author: JUSTICE WOODWARD

text:
    RICHARD J. McCANN et al., Plaintiffs-Appellees and Cross-Appellants, v. R.W. DUNTEMAN COMPANY et al., Defendants-Appellants and Cross-Ap-pellees.
    Second District
    No. 2 — 92—0540
    Opinion filed January 12, 1993.
    Modified on denial of rehearing March 10, 1993.

      James A. Reiman & Associates, Ltd., and Griffin & Fadden, Ltd., both of Chicago (James A. Reiman and Bradley B. Falkof, of counsel), for appellants.
    Kalinich, McCluskey, Sullivan & Boylan, P.C., of Glen Ellyn (Paul T. Ka-linich, of counsel), for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

On October 9, 1990, plaintiffs Richard McCann (Richard), Lynn J. McCann (Lynn) arid McCann Construction Specialties, Inc. (McCann Construction), a company controlled by Richard, filed a complaint for injunction and other relief. Count I sought to enjoin defendant Crush Crete, Inc. (Crush Crete), from using the subject easement. Count II sought to enjoin R.W. Dunteman Company’s (Dunteman’s) use of the subject easement. Count III alleged that Du-Kane Asphalt Company (Du-Kane) has extended the use of the easement to accommodate persons, entities, and lands for which it was not created or intended, and sought to terminate said easement and permanently enjoin Du-Kane’s use of same.

On December 18, 1990, defendants filed an answer and counterclaim. Count I of the counterclaim sought damages from plaintiffs for alleged obstruction of the easement. Count II sought damages for alleged tortious interference with their business. Count III sought damages for an alleged assault. Count IV sought to enjoin plaintiffs’ alleged interference with defendants’ use of the easement. The parties agreed to bifurcate the injunction counts from the damage counts of their complaints.

Before describing the relevant evidence adduced in the bench trial on the injunction counts, we note the following. Below, a roughly drawn map of the real estate involved in this case indicates the approximate location of: (1) the easement in question; (2) parcels I through VI; and (3) the surrounding real estate and roads.

Moreover, for purposes of clarity, a brief description of the parties and their interests in the various parcels of real estate is helpful. Plaintiffs Richard and Lynn McCann purchased parcel I as beneficiaries of an Dlinois land trust. McCann Construction is a plaintiff; it is a construction supply company, located on parcel I and is controlled by Richard.

Defendant Du-Kane manufactures and sells hot asphalt and other paving materials from its plant located on parcel II. Defendant Dunte-man builds roads, primarily for governmental entities, and it operates out of parcels III through VI. Defendant Crush Crete recycles broken asphalt and concrete; it owns no machinery and rents equipment from Du-Kane. Crush Crete operates primarily on parcels III and V. The principal officers and shareholders of Du-Kane, Dunteman, and Crush Crete are members of the Dunteman family.

Also, the following history of the parcels of real estate is essential to an understanding of the issues in this appeal. In 1965, Howard Selcke (Howard) purchased parcels I and II, which are located in Addison, Illinois, from Tony Ross. Parcel I is east of and adjacent to Route 53, and parcel II is a landlocked 5-acre tract of property contiguous on the east side of parcel I. Howard did not purchase or have any interest in parcels III, IV, V, or VI. Shortly thereafter, Howard conveyed parcel I to his brother, Eugene. The deed to Eugene created the easement involved in this case and contained the following language:

“Howard J. Selcke, et al., his heirs, assignees or transferees shall have a right of ingress over the piq being the South 33 feet of the p.i.q. along the south boundary thereof for a distance of 339.22 feet.”

At that time, Howard used parcel II to store equipment and sewer pipes. Eugene operated a septic tank company out of parcel I and covered the easement with gravel.

Du-Kane purchased parcel II from Howard and his wife in 1970, thereby acquiring the benefit of the easement on parcel I. Upon acquiring parcel II, Du-Kane erected an asphalt manufacturing plant (plant) on the property. Except for seasonal shutdowns, Du-Kane has continuously operated the plant since 1970, at which time it replaced the gravel covering the easement with an asphalt-paved road built to State standards.

During the construction season, several hundred 20-ton semitrailer dump trucks traverse the easement each day to transport raw materials to parcel II for the manufacture of asphalt and to carry out asphalt manufactured by the plant.

In 1975, Richard and Lynn as beneficiaries of an Illinois land trust purchased parcel I. Prior to buying parcel I, Richard had operated McCann Construction for six years out of an unspecified facility located somewhere near parcels I through VI. Also, prior to the purchase of parcel I, Richard knew that Du-Kane operated an asphalt manufacturing and sales facility on parcel II and that Du-Kane and its customers and suppliers used the easement for access to said parcel.

McCann Construction built a structure containing its office/showroom/warehouse on the south part of parcel I, approximately one-car length north of the easement. Additionally, it located a portion of its customer and employee parking spaces immediately adjacent to and along the north line of the easement. McCann Construction’s offices are situated on the south side of the building, with office windows overlooking the easement on parcel I.

Prior to 1985, Dunteman’s headquarters were located in Bensen-ville. Dunteman purchased parcels III, IV, V and VI in 1985 from Franzen-Peters. These parcels are contiguous to each other, and parcel III is located adjacent to and directly east of parcel II. Early in 1980, Franzen-Peters bought parcels III through VI and operated an asphalt plant on them. Franzen-Peters used Lombard Road, a north-south thoroughfare, as an alternate route between those four parcels and North Avenue. It did not use the subject easement. In the mid-1980’s, for a reason not found in the record, Lombard Road was closed to traffic between parcels III through VI and North Avenue. Franzen-Peters constructed an office building on parcel IV which currently houses the office staffs of all, namely, Dunteman, Du-Kane and Crush Crete.

In or about 1987, Crush Crete, which markets and produces recycled asphalt and concrete, began operations out of parcels II, III, IV, V and VI. Crush Crete, by verbal agreement with Dunteman, is allowed to stockpile used asphalt and concrete on parcels III and V. Broken-up pavement is trucked in by Dunteman and other road-building concerns and stockpiled on parcels III and V. Using processing equipment leased from Du-Kane, Crush Crete grinds down the used materials into a form which can be used in the manufacture of asphalt. Approximately 30% of the processing actively takes place on parcel II, with the remaining 70% occurring on parcel III. All processed materials are sold to Du-Kane, which stores same on parcel II. Prior to this lawsuit, trucks carrying broken-up pavement to parcels III and V frequently used the subject easement across parcel I.

TRAFFIC UPON THE EASEMENT

The testimony of the parties diverged significantly regarding the issue of truck traffic upon the easement across parcel I.

Richard testified as to his analysis of defendants’ exhibit No. 11, which tallied the average number of daily round trips over the easement to the asphalt plant on parcels III and V from 1975 through 1990. From 1975 to 1984, a daily average of 228 round trips were made over the easement. For the 1985 to 1990 period, which followed Dunteman’s purchase of parcels III through VI, the average number of daily round trips over the easement increased to 464, a 60% rise in traffic.

Richard further testified that the increase in traffic over the easement, plus the trucks’ higher rates of speed, raised dust which entered his warehouse and offices on parcel I through the heating, ventilating and air-conditioning systems. Dust was also deposited on parked cars and the McCann Construction building located on the south part of parcel I, causing the need for extensive clean-up efforts.

Ray Jackson testified that he was a McCann Construction employee, who was directed by Richard to make a count of the trucks traveling over the easement for a three-hour period on two days, namely, September 27, 1990, and October 5, 1990. During each three-hour period, Jackson observed truck traffic which far exceeded the traffic reported in defendants’ records for said two days.

Paul Dunteman (Paul), president of Du-Kane and secretary of Dunteman, testified that the traffic had not increased on the easement since the McCanns bought parcel I in 1975. Since 1970, the Du-Kane plant has been licensed for a maximum production of 480 tons of asphalt per hour. The size of the trucks used to haul raw materials to the plant and finished asphalt carried therefrom has remained the same since 1975. If the plant is running at maximum capacity, in-and-out truck traffic over the easement could reach a rate of 960 round trips per day.

Paul further stated that the use of “round robins” actually decreased the traffic over the easement since Du-Kane started using recycled materials. A round robin occurs when a truck comes to the plant with a load of broken asphalt or concrete, dumps that material on the stockpile located on parcels III and V and then takes a load of freshly made asphalt from the Du-Kane plant located on parcel II. The number of round robins has been increasing since 1985. At the time of trial in October 1991, the number of round robins had increased to 30% of the total trips into and out of parcel II.

Paul admitted that there was an alternate easement for parcels III through VI. At the time of trial, he did not know who owned this alternate easement. Dunteman trucks regularly use this easement as a means of ingress and egress to parcels III to VI. Dunteman posted a sign advertising its business where this easement intersects with Route 53. We reiterate that nothing in the record clearly describes or shows the location of this so-called alternate easement. The map set forth above only estimates the position of the alternate easement.

CONDITION OF THE EASEMENT

As noted above, Du-Kane paved the easement in 1970. Richard testified that the road had deteriorated significantly by the mid-1980’s. In 1986, due to poor drainage along the easement he had a catch basin and a new manhole built. In 1987, Richard had a curb installed approximately four to five feet south of the easement’s pavement. Crushed limestone provided by Du-Kane was put over the unpaved area of the easement between the road and the south edge of parcel I.

Paul testified that plaintiffs’ installation of the curb in 1987 caused substantial deterioration of the easement’s pavement. After the curb was installed, a trench existed between the curb and the pavement. At plaintiffs’ request, Du-Kane supplied the limestone to fill in that area. Du-Kane offered to patch that area with asphalt. It was Paul’s understanding that plaintiffs would pave this area, but they never did. Plaintiffs further modified the easement by installing a concrete parking apron on its north edge. Paul asserted that this construction partially blocked the normal flow of water from west to east, causing the easement to flood on the west end near Route 53 during rainstorms.

In 1990, Richard had two reinforced concrete barrier bumps built across the easement to slow truck traffic on the road. Richard admitted that the easternmost bump was higher than intended, but he denied it was overbuilt.

Paul testified that the barriers were 8 to 10 inches high with near vertical drops. Paul stated that the barriers were built twice as high as they should have been and that, when trucks come down off the barriers, they “beat the pavement apart.” In June 1990, defendants put asphalt along the barriers’ edges to minimize their impact upon the trucks. Plaintiffs removed this asphalt, leaving the barriers’ sharp edges. Then, for days, on seven or eight occasions, defendants installed asphalt along the barriers’ edge, and plaintiffs removed the asphalt.

Richard testified that on August 28, 1990, at his direction, the asphalt along the barrier’s edge was removed with the intent of grinding down the speed bumps. Defendants’ front-end loader then approached the bumps with a load of asphalt. Richard drove into a pile of asphalt on the easement and told the machine operator to remove the asphalt. He locked the gate between parcels I and II for 45 minutes.

Paul contended that the rapid deterioration of the road on the easement was due to three factors: (1) plaintiffs’ construction of the curb and the failure to pave the area between the curb and road; (2) plaintiffs’ construction of the concrete parking apron on the northern side of the road; and. (3) plaintiffs’ installation of the barriers on the easement.

The parties agreed that the road had deteriorated to the point where it had to be rebuilt completely.

At the conclusion of the bench trial on the injunction counts, the following order was entered:

“1. McCann’s prayer for the termination of the Easement across the Parcel I is denied.
2. McCann’s prayer for injunctive relief is granted in part and denied in part; specifically,
A. R.W. Dunteman Company, an Illinois Corporation, Crush Crete, Inc., an Illinois corporation and their subsidiaries, employees, customers and invitees are permanently enjoined and restrained from utilizing the South 33 feet of Parcel I for ingress and egress from Route 53 and from Parcels III, IV, V and VI depicted in Exhibit I, attached hereto; and
B. Du-Kane shall cause its employees, agents and invitees to restrict their use as follows—
no person who ingresses onto the Parcel II by any avenue other than Easement shall egress from the Parcel II via the Easement.
3. McCann shall cause its employees, agents and invitees not to interfere with Du-Kane’s use or maintenance of the Easement.
4. Du-Kane shall cause the road upon the Easement to be repaired, and thereafter shall cause the road upon the easement to be maintained* 95% of the cost of the road repair and future maintenance shall be paid by Du-Kane, and 5% of such costs shall be paid by McCann; except that 100% of the cost of removing the speed bumps and curb from the Easement shall be paid by McCann.
5. McCann shall reimburse Du-Kane for its share of the costs of repairing the road upon the Easement, as set forth in paragraph [4] hereof, within thirty (30) days of Du-Kane’s submission of an invoice.
6. Not more than semi-annually, Du-Kane shall submit to Mc-Cann an invoice for McCann’s share of the costs of maintaining the road upon the Easement (as set forth in paragraph [4] hereof), and McCann shall pay the amount of such invoice within thirty (30) days of receipt.”

After entry of the foregoing order, the trial court made an express written finding pursuant to Supreme Court Rule 304(a) (134 111. 2d R. 304(a)) that there was no reason to delay the appeal because of the other issues in the cause.

On appeal, defendants raise four issues, namely: (1) whether the trial court erred in granting injunctive relief to plaintiffs; (2) whether the use of an easement which reduces the burden on the servient estate and which is consistent with the historical development of the dominant estate can be enjoined; (3) whether the court below erred in holding that the burden on the servient estate is irrelevant when determining whether to enjoin use of an easement to access realty adjacent to the dominant estate; and (4) whether the trial court erred in finding that defendants bear 95% of the cost of repaving the subject easement. On cross-appeal, plaintiffs contend that the trial court erred in denying their request to terminate the subject easement.

Initially, we note that at oral argument before this court the parties stipulated that there presently are negotiations with Addison to reopen that part of Lombard Street which has been closed since the mid-1980’s.

We first address defendants’ argument that the court below erred in enjoining their use of the easement to access parcels III through VI.

The easement created by the subject deed is an easement appurtenant. An easement is a right or privilege in real estate of another, and, when exercised in connection with the occupancy of other land, it is said to be appurtenant thereto. The tract of land benefitted by the easement is the dominant tenement or estate, and the land burdened with the easement is the servient tenement or estate. (Koplin v. Hinsdale Hospital (1990), 207 Ill. App. 3d 219, 230-31.) Here, parcel II owned by Du-Kane is the dominant estate, and the McCanns’ parcel I is the servient estate. As the owner of the dominant estate, Du-Kane is entitled to necessary use of the easement. “Necessary use” has been defined as such use as is reasonably necessary for full enjoyment of the premises. (Flower v. Valentine (1985), 135 Ill. App. 3d 1034, 1039.) The owner of the dominant estate has the right and duty to maintain the easement; however, he cannot, for the sake of his convenience, materially alter the easement so as to place a greater burden on the servient estate or interfere with the use and enjoyment of the servient estate by its owner. (Flower, 135 Ill. App. 3d at 1039-40; Beggs v. Ragsdale (1983), 120 Ill. App. 3d 333, 337.) In the absence of restrictions, an easement appurtenant may be used for the general benefit of the dominant -estate; any attempt to use an appurtenant easement for the benefit of nondominant land may be enjoined. (Koplin v. Hinsdale Hospital, 207 Ill. App. 3d at 231.) An easement appurtenant may not be extended by the dominant estate’s owner to accommodate other lands which he may own and for which the easement was not originally intended. Beloit Foundry Co. v. Ryan (1963), 28 Ill. 2d 379, 388.

Defendants argue that the owner of the dominant estate may use an unrestricted easement in any reasonable manner which is necessary for the owner to fully enjoy the premises. (Diller v. St. Louis, Springfield & Peoria R.R. (1922), 304 Ill. 373.) Defendants concede that a new use of the easement must be reasonably necessary and, to the extent it is different from the use originally intended, such a different use may not unreasonably increase the burden on the servient estate. Defendants maintain that the necessary use of the easement means that they may use it to achieve the maximum operating capacity of the Du-Kane asphalt plant. Defendants maintain that a conservative application of this rule would allow Du-Kane to run as many trucks across the easement as is necessary for Du-Kane to operate the plant at maximum capacity, namely, 960 trips per day or 80 trips per hour. Further, citing Wetmore v. Ladies of Loretto, Wheaton (1966), 73 Ill. App. 2d 454, defendants contend that even if there is a misuse of the easement its impact is minimal.

Plaintiffs counter that the instrument creating the easement was clear in its intent to provide ingress and egress to Route 53 for parcel II only. They contend that increased use of the easement is not related to the normal development of the dominant estate but instead is for the development of adjoining parcels, primarily, III and V. Moreover, plaintiffs maintain that defendants’ reliance on Wetmore is misplaced because the easement’s use is not at all minimal.

The critical testimony regarding this issue deals with the trucks going over the easement to parcels III and V, carrying in broken asphalt and concrete and carrying out finished asphalt. Paul admitted that the Dunteman trucks and those of other contractors used the easement when taking loads of asphalt and concrete chunks to the stockpile on parcels III and V.

Paul testified that there has been no increase in truck traffic over the easement since 1975. He relied in part on defendants’ exhibit No. 11, consisting of asphalt sales for the period of 1975-84. He acknowledged, however, that the relevant records show a substantial increase in the easement’s traffic for the period 1985-90 (after parcels III through VI were purchased). He also conceded that defendants’ exhibit No. 11 does not include all Dunteman truck traffic into and out of parcel II. Paul further admitted that defendant’s exhibit No. 11 might not be accurate.

Relying on Dunteman’s records, Richard testified that from 1975 to 1984 there were on average 282 daily trips over the easement. After Dunteman acquired parcels III through VI, there was an increase to 464 daily trips over the easement in the 1985 to 1990 period. The testimony of Ray Jackson, who observed traffic over the easement on two separate days, tends to support Richard’s contentions.

This evidence serves to undercut defendants’ assertion that, if there is a misuse of the easement, it is minimal. It is reasonable to infer that since the operation of Crush Crete on parcels III and V began in 1987, the amount of traffic traveling the easement for these parcels’ develppment has increased substantially. Therefore, Wetmore does not support defendants’ position.

This evidence also demonstrates that the increased traffic over the easement on parcel I is not necessary for normal development of parcel II, upon which Du-Kane mixes raw materials and furnishes finished asphalt to waiting vehicles. The increased traffic appears directly to benefit parcels III and V, which Dunteman owns and upon which Crush Crete performs most of its operations. This activity of hauling increased loads of recyclable materials over the easement does not enhance the normal development of parcel II. Du-Kane has a fixed capacity for delivering loads of finished asphalt. The plant can make no more than 480 tons of asphalt per hour. In other words, parcel II has reached the limits of its normal development. Thus, the excess traffic carrying recyclable materials to parcels III and V is not necessary for parcel II’s normal or historical development. Denying ingress and egress over the easement to trucks going into and out of parcels III and V would have no impact upon parcel II’s development. Accordingly, we find that the trial court did not err in prohibiting the easement’s use for said purposes.

Next, defendants argue that the enforcement of the injunction will result in a financial calamity for them. Allan Dunteman (Allan), president of Dunteman, testified at trial that if direct access over the easement to stockpiles of recyclable asphalt and concrete on parcels III and V is barred, trucking time will increase 10 to 12 minutes per load. He further testified that it costs $1.20 per minute to operate a 20-ton dump truck; thus, the cost of trucking each load would increase $12 to $14.40 if use of the easement to access parcels III and V is eliminated. Allan also indicated that various safety problems would arise if defendants were forced to enter and exit parcels III and V using the alternate easement.

Paul’s affidavit filed in support of Du-Kane’s motion to stay injunction order and motion to reconsider order dated April 20, 1992, stated that if round robins were eliminated, Du-Kane would have to grant its customers price concessions to remain competitive. He further testified that for Dunteman alone such price concessions would exceed $135,000 each construction season.

The trial court did not specifically address this issue. Reviewing the evidence, we find it speculative, at best, and, as such, not sufficiently based on fact to merit a reversal of the trial court’s order. Moreover, in 1987, defendants began significant use of parcels III and V for stockpiles of materials to be processed by Crush Crete. At that time, they were aware that Lombard Street had been closed to traffic. Defendants were also aware that they did not know over whose property the alternate easement went. Thus, defendants knew or should have known that their access to parcels III through VI was subject to limitation. Instead of determining their ability to access these parcels, defendants pushed ahead with their recycling efforts on the asphalt. It would appear that defendants are responsible for the precarious position in which they now find themselves.

Defendants’ next argument is that plaintiffs have unclean hands and, thus, are barred from obtaining relief in equity. Defendants point to evidence adduced at trial that Richard intentionally and maliciously pursued a course of conduct designed to intimidate and harass Du-Kane in particular. The evidence concerning the squabbles between the parties is contradictory. Richard’s explanations for what transpired in the various confrontations are every bit as convincing as defendants’ testimony. The evidence does not support a finding that the doctrine of unclean hands is applicable here.

Finally, defendants argue that the easement’s pavement deteriorated due to plaintiffs’ unilateral actions and, therefore, the court below erred in requiring Du-Kane to bear 95% of the rebuilding cost. The testimony regarding this issue is also contradictory. At the time of trial, 20 years had passed since the easement’s paving. Richard testified that the pavement was substantially degraded by the mid-1980’s, before he had installed the curb, manhole and catch basin. Defendants put forward no records which demonstrated that the road had been regularly maintained. This balanced defendants’ assertions that plaintiffs’ installation of the curb in 1987 and the speed bump barriers in 1990 caused the road’s deterioration. As the parties agree that the road must be rebuilt and that it is used almost exclusively by traffic entering and exiting parcel II, the trial court’s determination that defendants should pay 95% of the costs is not in error.

On cross-appeal, plaintiffs argue that defendants’ misuse of the easement should result in its termination. Defendants maintain that there is no Illinois authority for terminating an easement; thus, they conclude that the remedy of termination is not available. While not exactly on point, URS Corp. v. Ash (1981), 101 Ill. App. 3d 229, provides this court with some guidance as to this issue. There, the court found that an easement granted for a particular purpose ceases to exist if abandoned or rendered impossible of accomplishment. The Ash court concluded that the forfeiture of easements is not favored, as an easement can only be extinguished in some mode recognized by law. (Ash, 101 Ill. App. 3d at 236.) We find that the forfeiture of the subject easement would be thoroughly inappropriate. The trial court’s order eliminated the traffic travelling over the easement to parcels III through VI. Only those trucks going directly to and from parcel II will traverse the easement, which is thoroughly in keeping with the easement’s purpose.

For reasons stated above, we affirm the judgment order of the circuit court set forth herein.

Affirmed.

UNVERZAGT and McLAREN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GEIGER

license: Public Domain

text:
    PHILIP G. PASSON, Indiv., et al., Plaintiffs-Appellees, v. TCR, INC., et at., Defendants-Appellants.
    Second District
    No. 2 — 92—1161
    Opinion filed February 26, 1993.

      Arthur G. Jaros, Jr., of Richter & Jaros, and Jerome A. Tatar, of Jerome A. Tatar & Associates, P.C., both of Oak Brook, for appellants.
    David F. Rolewiek and Catherine M. Massarelli, both of Rolewick & Gutzke, P.C., of Wheaton, for appellees.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendants, TCR, Inc., and Virginia and James Neece, appeal from a preliminary injunction in favor of the plaintiffs, Philip G. Passon (Passon) and P.G. Passon, Inc. (the plaintiffs). The injunction in question enjoins the defendants from removing Passon as a general partner and managing agent of Kingsland Properties, Ltd., and from interfering in the day-to-day management of the partnership. The defendants argue on appeal that the injunction must be reversed because (1) the trial court failed to conduct an evidentiary hearing prior to the entry of the preliminary injunction; and (2) as a matter of law the partnership agreement expressly allows for Pas-son’s removal and allows for TCR, Inc., to make the day-to-day decisions in the event of disputes between the general partners.

On June 30, 1987, the parties in this case entered into a limited partnership agreement (the agreement) for the purpose of creating Kingsland Properties, Ltd., an Illinois limited partnership (the partnership). Under the terms of the agreement, plaintiff Philip G. Pas-son and TCR, Inc., are general partners. Also under the agreement, Virginia Neece, both individually and as trustee of a named trust and the estate of Rodney A. Andersen, deceased, are limited partners of the partnership. Also, on September 1, 1990, the partnership and plaintiff P.G. Passon, Inc., entered into a management/brokerage agreement. The agreement states, in relevant part, as follows: “As long as VIRGINIA P. NEECE is a Limited Partner individually, any of the General Partners may be removed by a majority interest of the Limited Partners.” The agreement also provides that the partnership interests upon removal of a general partner are to be computed differently if that partner is removed “for cause.”

By a letter dated June 29, 1992, the defendants sent notice to Passon that he was in breach of the agreement and that he had 30 days to cure the breach. By a second letter, dated July 31, 1992, the defendants notified Passon that pursuant to his failure to cure the alleged breach he was being removed “for cause.” On September 3, 1992, the plaintiffs filed a petition seeking the entry of a “temporary restraining order, preliminary injunction, permanent injunction, and other relief” in regard to the limited partnership agreement and the management/brokerage agreement to prevent Passon’s removal for cause.

The defendants filed a verified answer to the complaint which denied many of the factual allegations in Passon’s complaint and set forth three affirmative defenses. In addition, the defendants, through a counterpetition incorporated in their answer, petitioned for the entry of a temporary restraining order (TRO) and preliminary injunction forbidding Passon from disbursing any partnership funds without a cosignature of an officer of TCR, Inc.

On September 15, 1992, the court called this matter to determine whether a “petition for [a] temporary restraining order” should be granted. However, after arguments from counsel, the trial judge stated that the court was going to issue a preliminary injunction and that the court “will set down a time for a hearing on whether or not Mr. Passon was properly removed for cause.”

In a hearing on September 16, 1992, before the order now in question was entered, the defendants objected on several grounds. First, the defendants argued that the issue before the court on September 15 was whether a TRO should be issued, not whether a preliminary injunction should be issued. They objected that no preliminary injunction hearing date was set by the court. Second, the defendants objected to the injunction because they had filed a verified answer raising controverted issues of fact, particularly on the issue of irreparable injury, which were not addressed by the court.

The court ruled that the only hearing date necessary was “on the issue of whether oy not the injunction should be made permanent.” Thereafter, the defendants objected again to the entry of the preliminary injunction without notice of or opportunity to present any testimony.

Later that same day, after the entry of the preliminary injunction, the defendants filed a motion to dissolve. Also, Passon filed a response to the defendants’ affirmative defenses. The time stamp appearing on Passon’s response indicates that it was filed after the September 16 order was entered by the court. There is no indication that Passon’s response was before the court when the preliminary injunction was entered.

On September 17, 1992, the court held a hearing on the defendants’ motion to dissolve the injunction. Therein, the trial judge stated that he had looked at the transcripts of the earlier proceedings and found that the defendants did not ask for an evidentiary hearing. The court continued by saying that “[t]here was some discussion on the record by [Passon’s counsel] as to whether or not the court wished to conduct an evidentiary hearing and I said I believe [sic] it was appropriate, and what I was referring to, of course, was the voluminous pleadings, with attachments, which [both parties] provided, to proceed on the four corners of the partnership agreement and the other documents and the allegations of the complaint [that] were appropriate, to make a determination.” The court also stated that the defendants’ counsel “never said at that point [that they] demand a hearing,” and “[t]here is no indication that [they] wanted an evidentiary hearing.” The court further explained that it tried to preserve the status quo so that an arbitrator, as called for in the partnership agreement, would have something left to resolve. The court denied the motion to dissolve. This appeal followed.

We first address the issue of whether the court erred in entering a preliminary injunction without first conducting an evidentiary hearing. Passon asserts, initially, that this issue was waived by the defendants failing to request such a hearing prior to the September 16, 1992, order. In support of this argument, Passon notes that the defendants did not request an evidentiary hearing prior to the court’s ruling on September 15, and he notes that the trial court on September 17 found that the defendants did not request an eviden-tiary hearing prior to the entry of the injunction.

The defendants acknowledge that they did not ask for an evi-dentiary hearing before the trial court’s ruling on September 15. They argue, however, that on that date, by the trial court’s own words, they were before the court to decide whether “[a] temporary restraining order” should be issued and therefore they had no right to an evidentiary hearing at that point. The defendants further note, contrary to the court’s September 17 findings, that prior to the entry of the preliminary injunction on September 16, 1992, they notified the court that the matter had been set for a ruling on the application for a TRO and not for a ruling on a preliminary injunction, and they specifically objected to the entry of the preliminary injunction without notice of a preliminary injunction hearing and without the taking of testimony. Additionally, the defendants note that they raised this issue in their motion to dissolve the injunction.

The classification of an order as a TRO or a preliminary injunction will be determinative of the type of hearing required for the issuance of the order. (See Peoples Gas Light & Coke Co. v. City of Chicago (1983), 117 Ill. App. 3d 353, 355.) Upon an application for a preliminary injunction, an evidentiary hearing is normally required where a verified answer has been filed denying material allegations in the complaint. (117 Ill. App. 3d at 355.) However, a hearing on a motiop for a TRO is a summary proceeding, and even if the defendant files a verified answer, the court still proceeds in a summary fashion, hearing only arguments on the motion for the TRO. See Lawter International, Inc. v. Carroll (1982), 107 Ill. App. 3d 938, 939-40.

Given that the court began the proceedings on September 15, stating that it was to decide whether a TRO should be issued, we cannot find that the defendants waived the evidentiary hearing by failing to request one there; the defendants were not entitled to an evidentiary hearing if the court was merely determining whether a TRO should be issued. (See Lawter, 107 Ill. App. 3d at 939-40.) The record is clear that when the proposed preliminary injunction order was submitted by the plaintiff to the court on September 16, the defendants objected to its entry without notice or an opportunity to present testimony. Based on this record and despite the court’s finding on September 17, 1992, that the defendants never requested an evidentiary hearing, we find that the defendants have not waived this issue for review.

Passon also argues that an evidentiary hearing was not required in this instance because the defendants’ verified answer did not deny material allegations in the complaint. (See Peoples Gas, 117 Ill. App. 3d at 355.) The defendants argue that their verified answer denies material allegations in Passon’s complaint. A partial list of disputed factual issues raised in the defendants’ answer include: (1) whether the partnership, under Passon’s management, has defaulted on a loan; (2) whether Passon materially breached the partnership agreement; (3) whether Passon is responsible for the day-to-day operations of the partnership; (4) whether the defendants wrongfully attempted to “force Philip G. Passon from the Partnership” or whether Virginia Neece was operating under her right to remove Passon pursuant to the agreement; (5) whether the removal of Passon would be detrimental to the day-to-day management and operation of the partnership or would diminish the value of the partnership property; (6) whether Passon’s guarantees of partnership loans would cause him irreparable damage; and (7) whether there will be an unjust loss of value of Passon’s partnership interest if he is removed from the partnership.

This is not an instance where the “crux” of the plaintiff’s complaint was uncontroverted by the defendant (see Brooks v. La Salle National Bank (1973), 11 Ill. App. 3d 791, 798), or where the defendant refused to present evidence of the disputed facts when given an opportunity by the court (see SSA Foods, Inc. v. Giannotti (1982), 105 Ill. App. 3d 424, 428). We find that the disputed facts raised in the defendants’ answer controvert several material allegations that address the very necessity of equitable action alleged in Passon’s complaint. For example, whether the removal of Passon would be detrimental to the partnership or would diminish the value of the partnership property is an essential issue in this case as it directly relates to the requirement that there would be irreparable injury and that there exist no adequate remedies at law. (See Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1978), 61 Ill. App. 3d 636, 642.) Therefore, we do not find that inadequate denials in the defendants’ answer obviate the necessity for the court to conduct an evidentiary hearing.

Passon argues in the alternative that despite its “Order for Preliminary Injunction” label, the court’s order here is in fact a temporary restraining order. As such, it did not require an evidentiary hearing prior to its issuance. He asserts in this regard that the order’s effect and the apparent intention of the trial court’s order, despite its label, is the functional equivalent of a TRO. Therefore, he argues, an evidentiary hearing was not necessary.

We disagree. A TRO is an emergency remedy issued to maintain the status quo until a hearing can be held on an application for a preliminary injunction. (Peoples Gas, 117 Ill. App. 3d at 355.) Whereas, the purpose of a preliminary injunction is to maintain the status quo until the case is disposed of on the merits. 117 Ill. App. 3d at 355.

The trial judge here refused, when asked by the defendants, to set the matter for preliminary hearing. He stated that the matter would be set for a “hearing date on the issue of whether or not the injunction should be made permanent.” The trial judge also stated that a date would be set to determine if Passon was “properly removed for cause.” The judge’s intent is inconsistent with the purpose of a TRO, which is merely to maintain status until a hearing can be held on whether to grant a preliminary injunction. We find that the trial judge appears, rather, to have intended to maintain the status quo until the case could be disposed of on the merits. Therefore, we find no merit in Passon’s assertion that the preliminary injunction issued by the court was in effect a TRO.

Here, the court improperly issued a preliminary injunction without the procedural safeguards that are required when a party is asking for such extraordinary relief. If a court wishes to properly enter a preliminary injunction after a defendant files an answer which disputes material factual issues, the court must hold an evidentiary hearing. (See Peoples Gas, 117 Ill. App. 3d at 355.) Furthermore, the court is required to determine by a preponderance of the evidence that: (1) the movant possesses a certain and clearly defined right that requires protection; (2) there would be immediate and irreparable injury if it is denied; (3) there exists no adequate remedy at law; and (4) there is a probability of ultimate success on the merits. Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1978), 61 Ill. App. 3d 636, 642.

Since no evidentiary hearing was held before the entry of this preliminary injunction, we find that the court abused its discretion in entering the order. (See Peoples Gas, 117 Ill. App. 3d at 357.) Pursuant to this determination, we do not find it necessary to reach the merits of the defendants’ other grounds for appeal.

Therefore, the judgment of the circuit court of Du Page County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

DOYLE and QUETSCH, JJ., concur.


author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSE THOMAS et al., Defendants-Appellants.
    Second District
    Nos. 2 — 92—0093, 2 — 92—0096 cons.
    Opinion filed March 9, 1993.

      George C. Howard, Ltd., of Chicago (George C. Howard, of counsel), for appellants.
    James E. Ryan, State’s Attorney, of Wheaton, and Joan M. Kripke, of Chicago (William L. Browers, John X. Breslin, and Lawrence H. Kaschak, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Defendants, Jesse Thomas and Claude Thomas, were indicted in the circuit court of Du Page County on one count each of unlawful possession of cannabis with the intent to deliver (111. Rev. Stat. 1989, ch. BeVa, par. 705(e)) and one count each of armed violence (111. Rev. Stat. 1989, ch. 38, par. 33A — 2). Following a jury trial, both defendants were found guilty of both counts. Jesse Thomas was sentenced to three years in prison and a $1,000 fine for unlawful possession and six years for armed violence. Claude Thomas was sentenced to a three-year term of imprisonment and a $1,000 fine on the unlawful possession charge and seven years in prison for armed violence. Both defendants timely appealed, and their appeals have been consolidated.

The following issues are raised on appeal: (1) whether the trial court erred in refusing to instruct the jury on the defense of entrapment as to Claude Thomas; (2) whether Jesse Thomas was proved guilty beyond a reasonable doubt of the unlawful possession of cannabis; (3) whether both defendants were proved guilty beyond a reasonable doubt of armed violence; and (4) whether Jesse Thomas was unduly prejudiced by an officer’s testimony that Jesse admitted being an addict and marijuana user and by the prosecution’s attempt to impeach him with an unsubstantiated prior conviction.

The following facts were adduced at defendants’ trial. Officer Michael Cooke of the Illinois State Police testified that in April 1991 he was assigned to work with the Du Page Metropolitan Enforcement Group (DuMeg) and was involved in undercover narcotics transactions. During the first week of April, Larry Davis (a/k/a Ronald Frost), a paid informant, informed him and other DuMeg officers that he knew of someone who was interested in buying large amounts of cannabis.

On April 19, 1991, at about 8:30 a.m., Officer Cooke’s electronic pager was activated and displayed a telephone number. Cooke called the number, and Claude Thomas answered. Claude told him that he had $10,000 and wanted to purchase 10 pounds of cannabis for $1,000 per pound. Claude also told Cooke that if the stuff was good, Cooke would be his main supplier. At about 11 a.m. that day, Cooke again telephoned Claude Thomas pursuant to Thomas’ page, and Claude told him he was ready to “do the deal.” Cooke told him he would have to obtain the cannabis and that he would get in touch with him later. Cooke called Claude Thomas at about 1 p.m. and arranged to complete the deal at a shopping mall in Oak Brook at 3 p.m. that same day.

A 10-pound bundle of cannabis, wrapped in plastic and placed in a plastic bag, was placed in a vehicle driven by Officer Robert Guerrieri of DuMeg. Cooke, who was equipped with a microphone and recording device, drove with Davis to the designated area of the shopping mall. Guerrieri drove the vehicle containing the cannabis, and other DuMeg agents were also present at the shopping mall for arrest and surveillance purposes.

As Cooke pulled into a parking space in the mall lot, an Oldsmobile driven by Claude Thomas pulled in just to the left of and facing Cooke’s car. Jesse Thomas was in the passenger seat of the Oldsmobile. Guerrieri parked his vehicle eight or nine parking spaces west of Cooke’s car.

Cooke and Davis exited their car, walked over to the driver’s window of the Oldsmobile and exchanged greetings with Claude and Jesse. Cooke told them he had the cannabis but that he wanted to see the money first. Jesse then exited the car and began rummaging or looking around in the trunk. According to Cooke, Jesse was told by Claude to get the $10,000 out of the trunk. The transcript of the tape-recorded conversation that occurred at the Oldsmobile does not indicate that Claude mentioned $10,000 to Jesse. Nor does it contain any reference to cannabis. After Jesse yelled he could not find it, Claude stepped out of the car and yelled that it was under papers and other material. Jesse then obtained a White Castle paper bag from the trunk and got back in the car. Cooke asked to see the money, and Jesse opened the bag and showed him a large quantity of money.

After viewing the money, Cooke told defendants that the cannabis was in another car and that one of them could walk over to the car with him. Claude Thomas exited the car, and he and Cooke went over to Officer Guerrieri’s vehicle. Claude Thomas entered Guerrieri’s vehicle, opened up the bag and looked at the cannabis. In doing so, he actually took the plastic-covered bundle of cannabis out of the bag it was in.

On cross-examination, Cooke admitted that a handgun found in the Oldsmobile was never in the same place as the marijuana. He also admitted that he told Claude that if he did not like the marijuana he did not have to take it. There was also no indication anywhere in the transcript of the recording that Claude ever orally accepted the marijuana or the deal. On redirect examination, Cooke stated that Jesse was present at the Oldsmobile for the entire conversation between himself and Claude.

Officer Robert Guerrieri, another DuMeg agent, testified that he was assigned to transport the cannabis for the transaction on April 19, 1991. He parked his pickup truck about 10 parking spaces from Officer Cooke’s car. He observed Cooke have a conversation with the driver of the Oldsmobile while Cooke stood at the driver’s side window. Shortly thereafter, the passenger exited the Oldsmobile, walked to the trunk and opened it. Claude then left the vehicle and walked towards the trunk. Jesse then shut the trunk and reentered the passenger’s seat with a bag in his hand. Guerrieri identified the bag containing $10,000 seized from the Oldsmobile as the bag Jesse carried from the trunk.

A short while later, Claude and Officer Cooke walked over to Guerrieri’s truck, and Claude sat down in the passenger’s seat of the truck. After exchanging greetings, Claude removed the bundle of cannabis from the plastic bag and held the bundle in his hands. He turned the bundle over in his hands as he looked at it for about 10 to 15 seconds. He did not unwrap the plastic around the bundle. Guer-rieri conceded on cross-examination that Claude never said “this is fine with me” or “you got a deal” or “I’ll accept it.” At that point, Cooke activated an arrest signal, and Claude was arrested.

Guerrieri also testified concerning an interview he and Officer Gina Argianis conducted with Claude following his arrest. According to Guerrieri, Claude told him, among other things, that he had been contacted by Jesse regarding the pager number of Officer Cooke who was interested in selling cannabis. Claude related that he obtained a portion of the $10,000 from Jesse. Claude also said that he gave the gun seized in the Oldsmobile to Jesse, and Jesse placed it either in the seat back or between the seats.

Claude agreed to Officer Argianis’ writing out his statement, which Claude then signed. Guerrieri admitted that the written statement contained no specific reference to Jesse giving Claude any money, any reference to the pistol, any reference to Jesse knowing what the purpose of Claude’s trip to Oak Brook was or any reference to Jesse knowing about there being $10,000 in the Oldsmobile. The written statement does, however, refer to the fact that Claude received a beeper number from Jesse. The police report prepared by Ar-gianis and signed by Guerrieri refers to Claude’s statement that he gave a pistol to Jesse but is silent as to where Jesse put the pistol. Guerrieri explained that the written statement was taken after Claude gave an oral statement, and it was not intended to be verbatim.

Officer Gina Argianis, another DuMeg officer, testified that she and Guerrieri interviewed Claude after his arrest. According to Ar-gianis, Claude told the officers that he had obtained part of the $10,000 from Jesse, that he had given a .32 caliber revolver to Jesse for protection and that Jesse placed the gun underneath the armrest of the Oldsmobile on the way to Oak Brook.

Argianis then asked Claude to give a written statement, which he agreed to do. Argianis wrote verbatim everything Claude said from that point. At one point, Claude stated that the officers “knew the rest of the story” and that he wanted to stop. Argianis and Guerrieri concluded the interview at that time. While the written statement does not refer to Claude’s having obtained money from Jesse or having given a gun to Jesse, it does state that Jesse had called Claude the morning of April 19 to tell him that a blond-haired guy had called and said his car broke down and he would be late for the appointment and further that Jesse gave Officer Cooke’s beeper number to Claude.

Officer Ken Boehm, who was on temporary assignment to DuMeg on April 19, 1991, testified that he was responsible for arresting defendants after the transaction was concluded. Upon searching the Oldsmobile after defendants’ arrest, Boehm recovered a .32 caliber, five-shot revolver from an opening in the back of the seat hidden by the fold down armrest. Boehm identified a pistol as the one found in the Oldsmobile. Boehm also testified that when he arrived at the Oldsmobile he observed a white bag between Jesse’s legs.

Officer John Bright of DuMeg testified that he interviewed Jesse at the police station following his arrest. In completing a personal history form, Bright asked Jesse if he was addicted to drugs and if he habitually used drugs, and Jesse responded “yes” to both questions. Jesse also stated that he had used cannabis for over 10 years. Jesse also told Bright in the interview that he came with Claude knowing Claude was going to purchase cannabis and that back at the apartment he had seen that the bag contained a large amount of money. Jesse further stated that it was Claude who had obtained the money from the trunk and had instructed Jesse to sit in the car with it. Bright admitted on cross-examination that no written statement was taken from Jesse concerning the drug transaction.

Kenneth Mason testified on behalf of defendants that he knew defendants from his going to a grocery store where they were employed. While at the store, he had occasion to meet Larry Davis in January 1991. Mason introduced Davis to Claude Thomas. According to Mason, Davis would discuss obtaining marijuana every time he saw him. On April 19, 1991, Davis gave him a piece of paper with a beeper number on it which he in turn gave to Claude Thomas. Mason had never seen Jesse Thomas smoke marijuana and had no knowledge of his being addicted to marijuana.

Jesse Thomas testified in his own behalf that he was employed in construction and made deliveries for the grocery store where his brother, Claude, worked as a security guard. Jesse first saw Davis when Davis started coming around the grocery store several months before April 1991. He denied having any business relationship with Davis.

On April 19, 1991, Claude came to the store and asked Jesse to go for a ride with him. According to Jesse, Claude did not tell him specifically where he was going or the purpose of the trip other than that he was driving to the suburbs. They drove to a shopping center in Oak Brook and eventually parked facing the car occupied by Officer Cooke and Larry Davis. After talking to Cooke, Claude told Jesse to get the money out of the trunk. Jesse could not find the money in the trunk so Claude came back, got the money and placed it on the floorboard of the Oldsmobile. Claude had never previously discussed the money with Jesse or told him what the money was for.

Jesse denied making a statement to the police that Claude had given him a pistol for protection or that he knew why Claude went to Oak Brook. Jesse also denied being an addict, habitually using marijuana or other drugs or having been arrested in connection with any drugs. He further denied that any of the $10,000 was his, that Claude had asked him for any money or that he knew the pistol was in the Oldsmobile.

On cross-examination, Jesse admitted that once he could see a drug deal was occurring he did not try to prevent Claude from going through with it. He denied that Davis ever gave him a beeper number or that he ever gave a beeper number to Claude. After Jesse denied that he had ever been arrested previously for marijuana, the prosecution asked him if it was true that he had been arrested for possession of marijuana on April 6 and October 5, 1976. He stated that was not true.

Claude Thomas testified that he was a security guard for a grocery store on April 19, 1991. Approximately three months prior to April 19, he met Larry Davis at the grocery store when he was introduced by Ken Mason. Shortly after their meeting, Davis told him that he had a friend who could obtain large quantities of marijuana and would give him a good price. It was Davis who brought up the idea of purchasing marijuana. Davis also offered to help Claude dispose of the marijuana if Claude was willing to invest. Davis would discuss the matter at least once a day. Claude continued to tell Davis that he was not interested up until April 18 when he then said he was interested.

On that date, Davis told him his connection had 12-pound bales of marijuana for sale, and Claude responded that he could afford only 10 pounds. Daws said that would be okay, and the deal was arranged for April 19.

On April 19, Claude received a beeper number from Davis via Ken Mason. He called the number and spoke to “Mike” (Officer Cooke), and Mike told him that if he wanted to make the deal he would have to do so that day as Mike was supposed to enter the hospital. Claude then got the money together and went to the grocery store and picked up his brother. Claude asked Jesse if he would take a ride with him but did not inform Jesse of why he was going to Oak Brook.

After parking in the shopping center lot, Davis and Cooke walked over to Claude’s car. Cooke asked him if he was ready to do business, and he responded that he was as ready as he would ever be. Cooke then asked to see the money, and Claude asked Jesse to go to the trunk to get the money. He had not informed Jesse prior to that that there was money in the trunk. Jesse could not find the money and told Claude to come find it.

After showing the money to Cooke, Claude gave it to Jesse to hold until Claude looked at the cannabis. Claude walked over to Guer-rieri’s vehicle, opened the door and placed his left foot on the running board. When he asked where the cannabis was, someone said it was in a black garbage bag. Before he could see the bag or pick it up, he was arrested. On cross-examination, he admitted that he intended to buy the marijuana but denied ever possessing it.

Claude admitted that there was a pistol between the armrest and the seat but denied that he told Jesse there was a pistol in the car. He also denied that the pistol admitted into evidence was the pistol in his car that day.

He stated that he might have told the police in his written statement that Jesse gave him Cooke’s beeper number because he was “shook up a little bit.” He denied getting the number from Jesse. Claude also testified that he might have told the police that Jesse called him to tell him that the blond-haired guy was going to be late, but he could not recall saying that to the police. He denied telling the police that he gave Jesse a pistol or that he obtained part of the $10,000 from Jesse.

On cross-examination, Claude conceded that even though he told Davis to leave him alone he kept talking to Davis every day. The more Davis talked to him about dealing marijuana, the better the idea sounded. Deep down in his heart he did not want to do it, but did so in a moment of weakness. He admitted he wanted to make some money doing so.

He also admitted that Jesse knew a drug deal was going on by the time he asked Jesse to get the money out of the trunk and that Jesse did so to help him out. On redirect examination, he explained that he was guessing as to whether Jesse knew a drug deal was occurring. He brought the money back to the passenger compartment but gave it to Jesse to hold. Jesse pushed it under the seat.

Claude Thomas proffered a jury instruction on the defense of entrapment. The trial court refused the instruction based on its determination that Claude Thomas had, by testifying that he never possessed the cannabis, failed to admit that he committed the offense.

The jury found both defendants guilty of all counts. The trial court imposed sentence, and defendants appealed.

The first issue raised on appeal is whether the trial court erred in refusing Claude Thomas’ request to instruct the jury on the entrapment defense. A precondition to raising the entrapment defense is that a defendant must admit that a crime was committed and that he committed it. (People v. Gillespie (1990), 136 Ill. 2d 496, 501.) The entrapment defense is not available to a defendant who denies committing the offense charged. (Gillespie, 136 Ill. 2d at 501.) In this case, defendant contends that while he denied possessing the 10 pounds of cannabis, he essentially admitted the elements of the offense and was therefore entitled to an entrapment instruction.

To obtain a conviction for unlawful possession of a controlled substance, the State must prove that the defendant had knowledge of the presence of the drugs and that the drugs were in his immediate possession and control. (People v. Eiland (1991), 217 Ill. App. 3d 250, 259-60.) Possession may be established by evidence of actual physical possession or constructive possession. (Eiland, 217 Ill. App. 3d at 260.) It is evident that possession of the cannabis was a necessary element of the charge in this case. Defendant denied touching or even seeing the cannabis. When asked whether he possessed the cannabis, he answered no. If the jurors had found Claude’s version to be credible, they might have rejected the State’s theory of possession. Because he denied one of the essential elements of the crime, he was not entitled to the entrapment instruction. As noted by our supreme court, it would be both factually and legally inconsistent for a defendant to deny committing the offense and then to assert as a defense that he committed the offense because of incitement or inducement by authorities. Gillespie, 136 Ill. 2d at 501.

The next contention is that Jesse Thomas was not proved guilty beyond a reasonable doubt of possession of cannabis with the intent to deliver. Jesse argues that there is no evidence to support a finding that he actually or constructively possessed the cannabis. He further maintains that the evidence does not establish that he aided or abetted Claude. A criminal conviction will not be set aside on review unless the evidence is so improbable or unsatisfactory that there remains a reasonable doubt of the defendant’s guilt. (People v. Morgan (1991), 142 Ill. 2d 410, 439.) It is not the function of the reviewing court to retry a defendant when considering a challenge to the sufficiency of the evidence of his guilt. (Morgan, 142 Ill. 2d at 439.) Rather, determinations of the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn from the evidence- are responsibilities of the trier of fact. (Morgan, 142 Ill. 2d at 439.) The relevant question on appeal is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Eyler (1989), 133 Ill. 2d 173, 191.

Section 5 — 2 of the Criminal Code of 1961 provides that a person is legally accountable for the conduct of another when “[e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1991, ch. 38, par. 5 — 2(c); People v. Stanciel (1992), 115 Ill. 2d 218, 232-33.) A charge based upon accountability must necessarily flow from the principal crime charged. (Stanciel, 153 Ill. 2d at 233.) Accountability is not in and of itself a crime, but rather a method through which a criminal conviction may be reached. (Stanciel, 153 Ill. 2d at 233.) A person may be found to have aided and abetted without actively participating in the overt act itself. Stanciel, 153 Ill. 2d at 233.

Jesse does not argue on appeal that the evidence was insufficient to prove Claude guilty of the cannabis charge. Nor do we view any such argument as having any merit in light of the evidence of Claude’s involvement in the transaction. Thus, if the evidence is sufficient to show that Jesse aided or abetted Claude with intent to promote or facilitate the commission of the offense, then Jesse was proved guilty beyond a reasonable doubt of possession of cannabis with the intent to deliver.

Officer Guerrieri testified that Claude told him in a post-arrest interview that Jesse had contacted Claude concerning Officer Cooke’s pager number. Claude also stated that he obtained a portion of the $10,000 from Jesse. He also allegedly admitted to Guerrieri that he gave a handgun to Jesse prior to their arriving in Oak Brook. The written statement signed by Claude, while not mentioning the money or the handgun, did include the fact that Claude received the beeper number from Jesse. Officer Argianis’ testimony essentially corroborated that of Officer Guerrieri. Additionally, Officer Bright testified that Jesse told him during the post-arrest interview that Jesse went with Claude knowing Claude was going to purchase cannabis and that while at the apartment he had observed that the bag contained a large sum of money. Also, several officers testified that Jesse retrieved the bag of money from the trunk and possessed the bag of money in the Oldsmobile during the drug transaction.

Jesse denied that he made any statements to the police concerning the gun, that he knew Claude’s purpose for going to Oak Brook, or that any of the $10,000 was his. Claude testified that he obtained the beeper number from Ken Mason, and Mason corroborated this testimony. He denied informing Jesse of the purpose of the trip to Oak Brook. Claude admitted that he asked Jesse to get the money from the trunk and to hold it while he looked at the cannabis. Claude denied telling the police that he gave Jesse a pistol or that he obtained part of the $10,000 from Jesse. He equivocated in his denial that he told the police that he obtained Cooke’s beeper number from Jesse.

To the extent there are conflicts in the testimony as to Jesse’s knowledge and participation in the drug transaction, those credibility determinations were the responsibility of the jury. (Morgan, 142 Ill. 2d at 439.) When viewed in a light most favorable to the prosecution, the evidence readily supports the jury’s verdict as to Jesse.

The next issue is whether both defendants were proved guilty beyond a reasonable doubt of armed violence. Specifically, defendants argue that the State failed to establish a nexus between the gun and the commission of the crime because-the marijuana and the gun were never in the same location.

“A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law.” (111. Rev. Stat. 1991, ch. 38, par. 33A — 2.) A person is considered armed with a dangerous weapon “when he carries on or about his person or is otherwise armed with” a pistol. (Ill. Rev. Stat. 1991, ch. 38, par. 33A — 1; see People v. Condon (1992), 148 Ill. 2d 96, 109.) To satisfy the elements of the armed violence statute, a defendant must have some type of immediate access to or timely control over the weapon. Condon, 148 Ill. 2d at 109-10.

According to Claude’s statement to the police, Jesse knew the pistol was located behind the armrest of the front seat. Other than when he left the front seat to get the money from the trunk, Jesse remained in the Oldsmobile with the gun during the entire transaction. He clearly had immediate access to the gun during the commission of the offense. This is so notwithstanding the fact that the marijuana was located several parking spaces away in another vehicle. We do not view the armed violence statute to require, in the context of a drug transaction, that the weapon and the drugs be in the same place at the same time. This is especially so where, as here, two defendants act in concert with one armed and the other not. The evidence supports the jury verdict as to Jesse.

Regarding Claude, the evidence established that Claude was in and around the Oldsmobile during part of the drug transaction. Thus, he also had immediate access to the gun, at least during part of the offense. That alone is sufficient to support the jury’s verdict. Furthermore, he also had “timely control over the weapon” in that, while he was away from the Oldsmobile, Jesse, his accomplice in the transaction, had immediate access to the gun. The intended purpose of the armed violence statute is to deter felons from using dangerous weapons. (Condon, 148 Ill. 2d at 109.) With his accomplice having immediate access to the gun, Claude was potentially dangerous within the meaning and purpose of the armed violence statute whether or not he maintained personal access to the gun during all stages of the transaction. For both of these reasons, we hold the evidence was sufficient to prove Claude guilty beyond a reasonable doubt.

Jesse Thomas’ final contention is that he was unduly prejudiced by an officer’s testimony that he admitted being an addict and marijuana user and by the prosecution’s attempt to impeach him with an unsubstantiated prior conviction. We begin this analysis by noting that defendant raised no objection at trial as to either of these alleged instances of trial error, resulting in waiver of these contentions. (See People v. Enoch (1988), 122 Ill. 2d 176, 186.) Of course, one exception to the waiver rule is where plain error occurs. (Enoch, 122 Ill. 2d at 190.) Plain error, however, is a narrow and limited exception to the general waiver rule and is to be invoked only where the evidence is closely balanced or the alleged error is so substantial that it deprived the defendant of a fair hearing. (People v. Hampton (1992), 149 Ill. 2d 71, 100.) Otherwise, defense counsel could secure a reversal simply by intentionally failing to object and, by design, depriving the trial court of the opportunity to prevent or correct the error. Hampton, 149 Ill. 2d at 100.

In the present case, the evidence was not so closely balanced as to justify invocation of the plain error exception. There was, as discussed earlier, substantial evidence that Jesse was involved in the drug transaction and was armed with a dangerous weapon while so involved. The fact that some of the evidence may have been contradicted by defendants’ evidence does not itself establish that the evidence was closely balanced.

Likewise, the alleged errors, if any, were not of the magnitude that defendant was denied a fair trial. Defendant’s own lawyer asked him if he had ever been arrested for a marijuana offense, to which defendant answered no. The State on cross-examination asked defendant if he had been arrested twice for marijuana offenses in 1976, to which defendant said no. There is no other mention of defendant having been arrested before for a marijuana offense, and the prosecutor did not refer to it in closing argument. Even if it had been error for the State to have failed to offer proof of defendant’s prior arrests, such error was insignificant under the facts of this case.

Furthermore, as to Officer Bright’s testimony that defendant admitted he was an addict and a 10-year user of cannabis, we cannot say that such testimony deprived defendant of a fair trial. There was no other reference to this statement by the prosecution. Any error was not of the magnitude to conclude that Jesse was denied a fair trial.

Finally, we note, as the State points out in its brief, that Jesse Thomas’ appellate brief contains no specific references to the record nor cites any law in support of these last two arguments in violation of Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)). (See People v. Trimble (1989), 181 Ill. App. 3d 355, 356.) We are entitled to have the issues clearly defined and to be cited pertinent authority. (Trimble, 181 Ill. App. 3d at 356.) This court is not a depository into which the appellant may dump the burden of argument and research. (Trimble, 181 Ill. App. 3d at 356.) Arguments such as these do not merit consideration on appeal and shall be deemed waived. See Trimble, 181 Ill. App. 3d at 357.

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

Affirmed.

UNVERZAGT and GEIGER, JJ., concur.


author: JUSTICE SCARIANO

text:
    LAVERN CHASE, Plaintiff-Appellee and Cross-Appellant, v. THE DEPARTMENT OF PROFESSIONAL REGULATION et al., Defendants-Appellants and Cross-Appellees.
    First District (2nd Division)
    No. 1 — 91—0930
    Opinion filed January 5, 1993.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and John A. Morrissey, Assistant Attorney General, of Chicago, of counsel), for appellants.
    William C. Coughlin, of Chicago, for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

On December 29, 1988, the Illinois Department of Professional Regulation (Department) filed a two-count complaint against Lavern Chase, a licensed architect, charging him with violating the Illinois Architecture Act (Act) (111. Rev. Stat. 1987, ch. Ill, par. 1201 et seq.). Count I of the complaint alleged that Chase signed and sealed architectural plans and specifications for a fire station in Norwood Park, Illinois, which were not produced under his personal supervision, in violation of section 18(h) of the Act. Count II of the complaint charged Chase with aiding Louis Galante, a nonarchitect, to evade the Act by his signing and sealing plans drawn by Galante, in violation of section 18(g) of the Act.

On April 6 and 7, 1989, hearings were held on the complaint before a nonarchitect hearing officer. Three members of the Architect Examining Committee (Committee) of the Department also attended and questioned the witnesses. The following evidence was adduced at the hearings. In the fall of 1986, Chief Rocco Olita of the Norwood Park fire department asked Galante to design a fire house, converting an existing structure for that purpose. Thereupon, Galante, who at the time was Chicago fire commissioner, examined the existing structure as well as the original drawings of the building submitted to him by Olita, and after taking some measurements on the building site, informed Olita that the project appeared to be feasible.

In late December 1986, Galante requested Chase to assist him in the endeavor. At that time, Chase was employed as an architect by the City of Des Plaines, and he also owned and operated Chase Associates, an architectural firm. Chase agreed to assist Galante with the project, and he also agreed to have Galante handle the negotiation of fees and cost estimates with Olita.

In January 1987, Galante advised Olita that his fee for drafting the fire station plans would be 3% of the first million dollars of the cost of construction and 1.5% of the cost in excess of $1 million. Chase and Galante agreed between themselves that Chase would receive $30 per hour for his services. Shortly thereafter, Norwood Park awarded a contract to Galante for his architectural services.

On February 12, 1987, Galante sent a letter to Olita which confirmed the fee for which he would furnish the necessary drawings and specifications. Although Chase’s involvement in the project was nowhere mentioned in the letter, Galante did bill Norwood Park on Chase’s stationery, albeit without Chase’s knowledge. Olita and Chase both stated that they had never met each other, and Olita testified that based on Galante’s representations, he thought that Galante was in fact the architect on the project and that he was a member of Chase Associates.

Galante drafted all of the plans for the fire station. Chase did not visit the fire station, nor did he know or consult with any of the mechanical or electrical contractors; he did, however, review many of the drafts which Galante drew. The record reflects that Galante spent about 100 hours drafting the plans and that Chase spent approximately 30 hours reviewing them. Chase signed and sealed the final plans, which were delivered to Norwood Park officials in July 1987.

Warner Sabo, called by Chase, and the only expert witness to testify at the hearing, stated that based on his conversations with Chase and Galante, as well as his review of the plans of the building, Chase’s supervision of Galante was “adequate.” He testified that Chase’s failure to meet with the contractors on the site, while perhaps “not good business practice,” did not constitute inadequate supervision. He also stated that although he would not call the drawings “highly acceptable,” they did fall within “an acceptable range.” Sabo also testified that many architects in the field allow their draftsmen to negotiate fee arrangements with their clients.

On May, 10, 1989, the hearing officer issued a report to the Committee detailing his recommended findings of fact and conclusions of law. With respect to count I of the complaint, the hearing officer concluded that Chase violated section 18(h) of the Act by signing and sealing Galante’s architectural plans without proper personal supervision and control. He first stated that he did not need to apply expert testimony to these facts in order to determine whether Chase’s activities violated section 18(h) of the Act. He therefore gave little weight to Sabo’s testimony. He further found that Chase relied too heavily on Galante's “expertise” as a draftsman and that he did not take enough of an active role in the design of the facility. He thus concluded that “[t]his project simply did not bear any fingerprints by [Chase] which can be said to constitute the hands-on direct supervisory control required.”

Regarding count II of the complaint, the hearing officer concluded that Chase violated section 18(g) of the Act by aiding Galante to practice architecture without a license. He determined that Galante was in fact holding himself out as an architect, as evidenced primarily by his letter to Olita detailing the services that he would provide. It was the further observation of the hearing officer that section 18(g) does not require a specific intent to aid another in practicing architecture without a license. He reasoned that since other professional practice acts include the term “willful or willfully aiding” another to practice a regulated profession without a license, the legislature clearly did not require in section 18(g) of the Act that a specific intent to aid another in the practice of architecture be established. Finally, the hearing officer determined that Chase aided Galante in practicing architecture without a license in violation of section 18(g) because his lack of supervisory control over Galante’s negotiations with Olita enhanced Ga-lante’s ability to successfully convince Olita that he was in fact the architect on the project. The hearing officer recommended that Chase be disciplined; however, he left the specific recommendation as to sanctions to the discretion of the Committee.

On May 12, 1989, the Committee issued its recommendation to the Director. It adopted the hearing officer’s findings of fact and conclusions of law and supplemented them with its belief that Chase did not adequately supervise and control the project because it found several deficiencies in the architectural plans, including violations of certain safety codes. The Committee further stated that Chase’s lack of “intimate personal knowledge” of the project contributed to Galante’s unauthorized practice of architecture. For these reasons, the Committee recommended to the Director: (1) that Chase’s license be suspended for at least three years; (2) that Chase be required to engage in practical diversified training under a licensed architect for three years; and (3) that Chase be required to retake the Architect Registration Examination (ARE) prior to reinstatement.

On September 15, 1989, Stephen Selcke, who was Director of the Department at the time these proceedings were conducted, issued an order accepting the Committee’s findings that Chase violated sections 18(g) and (h) of the Act. The Director also agreed that Chase’s license should be suspended; however, he remanded the case to the Committee with respect to the other two proposed sanctions because he felt that the case did not involve Chase’s competence as an architect. The Director also asked the Committee to consider shortening the period of suspension.

On November 13, 1989, the Committee issued a supplemental recommendation. It disagreed with the Director’s opinion that this case did not concern competence, specifically noting what it perceived to be the deficiencies in the plans for the fire station. The Committee nevertheless modified the sanctions that it had originally recommended, suggesting that Chase’s suspension and period of supervision should be decreased to two years and that he be required to retake only certain specified portions of the ARE. On April 13, 1990, Kevin Wright, the Director who had succeeded Selcke, issued an order adopting the Committee’s revised recommended sanctions.

On May 16, 1990, Chase filed a complaint for administrative review in the circuit court pursuant to section 3 — 103 of the Administrative Review Act. (111. Rev. Stat. 1989, ch. 110, par. 3 — 103.) On February, 19, 1991, the court affirmed the Director’s decision that Chase violated sections 18(g) and (h) of the Act and that his license be suspended for two years, holding that the evidence was sufficient to support that determination, and rejecting Chase’s contention that expert testimony was necessary in order to determine whether his supervision of Galante was in fact inadequate. However, the court reversed the Director’s sanctions that Chase obtain supervisory experience and retake parts of the ARE, reasoning that since the case had nothing to do with Chase’s competence as an architect, those sanctions were arbitrary and capricious.

The Department appeals from the trial court’s decision reversing the Director’s sanctions with regard to supervision and retaking the ARE. Chase cross-appeals from the court’s decision affirming the Director’s finding of a violation of sections 18(g) and (h) of the Act and the two-year suspension of his license.

I

We first address Chase’s cross-appeal. He initially asserts that the complaint failed to inform him of the nature of the alleged violations of the Act. He claims that the Committee continuously referred to the defects in the plans both at the hearing and in its recommendation to the Director, even though the complaint did not allege a violation of section 18(a) or (b) of the Act, which deal with incompetency.

Chase’s claim is unfounded. In administrative proceedings, a complaint need not state the charges with the same refinements and selectivity as a complaint in a court of record. (Grissom v. Board of Education of Buckley-Loda Community School District No. 8 (1979), 75 Ill. 2d 314, 323, 388 N.E.2d 398, 401; Ballin Drugs, Inc. v. Department of Registration & Education (1988), 166 Ill. App. 3d 520, 526, 519 N.E.2d 1151, 1156, appeal denied (1988), 121 Ill. 2d 567, 526 N.E.2d 827.) An administrative complaint need only “ ‘reasonably apprise the party of the case against him so that he will be able to intelligently prepare his defense.’ [Citation.]” Ballin, 166 Ill. App. 3d at 526, 519 N.E.2d at 1156.

In the case at bar, the complaint accuses Chase of violating section 18(h) of the Act for not adequately supervising Galante’s drafting of the plans for the fire station. The complaint also charges that Chase violated section 18(g) of the Act by aiding Galante in practicing architecture without a license. A review of these allegations makes it clear that they gave Chase a sufficient opportunity to prepare an intelligent defense thereto.

Chase specifically asserts that he had no way of anticipating, based on the complaint, that the Départment would make an issue of the quality of the plans, since it was irrelevant as to whether he properly supervised Galante. It is plain, however, that inadequacies in his draftsman’s drawings are always pertinent to the question of whether an architect has sufficiently monitored his work in compliance with the requirements of section 18(h) of the Act. Therefore, Chase should not have been surprised when, at the hearing, the Department questioned him regarding the details of Galante’s drawings. Consequently, we find that the complaint adequately apprised Chase of the charges against him.

II

Chase next contends that the Director’s determination that he violated sections 18(g) and (h) was against the manifest weight of the evidence. Specifically, he claims that the Department presented no expert testimony from which the Committee could have concluded that he violated these sections of the Act; therefore, he asserts, the Committee members considered matters outside the record, i.e., their own expertise, to find that he violated the Act.

The Department responds by asserting that it was not necessary that it offer any expert testimony because the Committee could rely on its own expertise to conclude that Chase violated the Act. In the alternative, it argues that the hearing officer and the trial court, both nonarchitects, determined that Chase violated the Act without the aid of expert testimony. The Department thus urges that even if it used its own special knowledge improperly, it was sufficient that it adopted the conclusions of the hearing officer, who did not employ any expertise in arriving at his conclusions.

As a general matter, the findings and conclusions of an administrative agency on questions of fact are deemed prima facie true and correct. (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 110; Carver v. Bond/ Fayette/Effingham Regional Board of School Trustees (1992), 146 Ill. 2d 347, 355, 586 N.E.2d 1273, 1277.) A reviewing court may not disturb these findings unless they are against the manifest weight of the evidence. (Kloss v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 252, 257, 449 N.E .2d 845, 848.) This rule, however, does not relieve a reviewing court of its duty to examine the evidence in an impartial manner and to set aside an order which is unsupported in fact. Carver, 146 Ill. 2d at 355, 586 N.E .2d at 1277; Kloss, 96 Ill. 2d at 258, 449 N.E.2d at 848.

Although, as noted above, the standard of review of an administrative finding of fact generally is whether it is against the manifest weight of the evidence, where an administrative agency makes factual determinations involving technical concepts unique to its expertise, expert testimony must be introduced into the record supporting the agency’s position. (Smith v. Department of Registration & Education (1952), 412 Ill. 332, 106 N.E.2d 722; Farney v. Anderson (1978), 56 Ill. App. 3d 677, 372 N.E.2d 151; see also Craig v. Pollution Control Board (1978), 59 Ill. App. 3d 65, 376 N.E.2d 1021.) In Smith, the trial court upheld the Director’s decision to suspend the plaintiff’s license to practice medicine, even though the Department of Registration and Education, the predecessor agency of the present Department of Professional Regulation, introduced no expert testimony, on the ground that members of the medical board did not need expert evidence to arrive at their decision given the knowledge, experience and expertise of its members. Smith, 412 Ill. at 347, 106 N.E.2d at 729.

Our supreme court reversed. The court stated that “[i]t is well settled *** that an administrative tribunal cannot rely upon its own information for support of its findings.” (Smith, 412 Ill. at 347, 106 N.E.2d at 730.) Instead, it stated that an agency’s findings must be based on evidence “ ‘appearing in the record,’ ” so that each party may have an opportunity to cross-examine witnesses, inspect documents, and to introduce contrary testimony. (Smith, 412 Ill. at 349, 106 N.E.2d at 730, quoting McKay v. State Board of Medical Examiners (1938), 103 Colo. 305, 312, 86 P.2d 232, 236.) The court reasoned:

“Attorneys for [the Department] contend that there was no necessity for such proof inasmuch as appellant himself stated from time to time *** that the American Medical Association had no use for the treatment and regarded it as worthless and not to go to any other doctor because other doctors would not co-operate in its administration. This argument is without much force. As we have indicated heretofore, the revocation of a professional license involves serious consequences, both to the licensee under attack and to the public. The charges must be specific and the proof clear and convincing. If Dr. Smith is dishonest in his practice and if the ‘Koch Treatment’ is without value, it was a simple matter for the Department to have produced such proof This court possesses neither medical learning nor powers of telepathy. We are, therefore, unable to medically evaluate the testimony in this record or to know what scientific appraisal of it was made by the medical committee.” (Emphasis added.) Smith, 412 Ill. at 349, 106 N.E.2d at 731.

We clarified this principle in Farney (56 Ill. App. 3d 677, 372 N.E.2d 151), where a hearing was conducted before the Illinois State Medical Disciplinary Board, which consisted of a panel of three doctors. After the board found that the plaintiff had dispensed certain controlled substances without a legitimate medical reason, it recommended that his license to practice medicine be suspended for six months, and the Department approved this recommendation. (Farney, 56 Ill. App. 3d at 679, 372 N.E.2d at 152.) The trial court reversed, finding that because the plaintiff presented the only expert testimony at the hearing, there was no evidence to support the Department’s determination. Farney, 56 Ill. App. 3d at 679, 372 N.E.2d at 152.

The appellate court affirmed. The court, after stating that the case before it “leads to [the] broader question [of] the nature of evidence before an administrative tribunal and the manner in which a reviewing court should deal with it” (Farney, 56 Ill. App. 3d at 679, 372 N.E.2d at 152), categorically rejected the Department’s contention that there was no need to present expert testimony to support its case. (Farney, 56 Ill. App. 3d at 681, 372 N.E.2d at 153.) After discussing Smith and acknowledging its applicability, the court stated:

“The underlying, but perhaps unspoken, reason for requiring expert [testimony] by the Department is the existence of judicial review of the Decisions of the Medical Disciplinary Board ***. While it may seem idle and foolish to a board composed of physicians to present elementary questions of medicine to them by way of testimony of one of their own brethren, yet it is far from idle to a court, not trained in medicine, which is called upon to determine the manifest weight of the evidence. [Citation.] To hypothesize: Let [sic] suppose that a single physician were called upon to review a record of the Attorney Registration and Disciplinary Commission. What might appear patent to the Commission could likewise be delphically obfuscating to the physician. To determine manifest weight of evidence in an area not of one’s own training and education becomes a difficult task at best, and it becomes impossible when only one pan of the scales is filled. ***
*** The method employed by Farney might be the accepted one for treating addicts; perhaps not, but it is not for a layman, uneducated in medicine, to say. Expert testimony, whether coming down on the positive or negative side of Farney’'s treatment, is essential. We reiterate that the only medical testimony in the record is that of Farney, and while it might be called self-serving and thus suspicious, it is not offset by any other expert opinion.
* * *
We therefore conclude that the substitution of subjective analysis on the part of the medical panel in place of expert medical opinion fatally tainted the proceedings.” (Emphasis added.) Farney, 56 111. App. 3d at 682-83, 372 N.E.2d at 154.

The rule that we glean from Smith and Farney is that although an administrative agency may use its expertise to evaluate conflicting expert testimony introduced into the record, it cannot substitute that special knowledge for expert testimony in support of its position. The rationale for this rule is twofold. First, where the agency substitutes its own expertise dehors the record for expert testimony, the other party is patently deprived of its right to challenge that evidence through cross-examination. Second, reviewing courts, almost invariably nonexperts in the particular field they have under consideration, have no reliable way of determining whether an agency’s decision is against the manifest weight of the evidence since expert testimony supporting its conclusion is not in the record.

In the case at bar, the Department concedes that it called no expert witnesses during the administrative hearing. It nevertheless argues that it could rely on its own expertise to determine that Chase violated sections 18(g) and (h) of the Act. We cannot accept such a result in light of Smith and Farney. Chase did not have the opportunity to cross-examine the Committee in order to discover the basis upon which it concluded that he had violated the Act. More specifically, Chase had no opportunity to question the board members as to why they felt that the plans included safety violations and why they believed that 30 hours of supervision were insufficient. Accordingly, we hold that the board was not entitled to rely on its own expertise in finding that Chase violated the Act.

In the alternative, the Department asserts that based on the facts of this case, it did not need to introduce expert testimony into the record in order to establish that Chase contravened the Act. We disagree. This case involves technical concepts, and it is impossible for us, as laymen vis-a-vis architecture, to determine from this record whether Chase violated the Act. As noted previously, the only expert to testify at the hearing stated that the plans were adequate, that 30 hours were a sufficient amount of supervision, and that it was not unusual for an architect to allow his draftsman to negotiate with a potential client. Since we lack the architectural optic, we have no way of determining how or why the Department disregarded this testimony and concluded that Chase violated the Act in light of the fact that such testimony was unrebutted, undenied, unexplained, and uncontro-verted by the Department, nor did it make any attempt to do so.

For all of the foregoing reasons, we reverse the trial court’s judgment affirming the Director’s determination that Chase violated sections 18(g) and (h) of the Act, since the Director’s decision was against the manifest weight of the evidence. Furthermore, since we hold that the Director’s determination that Chase violated the Act was against the manifest weight of the evidence, we affirm the trial court’s order reversing the Director’s other sanctions against Chase.

Affirmed in part; reversed in part.

McCORMICK, P.J., and HARTMAN, J., concur.

      The Illinois Architecture Act was repealed by the Illinois Architecture Practice Act of 1989, which became effective on December 31, 1989. See 111. Rev. Stat. 1991, eh. Ill, par. 1301 et seq.

      Sections 18(g) and (h) of the Act provide:
      “The [Department] may refuse to issue, to renew, may suspend or may revoke any certificate of registration for any one or any combination of the following causes:
      * ** *
      (g) aiding another person to evade the Act;
      (h) signing, affixing his seal or permitting his seal to be affixed to any plans, specifications or drawings not prepared by the architect himself or under his personal direction or supervision.” 111. Rev. Stat. 1987, ch. Ill, pars. 1218(g), (h).

      Section 18(a) of the Act allows the Department to suspend an architect’s license for “gross incompetency.” Section 18(b) of the Act permits the Department to suspend an architect’s license for “recklessness in the performance of professional services.” 111. Rev. Stat. 1987, ch. Ill, pars. 1218(a), (b).

      Although an administrative agency may take judicial notice of certain facts, the parties must be notified of such a procedure so that they may contest the material being judicially noticed. See 111. Rev. Stat. 1987, ch. 127, par. 1012(c).