conclusion of the recitation, counsel for each party stated on the record that what was just presented to the court represented their understanding of the agreement. Leon’s attorney then asked Leon if he had heard what was said and if that were his understanding of the agreement. Leon answered “correct.” The court concluded the hearing by asking counsel to prepare a written order, approved as to form and content, to be entered by the court. At no time immediately preceding, during or after the hearing did Leon object to the terms of the agreement. It was not until sometime later that Leon claimed the purported agreement did not reflect what he understood the agreement to be. The trial court was well aware of Leon’s claims and testimony, but chose to rule in favor of Opal that an agreement did in fact exist. The trial court is in a far better position than we, sitting as a reviewing court looking at a cold record, to determine the credibility of witnesses. (See In re Marriage of Eltrevoog (1982), 92 Ill. 2d 66, 71, 440 N.E.2d 840, 842.) Any mistake as to the terms was unilateral on Leon’s part and as such has no effect on the validity of the agreement itself. (See Barth v. Reagan (1986), 146 Ill. App. 3d 1058, 1067-68, 497 N.E.2d 519, 525; Sheffield Poly-Glaz, Inc. v. Humboldt Glass Co. (1976), 42 Ill. App. 3d 865, 870, 356 N.E.2d 837, 841; see also McCracken Contracting Co. v. R.L. DePrizio & Associates, Inc. (1984), 122 Ill. App. 3d 680, 687, 462 N.E.2d 682, 687.) To hold otherwise would dilute the binding effect of oral compromises and settlement agreements and permit parties thereto to change their minds at their pleasure. (Sheffield, 42 Ill. App. 3d at 870, 356 N.E.2d at 841.) Leon is bound to the agreement he knowingly made in open court. We therefore hold the trial court correctly granted Opal’s motion to effectuate the settlement agreement. See Kalman v. Bertaechi (1978), 57 Ill. App. 3d 542, 547-48, 373 N.E.2d 550, 554-55; Sheffield, 42 Ill. App. 3d at 869-71, 356 N.E.2d at 840-42. Cf Perry, 96 Ill. App. 3d at 373-75, 421 N.E.2d at 277-78; Crawford, 39 Ill. App. 3d at 462-63, 350 N.E.2d at 107-OS.

Leon further argues, however, the parties intended that a signed written agreement was a condition precedent to the formation of a binding contract or settlement agreement between them. While it is true that when the reduction of an agreement to writing and its formal execution is intended by the parties as a condition precedent to its completion, there can be no contract until such events occur, even if the actual terms have been agreed upon (see Chatlin, 153 Ill. App. 3d at 813, 506 N.E.2d at 340; Interway, Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 1098, 407 N.E.2d 615, 618), we do not believe that such is the case here. The fact that property settlement agreements customarily are put into writing (see Chatlin, 153 Ill. App. 3d at 814, 506 N.E.2d at 341), or that the parties believe a formal agreement eventually will be executed, does not necessarily render prior oral agreements “mere negotiations.” (Interway, 85 Ill. App. 3d at 1097, 407 N.E.2d at 618; see also In re Marriage of Click (1988), 169 Ill. App. 3d 48, 54, 523 N.E.2d 169, 173.) Here the terms of the agreement were set forth orally before the court in great detail. Nothing further remained to be resolved. The only thing left to do was to terminate the litigation. The trial court directed counsel to draft an order incorporating the terms of the agreement simply to accomplish that end. (See Sheffield, 42 Ill. App. 3d at 869-70, 356 N.E.2d at 840-41. Cf. Chatlin, 153 Ill. App. 3d at 814, 506 N.E.2d at 341 (terms of agreement not immediately reduced to writing nor set forth before the court).) The settlement agreement did not need to be reduced to writing or signed by the parties to make it valid and binding. The agreement was clear, certain, and definite in its material provisions, and by its very nature of being presented to the court, enforceable. (See In re Marriage of Galen (1987), 157 Ill. App. 3d 341, 344, 510 N.E.2d 597, 599.) Any additional language inserted into Opal’s written version of the agreement consisted merely of such terms used in property settlement agreements to fully and completely adjust and settle the rights of the parties. Nothing new was incorporated as Leon now suggests. We therefore see no error in the trial court’s determination in this instance.

We also find no error in the trial court’s ruling that the parties’ settlement agreement was neither manifestly unfair nor unconscionable. The same holds true for the trial court’s alleged refusal to consider evidence of Leon’s net worth and income flow or evidence of prior settlement demands in making its determination of conscionability. First, settlement offers simply are not relevant to the determination of conscionability. Secondly, the suggestion that the trial court did not consider Leon’s financial data as it relates to the issue of unconscionability is not borne out by the record. It is true the court specifically stated at one point in the hearing that it did not care about Leon’s financial situation. Leon, however, has taken this comment out of context. The court made such a statement at a time when it was trying to determine whether or not Leon had agreed to the settlement as presented in open court. Conscionability simply was not the issue at that time. The court had before it numerous financial records and considerable testimony pertaining to Leon’s financial status. It is apparent that the trial court was aware of such evidence when making its finding on the issue of conscionability. We find no abuse of the trial court’s discretion in this instance.

In most settlement agreements, no party obtains everything that he believes equitably to be his. Parties always agree to accept less in lieu of continuing litigation. (Sheffield, 42 Ill. App. 3d at 871, 356 N.E.2d at 842.) Here, the same holds true. The agreement between Leon and Opal is not so one-sided as to be unconscionable. (See In re Marriage of Foster (1983), 115 Ill. App. 3d 969, 973, 451 N.E.2d 915, 919.) Unfairness alone is not enough to render a settlement agreement unconscionable. (In re Marriage of Smith (1987), 164 Ill. App. 3d 1011, 1020, 518 N.E.2d 450, 456.) More importantly, in light of the circumstances of the parties, we do not believe the agreement is unfair.

For the aforementioned reasons, we affirm the judgment of the circuit court of Fayette County.

Affirmed.

HARRISON and HOWERTON, JJ., concur.


author: JUSTICE HARRISON

text:
    FANNIE JONES, Petitioner-Appellant, v. EARL LAZERSON, as President of Southern Illinois University at Edwardsville, et al., Respondents-Appellees.
    Fifth District
    No. 5 — 89—0194
    Opinion filed August 27, 1990.
    Rehearing denied September 24,1990.

      Allen J. Oehlert, of Deffenbaugh, Loewenstein, Hagen, Oehlert & Smith, P.C., of Springfield, for appellant.
    John L. Gilbert and Debra J. Meadows, both of Reed, Armstrong, Gorman, Coffey, Thomson & Gilbert, P.C., of Edwardsville, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

Petitioner, Fannie Jones, filed a petition in the circuit court of Madison County for a writ of certiorari to review the decision by Southern Illinois University at Edwardsville (SIU-E) not to renew her employment contract. Named as respondents were Earl Lazerson, president of SIU-E; Lawrence Pettit, chancellor of Southern Illinois University; and the Southern Illinois University Board of Trustees. On respondents’ motion, the court dismissed the petition. Petitioner then filed an amended petition, which was dismissed as well. Petitioner now appeals. We reverse and remand for further proceedings.

Petitioner was employed by SIU-E as a child care worker in the university’s child development program. Petitioner’s petition for a writ of certiorari, as amended, alleges that on June 12, 1987, petitioner was informed that she would be removed from her classroom assignment pending an investigation into allegations that she had abused a child. She was summarily sent home and was never allowed to return to work.

By letter dated June 23, 1987, petitioner was informed that the investigation into the allegations against her had been completed and that her term employment contract would not be renewed. According to petitioner, however, this was not an ordinary case of contract non-renewal. She claims that she was actually fired “for cause” and that the university’s attempt to characterize her termination as a case of contract nonrenewal was simply an artifice to evade the procedural requirements applicable to employees whose termination was based on “cause.”

Petitioner instituted a grievance proceeding against SIU-E on July 9, 1987, in accordance with the university’s personnel policies applicable to professional staff employees. On December 23, 1987, the grievance panel rendered its findings and recommended that petitioner’s grievance be denied. Petitioner alleges that the grievance panel was wholly without jurisdiction to reach its findings and recommendation because the university did not follow the “just cause” dismissal procedures set forth in the personnel policies of SIU-E. In particular, petitioner avers that the requisite hearing was not held, no just cause for dismissal was found, the burden of proof was improper, and petitioner was not afforded her fundamental due process rights.

Petitioner alleges that respondent Lazerson nevertheless accepted the grievance panel’s recommendation and that her grievance was thereby denied. Petitioner’s subsequent effort to appeal the denial of her grievance to respondent Southern Illinois University Board of Trustees failed. Her petition for a writ of certiorari followed.

Attached to the petition, as amended, are numerous documents. These include a copy of the university’s notice of nonrenewal of petitioner’s contract, petitioner’s grievance, the grievance panel’s findings and recommendation, and respondent Lazerson’s written decision accepting the panel’s recommendation. Also attached are various matters which were presented in the course of the grievance procedure, such as the personnel policies applicable to professional staff employees of SIU-E, statements and letters from petitioner and others regarding the events leading up to the termination of petitioner’s services, evaluations of petitioner’s work, written arguments submitted by petitioner’s attorney, and copies of some case law.

Respondents opposed petitioner’s amended petition, just as they had moved, successfully, for the dismissal of petitioner’s original petition. As grounds for dismissal of the original petition, respondents had argued: (1) that subject matter jurisdiction over the case lay in the Court of Claims, not the circuit court, because the Court of Claims has exclusive jurisdiction over all claims arising out of any contract with the State and petitioner's claim arose out of her employment contract; (2) that it would be improper for the circuit court to consider the merits of the grievance panel’s decision; (3) that an action for a writ of certiorari does not lie here because the grievance panel had jurisdiction to hear petitioner’s grievance, did not exceed that jurisdiction and acted in accordance with the university’s procedures; (4) that an action for writ of certiorari does not lie to review the exercise of discretion by a public official, and the decision not to renew petitioner’s employment contract in this case was such a discretionary act; and (5) that the grant of a writ of certiorari is discretionary with the court and is not appropriate in this case. Attached to the motion to dismiss was a copy of petitioner’s employment contract setting forth the term of her employment. Also attached to the motion to dismiss was a copy of the faculty grievance procedure of SIU-E.

In ruling on respondents’ motion to dismiss the original petition, the court considered the employment contract which had been attached to respondents’ motion to dismiss. Petitioner objected, arguing that while consideration of such documents might be proper on a motion for summary judgment, it is not proper on a motion to dismiss. Respondents countered by asserting that this could, in fact, be regarded as a summary judgment motion. The court, however, did not address this problem. It simply determined that the contract could be taken into account because “it is fundamental to the controversy herein.”

The court then found that petitioner’s employment was for a term of one year from July 1, 1986, through June 30, 1987. The court further found the language of the personnel policies applicable to professional staff employees of SIU-E, which was attached to petitioner’s petition, “to be clear and unambiguous that the renewal of [petitioner's term appointment was discretionary with [the university]” and that petitioner’s contract had simply not been renewed. In the court’s view, petitioner had not pleaded facts which would substantiate that the university’s grievance panel had “exceeded its jurisdiction” or would justify removal from the university of its discretion not to renew petitioner’s contract. Accordingly, the court found that the petition for writ of certiorari was insufficient. It did not simply dismiss the petition, however. It denied the petition on the merits.

With respect to the amended petition subsequently filed by petitioner, the circuit court reached the same result. In so doing, the court adopted the same reasons contained in the order dismissing the original petition. The court further found that petitioner had failed to demonstrate any cognizable interest in continued employment because her term employment was not terminated prior to the end of her term and she had received all benefits owed to her during that term. The court also determined that the action of SIU-E in not renewing petitioner’s term contract was the discretionary act of a public official and not subject to review by writ of certiorari. This appeal followed.

On this appeal, respondents persist in their assertion that subject matter jurisdiction over this case lay with the Court of Claims, not the circuit court. We disagree. Although petitioner had a contract with SIU-E, hers is not a breach of contract claim. Nor is it a damage action sounding in tort. Through her amended petition, petitioner asks only for review of the propriety of SIU-E’s decision not to renew her employment, a decision which she claims was made in violation of her basic due process rights. Such matters do not fall within the exclusive jurisdiction of the Court of Claims. (Ill. Rev. Stat. 1987, ch. 37, par. 439.8.) Whether the termination, “lay off,” or nonrenewal of an employee of the State or a State agency was made in accordance with the applicable law is, instead, subject to judicial review in the circuit court. See Penrod v. Department of Corrections (1979), 72 Ill. App. 3d 649, 391 N.E.2d 59.

Although this matter was properly before the circuit court, the circuit court’s judgment cannot be sustained. Common-law certiorari is not limited to consideration of whether an inferior tribunal acted within its jurisdiction or proceeded according to the governing procedural rules. Our supreme court has expressly held that the substantial differences that at one time existed between common-law and statutory certiorari have been all but obliterated. (Smith v. Department of Public Aid (1977), 67 Ill. 2d 529, 541, 367 N.E.2d 1286, 1293.) As the court recently reiterated, the purpose of the writ was, and is, to have the entire record of the inferior tribunal brought before the court to determine, from the record alone, whether that body proceeded according to the applicable law. Stratton v. Wenona Community Unit School District No. 1 (1990), 133 Ill. 2d 413, 427, 551 N.E.2d 640, 645.

In making such a determination, a court which has been presented with a petition for certiorari may consider whether the decision of the inferior tribunal is supported by the evidence which was adduced before that tribunal. The scope of review is well established.

“ ‘In a common-law certiorari proceeding the trial judge determines from the record alone whether there is any evidence fairly tending to support the order reviewed and cannot set aside the order unless it is palpably or manifestly against the weight of the evidence.’ ” (Nowicki v. Evanston Fair Housing Review Board (1975), 62 Ill. 2d 11, 15, 338 N.E.2d 186, 188, quoting Superior Coal Co. v. O’Brien (1943), 383 Ill. 394, 400-01, 50 N.E.2d 453,457.)

That this is so has previously been acknowledged by our court. See Maddox v. Williamson County Board of Commissioners (1985), 131 Ill. App. 3d 816, 822-23, 475 N.E.2d 1349, 1354.

Although the sufficiency of the evidence is a proper consideration on review of an order brought before the court pursuant to a petition for a writ of certiorari, the circuit court here erred in deciding the merits of the case, as it did, based on the sufficiency of the evidence underlying petitioner’s claim. This is so because the matter was not before the court for a final decision following a trial on the merits. It was before the court on SIU-E’s motion to dismiss, which was apparently brought under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). Motions made under that statute must be limited to one of the nine grounds enumerated therein. (Rowan v. Novotny (1987), 157 Ill. App. 3d 691, 694, 510 N.E.2d 1111, 1113.) Among those nine grounds is lack of jurisdiction (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(1)), and SIU-E has challenged the subject matter jurisdiction of the circuit court. As we have noted, however, subject matter jurisdiction was proper here.

The only other basis for dismissal under section 2 — 619 which might conceivably be relevant is that “the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” (Ill. Rev. Stat. 1987, ch. 110, par. 2— 619(a)(9).) The problem with application of this subsection of the rule is that no such “affirmative matter” was established here.

As this court has recently held, “affirmative matter” within the meaning of section 2 — 619(a)(9) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9)) is something in the nature of a defense that negates an alleged cause of action completely or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint. It must, however, be something more than evidence offered to refute a well-pleaded fact in a complaint, for, as in the case of a motion under section 2 — 615 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), such well-pleaded facts must be taken as true for the purposes of a motion to dismiss under section 2 — 619(a)(9) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9)). Brown v. Morrison (1989), 187 Ill. App. 3d 37, 39, 542 N.E.2d 1308,1310.

In this case, respondents did not heed these principles. Instead, they attempted to refute the facts upon which petitioner based her amended petition for a writ of certiorari and thereby defeat the petition on the merits. In support of their claim that a writ of certiorari should not issue here, respondents attempted to show, for example, that petitioner was incorrect in her contention that she was actually dismissed for cause. They asserted that under the circumstances present here, petitioner had no protected interest in continued employment, and they argued that the decision to terminate petitioner’s employment lay entirely within the university’s discretion, a point which petitioner vigorously contends could not be sustained under the facts if the matter were subject to a full and complete hearing.

Such a factual attack on petitioner’s claim was not proper even though the facts invoked by respondents were included in the exhibits attached to petitioner’s amended petition. This is so for two reasons. First, if the petition were fatally defective because of factual allegations incorporated therein through attached exhibits, this would be tantamount to saying that the petition fails to state a cause of action, a matter properly raised under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), not section 2 — 619 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). Rowan v. Novotny (1987), 157 Ill. App. 3d 691, 694, 510 N.E.2d 1111, 1113.

Second, this is not a situation in which the facts contained in the exhibits can be taken as true. We acknowledge that exhibits which are attached to a pleading constitute a part of the pleading for all purposes (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 606), and that where allegations in a complaint conflict with facts contained in an exhibit, the exhibit controls (McCormick v. McCormick (1983), 118 Ill. App. 3d 455, 460, 455 N.E.2d 103, 108). Nevertheless, this is not a case where the exhibits consist of an instrument which is being sued upon, such as a contract in a breach of contract action. Here the appended exhibits consist simply of examples of the evidence supporting petitioner’s allegations. The facts contained in such exhibits are not controlling, and the court should not assume those facts to be true. (118 Ill. App. 3d at 460-61, 455 N.E.2d at 108.) That this is so becomes particularly evident when one considers that some of the attached exhibits themselves conflict with one another as to certain facts relevant to the case. If all of the facts in the exhibits had to be regarded as true, the court would be placed in the untenable position of having to accept the veracity of completely inconsistent propositions.

If respondents believed that there was no genuine issue as to any material fact and that they were entitled to judgment as a matter of law, what they, should have done is brought a motion for summary judgment pursuant to section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005). (Brown v. Morrison (1989), 187 Ill. App. 3d 37, 40, 542 N.E.2d 1308, 1310.) They did not do so. While respondents indicated in a letter to the circuit court that their original motion to dismiss could be treated as a motion for summary judgment, summary judgment was not mentioned with respect to the amended petition, and the court did not purport to be granting summary judgment when the amended petition was dismissed. If there is any uncertainty in this regard, one need but observe that in dismissing the amended petition, the court gave leave to petitioner to replead. Petitioner opted to stand on her amended petition, and the dismissal order, by its terms, thereupon became final. The point is simply that allowing such leave to replead would have been completely nonsensical in the context of a summary judgment order.

Even if the circuit court’s order could be construed as one granting summary judgment, that order still could not be sustained. As has often been held, summary judgment should be granted with caution so that the right to trial of conflicting facts and inferences is not usurped. Only when the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law should summary judgment be awarded. (Haberer v. Village ofSauget (1987), 158 Ill. App. 3d 313, 316-17, 511 N.E.2d 805, 807.) This standard was not met here.

As we indicated at the outset of this opinion, petitioner’s request for a writ of certiorari is premised on the proposition that she was fired “for cause,” but was denied the procedural protections which are required in “for cause” terminations. Respondents, on the other hand, assert that they simply exercised their discretion not to renew petitioner’s contract after it expired, that petitioner had no protected interest in continued employment by the university, and that petitioner was therefore not entitled to any additional due process protections when her employment terminated.

Genuine issues of fact remain on these questions. For example, while respondents deny that petitioner was fired “for cause,” the university’s grievance panel itself expressly indicated in its written findings that respondents’ position was not valid and that “the administration’s decision not to renew her contract was based upon events, allegations and charges — in other words, for cause.”

A genuine issue likewise exists as to the nature of petitioner’s employment. Although it may be true that petitioner’s contract was for a term of only one year, it is by no means clear that respondents had an unfettered right to end petitioner’s employment when the term expired. The professional staff personnel policy of SIU-E, for example, states that “[i]f the need for [a] position continues, the nonrenewal of a term appointment will not be allowed solely to permit the appointment of a new employee to fill the position.” Arguably this can be read to mean that, except where a position is eliminated, some reason must exist before a term appointment will not be renewed. Such an interpretation is supported by petitioner’s assertion, set forth in her grievance, that “[i]t has been the past pattern and practice that employees of the Child Development Program are routinely retained from year to year unless they are dismissed for cause or quit.” While respondents protest that petitioner adduced no evidence, other than her own statement, to support this claim, we note that they offered no evidence to refute it either. In view of these disputed factual matters, it can scarcely be said as a matter of law that petitioner had no protected interest in continued employment or that she received all of the procedural rights she was due.

For the foregoing reasons, the judgment of the circuit court is reversed, and the cause is remanded for further proceedings consistent with this order.

Reversed and remanded.

WELCH and CHAPMAN, JJ., concur.


author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOSEPH DAVIS et al., Defendants-Appellees.
    Fifth District
    No. 5 — 88—0618
    Opinion filed August 28, 1990.

      John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Norman S. London and Thomas E Flynn, both of Law Offices of Norman S. London, of St. Louis, Missouri, for appellee Kelvin Ellis.
   JUSTICE WELCH

delivered the opinion of the court:

This interlocutory appeal is taken by the People of the State of Illinois from dismissal by the St. Clair County circuit court of grand jury indictments for official misconduct and theft of property against defendant Kelvin Ellis and indictments for theft of property against defendant Joseph Davis. On appeal we address an issue of apparent first impression in Illinois: whether the labor of an employee is the “property” of his employer, such that diversion by a third party of the employee from his duty for his employer constitutes theft under section 16 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(a)(1)). According to the representations of defense counsel and the State’s Attorney at the hearing on the motion to dismiss, the transcript of which was made part of this record, we set forth the following statement of facts.

Ben D. Brown, Inc. (hereinafter, Brown), contracted with the City of East St. Louis to perform certain services connected with the East St. Louis Riverfront Project, a public works project, among which was to conduct a survey of city residents concerning the project. Brown was to be reimbursed for the services provided to the city by the trustee of a bond issue financing the Riverfront Project. Brown’s employees were hired through the East St. Louis First program, an employment program providing job training to economically disadvantaged persons. The 12 individuals named in the indictments whose labor was allegedly stolen by defendants were hourly wage employees of Brown who worked a regular schedule.

Defendant Kelvin Ellis was an appointed official in the City of East St. Louis and assistant to the mayor. The 12 employees came to city hall each day and received instructions on their daily assignments from Ellis and Davis. Instead of instructing the 12 employees to perform the survey work for Brown as the contract with the city required, Davis and Ellis asked the employees to participate in political activities such as campaigning and collecting absentee ballots to benefit the mayor of East St. Louis and Davis, both of whom were candidates in an upcoming election.

After testimony before the St. Clair County grand jury, Davis was indicted for 12 counts of theft and Ellis was indicted for 12 counts of theft, 12 counts of official misconduct under section 33 — 3(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 33 — 3(b)), and 12 counts of official misconduct under section 33 — 3(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 33 — 3(c)). After discovery was completed, each defendant filed a motion to dismiss claiming that the indictments did not charge an offense of theft because the labor of a person cannot be the property of his employer. The State argued that, under the statute, “property” is defined as anything of value and Brown lost the value of the employees’ services when he was paying them for certain work but they were working for someone else. Ellis and Davis were guilty of theft, the State argued, because they caused Brown to lose the value of the employees’ services.

The court found in its orders of dismissal that the State’s factual allegations against each of the defendants were basically as follows:

(1) that Ben D. Brown, Inc., contracted with the City of East St. Louis to perform certain services and to that end hired the individuals named in the indictment;

(2) that those individuals would gather at East St. Louis City Hall each morning to be instructed as to what tasks they should perform that day;

(3) that defendant, as assistant to the mayor, would instruct the individuals as to what tasks he wished them to perform;

(4) that defendant knew that the aforesaid individuals were employed by Ben D. Brown, Inc., to perform certain services for the city;

(5) that despite this knowledge, defendant instructed or requested that these individuals perform tasks other than that for which they were hired by enticing them with promises of jobs or other rewards;

(6) that the defendant did so with the intention of depriving Ben D.Brown, Inc., of the services and/or labor of the individuals in its employ; and

(7) that the defendant is charged with the offense of theft in violation of subsection 16 — 1(a)(1) and, based thereon, official misconduct.

The court ruled in separate criminal actions against the defendants, which are consolidated for purposes of this appeal, that the indictments failed to state an offense for theft of property under section 16 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(a)(1)), because the anticipated labor of an employee is not the property of his employer as the term “property” is defined within said section of the Code. The court further found in the orders of dismissal that section 16 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 3) covers theft of labor or services and that the conduct of defendants described in the indictments would more aptly be addressed by the commercial bribery section of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 29A — 1).

We initially note that defendant Kelvin Ellis was indicted on 24 counts of official misconduct under sections 33 — 3(b) and 33 — 3(c) of the Criminal Code of 1961, which provide as follows:

“A public officer or employee commits misconduct when, in his official capacity, he commits any of the following acts:
* * *
(b) Knowingly performs an act which he knows he is forbidden by law to perform; or
(c) With intent to obtain a personal advantage for himself or another, he performs an act in excess of his lawful authority ***.” (Ill. Rev. Stat. 1987, ch. 38, pars. 33-3(b), (c).)

These sections of the official misconduct statute have been interpreted as requiring an allegation that in the performance of the official’s duty the defendant violated an identifiable civil or criminal statute, rule, regulation, tenet or any other duty imposed by law. (People v. Weber (1985), 133 Ill. App. 3d 686, 479 N.E.2d 382; People v. Adams (1978), 64 Ill. App. 3d 547, 381 N.E.2d 738.) Therefore, sufficiency of the counts of official misconduct against Ellis are dependent on sufficiency of the predicate offenses, the theft of property counts, and the State has so stipulated.

Section 16 — 1(a)(1) of the Criminal Code of 1961 provides that a person commits theft when he knowingly obtains or exerts unauthorized control over property of the owner. (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(a)(1).) Theft of property from a person exceeding $300 and not exceeding $10,000 in value is a Class 3 felony. (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(b)(4).) “Property” for purposes of section 16 — 1(a)(1) is defined generally in section 15 — 1 of the Criminal Code of 1961 as meaning “anything of value.” The definition then goes on to list specific items that property includes:

“real estate, money, commercial instruments, admission or transportation tickets, written instruments representing or embodying rights concerning anything of value, labor, or services, or otherwise of value to the owner; things growing on, affixed to, or found on land, or part of or affixed to any building; electricity, gas and water; birds, animals and fish, which ordinarily are kept in a state of confinement; food and drink; samples, cultures, microorganisms, specimens, records, recordings, documents, blueprints, drawings, maps, and whole or partial copies, descriptions, photographs, computer programs or data, prototypes or models thereof, or any other articles, materials, devices, substances and whole or partial copies, descriptions, photographs, prototypes, or models thereof which constitute, represent, evidence, reflect or record a secret scientific, technical, merchandising, production or management information, design, process, procedure, formula, invention, or improvement.” (Ill. Rev. Stat. 1987, ch. 38, par. 15 — 1.)

An “owner” is defined for purposes of section 16 — 1(a)(1) in section 15— 2 to mean a person other than the offender, who has possession of or any other interest in the property involved, even though such interest or possession is unlawful, and without whose consent the offender has no authority to exert control over the property. (111. Rev. Stat. 1987, ch. 38, par. 15 — 2.) Although the court noted that section 16— 3 of the Criminal Code of 1961 concerns theft of labor or services, this section clearly does not apply to defendants’ conduct. Section 16 — 3(a) provides that a person commits theft when he obtains the temporary use of property, use or services of another which are available only for hire, by means of threat or deception or knowing that such use is without the consent of the person providing the property, labor or services. (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 3(a).) By enactment of section 16 — 3 the legislature intended to protect businesses from the unscrupulous practices of prospective customers. People v. Dillon (1968), 93 Ill. App. 2d 151, 158, 236 N.E.2d 411, 415.

Defendants pose a constitutional argument to the State’s construction of section 16 — 1(a)(1): that the labor of one person may be the property of another is anathema to the prohibition of slavery contained in the thirteenth amendment to the Constitution. The State argues on appeal, however, that the statutory sense of ownership as defined in section 15 — 1 is the only sense of ownership relevant to construction of section 16 — 1(a)(1), the thirteenth amendment having no bearing on this issue. Moreover, the State compares the employer’s alleged property interest in the labor of his employee to the employer’s right pursuant to tort law against third parties interfering with the employer’s contractual relationship with his employee. The State acknowledges that an employer cannot command the employee’s services nor can he obtain specific performance of an employment contract, and so acknowledges that the employer’s interest in his employee’s labor has some, but not all, incidents of a property right. However, the State argues, section 15 — 1, which defines property for purposes of section 16 — 1(a)(1), is broad enough to include an employee’s labor which, without a doubt, is valuable to an employer.

While we agree with the State that the thirteenth amendment has no bearing on decision of this issue, we cannot agree that the indictments against defendants stated offenses for theft under section 16 — 1(a)(1) of the Criminal Code of 1961. At common law, only tangible personal property could be the subject of larceny; written documents such as deeds and contracts and things growing on, affixed to, or found on land partaking of the nature of realty, electrical energy and water power were not considered property for the purpose of larceny. (People v. Zakarian (1984), 121 Ill. App. 3d 968, 972, 460 N.E.2d 422, 425.) However, by the legislative enactment of section 15 — 1, things not embraced by larceny under common law are considered property for the purpose of our theft statute. (Zakarian, 121 Ill. App. 3d at 972, 460 N.E.2d at 425.) While cases discussing the types of property embraced by the theft statute are scarce, earlier cases state that the test is not whether the property is tangible or intangible, but whether the property is capable of being taken away by someone other than the owner. (Zakarian, 121 Ill. App. 3d at 972-73, 460 N.E.2d at 426.) Section 15 — 1 only lists items which may be physically possessed and carried away. (Zakarian, 121 Ill. App. 3d at 973, 460 N.E.2d at 426.) Moreover, it has been stated that only property which is detectable or measurable by the senses or mechanical means or property which can be moved can be the subject of theft. Zakarian, 121 Ill. App. 3d at 973, 460 N.E.2d at 426.

One of the issues on appeal in the Zakarian case involved whether a person’s right to anticipated music royalties was “property” under section 15 — 1 such that the defendant’s conviction for theft of those anticipated royalties should be affirmed. The defendant had made unauthorized copies of music tapes recorded by the person and then sold them to third parties. Although the court in Zakarian did not dispute the State’s contention that the right to anticipated music royalties had intrinsic value, the right did not possess characteristics of property as defined in section 15 — 1, to wit, it could not be taken and carried away, transported from place to place or moved, and could not be detected by the senses or measured by mechanical means. Accordingly, the court reversed the defendant’s conviction for theft of property under section 16 — 1(a)(1). We likewise believe in the instant case that the value of an employee’s anticipated labor does not possess characteristics of property as defined in section 15 — 1 for the above-stated Zakarian reasons. Moreover, our independent research has not uncovered nor have the parties cited any cases addressing the precise issue of whether an employee’s anticipated labor is the property of the employer for purposes of a theft statute in Illinois or any other jurisdiction. Our statutory research has, in fact, indicated that a number of jurisdictions specifically state that diversion of the disposition of services of another over which one has the control and to which one knows he is not entitled, for his own or another’s benefit, is a criminal offense. (See Ala. Code ch. 8, §13A — 8—10(a)(2) (1975); Ark. Stat. Ann. ch. 46, §11.46.200 (1989); Ariz. Rev. Stat. ch. 36, §36-104 (1980); Idaho Code ch. 183, §18-2403(c) (1985); Ky. Rev. Stat. ch. 514, §514.060(l)(b) (1989); Me. Rev. Stat. ch. 15, §357(2) (1989); N.J. Rev. Stat. §2c:20-8 (1982); N.Y. Penal Law §165.15 (McKinney 1987); S.D. Codified Laws Ann. ch. 22 — 30A, §22 — 30A—9 (1989); Tenn. Code Ann. ch. 14, §39-14-104(2) (1989); Utah Code Ann. ch. 6, §76 — 6—409(2) (1990).) As noted above, the Illinois statute concerning theft of labor or services does not cover diversion of the disposition of services of another over which one has control. Ill. Rev. Stat. 1987, ch. 38, par. 16 — 3(a).

The State’s interpretation of the term “property” under section 15 — 1 to include the anticipated labor of an employee would call for a liberal and expansive interpretation of the general definition, “anything of value.” We are not convinced that the legislature intended such an open-ended interpretation. As noted by the Zalearían court, section 15 — 1 lists the species of property not considered property under the common law of larceny but which would now be considered property under the theft statute. Legislation in derogation of common law is usually strictly construed. State Farm Life Insurance Co. v. Town & Country Associates (1980), 85 Ill. App. 3d 319, 323, 406 N.E.2d 923, 926.

We also note that the general definition of property as “anything of value” is followed by specific items which the general term includes. Although the word “include” does not by itself necessarily limit general language, cases which support a broad or enlarging interpretation for the term “include” do so in order to give effect to a legislative intent to provide as large an access as possible to the general term. (Greyhound Lines, Inc. v. City of Chicago (1974), 24 Ill. App. 3d 718, 727, 321 N.E.2d 293, 302.) The word “include” is sometimes used to add to the general class a species which does not naturally belong to it. (Illinois Central R.R. Co. v. Franklin County (1944), 387 Ill. 301, 56 N.E.2d 775, 781.) In this case, the items listed after “includes” should be considered an enumeration excluding all other things not in the specific category. (See Roth v. Department of Public Aid (1982), 109 Ill. App. 3d 457, 440 N.E.2d 910.) Based on the legislative history of section 15 — 1 as analyzed in the Zakarian case, we believe the theft must be of tangible personal property or property which falls within the specific categories enumerated in the definition in order to state an offense under section 16 — 1(a)(1).

Criminal or penal statutes are to be strictly construed in favor of the accused, and nothing is to be taken by intendment or implication against him beyond the obvious or literal meaning of the statute. (People v. Sangster (1981), 95 Ill. App. 3d 357, 364, 420 N.E.2d 181, 186-87; aff’d in part, rev’d on other grounds (1982), 91 Ill. 2d 260, 437 N.E.2d 625.) Moreover, the constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. (United States v. Harriss (1954), 347 U.S. 612, 617, 98 L. Ed. 989, 996, 74 S. Ct. 808, 812.) Our decision therefore comports with general rules of construction and the constitutional protections afforded our citizens. Whether conduct such as was alleged against the defendants should be considered theft is an issue we believe must be addressed, if at all, by the legislature. For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

CHAPMAN and HOWERTON, JJ., concur.