text:
    WARREN CHEVROLET, INC., Plaintiff-Appellee, v. BRIAN BEMIS, Defendant-Appellant.
    Third District
    No. 3—89—0320
    Opinion filed May 18, 1990.

      Barbara Slingerland, of Gallagher, Klein & Brady, of De Kalb (T. Jordan Gallagher, of counsel), for appellant.
    Califf, Harper, Fox, Dailey, Slover & Moorhouse, P.C., of Moline (Roger L. Strandlund, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal concerns a contract dispute. Brian Bemis (Bemis) and Warren Chevrolet, Inc. (the company), entered into certain agreements whereby Bemis was to become employed with the company and would have the right to purchase 25% of the business. It was further agreed that in the event Bemis’ employment was terminated, the company would be allowed to repurchase all of his shares at “book value.” The company hired Bemis as the general sales manager. Approximately two years later, Bemis left the company in order to purchase his own dealership. Thereafter, the company gave Bemis notice of its election to redeem the shares pursuant to the agreement. Bemis did not surrender his shares, and the company sued to specifically perform the agreement. Bemis, contesting the value'assigned the shares, filed a counterclaim alleging fraud and, alternatively, breach of contract. In addition, the parties disputed whether a sum of money had been paid to Bemis as a bonus.

The trial court found in favor of the company on the issues involving the value and resale of the shares, and against Bemis on his counterclaims. Bemis appeals this ruling. The trial court further found that the sum of money at issue had been paid to Bemis as a bonus. The company has taken a cross-appeal from this finding.

The record shows that at the commencement of the negotiations between Bemis and the company, Bemis, a high school graduate, had worked in the automobile sales business for eight years. The company, an Iowa corporation qualified to transact business in Illinois, decided to hire a general manager in order to boost sales.

Bemis understood that he was to receive a 25% interest in the company’s net worth. The company understood that Bemis was to have 25% ownership. Dan Churchill, the company’s attorney, testified that Byron Warren (Warren) talked to Bemis about selling 25% of the corporate stock. The parties never agreed on what exactly comprised 25% of the business. The stock was to be sold at a fair price. Bemis claims that he was to buy 25% of the business for $60,000. The parties directed Churchill to draft the agreement. In the meantime, Bemis began working for the company. Five months later, the parties signed the agreement. This contract, Bemis alleges, does not reflect the sale of 25% of the business as had been previously agreed.

Under the contract, Bemis received 300 shares of newly issued stock. Warren told Bemis that the company was issuing new stock in order to avoid paying a capital gains tax, which would be required if Bemis purchased stock which had already been issued. The company had previously issued 2,255 shares of preferred stock and 900 shares of common stock. Thus, Bemis actually received 300 out of 3,455 shares or approximately 8V2% of the company’s total stock.

Bemis claims that he was not aware that the company issued two types of stock: common stock and preferred stock. He became aware of this when, at a meeting, Churchill informed Warren that, should Bemis be sold 25% of the shares issued, Bemis would have a greater percentage of voting rights than Warren. Bemis allegedly was told the preferred stock was valueless, had only voting rights, and had been issued in order for the family to maintain voting control of the corporation.

Further, during the negotiations, Bemis relied exclusively on the balance sheet section of the General Motors Operating Reports (GM reports) for financial information regarding the company’s net worth. Bemis and the company agree that the GM reports are normally used to determine the financial condition of a dealership. The company also keeps a general ledger reflecting a net worth which differs from that reflected in the GM reports. Bemis alleges that the company fraudulently concealed the general ledger from him.

This dispute centers on Account 380 of the GM reports. It is not disputed that the company posted shareholder loans in Account 380. These loans were made by Warren and his father to the company in order to increase the company’s working capital. Doug Schott, a partner with the accounting firm that conducted the audit in this case, testified that Account 380 enables the company to improve its ability to satisfy the GM capital standard. Bemis contends that the shareholder loans were concealed in the GM reports. However, Bemis’ own accountant, William Kelly, testified that Account 380 stood out in the GM reports and that he would have inquired into the contents of Account 380.

Furthermore, Churchill states that at a meeting he had with Bemis, he represented to Bemis the existence and value of the preferred stock, identified the shareholder loans in an amount equal to the number posted in Account 380, deducted that figure from the company's net equity, and calculated his estimate of the book value of the common stock as being $26.63 per share. Bemis did not have an accountant present at the meeting with Churchill.

The company emphasizes that Bemis did not investigate the company’s financial records before signing the agreement. The record indicates that within one year prior to the agreement at issue here, Bemis attempted to purchase a different dealership. During those negotiations, Bemis hired Kelly to investigate the dealership’s financial condition. After Kelly reviewed the income tax returns and other documents, Bemis decided not to purchase the dealership. Here, however, Bemis did not hire Kelly to investigate the company’s financial condition. Instead, Bemis, who testified that he has taken one course in basic accounting at a community college, relied exclusively on the GM reports before signing the contract. Bemis did not request other financial documents from the company.

After Bemis terminated his employment with the company, the company hired an accounting firm to conduct an audit for purposes of determining the book value of Bemis’ stock. Schott was in charge of the audit. The audit revealed a stockholder’s equity of $349,298. This amount, Bemis alleges, was more than $460,000 less than that shown on the GM reports. The accounting firm based the audit on all of the company’s financial records, including the general ledger. The disparity in the figures, Bemis claims, results from the company improperly listing certain shareholder loans made to the company as assets in Account 380 rather than liabilities, whereas these loans were designated liabilities in the general ledger. Bemis contends that characterizing the loans as assets contravened generally accepted accounting practices.

The company, to the contrary, asserts that Schott’s analysis of book value did not violate any generally accepted accounting principles. Schott and Kelly testified that the audit was conducted in accordance with generally accepted accounting principles. Schott testified that, as of the date of Bemis’ termination, the per-share book value was $96.15, providing a book value of $28,845 for Bemis’ 300 shares. Bemis did not present evidence refuting this calculation of book value. Kelly testified, moreover, that he would not rely exclusively on the GM reports as the sole measure of book value.

In addition, the accountants further agreed that in advising potential purchasers of corporate stock, they follow certain investigative procedures. At a minimum, the corporate minutes and tax returns would be included in their investigation of a company’s financial condition. Kelly noted that had he been provided the opportunity to review the company’s income tax returns, he would have been able to identify the existence and value of the preferred stock and shareholder loans. Kelly also noted that he ordinarily would consult the general ledger and would not rely exclusively on the GM reports.

Bemis initially contends that the trial court’s finding in favor of the company was against the manifest weight of the evidence. Bemis claims that the evidence establishes that he was fraudulently induced into signing the agreement. The gravamen of Bemis’ argument is that the company committed fraud by allegedly concealing the fact that preferred stock existed and by failing to provide him with the general ledger. The Illinois Supreme Court explained misrepresentation and fraud as follows:

“[F]or a misrepresentation to constitute fraud which invalidates a contract, it must be a representation in the form of a statement of a material fact, made for the purpose of inducing a party to act; it must be false and known by the party making it to be false, or not actually believed by him, on reasonable grounds, to be true; and the party to whom it is made must be ignorant of its falsity, must reasonably believe it to be true, must act thereon to his damage, and in so acting must rely on the truth of the statement.” (Wilkinson v. Appleton (1963), 28 Ill. 2d 184, 187, 190 N.E.2d 727, 729-30.)

An affirmative statement is not always required, however, and fraud may also consist of the omission or concealment of a material fact if accompanied by the intent to deceive under circumstances which create the opportunity and duty to speak. (Tan v. Boyke (1987), 156 Ill. App. 3d 49, 508 N.E.2d 390.) The relevant question is whether or not, considering the facts known to him and the facts which he would have known had he exercised ordinary prudence, Bemis had a right to rely on the company’s alleged misrepresentations.

In the instant case, we find that Bemis presented no evidence of fraudulent intent on the company’s part. Bemis claims that Churchill told him that the preferred stock had no value, but had voting rights. Churchill, in contrast, testified that he identified the value of the preferred stock at the meeting with Bemis. We emphasize that the company records of preferred and common stock outstanding were readily available to Bemis. The corporate records, which show the existence, amount, and value of the company’s preferred stock, were also on file with the Iowa Secretary of State’s office.

In Tan v. Boyke (1987), 156 Ill. App. 3d 49, 508 N.E.2d 390, the plaintiff claimed that the defendant misrepresented that the apartment building he was to purchase contained a total of 66 units, when in fact five of the units were unlawful, and defendant failed to disclose that the buildings were in violation of zoning ordinances. Addressing the defendant’s claim that the plaintiff failed to exercise ordinary prudence in recognizing the discrepancy, the court noted that “only a complicated analysis of the plat of survey and the applicable zoning ordinances would have revealed *** the irregularities *** and *** illegalities].” Tan v. Boyke (1987), 156 Ill. App. 3d 49, 58, 508 N.E.2d 390, 396.

In the instant case, determining the amount and value of the company’s preferred shares required no such complicated analysis. We find it significant that Bemis did not request the records from the company. Churchill’s testimony, when combined with Bemis’ failure to exercise even a modicum of due diligence in investigating the company’s financial records, indicates that the company did not fraudulently conceal the amount and value of the preferred shares from Bemis. Accordingly, with respect to the preferred shares, we find the company’s actions did not constitute fraud.

Bemis further contends that the company’s practice of designating shareholder loans in Account 380 as assets rather than liabilities constitutes fraud as a matter of law. We disagree. Generally, fraud means anything intended to deceive, including all acts, omissions and concealments involving a breach of legal or equitable duty, trust or confidence resulting in damage to another. (Gary-Wheaton Bank v. Burt (1982), 104 Ill. App. 3d 767, 433 N.E.2d 315.) Although a plaintiff’s negligence is not generally a defense to an action for fraud, there are situations in which the plaintiff is required to inquire about representations. National Republic Bank v. National Homes Construction Corp. (1978), 63 Ill. App. 3d 920, 381 N.E.2d 15.

In deciding whether he reasonably placed his trust in the alleged misrepresentations, all of the facts which Bemis had actual notice of and all of those which he might have learned if he had exercised ordinary prudence may be taken into account. (Metropolitan Bank & Trust Co. v. Oliver (1972), 4 Ill. App. 3d 975, 283 N.E.2d 62.) As the court in Broberg v. Mann (1965), 66 Ill. App. 2d 134, 141, 213 N.E.2d 89, 92-93, noted:

“If, by the exercise of ordinary prudence, he had ample opportunity to determine the truth of the representations before acting, but failed to do so, he is charged with knowledge and may not then be heard to say that his loss was due to the deceit of another.”

The company decided years ago to list the shareholder loans as assets rather than liabilities in Account 380. This decision was not made in order to conceal information from Bemis. Rather, the company decided to designate the shareholder loans as assets rather than liabilities in order to boost its capital base. We find Kelly’s testimony, that had he been hired by Bemis prior to the transaction he would have identified the loans in Account 380, significant. At trial, Bemis testified that, although he hired Kelly to review the financial records of the other dealership he attempted to purchase, in this case he did not hire Kelly because “he felt the potential was good at the dealership.” We note that Bemis is not a rookie in the car dealership business. He is the owner of the “Brian Bemis Chrysler-Plymouth-Dodge,” “Brian Bemis Mercury-Lincoln-Volkswagen, ’’ and is the secretary of the “Yakim-Bemis Ford Nissan, Inc.” Indeed, during the negotiations surrounding the Ford Nissan dealership acquisition, Bemis hired an accountant and an attorney. In addition, Bemis knew that the general ledger existed when he signed the agreement; however, he did not request to see it. Bemis admitted, moreover, that when he quit his other job prior to working for the company, the purchase price of the stock had not been set and that before he decided to purchase the stock he asked no questions about the assets of the corporation or what comprised 25% of the business.

It is well settled that fraud must be proved by clear and convincing evidence (Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 446 N.E.2d 499), and the trial court’s decision as to this matter will not be set aside unless it is against the manifest weight of the evidence. (Bellow v. Bellow (1976), 40 Ill. App. 3d 442, 352 N.E.2d 427.) Here, Bemis essentially asserts that the failure to volunteer even the most rudimentary information when negotiating significant business transactions, although said information was not even requested, constitutes actionable fraud. If Bemis’ arguments were to prevail, we believe this case would place an unreasonable burden on parties, like the company in the instant case. Moreover, although this court will not question Bemis’ business acumen, we do take heart at his indicating in his deposition that if he had to do it over again he’d hire an accountant and an attorney.

We conclude, therefore, that a self-proclaimed possessor of good young ideas cannot use a claim of fraudulent inducement as a shield after entering into a less than advantageous business deal. Accordingly, because we find Bemis did not meet his burden of proof, the trial court’s decision in favor of the company and against Bemis was not against the manifest weight of the evidence.

Bemis makes an ancillary argument that the trial court’s finding with respect to the book value of the shares was against the manifest weight of the evidence. After reviewing the record, however, we find no merit in this argument for Bemis does not challenge the audit performed herein. Rather, Bemis suggests that the book value of the stock was significantly reduced due to the alleged fraudulent inducement. Therefore, because we affirm the trial court’s holding on the fraud issue, Bemis’ ancillary argument also fails.

Finally, with respect to the cross-appeal, we find the record to indicate that the company paid $15,184 to Bemis as a bonus. The trial court found the payment to be a bonus. Indeed, Warren testified that he intended to pay this amount to Bemis as a bonus. Accordingly, we affirm the trial court’s finding this payment to be a bonus and the trial court’s denial of the company’s motion for sanctions against Bemis.

For these reasons, we affirm the judgment of the circuit court of Rock Island County.

Affirmed.

HEIPLE, P.J., and BARRY, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE HEIPLE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CAROL A. MEYER, Defendant-Appellant.
    Third District
    No. 3—89—0403
    Opinion filed May 18, 1990.

      Catherine Fitzsimmons, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Elizabeth A. Klug, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Carol Meyer, appeals from her conviction of solicitation of murder for hire. Following a jury trial, the defendant was sentenced to 22 years’ imprisonment. We affirm.

The evidence at trial established that the defendant spoke to prison inmate Gerald Williams about hiring someone to murder Diana Meyer, the wife of her ex-husband. Williams said that he knew someone who would do the job, but he needed more information. After further conversations and correspondence with the defendant, Williams decided to inform the police about the defendant’s plan.

Thereafter, the police submitted an application for an eavesdropping order in Randolph County, Illinois. The application stated that Williams told the police that:

“(1) in July or August, 1988, the defendant had asked him to arrange the murder of her ex-husband’s current wife, Diana Meyer;
(2) the defendant had sent him several letters, the last of which was postmarked January 10, 1989, making reference to arrangements to have Diana Meyer killed;
(3) on January 22, 1989, Williams advised the defendant that the murder of Diana Meyer would cost $5,000; and
(4) the defendant agreed to that price.”

Based on this application, the eavesdropping order was issued which resulted in a taped telephone conversation between Williams and the defendant. During the conversation, Williams arranged for someone named “Gary” to call the defendant on February 2, 1989, about killing Diana Meyer. On February 2, 1989, pursuant to a second eavesdropping order issued in Peoria County, Agent Frank Walter contacted the defendant by telephone stating that he was “Gary” and arranged to meet the defendant that day in room 112 of the Junction City Inn in Peoria, Illinois. Subsequently, a sting operation was set up at the Junction City Inn. Both audio and video recordings were made of the defendant, who stated that she was sure she wanted Diana Meyer killed and agreed to pay Agent Walter $5,000 to kill Diana Meyer. The defendant stated that she wanted something done to Diana Meyer’s car because she wanted her daughter back. The defendant was arrested immediately upon leaving the room. All of the audio and video recordings were played during the jury trial.

On appeal, the defendant raises two issues: (1) whether the trial court erred in denying the defendant’s motion to suppress the original application for the telephonic eavesdropping order since reasonable cause was not established to support the order; and (2) whether the sentencing scheme for the solicitation of murder for hire statute is constitutionally disproportionate with the sentencing scheme for the attempted first degree murder statute. We find that the initial order for the telephonic eavesdropping was supported by reasonable cause. Further, we find that the penalty provision of the solicitation of murder for hire statute is not unconstitutionally disproportionate.

The defendant first argues that pursuant to section 108A — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 108A — 1), that the original application for a telephonic eavesdropping order filed in Randolph County failed to establish reasonable cause to believe that the defendant is committing, has committed, or is about to commit a felony. The State concedes that if the initial Randolph County eavesdropping order was improper, the subsequent Peoria County eavesdropping orders would also be improper and the “fruit of the poisonous tree” doctrine would apply. The defendant maintains that in order to establish reasonable cause, the reliability of Williams’ hearsay statements in the application for the initial eavesdropping order must be verified and corroborated.

The proper test for determining whether reasonable cause is established through the hearsay statements of an informant was set forth in Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, where the Court adopted the totality-of-the-circumstances test:

“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Gates, 462 U.S. at 238, 76 L. Ed. 2d at 548, 103 S. Ct. at 2332.)

The trial court in the present action found that the information contained in the original application for an eavesdropping order was sufficiently detailed to be self-corroborating and that the totality-of-the-circumstances test was met. We agree.

It is well settled that a reviewing court will not disturb the circuit court’s finding on a motion to suppress unless that finding is determined to be manifestly erroneous. (People v. Reynolds (1983), 94 Ill. 2d 160.) In the case at bar, Williams’ information was gathered from his direct contact with the defendant, in the form of personal visits and letters. The original application for an eavesdropping order set forth the following: a meeting held in August or July where the defendant told Williams she wanted Diana murdered; a January 10, 1989, letter making references to the arrangements to have Diana killed; and a January 22, 1989, conversation where the defendant agreed to pay $5,000 for the murder of Diana. Based on these specific allegations, we cannot find that it was manifestly erroneous for the trial court to conclude that reasonable cause existed for an eavesdropping order.

The defendant relies heavily on this court’s recent ruling in People v. Adams (1988), 169 Ill. App. 3d 284, wherein this court found that the trial court erred in denying a motion to suppress where police officers, who had a description of a defendant’s automobile and license plate number and a tip that he was driving back from Kentucky with cocaine, stopped the defendant’s automobile and seized drugs. (People v. Adams (1989), 131 Ill. 2d 387, aff'g People v. Adams (1988), 169 Ill. App. 3d 284.) This court found reasonable cause did not exist since the informant who supplied the tip was to be paid, had never provided information to the police before, and because the informant’s tip was not independently verified. We find that Adams is distinguishable from the instant case on the basis that the informant in Adams was paid, that the informant was not disclosed, and that the informant’s basis of knowledge of the defendant’s alleged criminal activity was not established. Here, Williams was not a paid informant, Williams was disclosed, and the basis of Williams’ knowledge was through direct contact with the defendant.

The defendant next contends that the penalty provision of the solicitation of murder for hire statute (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 8 — 1.2(b)) violates her constitutional right to due process and equal protection because it provides for a greater penalty than provided for attempted first degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(c)(1), 1005 — 8—1(a)(3)). The penalty range for the solicitation statute is 20 to 40 years, and the penalty range for the attempted murder statute is 6 to 30 years.

It is well settled that the General Assembly has the authority to set the nature- and extent of penalties. (People v. Harmison (1985), 108 Ill. 2d 197.) Further, the primary purpose of statutory construction is to ascertain the legislative intention, and courts will not only consider the language used, but also the evil sought to be remedied and the object to be attained. (People v. Parker (1988), 123 Ill. 2d 204.) We find that the legislature could have properly determined that it wanted to punish more severely crimes committed for hire. Therefore, we hold that the statutory sentencing scheme between the two offenses is not unconstitutionally disproportionate.

For all the foregoing reasons, we affirm the decision of the circuit court of Peoria County.

Affirmed.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD H. RAUH, Defendant-Appellant.
    Third District
    No. 3—89—0366
    Opinion filed May 10, 1990.
    Thomas A. Tonozzi, of Spring Valley, for appellant.
    Marc Bernabei, State’s Attorney, of Princeton (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, Richard H. Rauh, was charged with contributing to the delinquency of a child (Ill. Rev. Stat. 1987, ch. 23, par. 2361a) by causing the child to stay out past her curfew. Prior to trial, he moved to dismiss the charge on the grounds that the penalty for the offense was unconstitutionally disproportionate to the penalty for curfew violation. The trial court denied the motion. Following a bench trial, the court found the defendant guilty and imposed a $100 fine.

On appeal, the defendant argues that the trial court erred in denying his motion to dismiss. In support of his argument, he notes that the maximum penalty for a curfew violation is a $100 fine (Ill. Rev. Stat. 1987, ch. 23, par. 2371), while contributing to the delinquency of a child may be punished by 364 days’ imprisonment and a $1,000 fine (Ill. Rev. Stat. 1987, ch. 23, par. 2361a; ch. 38, pars. 1005 — 5—3(b), 1005 — 8—3(a)(1), 1005 — 9—1(a)(2)). He also argues that the instant offense is comparable to solicitation, which limits the penalty for that offense (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 1(b)).

The State first argues that the defendant lacks standing to raise this issue, because he did not receive a sentence that exceeded the maximum penalty for a curfew violation. The supreme court has stated, however, that a defendant has standing to contest a disproportionate penalty if he was exposed to it, regardless of whether he actually received it. (People v. Upton (1986), 114 Ill. 2d 362, 500 N.E.2d 943.) Since the instant defendant could have received the maximum penalty for the offense, he has standing to raise the issue.

Regarding the disproportionality issue, we note that the legislature has wide discretion in establishing criminal penalties. (Upton, 114 Ill. 2d at 373, 500 N.E.2d at 948.) This power, however, is subject to the limitation that a person’s liberty may not be deprived without due process of law. (People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029.) A penalty does not violate due process so long as it is reasonably designed to remedy the evils the legislature has determined to be a threat to the public health, safety, and welfare. (Upton, 114 Ill. 2d at 373, 500 N.E.2d at 948.) Moreover, the party challenging a statute’s constitutionality has the burden of proving the violation. People v. Bales (1985), 108 Ill. 2d 182, 483 N.E.2d 517.

Under Illinois law, children are commonly afforded special protection because their age renders them more likely to be victims of crime. (See generally Ill. Rev. Stat. 1987, ch. 38, pars. 11 — 6 through 11 — 22.) For the same reason, the legislature could have reasonably imposed a greater penalty for contributing to a child’s delinquency than for the delinquent’s offense. We find that the defendant has failed to meet his burden of proving that the difference in the penalties violated due process.

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

Affirmed.

HEIPLE, P.J., and STOUDER, J., concur.


author: PRESIDING JUSTICE KNECHT JUSTICE McCULLOUGH,

text:
    QUINCY SCHOOL DISTRICT NO. 172, Petitioner, v. THE HUMAN RIGHTS COMMISSION et al., Respondents.
    Fourth District
    No. 4—89—0257
    Opinion filed April 24, 1990.
    Rehearing denied June 22, 1990.

      McCULLOUGH, J., dissenting.
    Keefe, Gorman & Brennan, of Quincy, for petitioner.

      Walter D. Braud and Duane Thompson, both of Braud/Warner, Ltd., of Rock Island, for respondent James T. Mallory.
    Neil F. Hartigan, Attorney General, of Springfield (Robert Ruiz, Solicitor General, and Tanya Solov, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Quincy School District No. 172 (School District) discharged complainant James Mallory (Mallory) from his position as a custodial supervisor in 1984. The School District maintains Mallory was terminated because he was insubordinate and made threats against his supervisor and a co-worker. Mallory claims he was fired because he is black.

Mallory filed a discrimination charge with the Illinois Department of Human Rights (Department) on September 4, 1984. The Department filed a complaint on his behalf on April 30, 1986, alleging the School District discharged him because of his race. The administrative law judge (ALJ) concluded the School District discriminated on the basis of race and ordered reinstatement, back wages and benefits, attorney fees, and costs. A three-member panel of the Human Rights Commission (Commission) affirmed the ALJ’s decision on December 6, 1988. (In re Mallory (1988),_Ill. HRC Rep._(HRC No. 1985SF0090).) The full Commission denied the School District’s petition for rehearing, and the School District timely filed a notice of appeal. On appeal the School District argues the findings of the ALJ were against the manifest weight of the evidence and Mallory had not proved disparate treatment. We disagree and affirm the decision of the Commission.

The ALJ made the following findings of fact. Mallory worked initially at the old senior high school building, which was later renovated and became Baldwin Intermediate School (Baldwin). Mallory was assigned to work at Baldwin during the spring of 1983. Robert Moore (Moore) was principal at Baldwin and Mallory’s supervisor. The two had not worked together before. Thomas Gott (Gott), assistant superintendent of schools, was Moore’s supervisor. Without consulting Mallory, Gott assigned custodians to work under Mallory’s supervision at Baldwin.

Michael Blunt (Blunt), the son of a former principal for the School District, was assigned as a custodian at Baldwin. Blunt has a learning disability and works at a slower pace than other custodians. He requires frequent attention and must be reminded often of changes in his work routine. He does not adjust well to variations in the routine. Blunt sometimes could not complete assignments during regular work hours.

Mallory occasionally lost his temper with Blunt due to deficiencies in Blunt’s work performance. Mallory often raised his voice and used profanities, often causing Blunt to “freeze up,” becoming unable to respond. Moore spoke with Mallory several times during the 1983-84 school year about his treatment of Blunt, encouraging Mallory to treat Blunt more gently and not to use profanity or to raise his voice.

Mallory’s problems were exacerbated by Moore’s practice of changing Blunt’s work assignments without informing Mallory. Blunt performed the tasks specified by Moore and left Mallory’s assignments incomplete. When confronted by Mallory regarding his failure to complete assigned tasks, Blunt could not respond. These confrontations occurred throughout the school year.

Among the custodians Mallory supervised were Michael Oberdalhoff (Oberdalhoff) and Floyd Hively (Hively). Mallory believed each man was prejudiced against him and conspiring with Moore against him. The latter belief was fostered in part by meetings Moore held with Oberdalhoff and Hively from which Mallory was excluded.

At one point Oberdalhoff and Hively refused to follow Mallory’s orders. Mallory sought to issue written reprimands to each. Gott advised Mallory to write the letters, which he did, but Moore refused to sign them. Mallory finally issued a letter of reprimand to Oberdalhoff bearing only his signature.

Mallory returned to work on August 20, 1984, following a three-week vacation. Moore altered Blunt’s work schedule that morning without telling Mallory. Mallory confronted Blunt about the incomplete assignments he made. Mallory raised his voice and used profanity during this confrontation. Rosie Foster (Foster), Moore’s secretary, observed the incident and reported it to Moore. Moore arrived on the scene shortly thereafter and took Mallory into Mallory’s office. Both men were angry. Moore reminded Mallory he was the boss and had asked Mallory to treat Blunt more gently. Moore then informed Gott of the confrontation between him and Mallory. Gott indicated he was willing to recommend discharge at that time, but Moore asked for additional time to work with Mallory.

Moore went to Gott the following day and informed him of threats made by Mallory against him (Moore) and Foster. Mallory had allegedly made the threats in the presence of Oberdalhoff and Hively, though Moore could not remember who informed him of the threats. Moore told Gott he was ready to recommend discharge. Gott and Moore, with the support of Oberdalhoff and Hively, asserted the threats had been made and recommended to the school board that Mallory be discharged, for having made the threats and for insubordination. The decision to discharge was made before Mallory was questioned about the threats. The school board discharged Mallory in accordance with the recommendation.

We now turn to the first issue, whether the findings made by the ALJ were against the manifest weight of the evidence.

The ALJ found Mallory never made threats of violence against Moore or any other school employee. The ALJ concluded Mallory’s only offense was insubordination. He commented, “It would be speculation to suggest there was a conspiracy among Moore, Oberdalhoff, and Hively. Nonetheless, the testimony and their demeanor leads me to believe that none of them was being honest when claiming that the threats had been made or that they believed the threats to have been made.”

The School District argues this finding is not supported by the record or by logic. Moore must have believed Mallory made the threats, according to the School District, because he stationed a security guard outside his office while he and Gott discussed Mallory’s discharge with Mallory. Further, Moore agreed to terminate Mallory only after he learned of the threats, rather than after the incident with Blunt on August 20.

The School District cites Oakdale Community Consolidated School District No. 1 v. County Board of School Trustees (1957), 12 Ill. 2d 190, 145 N.E.2d 736, as support for its argument that this court must set aside the order of the Commission. “The rule which accords a prima facie validity to administrative decisions does not relieve a court of the important duty to examine the evidence in an impartial manner and to set aside an order which is unsupported in fact.” (Oakdale School District, 12 Ill. 2d at 195, 145 N.E.2d at 738.) The School District did not include the remainder of this paragraph in which the court went on to state: “Our Administrative Review Act does not require judicial recognition of an order which is against the manifest weight of the evidence, ‘nor does the law allow a stamp of approval to be placed on the findings of an administrative agency merely because such agency heard the witnesses and made the requisite findings.’ ” (Oakdale School District, 12 Ill. 2d at 195, 145 N.E.2d at 738, quoting Drezner v. Civil Service Comm’n (1947), 398 Ill. 219, 231.) The School District also argues that because the testimony of Moore and Gott, that they believed the threats, was not contradicted, the ALJ should not have disregarded their testimony. In a 1981 paternity case the Illinois Supreme Court stated:

“While we agree that the credibility of witnesses and the weight to be accorded their testimony are typically jury considerations [citations], a jury cannot arbitrarily or capriciously reject the testimony of an unimpeached witness [citations]. Where the testimony of a witness is neither contradicted, either by positive testimony or by circumstances, nor inherently improbable, and the witness has not been impeached, that testimony cannot be disregarded even by a jury.” (People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 85, 430 N.E.2d 1126, 1127.)

The case was later cited by the supreme court in Ferretti v. Department of Labor (1987), 115 Ill. 2d 347, 353, 506 N.E.2d 560, 562, an appeal from an administrative agency decision.

The order issued by the ALJ indicates he did not disregard any of the testimony. Instead, he weighed the credibility of the witnesses and found Mallory more credible than Moore, Gott, Oberdalhoff, and Hively. The Commission adopted this credibility determination. “Findings of fact [made by the Commission] are entitled to deference, and this is particularly true of credibility determinations.” Zaderaka v. Illinois Human Rights Comm’n (1989), 131 Ill. 2d 172, 180, 545 N.E.2d 684, 688.

Finally, the School District maintains that the prejudices of Oberdalhoff and Hively are irrelevant, as only Moore and Gott had authority to implement procedures which would lead to discharge. Arguably the prejudices of Oberdalhoff and Hively are important to the extent they may have motivated the men to manufacture the threats which, if believed, would lead to the discharge of their supervisor. The ALJ found, however, that Moore did not believe threats were made and so we agree the prejudices of Oberdalhoff and Hively are irrelevant.

Mallory contends the real issue is whether the ALJ’s finding that his testimony was more credible than that of Moore and Gott is against the manifest weight of the evidence. Mallory views the School District’s position as a request for this court to reweigh and reevaluate the evidence.

“It is well settled that the factual findings of an administrative agency are deemed prima facie true and correct and the agency’s decision based thereon may be disturbed by a court sitting in administrative review only where that decision is contrary to the manifest weight of the evidence. [Citation.] A decision is contrary to the manifest weight of the evidence only when, after reviewing the evidence in a light most favorable to the administrative agency, the court determines that no rational trier of fact could have agreed with the agency’s decision [citation], because an opposite conclusion is clearly evidence [sic]. [Citation.] If the record contains any evidence supporting the administrative agency’s decision, the decision must be sustained on review.” (Bultas v. Board of Fire & Police Commissioners (1988), 171 Ill. App. 3d 189, 193-94, 524 N.E.2d 1172, 1174-75.)

(See also State v. Human Rights Comm’n (1989), 178 Ill. App. 3d 1033, 534 N.E.2d 161; Acorn Corrugated Box Co. v. Illinois Human Rights Comm’n (1989), 181 Ill. App. 3d 122, 536 N.E.2d 932; Burnham City Hospital v. Human Rights Comm’n (1984), 126 Ill. App. 3d 999, 467 N.E.2d 635.) The reviewing court cannot reweigh the evidence or substitute its judgment for that of the Commission. Zaderaka, 131 Ill. 2d at 180, 545 N.E.2d at 688; see also Acorn Corrugated Box Co., 181 Ill. App. 3d at 136, 536 N.E.2d at 941; Pioneer Life Insurance Co. v. Woodard (1987), 152 Ill. App. 3d 236, 241, 504 N.E.2d 230, 234.

Careful examination of the record on appeal indicates the findings of the ALJ were supported by the evidence. Moore and Mallory’s work relationship was strained. Moore disapproved of Mallory’s treatment of Blunt and spoke to Mallory about the problem on several occasions. The two men held significantly different views of the role of a supervisor, which led to additional conflict. Moore believed a supervisor should demonstrate leadership by working alongside his staff; Mallory believed a supervisor should make work assignments, monitor progress, and help when necessary.

The record also indicates Oberdalhoff and Hively did not like Mallory and did not work well under his supervision. They would not listen to his instructions and on occasion would not follow his orders. Walton testified he heard Oberdalhoff refer to Mallory as a “nigger.” Oberdalhoff refused to work with black students participating in student-work programs. Oberdalhoff and Hively knew of the difficulties between Moore and Mallory, and Hively was present when Moore confronted Mallory on August 20 about his treatment of Blunt.

The ALJ did not believe Mallory would make the threats in the presence of Oberdalhoff and Hively, men he had tried to discipline and whom he believed were prejudiced against him. The ALJ also found it surprising that Moore could not remember who informed him of the threats, particularly in view of Moore’s testimony that he did not want Mallory discharged until he learned of the threats.

We conclude there was ample evidence to support the findings made by the ALJ and the findings were not against the manifest weight of the evidence. We now turn to the next issue raised by the School District, whether Mallory proved disparate treatment.

Mallory claims the School District did not terminate similarly situated white custodians, Oberdalhoff and Hively, for their insubordination in failing to follow his orders. Thus Mallory’s claim is one of disparate treatment. The primary factual inquiry is whether the School District intentionally discriminated against Mallory. (Zaderaka, 131 Ill. 2d at 180, 545 N.E.2d at 688.) “Under the disparate treatment theory, proof of discriminatory motive is critical, although it may be inferred in some situations from differences in treatment. (International Brotherhood of Teamsters v. United States (1977), 431 U.S. 324, 335 n.15, 52 L. Ed. 2d 396, 415 n.15, 97 S. Ct. 1843, 1854 n.15.)” (Emphasis in original.) Burnham City Hospital, 126 Ill. App. 3d at 1003, 467 N.E.2d at 637.

The recent decision by the Illinois Supreme Court in Zaderaka presents a thorough and concise review of the analytical process courts are to use in employment discrimination cases:

“In analyzing employment discrimination actions brought under the Human Rights Act, the Commission and the Illinois appellate court have adopted the analytical framework set forth in United States Supreme Court decisions addressing claims brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq. (1982)). [Citation.] This court will follow the same approach.
The Supreme Court set out a three-part analysis in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817. First, plaintiff must establish by a preponderance of the evidence a prima facie case of unlawful discrimination. If a prima facie case is established, a rebut-table presumption arises that the employer unlawfully discriminated against plaintiff. Second, to rebut the presumption, the employer must articulate, not prove (Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 259-60, 67 L. Ed. 2d 207, 219, 101 S. Ct. 1089, 1097), a legitimate, nondiscriminatory reason for its decision.
Finally, if the employer carries its burden of production, the presumption of unlawful discrimination falls and plaintiff must then prove by a preponderance of the evidence that the employer’s articulated reason was not its true reason, but was instead a pretext for unlawful discrimination. This merges with plaintiff’s ultimate burden of persuading the trier of fact that the employer unlawfully discriminated against plaintiff. (Burdine, 450 U.S. at 256, 67 L. Ed. 2d at 217, 101 S. Ct. at 1095.) This ultimate burden remains at all times with plaintiff. (Burdine, 450 U.S. at 253, 67 L. Ed. 2d at 215, 101 S. Ct. at 1093.)” Zaderaka, 131 Ill. 2d at 178-79, 545 N.E.2d at 687.

See also Human Rights Comm’n, 178 Ill. App. 3d at 1050, 534 N.E.2d at 172; Acorn Corrugated Box Co., 181 Ill. App. 3d at 136-37, 536 N.E.2d at 940-41; Freeman United Coal Mining Co. v. Human Rights Comm’n (1988), 173 Ill. App. 3d 965, 973, 527 N.E.2d 1289, 1294.

Initially Mallory had to establish, by a preponderance of the evidence, a prima facie case of unlawful discrimination. The United States Supreme Court enunciated the elements for a prima facie case under Title VII in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817. These are:

“(1) [t]he employee is a member of a racial minority; (2) the employee was qualified for the job he was performing; (3) the employee was satisfying the normal requirements in his or her work; (4) the employee was discharged; and (5) after the employee’s discharge the employer assigned white employees to perform the same work.” (Pioneer Life Insurance Co., 152 Ill. App. 3d at 242-43, 504 N.E.2d at 235.)

Mallory was replaced by a white custodian at Baldwin.

“[I]n order to prove a prima facie case of racial discrimination involving discharge for violation of work rules, the claimant must first demonstrate by a preponderance of the evidence either that he did not violate the rules or that, if he did, white employees who engaged in similar acts were not punished similarly.” (Department of Corrections v. Clay (1985), 135 Ill. App. 3d 710, 714, 481 N.E.2d 1080, 1083.) Stated differently, the complainant must show that similarly situated employees of a different race were treated more favorably. (Loyola University v. Human Rights Comm’n (1986), 149 Ill. App. 3d 8, 18, 500 N.E.2d 639, 645-46.) This standard originated in McDonald v. Santa Fe Trail Transportation Co. (1976), 427 U.S. 273, 49 L. Ed. 2d 493, 96 S. Ct. 2574.

The ALJ found as a matter of law that Mallory proved a prima facie case of unlawful discrimination, and the record supports this finding.

The ALJ rejected arguments that Mallory should be compared to other custodial supervisors within the school district, rather than to Oberdalhoff and Hively. We conclude this was a sound decision as differences in titles are unimportant to the decision in this case. While a custodian and a custodian supervisor have different responsibilities, both were subject to the same discipline policy and both were expected to meet the same standard of behavior in regard to following orders. The School District also argues Mallory is not similarly situated with Oberdalhoff and Hively because his acts of insubordination were more egregious than those of Oberdalhoff and Hively. We reject this argument as well, as all three employees were insubordinate. Mallory did not follow Moore’s requests to treat Blunt more gently; Oberdalhoff and Hively failed to comply with Mallory’s instructions. We also note some of Mallory’s treatment of Blunt was the product of Moore’s interference. Moore repeatedly changed Blunt’s duties without informing Mallory, thereby creating confrontations between Mallory and Blunt. Moore helped create the insubordination but then treated it differently than the insubordination of Oberdalhoff and Hively. Thus, a rebuttable presumption arose that the School District discriminated against Mallory.

To overcome the presumption, the School District had to articulate, not prove, a legitimate, nondiscriminatory reason for discharging Mallory. The School District specified insubordination and threats of violence as the reasons for Mallory’s discharge. The AJL concluded the School District met its burden of articulating a legitimate, nondiscriminatory reason for discharging Mallory, though he did not believe Mallory made the threats. The presumption of discrimination was destroyed. Zaderaka, 131 Ill. 2d at 179, 545 N.E.2d at 687.

The burden then shifted to Mallory to prove, by a preponderance of the evidence, that the School District’s articulated reason for terminating him was not the real reason he was fired, but merely a pretext for unlawful discrimination. “This merges with plaintiff’s ultimate burden of persuading the trier of fact that the employer unlawfully discriminated against plaintiff.” (Zaderaka, 131 Ill. 2d at 179, 545 N.E.2d at 687.) The United States Supreme Court established this standard in Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 256, 67 L. Ed. 2d 207, 217, 101 S. Ct. 1089, 1095, stating:

“The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”

See also Burnham City Hospital, 126 Ill. App. 3d at 1004, 467 N.E.2d at 638; Acorn Corrugated Box Co., 181 Ill. App. 3d at 137, 536 N.E.2d at 941; Freeman United Coal Mining Co., 173 Ill. App. 3d at 973, 527 N.E.2d at 1294.

The School District argues Mallory failed to meet this ultimate burden of showing pretext, as the record discloses no evidence of discrimination by Moore or Gott. The ALJ found the reasons given by the School District for discharging Mallory were pretextual. “The question of pretext is the question of whether threats were made. I do not believe the threats were made.” The ALJ found Mallory more credible than other witnesses, such as Moore, Gott, Oberdalhoff, and Hively. As stated earlier, the ALJ did not believe Mallory would make threats in the presence of Oberdalhoff and Hively. And he was surprised that Moore could not remember who informed him of the threats. The ALJ found the evidence supported an inference of a racial motive in Moore’s decision to discharge Mallory.

The Commission affirmed the findings and conclusions made by the ALJ:

“In his role as the fact-finder in this case, the [ALJ] simply did not believe that the complainant had threatened Mr. Moore or his secretary. Moreover, and more importantly, the [ALJ] did not believe that Mr. Moore thought that the complainant had made any such threats. *** We believe, however, that if the manifest weight of the evidence standard is to have any meaning, the [ALJ] must have the discretion to decide who is lying and who is telling the truth when witness testimony is in conflict. Accordingly, we find that the [ALJ’s] determination that Mr. Moore was lying when he said that he believed that the complainant had made threats is not against the manifest weight of the evidence. Therefore, we must accept as fact in this case, the proposition that Mr. Moore lied to the [ALJ] about his true reason for recommending the complainant’s discharge.
*** There is also some direct evidence of racial motivation which the [ALJ] could have relied upon in reaching his decision that there was discrimination in this case.” Mallory,_ Ill. HRC Rep__(HRC No. 1985SF0090).

The ALJ and the Commission apparently concluded Mallory proved pretext indirectly, by showing the School District’s proffered explanations for discharging him were not worthy of credence. The findings of the ALJ, as well as the record, support this conclusion. Mallory met his burden of proving disparate treatment.

Judgment of the Commission is affirmed.

Affirmed.

GREEN, J., concurs.

JUSTICE McCULLOUGH,

dissenting:

The Commission’s decision should be reversed.

The majority cites certain findings of the ALJ as supported by the evidence. Those findings as cited include, Moore and Mallory’s work relationship was strained; Moore disapproved of Mallory’s treatment of Blunt; Moore spoke to Mallory about the Blunt problem on several occasions; Moore and Mallory held significantly different views of the role of a supervisor, which led to additional conflict; Moore believed a supervisor should demonstrate leadership by working alongside his staff; Mallory believed a supervisor should make work assignments, monitor the progress, and help when necessary. Pursuant to McDonnell Douglas, once the plaintiff has established a prima facie case of unlawful discrimination, the rebuttable presumption arises that the employer unlawfully discriminated against the plaintiff. The employer then must articulate and not prove a legitimate nondiscriminatory reason for its decision. As the majority points out, the School District specified insubordination and threats of violence as the reasons for Mallory’s discharge. The ALJ concluded that the School District met its burden of articulating a legitimate nondiscriminatory reason for discharging Mallory. The presumption of discrimination was destroyed. Mallory was discharged for insubordination and also for threats which were conveyed to Moore. There is no comparison in this record with respect to any other workers at the Baldwin School who had similar charges made against them where action was not taken.

The Commission’s decision should be reversed for two reasons. One, the ALJ found the School District articulated two reasons for Mallory’s termination, insubordination in his treatment of Blunt and threats made by Mallory to Moore. As the majority points out, the ALJ found Mallory’s only offense was insubordination. The ALJ then determined the threat reason, disputed by credible evidence of Mallory, was not justified. Insubordination as shown by the undisputed facts in this record is sufficient cause for termination of Mallory. Thus, Mallory did not show unequal treatment in comparing his circumstances with those of Oberdalhoff and Hively. Mallory was a supervisor of custodians. Oberdalhoff and Hively were custodians.

INSUBORDINATION

The ALJ found:

Mallory supervised custodians.
Mallory would occasionally lose his temper with Blunt because of Blunt’s work performance.
The loss of temper would frequently involve the use of “profanity and the raising of his voice.”
Blunt would “often react to the verbal beratement by ‘freezing’ and was unable to respond.”
At several points during the course of the “1983-84 school year Moore talked with Mallory about his treatment of Blunt and ordered Mallory to treat Blunt more gently, not use profanity or yell at him.”
Later, a confrontation between Mallory and Blunt occurred August 20, 1984, involving “a loud voice and some profanity.” Moore was informed by his secretary, went to the scene, took Mallory to his office, and reminded Mallory of the prior order to treat Blunt gently.
Moore informed Gott of the confrontation. Gott expressed a willingness to recommend termination. Moore “demurred and explained he felt the situation did not warrant termination and that he would work it out with Mallory.”

The School District did have cause to terminate Mallory in the insubordination, as articulated, and found by the ALJ. Nothing in the record indicates the Blunt problems were not real, legitimate, and properly handled by Moore. When one reads the record, Blunt may very well be the injured party.

Mallory failed to prove by a preponderance of the evidence that the legitimate reason (insubordination) offered by the School District was not a true reason for termination.

If either insubordination or threats stand as a legitimate reason, Mallory’s claim must fail. That the issue of threats ignited the termination does not require a different result. Regardless of the merits of threats, the other cause for discharge, mistreatment of Blunt, stands uncontradicted. The ALJ gives credence to no threats and, on that basis, finds “pretext has been shown in that the reason for the discharge is not worthy of belief.”

As stated in Bur dine, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at 253, 67 L. Ed. 2d at 215, 101 S. Ct. at 1093.

COMPARATORS

Oberdalhoff and Hively were custodians. Mallory was a supervisor of custodians.

The ALJ made a comparison in deciding unequal treatment. Mallory had issued a letter to Oberdalhoff with respect to Oberdalhoff’s insubordination. Mallory was terminated for insubordination and Oberdalhoff was not terminated.

It is Mallory’s responsibility to prove that “similarly” situated employees were not treated equally. As stated in Acorn, “[disciplining employees in different manners is probative of discrimination only if the employees are ‘similarly situated,’ which requires a showing of similar misconduct and similar work records.” Acorn, 181 Ill. App. 3d at 142, 536 N.E.2d at 944.

The record shows Mallory was abusive in his language and treatment of Blunt. His conduct was called to his attention. He was directed to treat Blunt more gently because of Blunt’s disability. His abusive treatment of Blunt did not end. There is no evidence of employees refusing to follow Moore’s orders. There is also no evidence of similar conduct by supervisors. As stated heretofore, the failure of the School District in disciplining Mallory might well have placed the School District in violation of Blunt’s rights. There is no showing by Mallory of unequal treatment of similarly situated employees. Mallory did not sustain his burden.

The decision of the Human Rights Commission should be reversed.


author: JUSTICE McLAREN

text:
    ORIN HANSON et al., Petitioners-Appellants, v. SONDRA McGOWAN et al., Respondents-Appellees.
    Second District
    No. 2—89—1043
    Opinion filed May 18, 1990.

      Jeffrey A. Lasky, of Vernon Hills, for appellants.
    Gretchen Fisher, Linda A. Rothnagel, and Bernard H. Shapiro, all of Prairie State Legal Services, Inc., of Waukegan, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

The petitioners, Sandra Hanson and Orin Hanson, appeal from the trial court’s order dismissing their petition for custody of Mrs. Hanson’s granddaughter under section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2)). The trial court held that the petitioners did not have standing under the Act because they did not demonstrate that the child was not in the physical custody of one of her parents. We affirm.

The child who is the subject of this custody dispute is Angela Marie McGowan, who was born on April 19, 1989. Angela’s parents are respondents Sondra McGowan (Sondra) and Lee Douglas. Sondra McGowan was born on May 20, 1972, and is Mrs. Hanson’s daughter. Mr. Hanson is Sondra’s stepfather. The whereabouts of Lee Douglas are unknown.

After Angela was born, she and Sondra resided with the Hansons, and both Sondra and Mrs. Hanson cared for Angela after her birth. Mrs. Hanson worked in a business in her home and was able to take care of Angela while Sondra attended high school. At some point, the relationship between Sondra and Mrs. Hanson worsened, and, on Tuesday, September 5, 1989, Sondra left the Hansons’ household. Sondra did not take Angela with her and did not speak with Mrs. Hanson before leaving. She merely left a note stating that she would not return to the household after school that day and that she would not continue to live there. The note did not state that Sondra would return to take Angela.

On September 12, 1989, the Hansons filed a petition in the circuit court of Lake County seeking custody of Angela. The petition alleged that Angela had been in the “actual custody” of the Hansons since shortly after the child was born. The Hansons also filed a petition seeking guardianship of Angela (see Ill. Rev. Stat. 1987, ch. llOVa, par. 11 — 7), which the trial court consolidated with the first petition under the same case number.

A hearing on the petitions was held on September 15, 1989. At the hearing, Sondra testified that she was currently a junior in high school and that she was living in Paddock Lake, Wisconsin. Sondra testified that she was employed at a McDonald’s restaurant in Antioch, Illinois, where she earned approximately $200 per week. She also was to receive payments from social security until she reached the age of 18. Sondra acknowledged that most of the care given to Angela after her birth was given by Mrs. Hanson, but she noted that there were occasional disagreements about the proper care of the child. According to Sondra, she argued with Mrs. Hanson on September 4, 1989, because Mrs. Hanson felt that Sondra had returned home too late from work that day. She testified that Mrs. Hanson hit her twice with an open hand on her face and shoulder.

Sondra testified that she did not take Angela with her when she left because she “was looking for a better place to stay that night” and that she left the child with the Hansons “so she would have a warm place to stay and treated good until [Sondra] found a better place.” It was Sondra’s contention that she always intended to return for Angela and that she did so early on the morning of Thursday, September 7, 1989. At this time, Sondra testified, Mrs. Hanson refused to allow Sondra to take Angela with her and stated that Angela’s “home is here.” Sondra admitted that she had been arrested for a curfew violation when she was found sleeping underneath a stairwell, a situation which was the result of her having “no place else to go” at that time.

Mrs. Hanson also testified at the hearing. According to Mrs. Hanson, Sondra originally helped take care of Angela but had nearly ceased to do so in the month or so before she left home. Mrs. Hanson testified that Sondra had spent an increasing amount of time socializing “uptown” and that she had hardly played with Angela in the last month. Mrs. Hanson denied striking Sondra, and she asserted that Sondra did not return for Angela until September 11. Mrs. Hanson did not deny that she refused to allow Sondra to leave with Angela.

After hearing testimony, the trial court entertained Sondra’s motion for a directed finding on the question of whether the Hansons had standing under the Act. Counsel for the Hansons argued that Sondra had relinquished physical custody of Angela and that the child had been integrated into the Hansons’ household. Without waiting for counterargument by counsel for Sondra, the trial court held that the Hansons did not have standing under the Act. The court then dismissed both petitions.

In making its ruling, the trial court noted that its role was not “to determine who can better care for the child. This court is here to determine whether the evidence is strong enough to surmount the strong presumptions that a natural parent is entitled to the custody of his or her child.” The court stated:

“Sondra McGowan has not been shown to be irresponsible or unfit or to lack any other elements of standing at this point in time. It may be that she is too young and not as mature as she ought to be but that has not been demonstrated. For these reasons the presumption has not been overcome.”

The Hansons now appeal from the dismissal of their petition and advance three main arguments: (1) the trial court placed undue emphasis on the “superior rights doctrine” in reaching its decision; (2) the court improperly focused on the natural mother’s fitness when ruling on the Hansons’ standing under the Act; and (3) the trial court should have found that the Hansons had standing because Sondra had relinquished physical custody of the child.

With regard to the first two contentions, we note that some of the observations made by the trial court in announcing its judgment may appear extraneous to the question of standing. We believe, however, that the court’s remarks, when viewed in their totality, indicate that the court was properly concerned with the question of whether Sondra had relinquished physical custody of her child.

Section 601(b)(2) of the Act provides for the filing of a custody action “by a person other than a parent, *** but only if [the child] is not in the physical custody of one of his parents.” (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2).) A court may determine whether the petition is in the best interests of the child only after it has been established that the nonparents have standing under the Act. (Ill. Rev. Stat. 1987, ch. 40, par. 602.) This statutory provision recognizes the “ ‘accepted presumption that the right or interest of a natural parent in the care, custody and control of a child is superior to the claim of a third person.’ ” (In re Custody of Peterson (1986), 112 Ill. 2d 48, 51, quoting In re Custody of Townsend (1981), 86 Ill. 2d 502, 508.) It was not inappropriate, then, for the trial court to note the existence of the “superior rights doctrine” upon which section 601(b)(2) is based, so long as its decision was in accord with the dictates of that provision.

Moreover, we believe that the trial court’s comments regarding Sondra’s fitness as a mother were actually directed toward the question of whether she had, in fact, relinquished physical custody of Angela. Though any discussion of the best interests of the child would have been premature, the trial court properly concerned itself with the nature of Sondra’s relationship and contacts with the child to determine whether she had relinquished physical custody. The trial court’s comments are consistent with the notion that “physical custody may [not] be relinquished by default if a parent performs the task of parenting in a less than adequate manner.” (In re Custody of Barokas (1982), 109 Ill. App. 3d 536, 544.) While it is not entirely accurate to refer to this issue as the natural mother’s fitness, we are satisfied that the trial court endeavored to apply the correct legal test.

Our focus now is on the question of whether the trial court correctly found that Angela remained in the physical custody of Sondra, her natural mother. Physical custody does not depend on who has physical possession of the child. Factors to be considered in this regard include how the child came into the nonparent’s physical possession and the duration of the possession. (In re Marriage of Santa Cruz (1988), 172 Ill. App. 3d 775, 783.) We believe that the record makes it eminently clear that Sondra did not relinquish physical custody of Angela. We base our judgment on the result reached by this court in Santa Cruz, the facts of which are surprisingly similar to the case at bar.

In Santa Cruz, the natural parent and her child lived with the natural parent’s mother (the child’s grandmother) and stepfather. After the natural mother and the grandmother argued, the natural mother left the household without the child. Approximately two weeks later, the natural mother was surprised to learn that the grandmother had initiated custody proceedings. (Santa Cruz, 172 Ill. App. 3d at 779-80.) The court held that the natural mother did not “walk away” from her child; instead, the court felt that the natural mother “walked away from her mother ***. [The natural mother] was not voluntarily relinquishing custody of [the child]; she was relinquishing residence in” her former household. Santa Cruz, 172 Ill. App. 3d at 788.

Here, too, Sondra made clear her intention to cease living with the Hansons, but she did not indicate any desire to relinquish physical custody of her child. Two to six days after leaving, the respondent returned to the Hanson household to retrieve her child, but Mrs. Hanson refused to allow the child to leave. The Hansons cannot deprive Sondra of the physical custody of her child simply by refusing to return the child to her. (See Barokas, 109 Ill. App. 3d at 544.) The Hansons’ assistance in caring for Angela did not constitute physical custody of the child by them because Angela and her natural mother “were never separated for an appreciable period and thus the mother never lost physical custody.” (Peterson, 112 Ill. 2d at 54.) Since Sondra, the natural parent, has not relinquished physical custody of her child, the Hansons do not have standing under the Act.

The Hansons argue that the facts of this case are more similar to In re Custody of Menconi (1983), 117 Ill. App. 3d 394, where it was held that the Act is also intended to promote stability in the child’s home environment. The court in Menconi found that the grandparents of a child had standing under the Act because the natural parent had relinquished physical custody; the court noted that the child had become “firmly integrated into the grandparents’ household.” (Menconi, 117 Ill. App. 3d at 398.) We find Menconi factually inapposite to the instant case. In Menconi, the natural parent left the child in the sole care of the grandparents for 6V2 years (338 weeks); here, Sondra left her baby with the Hansons for less than one week. We do not believe that, under these circumstances, Sondra has relinquished physical custody of her child.

We, therefore, affirm the judgment of the trial court dismissing the Hansons’ petition for custody because they lack standing under the Act. The Hansons concede that the Act’s standing provision also applies to their guardianship petition. (See In re Person & Estate of Newsome (1988), 173 Ill. App. 3d 376, 379.) Accordingly, we also affirm the trial court’s dismissal of the petition for guardianship.

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

Affirmed.

INGLIS and WOODWARD, JJ., concur.


author: JUSTICE INGLIS

text:
    SCHAUMBURG STATE BANK, as Trustee, et al., Plaintiffs-Appellants, v. BANK OF WHEATON, as Trustee, et al., Defendants-Appellees.
    Second District
    No. 2—89—0691
    Opinion filed May 16, 1990.

      Arnold B. Kalnitz and William J. Juneau, both of Chicago, for appellants.
    R. Terrence Kalina, of Rathje, Woodward, Dyer & Burt, of Wheaton, for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiffs, Schaumburg State Bank, as trustee, and Richard S. Ochwat, filed an action to quiet title in the circuit court of Du Page County pertaining to their one-eighth undivided interest in the common elements of the Mona Kea Condominiums (Mona Kea). Plaintiffs claimed that a purported easement on the common elements of the condominium property constituted a cloud on their title thereto. After conducting a bench trial, the trial court entered judgment in favor of defendants, and plaintiffs now appeal. At issue on appeal is whether Mona Kea’s board of managers (the board) had the authority to grant an easement over the common elements of the property to a third party.

On June 1, 1973, defendants Douglas L. Mains and Douglas B. Mains owned a parcel of real estate in Du Page County known as the Mona Kea Professional Park. On this date, the Mainses recorded a declaration of condominium ownership (the declaration) designating the property as a condominium pursuant to the Condominium Property Act (the Act) (Ill. Rev. Stat. 1973, ch. 30, par. 301 et seq.). The declaration stated that there were eight units in the condominium, and, appurtenant to each, the unit owner would also own a one-eighth undivided interest in the condominium’s common elements. The terms used in the declaration were to be interpreted in consonance with the correlative terms in the Act.

The declaration stated that the “percentages of common ownership appurtenant to each unit have been computed in accordance with the Act and are declared to be permanent in character and cannot be altered without the consent of all unit owners affected *** as expressed in an amended Declaration.” Furthermore, the declaration provided that the “common elements shall not be divided nor shall any right to partition any thereof exist.” The declaration also provided that, “[e]xeept for alteration in the common interest which cannot be done except with the consent of all unit owners,” the declaration could be amended by a vote of two-thirds of the unit owners. Such amendments were to be “effective when recorded.” The only aspect of the physical layout of the condominium property relevant here is that portion of the common elements which served as a driveway providing access to the units. The driveway was accessible at its western terminus from Schmale Road.

On July 31, 1973, plaintiff Schaumburg State Bank (Schaumburg) was deeded title to unit three in Mona Kea. Schaumburg held title to unit three as trustee under trust No. 366 for two beneficiaries, Glenn S. Schweitzer and Richard S. Ochwat. Schweitzer subsequently transferred his beneficial interest in unit three to Ochwat, who is also a plaintiff in the instant action. In December 1976, Schaumburg owned one Mona Kea unit, and the Gary-Wheaton Bank (Gary-Wheaton) held title to another unit in trust for defendants Ronald Severino, Donald Gustafson, Richard Neidballa and James Grissom under trust No. 1907. Title to the remaining six Mona Kea units was held in trust by the Bank of Wheaton for the Mainses under trust No. 2386.

On December 14, 1976, a special meeting of the Mona Kea unit owners was held to consider a proposed amendment to the declaration. The amendment would have empowered the board to grant a perpetual easement for the ingress and egress of vehicular and pedestrian traffic over Mona Kea’s common driveway to Gary-Wheaton, which owned a parcel of land adjoining Mona Kea (Gary-Wheaton parcel). In return, Gary-Wheaton would grant a similar easement over the Gary-Wheaton parcel to Mona Kea. The two easements would connect to form a continuous passageway running from Schmale Road on the Mona Kea property to Thornhill Drive on the Gary-Wheaton parcel. Without the connecting easements, Mona Kea would not be directly accessible from Thornhill Drive. All unit owners attended the December 14 meeting, and, with only the plaintiffs voting against it, the amendment was adopted by a vote of seven unit owners to one.

On December 27, Douglas B. Mains, as president of the board, executed an agreement for the establishment of the easements with Gary-Wheaton as provided by the amendment. The agreement stated that the easements were for the “mutual and joint benefit” of both parcels of property to afford better traffic circulation to each. The agreement was recorded on January 14, 1977. The amendment to the declaration authorizing the easements was not recorded until January 17, 1977.

The instant action was filed with the circuit court on December 16, 1982. A previously filed action had been dismissed for want of prosecution on December 17, 1981. Count I alleged that the easement over Mona Kea’s common elements was not valid and that GaryWheaton’s claim to the easement constituted a cloud on plaintiffs’ one-eighth undivided interest in the common elements. Count I asked the court to declare the easement void and to quiet title to the common elements. Count II sought injunctive relief, and count III sought damages in tort.

The parties filed cross-motions for summary judgment, and the trial court denied both motions. The court found that the easement upon the Mona Kea common elements constituted “an incorporeal hereditament which reduced the bundle of rights of all unit owners of the common elements.” The trial court, referring to the supreme court’s decision in Murray v. Haverty (1873), 70 Ill. 318, stated that the issue presented in the instant cause was “whether the grant and receipt of the mutual easements caused damage to the plaintiff’s interest in the common elements.” The court found that there was an issue of fact remaining as to whether plaintiffs’ interest was damaged and thus ordered the cause to proceed to trial on this question. A hearing on the injury to plaintiffs’ interest was held on June 14, 1989. The parties agreed that counts II and III of plaintiffs’ complaint would be dismissed and that plaintiffs would proceed on count I only.

At the hearing, Dr. Ochwat testified that he had maintained his dentistry office at unit three of Mona Kea since 1973. Unit three is located near the intersection of the two easements. Ochwat testified that vehicle noise from the driveway area was clearly audible in his offices even before the instant easements were created. Ochwat stated that, after the creation of the easements in 1977, a drive-in banking facility was constructed on the Gary-Wheaton parcel, and he estimated that the flow of traffic outside his office had increased about twentyfold since that time. The most troublesome result of this, Ochwat testified, was that traffic would sometimes back up in the driveway areas on those days that the bank was particularly busy, thus making access to his office from Schmale Road more difficult. Ochwat stated that the noise from this stationary traffic caused him to move his private office to the opposite side of the building and made it impossible for him to open any office windows. Ochwat testified that he and Schweitzer purchased unit three for approximately $115,000 in 1973.

Ronald W. Casper, a real estate appraiser, testified on behalf of defendants. Casper stated that a Mona Kea unit sold in 1987 for a price of approximately $240,000. The only sale prior to that one, Casper testified, occurred in 1984 for $210,000. Casper stated that, in his opinion as an experienced real estate appraiser, the granting of mutual easements in 1977 did not affect the market value of plaintiffs’ property.

After listening to arguments from counsel, the trial court entered judgment in favor of defendants. Plaintiffs now appeal from the entry of judgment. On appeal, plaintiffs argue that it was not necessary to prove that their interest in Mona Kea was injured in order to maintain an action to quiet title. Plaintiffs contend that they were entitled to judgment in their favor because the easement over Mona Kea’s common elements claimed by Gary-Wheaton was invalid.

We initially note our agreement with plaintiffs’ contention that, in this action, they need not prove an injury to their interest in order to prevail. The trial court’s ruling in this regard was based on Murray v. Haverty, which in turn was rooted in the common-law concept of tenancy in common. It is true that the Mona Kea unit owners’ undivided interest in the condominium common elements made them tenants in common with regard to the common areas. (Tassan v. United Development Co. (1980), 88 Ill. App. 3d 581, 591-92.) In Illinois, however, condominiums are creatures of statute (S & D Service, Inc. v. 915-925 W. Schubert Condominium Association (1985), 132 Ill. App. 3d 1019, 1024-25) which were unknown to the common law.

The statutorily created concept of condominium ownership contains a number of elements not known to the common-law notion of tenancy in common. For example, a condominium owner, unlike a tenant in common, can be effectively forced to sell his condominium interest if three-fourths of the unit owners vote to sell. (Ill. Rev. Stat. 1987, ch. 30, par. 315.) One court has noted that “[condominium unit owners comprise a little democratic sub society” (Hidden Harbour Estates, Inc. v. Norman (Fla. App. 1975), 309 So. 2d 180, 182), and another has said that “[e]ach condominium owner relinquishes some degree of freedom of choice and agrees to subordinate some of his traditional ownership rights when he elects this type of ownership experience” (San Antonio Villa Del Sol Homeowners Association v. Miller (Tex. App. 1988), 761 S.W.2d 460, 464). Just as a common-law tenant in common may empower a cotenant to act in his stead as an agent (see Bachewicz v. American National Bank & Trust Co. (1986), 111 Ill. 2d 444, 448), the condominium owner cedes some of his authority to the collective condominium ownership group. Thus, even though condominium owners are tenants in common as to the common elements, the trial court should have addressed this cause with primary reliance on the Act itself.

In reviewing the judgment entered below, however, we are not limited to the reasoning employed by the trial court. We may affirm the judgment based on any reason appearing in the record. (Coleman v. Windy City Balloon Port, Ltd. (1987), 160 Ill. App. 3d 408, 418.) The proper inquiry here, then, is not whether the easement at issue contravenes common-law concepts of tenancy in common, but whether the board’s actions were authorized under the Act and the declaration. Viewed in this light, we believe the resolution of this appeal requires us to address two questions: (1) was the amendment to the declaration effective as to the easement granted before the amendment was recorded; and (2) even if the amendment was properly made effective, is it nonetheless .void because it conflicts with the Act?

Defendants assert that the amendment to the declaration authorized the board to grant the easement over the Mona Kea common elements. According to its provisions, any amendments to the declaration were to be “effective when recorded.” Moreover, the Act provides that any amendment to the declaration is not valid unless “such amendment is duly recorded.” (Ill. Rev. Stat. 1975, ch. 30, par. 317.) Plaintiffs argue that the amendment authorizing the easement was not effective until the date it was recorded, January 17, 1977, and that, therefore, the December 27, 1976, agreement for the easement was made by the board without authority. Defendants contend that the sequence of recording does not affect the validity of the amendment.

In construing a statute, our role is to examine the entire statute for guidance as to the legislative intent, determine the objective the statute sought to accomplish and the evils it desired to remedy, and, upon ascertaining the legislature’s intent, give it effect. (Krall v. Secretary of State (1988), 168 Ill. App. 3d 478, 483.) The purpose of the Act’s recording provision is to give persons the opportunity to ascertain the status of title to property. (St. Francis Courts Condominium Association v. Investors Real Estate (1982), 104 Ill. App. 3d 663, 668.) Moreover, it is presumed that statutes which relate to the same subject are governed by one spirit and a single policy and that the legislature intended the enactments to be consistent and harmonious. (People v. Maya (1985), 105 Ill. 2d 281, 286.) Recording statutes are designed to provide notice and generally do not protect those who already have actual notice. (See Allen & Korkowski & Associates v. Pettit (1982), 108 Ill. App. 3d 384, 391 (persons with actual notice are not protected by section 1 of “An Act concerning constructive notice of condemnation proceedings ***” (Ill. Rev. Stat. 1979, ch. 110, par. 405)); Metcalf v. Altenritter (1977), 53 Ill. App. 3d 904, 908 n. 2 (only bona fide purchasers without notice are protected by section 30 of “An Act concerning conveyances” (Ill. Rev. Stat. 1975, ch. 30, par. 29)).) An unrecorded interest in land is not effective as to a bona fide purchaser without notice, but it remains effective between the parties. Harms v. Sprague (1984), 105 Ill. 2d 215, 224-25.

In the instant case, plaintiffs had actual knowledge of the amendment to the declaration adopted by the unit owners on December 14, 1976. Even though the amendment was not recorded until after the board granted the easement in question, plaintiffs’ actual knowledge of the amendment under these circumstances constituted “the functional equivalent of recording” (St. Francis, 104 Ill. App. 3d at 669) insofar as they were concerned. Both the Act and the declaration merely require that amendment to the declaration be recorded to become effective, and the amendment was, in fact, ultimately recorded. Thus, we conclude that the amendment empowering the board to grant the easement, which was adopted by the unit owners with plaintiffs’ knowledge, was effective as to plaintiffs.

This conclusion does not end our inquiry. The amendment was adopted by a vote of seven unit owners to one, but, under some circumstances, a unanimous vote is required to amend a condominium declaration. The Act provides that the “percentage of ownership interest in the common elements allocated to each unit” shall not be changed except “by agreement of all unit owners.” (Ill. Rev. Stat. 1975, ch. 30, par. 304(c).) The Mona Kea declaration likewise states that the “percentages of common ownership appurtenant to each unit *** cannot be altered without the consent of all unit owners affected.” The question here, then, is whether the easement on the Mona Kea common elements constitutes a change in the percentage of common ownership appurtenant to each unit. If so, then a unanimous vote of unit owners would have been required to effect such a change validly.

The grant of an easement over the Mona Kea common elements did not change the fact that plaintiffs, as owners of unit three, owned a one-eighth or 12.5% undivided interest in the condominium common elements. Plaintiffs argue that their interest in the common elements is nonetheless diluted because they now own a 12.5% undivided interest in a parcel which, as a whole, has itself been diminished by the granting of an easement over it. Our review of case law on this subject leads us to conclude that, where the percentage of common ownership appurtenant to each condominium unit remains constant, the unit owner’s undivided interest in the common elements is not diminished by the grant to a third party of a nonexclusive use of, or easement over, the common areas. An individual unit owner’s undivided interest would only be diminished if the use or easement was exclusive and, as a result, the unit owner was precluded from using a portion of the common elements to which he previously had access.

Two cases amply demonstrate the soundness of our conclusion. In Stuewe v. Lauletta (1981), 93 Ill. App. 3d 1029, a condominium developer allocated a portion of the condominium’s common elements to the exclusive use of one unit owner for a parking space. Thus, a portion of what was once common to all unit owners was reserved for the use of only one. The court held that the unit owner’s exclusive use of the parking space constituted a diminishment in the other unit owners’ interests in the common elements. (Stuewe, 93 Ill. App. 3d at 1031.) Conversely, in Parrillo v. 1300 Lake Shore Drive Condominium (1981), 103 Ill. App. 3d 810, a condominium unit owner improved a portion of the common elements over which he already had been granted an exclusive easement. The court distinguished that case from Stuewe, because in Parrillo “the common elements available to the other unit owners would remain the same.” Parrillo, 103 Ill. App. 3d at 814; see also Grimes v. Moreland (1974), 41 Ohio Misc. 69, 322 N.E.2d 699 (a taking of a common area, as opposed to a mere use thereof, constitutes a diminishment of the unit owners’ undivided interests and requires a unanimous vote).

In the instant case, the easement over the Mona Kea common elements was not for the exclusive use of Gary-Wheaton or its customers, and all Mona Kea unit owners could utilize that portion of the common elements in the same fashion that they could have before the easement was granted. Therefore, the easement, which was executed pursuant to a properly adopted amendment to the declaration, did not diminish plaintiffs’ interest in the condominium’s common elements. Accordingly, defendants were entitled to judgment in their favor.

For the above-stated reasons, the judgment of the circuit court is affirmed.

Affirmed.

UNVERZAGT, P.J., and GEIGER, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY ROGERS, Defendant-Appellant.
    Second District
    No. 2—88—0602
    Opinion filed May 16, 1990.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

The defendant, Gregory Rogers, was certified as a habitual child sex offender pursuant to the Habitual Child Sex Offender Registration Act (the Act) (Ill. Rev. Stat. 1987, ch. 38, par. 221 et seq.). The certification was based on the defendant’s convictions of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(a)(2)) in 1987 and contributing to the sexual delinquency of a child (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 5) in 1984. The defendant now appeals from the certification order and raises four contentions of error: (1) the Act is unconstitutional because it constitutes a cruel, unusual and disproportionate punishment; (2) the Act unconstitutionally violates the defendant’s due process and equal protection rights; (3) the order of certification was untimely; and (4) the offense of contributing to the sexual delinquency of a child cannot serve as the basis for certification under the Act. Because the State correctly has confessed error with regard to the fourth issue, we reverse the order certifying the defendant as a habitual child sex offender.

The defendant’s 1984 conviction of contributing to the sexual delinquency of a child was based on an information alleging that he performed an act of sexual intercourse with a 15-year-old girl when he was 17 years old. The conviction was entered as a result of a negotiated plea agreement. The defendant was sentenced to five months’ periodic imprisonment and one year’s probation. People v. Rogers (Cir. Ct. Winnebago Co.), No. 84 — CF—455.

Again pursuant to a negotiated plea agreement, the defendant pleaded guilty to aggravated criminal sexual assault in 1987. The conviction stemmed from the defendant’s forcible act of intercourse with a 16-year-old girl which caused the victim bodily harm. The trial court sentenced the defendant to eight years’ imprisonment. People v. Rogers (Cir. Ct. Winnebago Co.), No. 86 — CF—1498.

Subsequently, on June 17, 1988, the trial court granted the State’s petition to certify the defendant as a habitual child sex offender pursuant to the Act. The trial court found that the defendant’s conviction of contributing to the sexual delinquency of a child was a sex offense under the Act and that the conviction of aggravated criminal sexual assault constituted a subsequent sex offense. The defendant now appeals from the order certifying him as a habitual child sex offender.

Although the defendant raises four arguments on appeal, the State has filed with this court a confession of error pertaining to the defendant’s fourth argument which makes it unnecessary for us to address the other three. The State concedes that the offense of contributing to the sexual delinquency of a minor cannot serve as the basis for certification as a habitual child sex offender under the Act. This issue was not raised by the defendant before the trial court; normally, this omission would waive appellate review of the question. (People v. Enoch (1988), 122 Ill. 2d 176, 186-87.) This issue may still be reviewed under the doctrine of plain error, however, if the evidence at trial was closely balanced or the accused was denied a fair trial. (People v. Sommerville (1990), 193 Ill. App. 3d 161, 171.) We believe that review under the plain-error doctrine is appropriate here because, as the State concedes, the certification order was based on an offense which is not a proper predicate for certification under the Act.

The Act requires any person certified as a habitual child sex offender to register with the police chief or sheriff in the municipality or county in which he resides. (Ill. Rev. Stat. 1987, ch. 38, par. 223.) A habitual child sex offender is defined as “any person who, after July 1, 1986, is convicted a second or subsequent time for any of the sex offenses or attempts to commit any of the sex offenses set forth in” the Act. (Ill. Rev. Stat. 1987, ch. 38, par. 222(A).) The Act states:

“(B) As used in this Section, ‘sex offense’ means:
(1) A violation of any of the following Sections of the Crimi- ' nal Code of 1961, as amended, when the victim is under 18 years of age:
12 — 13 (criminal sexual assault),
12 — 14 (aggravated criminal sexual assault),
12 — 15 (criminal sexual abuse),
12 — 16 (aggravated criminal sexual abuse when the offense is a felony).
(2) A violation of any former law of this State substantially equivalent to any offense listed in subsection (B)(1) of this Section.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 222(B).

The State’s confession of error relates to the phrase “when the offense is a felony,” which appears to modify the offense of aggravated criminal sexual abuse in the portion of the Act quoted above. The State concedes that this phrase was actually intended to modify the offense of criminal sexual abuse, not aggravated criminal sexual abuse. Thus, both the State and the defendant contend that a conviction of criminal sexual abuse, or a “substantially equivalent” statutory predecessor to criminal sexual abuse, is not a “sex offense” under the statute unless it is a felony.

We agree with this interpretation of the Act’s definition of a sex offense. We note that aggravated criminal sexual abuse is always a felony. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 16(e).) Thus, the phrase “when the offense is a felony” is redundant to the offense of aggravated criminal sexual abuse. Statutes should, if possible, be construed so that no term is rendered superfluous. (Niven v. Siqueira (1985), 109 Ill. 2d 357, 365.) The defendant contends, and the State concedes, that the legislature actually intended the phrase “when the offense is a felony” to modify the offense of criminal sexual abuse and not aggravated criminal sexual abuse. Criminal sexual abuse is, in fact, the only one of the four offenses which can be either a misdemeanor or a felony (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 15(d)); the other three offenses are always felonies (see Ill. Rev. Stat. 1987, ch. 38, pars. 12— 13(b), 12 — 14(c), 12 — 16(e)).

Furthermore, it is appropriate here to examine the debates on the floor of the General Assembly to ascertain the legislative intent underlying the Act. (Morel v. Coronet Insurance Co. (1987), 117 Ill. 2d 18, 24.) During the Senate debate on the Act, Senator Karpiel stated that the Act’s definition of a habitual child sex offender includes “only those persons who have a second felony conviction after July 1, 1986, for certain felony sex offenses.” (Emphasis added.) (84th Ill. Gen. Assem., Senate Proceedings, June 25, 1986, at 210.) The following colloquy between Representatives Cullerton and Parke also demonstrates the clear intent of the House of Representatives that the definition of sex offenses was meant to include felonies only:

“Cullerton: '*** [I]n another part of the Bill you are limiting this to felonies...’
Parke: ‘That is correct.’
Cullerton: '... wouldn’t this whole Section here contemplate a misdemeanor, someone being fined by a misdemeanor?’
Parke: T don’t believe it does. That’s one of the reasons why we had an Amendment to redefine what was [sic] the sexual offenses.’
Cullerton: '*** I want to make clear that this does not apply to misdemeanants.’
Parke: ‘Well, I will tell you our intent, this is only to apply to the defined felony convictions and that there’s no... we’ve alleviated any thought of a misdemeanor being involved here.’ ” 84th Ill. Gen. Assem., House Proceedings, June 20, 1986, at 62.

We conclude, therefore, that the Act’s definition of a sex offense includes criminal sexual abuse only where that offense is a felony. We wish to draw the legislature’s attention to the need to clarify the Act’s definition of a sex offense so that unnecessary litigation might be avoided.

In the instant cause, the defendant’s certification as a habitual child sex offender rested in part on his 1984 conviction of contributing to the sexual delinquency of a child, an offense which is no longer included in the Criminal Code of 1961. Although contributing to the sexual delinquency of a child is “substantially equivalent” to the offense of criminal sexual abuse, it is a misdemeanor only (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 5(c)) and cannot serve as a basis for certification under the Act. Therefore, the order of the circuit court certifying the defendant as a habitual child sex offender must be reversed. This conclusion resolves the appeal and makes it unnecessary for us to consider any of the three additional arguments raised by the defendant. A reviewing court will not consider questions or contentions which are not essential to the determination of the case before it. Unger v. Nunda Township Rural Fire Protection District (1985), 135 Ill. App. 3d 758, 764.

The order of the circuit court of Winnebago County is reversed.

Reversed.

GEIGER and INGLIS, JJ., concur.