author: JUSTICE GREEN JUSTICE McCULLOUGH,

text:
    CHRIST MATICH et at., Plaintiffs-Appellees and Cross-Appellants, v. ROBERT GERDES, Defendant-Appellant and Cross-Appellee.
    Fourth District
    No. 4—89—0405
    Opinion filed February 1,1990.

      McCULLOUGH, J., dissenting.
    Peter W. Brandt, of Livingston, Barger, Brandt & Schroeder, of Bloomington, for appellant.
    John G. Satter, of Satter, Ewing, Beyer & Spires, of Pontiac, for appellee Economy Fire & Casualty Company.
    Fellheimer, Travers, Luckman & Engelman, Ltd., of Pontiac (Robert M. Travers, of counsel), for appellees Christ Matich and Joyce Matich.
   JUSTICE GREEN

delivered the opinion of the court:

This appeal turns upon the proper measure of damages for the owners of a barn destroyed by a fire negligently caused by a tortfeasor. The bam lay on a 1.6-acre tract. It was very old but had been restored and decorated by the plaintiff owners after they purchased the tract in 1972. The predominate use of the barn was for the personal pleasure of the owners and their family and it had some but not great agricultural use. The precise question to be decided is whether the measure of damages is the cost of restoration minus depreciation, or the diminution in the actual fair cash market value of the tract re-suiting from the destruction of the building. We conclude that under the facts here, the cost of rebuilding minus depreciation is the correct measure of damages.

The plaintiffs in this case are Christ Matich and Joyce Matich, owners of the described 1.6-acre tract. The defendant is Robert Gerdes. On June 9, 1986, plaintiffs brought suit in the circuit court of Livingston County to recover damages for the destruction of their barn and contents resulting from a fire on September 19, 1985. The defendant was charged with negligence, and he does not dispute the sufficiency of the evidence to prove that negligence and to prove it was a proximate cause of plaintiffs’ loss. Upon petition, Economy Fire and Casualty Company, a corporation (Economy), was permitted to intervene as a plaintiff subrogee of the Matiches to the extent of $51,843.06. Economy had paid that amount to the Matiches pursuant to a policy of fire and extended coverage insurance Economy had issued to Matiches. On February 2, 1989, after a bench trial, the court found in favor of plaintiffs and entered a judgment in favor of the Matiches in the sum of $74,464.53, with Economy being subrogated to the extent of $51,843.06.

After the foregoing judgment was entered, a series of post-trial motions were filed by the parties. On March 6, 1989, defendant filed a post-trial motion attacking the judgment against him for damages. On March 8, 1989, Economy filed a motion for attorney fees and costs. Then, on March 21, 1989, the Matiches filed a similar motion. On April 6, 1989, Economy filed a motion for prejudgment interest. The circuit court denied all of these motions by an order entered on April 18, 1989. Defendant has appealed, contending the circuit court applied an improper measure of damages in making its award and erred in ruling upon evidence. Economy and the Matiches have cross-appealed the denial of their requests for attorney fees, costs and prejudgment interest. Taken with the case is a motion by defendant to dismiss the cross-appeals for lack of jurisdiction. We deny that motion and affirm the circuit court in all respects.

We consider first the propriety of the judgment against the defendant for damages. The award included not only the loss of the barn, but also the loss of the contents, other items damaged in the fire, and services reasonably required as a result of the fire. The award for damage to the bam was in the amount of $38,858. Little dispute exists as to the $35,606.53 awarded for other losses, which resulted from services reasonably required as a result of the fire and loss of and damages to personal property. Other than challenging some evidentiary rulings, defendant makes no challenges of substance as to the award of these damages.

At trial, both the Matiehes testified the barn was in excellent condition at the time of the fire. Joyce Matich described the barn as being “like new.” Christ Matich estimated the barn would last for 40 or 50 years. The evidence concerning the restoration of the barn accomplished by the Matiehes after purchasing the property included rewiring, restoring outside fixtures, replacing wood siding, replacing broken windows, painting, reroofing, adding a layer of concrete to the floor, new support beams and posts, and building new animal stalls. The Matiehes’ son testified he was able to play basketball in a 30- foot by 20-foot area of the loft where the ceiling was at least 25 feet high. He also testified to using the barn for his Future Farmers of America hog project and his projects for a nearby local fair. A defense witness described the prefire condition of the barn as fair to good.

While the trial court indicated, at the time of rendering its decision, it took virtually all of the evidence received into consideration in making its decision, the result indicated it relied heavily on the testimony of plaintiffs’ expert, Andrew Brorsen. Brorsen considered the life-style of the plaintiffs, photographs of the barn, the quality of work they had done in repairing their home, and the cost of the building replacing the barn. He rejected use of the income approach and the comparable-sales approach in valuing the barn. He indicated he was unable to find suitable comparable-sale values. Rather, he based his determination upon the cost of reproduction less depreciation. He based the reproduction cost largely upon the cost of a replacement building, adjusted because the replacement did not have all of the features of the destroyed barn. He determined the depreciation to be 15% and stated his opinion the barn had a value of $43,108.60 at the time of the fire.

Defendant relies primarily upon the testimony of his expert, Arthur Korte, who testified to an opinion of damages based in part upon the diminution in the actual fair market value of the 1.6-acre tract because of the loss of the barn. Based upon sales of two tracts he deemed comparable in the Bloomington area, and considering the higher price there than near Chatsworth, he concluded the Matich tract had an actual fair cash market value of $45,000 to $60,000 prior to the fire and that the loss of the barn reduced the value by less than $5,000. Nevertheless, he testified to an actual fair cash market value of $10,000 for the barn.

The supervisor of assessments of Livingston County was called by the Matiehes. On direct examination, he testified concerning the characteristics of the Matiehes’ 1.6-acre tract. On cross-examination and redirect examination, he testified (1) the tract had been classified as residential, and the barn had been given an assessed valuation which, when multiplied by three to give full value would be $840; and (2) he would estimate the new structure replacing the barn on the premises could be built for $8,200. Whatever improprieties resulted from this testimony were not prejudicial to defendant. The claims adjuster for Economy was called as an “adverse witness” by defendant and testified that Economy had paid the policy limit of $25,000 for the barn.

A good summary of Illinois cases in regard to the measure of damages for injury to real property is contained in Williams-Bowman Rubber Co. v. Industrial Maintenance, Welding & Machining Co. (N.D. Ill. 1987), 677 E Supp. 539. That court related an uncertain history on that issue. However, that court concluded the later cases followed a rule that the measure is the diminution in market value of the real estate, except when the damages are only partial and repairs are reasonably priced. The court concluded that under those circumstances, the cost of repairs was deemed to be the appropriate remedy. The diminution in value of the real estate was held to be the measure of damages where a barn was totally destroyed in Johnson v. Pagel Clikeman Co. (1951), 343 Ill. App. 346, 99 N.E.2d 148.

We agree the foregoing sets forth the general rule in regard to damages to realty. However, in Myers v. Arnold (1980), 83 Ill. App. 3d 1, 403 N.E.2d 316, this court recognized that the question of whether the property injured was being used for financial gain or for personal use was very significant. There, a road contractor, through negligent mistake, had dumped a large quantity of broken concrete on a 20-acre tract which contained a dwelling. The evidence indicated the cost of removal of the concrete would be $12,000, while the diminution in value because of the presence of the concrete would only be $2,000. Nevertheless, we upheld the trial court’s determination that the cost of repairs was the correct measure. This court noted that similar rulings had been made in Zosky v. Couri (1979), 77 Ill. App. 3d 1033, 397 N.E.2d 170 (tire ruts on residential lawn), and Arras v. Columbia Quarry Co. (1977), 52 Ill. App. 3d 560, 367 N.E.2d 580 (blasting actions destroying a residential well on property where the owner had lived for 30 years).

In Jones v. Consolidation Coal Co. (1988), 174 Ill. App. 3d 38, 528 N.E.2d 33, the appellate court held the cost of repairs was the appropriate measure of damages for the cracking of a concrete floor in a residential garage as a result of flooding. That court cited section 929(l)(a) of the Restatement of Torts (Second) in support of its ruling. That provision states:

“(1) If one is entitled to a judgment for harm to land resulting from a past invasion and not amounting to a total destruction of value, the damages include compensation for (a) the difference between the value of the land before the harm and the value after the harm, or at his election in an appropriate case, the cost of restoration that has been or may be reasonably incurred.” (Emphasis added.) Restatement (Second) of Torts §929, at 544 (1979).

As the italicized portion of section 929 of the Restatement (Second) of Torts indicates, the rule announced there concerning the use of cost of repair when the cost exceeds the diminution in market value has been applied primarily when the property tortiously damaged has not been totally destroyed. Such was the case in Jones, Myers, and Zosky. However, in Arras, a well was made totally useless. Plaintiffs suggest we should treat the situation here in such a way that the property involved be considered to be the entire 1.6-acre tract with all of its improvements. Under this analysis, the total instrumentality would be only partially damaged. Such an analysis would be consistent with the diminution-in-market-value method of appraisal, where consideration is given to the actual fair cash market value of the whole tract before and after the infliction of damage.

We need not decide whether the analysis whereby total loss of the barn would be considered only partial damage to the tract should be applied. We deem the essence of Jones and the court’s decision in Myers to be that when the damaged property gains its principal value from personal use, rather than that for pecuniary gain, the loss in market value is a poor gauge of damage. When the property is used in the special personal way involved there and here, a criterion based logically on reproduction cost should be used when that can reasonably be done. In writing for the court in Jones, Justice Lewis stated:

“While we appreciate the court’s reluctance to sanction an excessive cost of repair award which might result in economic waste in a commercial setting, we are not convinced that an injured homeowner should be relegated to a diminution in value standard where his structures are damaged.” (Emphasis added.) Jones, 174 Ill. App. 3d at 45, 528 N.E.2d at 38.

Similarly, in writing for this court in Myers, Justice Mills stated:

“Allowing a plaintiff to recover the lesser of the cost of repair or the diminution in market value may be appropriate where the interest which has been harmed is purely financial, as where the land was purchased ás a business investment with an eye towards speculation or where it is held solely for the production of income. However, the same measure of damages may be painfully inadequate when the land is held for a personal use such as a family residence and the harm may be corrected with a reasonable expenditure even though the expenditure exceeds the amount the land has diminished in value. In the latter case, the full repair cost will come much closer to restoring what was actually lost and will not require the injured party to correct the harm with funds from his own pocket.” (Myers, 83 Ill. App. 3d at 7, 403 N.E.2d at 321.)

The trial court found the foregoing language to be persuasive.

We also note, as did the Jones court, that the comments to section 929 of the Restatement (Second) of Torts state in part:

“[I]f a building such as a homestead is used for a purpose personal to the owner, the damages ordinarily include an amount for repairs, even though this might be greater than the entire value of the building. So, when a garden has been maintained in a city in connection with a dwelling house, the owner is entitled to recover the expense of putting the garden in its original condition even though the market value of the premises has not been decreased by the defendant’s invasion.” (Restatement (Second) of Torts §929, comment b, at 546 (1979).)

Under the evidence here of the life-style of the Matiches, their use of the barn, and their reason for refurbishing the barn upon their purchase of the property, we consider the barn here to be analogous to the vegetable garden in the Restatement hypothetical. In each case, the property injured was used for some material gain, but this would be subserviant to the owner’s use for enjoyment.

In holding that the reproduction-cost-minus-depreciation method of loss evaluation here was appropriate, we were impressed by a certain aspect of the testimony of the appraisal witness Korte. He testified the diminution in actual fair cash market value of the premises as a result of the fire destroying the barn was less than $5,000, yet he deemed the “value of the bam” to be $10,000. This testimony gives the impression of an admission that the diminution-in-value-of-the tract method of determining damages here is a totally inadequate way of compensating the plaintiffs for the loss resulting from the fire. The $10,000 figure was one which was not based upon any objective standard, because it involved a nonexistent hypothetical situation of a barn unrelated to the land to which it was attached. The testimony gives the impression of a good-faith attempt to be fair without a method of calculation to support the conclusion.

We recognize the possibility of the abuse of use of a reproduction-cost-based determination in situations where an object is totally destroyed. However, we do not see how the dangers of abuse are greater then than when a standard of cost of repair is used and the object is only partially destroyed. If the diminution in value theory is always used when the damages amount to a total loss (Johnson, 343 Ill. App. 346, 99 N.E.2d 148), then frequently, the owner of property 90% destroyed would be entitled to greater damages than would be the case if the property were totally destroyed. The situation would be analogous to that in the days when severe limits were placed upon awards for wrongful death. A tortfeasor who killed an injured party was in less financial jeopardy than if the other parties’ injuries were nonfatal.

We hold the reproduction cost minus depreciation was the proper measure of damages here. The court applied that theory, and any deviation therefrom was not prejudicial to defendant.

We find no error in the circuit court’s evidentiary findings. The defendant made only a general objection to Joyce Matich’s valuation testimony concerning a wine press lost in the fire. Such an objection goes only to relevancy and materiality. (Gale v. Hoekstra (1978), 59 Ill. App. 3d 400, 375 N.E.2d 456.) In any event, an owner may testify as to the value of his or her own personalty. The defense could not have been prejudiced by any testimony by Ron Sanders as to the replacement cost of a barn upon which bids were taken but which was never erected. No plaintiffs’ expert used those figures as a basis for an opinion as to value, and the record does not indicate the court gave the testimony any consideration.

Defendant contended the testimony of plaintiffs’ witness, the supervisor of assessments for Livingston County, that the assessed valuation of the barn when adjusted to full value was $840 and that his estimate of the cost of replacement of the new structure was $8,200, were judicial admissions binding on plaintiffs. Defendant maintains the court erred in denying his motion to require plaintiffs to accept his tender of a check for $840 in full satisfaction of the loss of the barn. He also asserts the court erred in not entering judgment on the damages to the barn in the sum of $8,200. Regardless of other weakness in defendant’s contentions, we deem it sufficient to point out that even if the testimony of the supervisor of assessments had been that of a plaintiff, the answers given would not constitute an unequivocal determination on the points involved and, thus, would not be judicial admissions of a party. McCormack v. Haan (1960), 20 Ill. 2d 75, 169 N.E.2d 239; see M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §802.12, at 543-44 (4th ed. 1984).

Defendant argues the trial court erred in allowing, over defense objection as to relevancy, testimony by Brorsen concerning the basic cost to rebuild a replica of the lost barn. Plaintiffs maintain the testimony was admissible to explain the basis of his opinion. We agree. (Lovelace v. Four Lakes Development Co. (1988), 170 Ill. App. 3d 378, 523 N.E.2d 1335.) The same was true in regard to testimony of Brorsen concerning some allocation of the estimated costs of a replica being modernization costs. The court was not in error in later refusing to strike Brorsen’s testimony. Not only was the testimony admissible for the reasons stated, the defense motion was also untimely as the motion was not made until after the witness was excused and had left. Central Illinois Public Service Co. v. Gibbel (1978), 65 Ill. App. 3d 890, 382 N.E.2d 846.

Defendant points out that testimony of the Matiches in regard to expenditures for the construction of the new structure was not supported by written documents and maintains the testimony of the Matiches made clear they did not know the costs involved. However, the testimony of Christ Matich indicates he did most of the purchasing of those products. Under the circumstances, we conclude the weakness in the evidence went to its weight rather than its admissibility.

We find no reversible error in the admission of various items of evidence offered by plaintiffs. We look with concern upon the court’s admission of certain newspaper articles describing the work done on the barn by plaintiffs prior to the fire. As the case was tried at bench, and the information in the articles was used by Brorsen in determining value of the barn and was corroborated by other testimony, we do not find any error to be reversible. A letter from defendant’s liability insurer indicating defendant was responsible for the fire was admitted into evidence. Defendant now claims it was error. However, defendant did not object when the letter was first admitted, and in any event, the liability was not disputed. No error resulted. Income tax returns of the Matiches were admitted over defense objection of relevancy. They were offered to show that the Matiches had enough income to make the repairs. The relevancy was very questionable, but in view of the trial being at bench, we find no reversible error involved. On appeal, defendant raises questions of lack of foundation and hearsay, but those objections were waived by not raising them at the time the evidence was offered.

Defendant complains on appeal of admission of a photograph of the Matiches’ house alone and of plaintiffs’ exhibit No. 3. No objection was made as to the admission of the photograph of the house or plaintiffs’ exhibit No. 3. Defendant also complains of the admission of exhibits concerning the testimony of witnesses Sander and Knake, but the record does not indicate any objection was made as to this testimony. Defendant further maintains the court should have found for defendant at the close of plaintiffs’ evidence, because plaintiffs did not prove a fair market value for the property and presented only speculative evidence. We have previously decided plaintiffs presented sufficient proper evidence to prove damages.

We conclude no error or combination of errors requires reversal of the damages awarded.

The motions of plaintiffs for attorney fees and costs are based upon section 2 — 611 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611), which provides sanctions for the filing in bad faith of pleadings, motions or other paper. The motion for prejudgment interest is based upon the same alleged conduct of the defendant. Defendant asserts the cross-appeals filed by the Matiches on March 24, 1989, and by Economy on May 26, 1989, fail to give us jurisdiction of the cross-appeals because the cross-appeals are based upon post-trial motions which were filed more than 30 days after the final judgment in the case in chief entered on February 2, 1989.

Determination of the motion to dismiss the cross-appeals requires consideration of section 2 — 1203(a) of the Code and Supreme Court Rules 303(a)(1), (a)(3). Section 2 — 1203(a) states:

“In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1203(a).)

Supreme Court Rule 303(a)(1) states:

“Except as provided in paragraph (b) below, the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the last pending post-trial motion.” (Emphasis added.) 107 Ill. 2d R. 303(a)(1).

The parties do not dispute that absent aspects of revestment not argued here, a circuit court loses jurisdiction to entertain a post-trial motion filed more than 30 days after the entry of a judgment disposing of all issues in the case, and under circumstances where no post-trial motions have been filed in that 30-day period. (Putz v. Schulte (1982), 104 Ill. App. 3d 128, 432 N.E.2d 1070.) That same rule was applied by the Appellate Court for the Second District in regard to a motion filed under section 2 — 611 of the Code more than 30 days after the final judgment disposing of all of the pending issues in the case and when no other post-trial motion had been filed in the 30-day period. (Herman v. Fitzgerald (1989), 178 Ill. App. 3d 865, 533 N.E.2d 1144.) However, in Center Bank — Glen Ellyn v. Kauth (1986), 142 Ill. App. 3d 189, 491 N.E.2d 819, that same appellate court had reversed a circuit court order which had dismissed a petition filed pursuant to section 2 — 611 of the Code. The motion for attorney fees had been filed after a final order quashing a writ of attachment and concerned conduct involved in that proceeding. However, the underlying suit seeking judgment on two notes was still pending. The appellate court concluded that the continuing jurisdiction of the circuit court beyond the 30-day period enabled the court to have jurisdiction to entertain the section 2 — 611 petition.

The Herman court recognized the difference between the situation there, where no pending matters were before the trial court in the 30-day period from final judgment, and the situation in Kauth, where jurisdiction remained. The Kauth court noted that in Sarelas v. Law Bulletin Publishing Co. (1969), 115 Ill. App. 2d 205, 253 N.E.2d 168, the pendency of a timely filed post-trial motion enabled a trial court to retain jurisdiction to consider a similar petition for attorney fees filed more than 30 days after the entry of a final judgment in the case. As the Herman court expressly limited the application of its ruling to situations where the circuit court’s jurisdiction was not extended by pending post-trial motions, no case has been called to our attention which directly holds that petitions under section 2 — 611 of the Code cannot properly be filed in the circuit court more than 30 days after entry of a judgment final as to all issues in a case, where timely post-trial motions were pending.

As the first aspect of the section 2 — 611 issue we are considering is the motion to dismiss plaintiffs’ cross-appeals, another aspect of Herman is significant. There, even though the circuit court did not have jurisdiction to rule on the section 2 — 611 petition, the appellate court did not dismiss the appeal from the order dismissing the motion. Rather, the appellate court took the appeal and affirmed. Here, even if we should conclude the circuit court did not have jurisdiction to rule on the section 2 — 611 petition, the better practice would seem to be for us to accept the appeal and then rule as to whether the order ruling upon the petition should have been to dismiss the motion for lack of jurisdiction rather than, as here, for lack of merit. We need not answer that question here, because we hold the motions were timely filed.

Both Sarelas and Kauth permit the filing of section 2 — 611 motions as long as the circuit court still has jurisdiction of the underlying cases. That jurisdiction exists beyond the 30-day time from final judgment as long as at least one post-trial motion filed within the 30-day period is pending. (Freeman v. Chicago Transit Authority (1965), 33 Ill. 2d 103, 210 N.E.2d 191; Wheeler v. Sunbelt Tool Co. (1989), 181 Ill. App. 3d 1088, 537 N.E.2d 1332; Minfield v. Bernardi (1984), 122 Ill. App. 3d 97, 460 N.E.2d 766.) In contending the court lacked jurisdiction here to consider the motions of the Matiches and Economy because their motions were not filed within 30 days of the judgment awarding damages to the plaintiffs, defendant relies upon the decision of this court in the case of In re Marriage of Uphoff (1982), 110 Ill. App. 3d 608, 442 N.E.2d 965. We hold that decision does not control here. In Uphoff a final judgment of dissolution was entered on January 4, 1982. On January 22, 1982, within 30 days of that judgment, the ex-husband filed a post-trial motion. Thereafter, on February 5, 1982, more than 30 days after the final judgment, the ex-wife filed a post-trial motion. Both motions were denied on March 26, 1982. On April 22, 1982, both parties filed notice of appeal. In a split decision, this court dismissed the ex-wife’s appeal, holding it was based upon an untimely post-trial motion. This court considered the wording of then applicable section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3), which by the time of the appeal had become section 2 — 1203 of the Code. The court deemed that wording, which is the same as that pertaining here, to limit the court’s jurisdiction to ruling on post-trial motions filed within the 30-day period from final judgment. No consideration was given to the holding in Freeman and its progeny, which hold that the court retains jurisdiction to modify its previous final order as long as some post-trial motion is pending.

Every appellate decision called to our attention passing upon the timeliness of motions under section 2 — 611 of the Code has ruled that the timeliness of such a motion filed after a judgment in the proceedings has based its decision on whether the court had retained some jurisdiction of the underlying cause at the time of the court’s ruling. The decision in Freeman and cases following it hold the court retains some jurisdiction during the pendency of a timely filed post-trial motion. Here, unlike in Uphoff and in regard to most post-trial motions, the subject of the motion is not for reconsideration of a past ruling, but to make an original determination an issue. Thus, the problem of continued requests for reconsideration is not involved. Because of the differences, our decision here does not necessarily overrule Uphoff, but we hold that under the circumstances here, the section 2 — 611 motions were timely filed.

Accordingly, we consider the merits of the section 2 — 611 motions. Their thrust is that defendant denied liability for the barn in his answer and in answer to an interrogatory while, at the time, he or his counsel had possession of a letter from an adjuster for defendant’s liability carrier indicating defendant had no defense. However, defendant did stipulate to facts which easily established his liability. A circuit court’s denial of section 2 — 611 sanctions will not be disturbed absent an abuse of discretion. (In re Estate of Wernick (1989), 127 Ill. 2d 61, 77-78, 535 N.E.2d 876, 888; Dyer v. Zoning Board of Appeals (1989), 179 Ill. App. 3d 294, 302, 534 N.E.2d 506, 512.) No such breach of discretion was shown here.

The request for prejudgment interest was brought pursuant to section 2 of “An Act in relation to the rate of interest and other charges in connection with sales on credit and the lending of money” (Ill. Rev. Stat. 1987, ch. 17, par. 6402). Plaintiffs here would not be creditors until a judgment was issued as the action was brought in tort. No indication has been given that the statute is intended to provide for prejudgment interest in tort cases. The circuit court properly denied prejudgment interest.

For the reasons stated, we deny the motion to dismiss the cross-appeals and affirm each and every judgment of the circuit court.

Motion to dismiss denied, judgment affirmed.

KNECHT, P.J., concurs.

JUSTICE McCULLOUGH,

dissenting:

The testimony shows that in 1972 the plaintiffs purchased 1.6 acres for $11,000. Improvements on the property consisted of a house, a barn, a chicken house, and a garage. Plaintiffs testified repairs made to the house and to the barn, including approximate costs of the electrical work, paint, shingles, support beams and concrete. The plaintiffs did not have any receipts for the materials that went into the repairs, and the testimony was made only upon a reasonable estimate as to the costs. No evidence was presented by plaintiffs concerning the value of the 1.6 acres with the improvements thereon at the time of the fire and after the loss. We are dealing with a total loss of the barn and the law with respect to this matter, although not clear, would indicate that the measure of damages for that loss is the fair market value immediately before the loss and the fair market value after the loss. As indicated by the evidence and agreed to by the parties, the building burned to the ground, damaged beyond repair, and had no salvage value. Jones, Myers, and Zosky, does not deal with instances where a building was totally destroyed; the properties had been tortiously damaged and could be repaired.

Contrary to the majority’s opinion, Myers is not a persuasive case to justify the recovery granted to the plaintiffs in this case. Myers involved concrete being placed upon the premises. It did not involve a destruction or loss of any building thereon. Granting restoration of the premise’s damages to the plaintiffs in Myers does not require this court, where the barn was a total loss, to permit replacement damages. Here, the barn, a structure separate from the other improvements on the property, cannot be repaired but must be reproduced.

In Johnson v. Pagel Clikeman Co. (1951), 343 Ill. App. 346, 99 N.E.2d 148, which involved the total destruction of a barn by a fire, the appellate court of the Fifth District correctly stated:

“ ‘We are of the opinion the proper measure of damages in the instant case is the difference in market value of the property before and after the fire.’ ” (Johnson, 343 Ill. App. at 349, 99 N.E.2d at 150, quoting Clark v. Public Service Co. (1934), 278 Ill. App. 426, 446.)

I respectfully disagree that granting to the plaintiffs the full cost of reproducing the barn sets the proper amount of damages to be recovered by the plaintiff.

The damages should be determined based on the fair market value of the property before and after the loss. The trial court did not apply the proper standard in determining damages, and the judgment should be reversed and remanded for a new trial on damages.


source: Caselaw Access Project

author: PRESIDING JUSTICE KNECHT

license: Public Domain

text:
    MATTOON COMMUNITY UNIT SCHOOL DISTRICT NO. 2, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—88—0913
    Opinion filed February 1,1990.

      Thomas R. Miller and S. Jeff Funk, both of Miller, Tracy, Braun & Wilson, Ltd., of Monticello, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield, and Gregory J. Malovance and Ellen Cruickshank, both of Winston & Strawn, of Chicago (Robert J. Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for respondents.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

In this case, the sole question is whether the Illinois Educational Labor Relations Board (IELRB) properly held the material facts alleged in an unfair labor practice complaint filed against petitioner Mattoon Community Unit School District No. 2 (District) were deemed admitted as a result of the District’s failure to timely file an answer to the complaint.

On March 17, 1987, the Mattoon Education Association, IEA-NEA (Association), filed a charge against the District, alleging the District was engaging in an unfair labor practice as a result of its failure and refusal to bargain with the Association over a teacher evaluation plan, in violation of sections 14(a)(1) and 14(a)(5) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1987, ch. 48, pars. 1714(a)(1), (a)(5)). On March 24, 1987, the District was notified of the charge and was advised the case had been assigned to an agent of the IELRB for investigation. At the conclusion of the agent’s investigation, a complaint and notice of hearing was issued by the Board’s Executive Director on September 18, 1987. The complaint contained the following statement:

“YOU ARE NOTIFIED that, pursuant to 80 Ill. Adm. Code Section 1120.30(d) Respondent must file copies of its Answer to the Complaint with the Board and Complainant, no later than 15 days after service hereof, and that, pursuant to Section 1120.30(d)(3), failure to file an Answer in accordance with this Complaint and Notice of Hearing shall be deemed an admission of the material facts alleged in the Complaint and a waiver of any hearing.”

The District’s designated representative for receipt of documents received a copy of the unfair labor practice complaint and notice of hearing on September 23, 1987. Thereafter, counsel for the District contacted the IELRB hearing officer assigned to this cause in order to ascertain the proper manner in which to request deferral to arbitration of the charge stated in the complaint. After consulting with the IELRB’s Executive Director, the hearing officer advised the District’s counsel to file a motion to defer to grievance arbitration. The hearing officer did not advise the District it should also file a separate pleading designated as an answer along with the motion to defer to grievance arbitration.

On October 8, 1987, the District served upon the IELRB and counsel for the Association its motion to defer to grievance arbitration, with supporting exhibits. The motion essentially alleged the dispute as to the purported implementation of the teacher evaluation plan was properly subject to resolution by means of the grievance arbitration procedure provided for in the collective-bargaining agreement between the Association and the Board, because it was a dispute over interpretation and/or application of a term of the agreement. The District did not file a pleading designated as an “answer” within 15 days of its receipt of the unfair labor practice complaint.

On October 20, 1987, the Association filed a motion to transfer the cause from the hearing officer to the IELRB on the basis the District’s failure to file an answer resulted in admission of all of the factual allegations of the complaint, and there were thus no determinative issues of fact requiring a hearing officer’s decision. (See 80 Ill. Adm. Code §1120.40(f) (1985).) On October 23, 1987, the hearing officer assigned to the matter directed the District to file a response to the Association’s motion to transfer the cause to the IELRB within five days of service of that motion on the District. On October 30, 1987, the District filed, in response to the Association’s motion to transfer, a motion requesting its motion to defer to arbitration be regarded as both a motion to defer to arbitration and an answer or, in the alternative, it be granted leave to file an answer instanter. On November 9, 1987, the Association filed a reply in support of its motion to transfer the cause to the IELRB.

On November 24, 1987, the hearing officer issued a recommended decision and order, finding the District had failed to timely file an answer to the complaint. (Mattoon Community Unit School District No. 2, 4 Pub. Employee Rep. (Ill.) par. 1007, case No. 87 — CA—0014—S (Illinois Educational Labor Relations Board, Hearing Officer, Nov. 24, 1987).) On this basis, the hearing officer deemed the material allegations of the complaint admitted and found the District had committed an unfair labor practice in violation of sections 14(a)(1) and 14(a)(5) of the Act.

The District subsequently filed exceptions to the hearing officer’s recommended decision and order and a brief in support thereof. On January 8, 1988, the Association filed a brief in support of the hearing officer’s recommended decision and order.

In an opinion and order issued November 14, 1988, the IELRB held, by failing to timely file an answer to the unfair labor practice complaint, the District admitted the material facts alleged in the complaint, but not the legal conclusions which the Association asserted should be drawn therefrom. The IELRB further held application of the law to the admitted facts resulted in a conclusion that the District’s failure to bargain over the development of an evaluation plan and the impact of such a plan violated sections 14(a)(1) and 14(a)(5) of the Act. The IELRB, inter alia, ordered the District to bargain with the Association with regard to the teacher evaluation plan. Mattoon Community Unit School District No. 2, 5 Pub. Employee Rep. (Ill.) par. 1199, case No. 87—CA—0014—S (Illinois Educational Labor Relations Board, Nov. 14, 1988).

Following the filing of the District’s petition for review of the IELRB’s opinion and order, this court granted the District’s motion for a stay of the order.

Section 1120.30(d) of the IELRB’s rules provides:

“Whenever an unfair labor practice complaint is issued, the respondent must file an answer within 15 days after service of the complaint.
1) The answer shall include a specific admission, denial or explanation of each allegation of the complaint or, if the respondent is without knowledge thereof, it shall so state and such statement shall operate as a denial. Admissions or denials may be made to all or part of an allegation but shall fairly meet the allegation.
2) The answer shall also include a specific, detailed statement of any affirmative defenses including, but not limited to, allegations that the violation occurred more than six months before the charge was filed, that the Board lacks jurisdiction over the matter, or that the complaint fails to allege an unfair labor practice.
3) Failure to file a timely answer shall be deemed an admission of the material facts alleged in the complaint and a waiver of a hearing. Failure to respond to any particular factual allegation of the complaint shall be deemed to be an admission of that particular allegation.” (80 Ill. Adm. Code §1120.30(d), at 9699 (1985).)

The District asserts the IELRB’s rigid interpretation of subsection (c) of this provision and the harsh result created by this interpretation are virtually without parallel in any other segment of Illinois jurisprudence. The District notes that in civil cases in the circuit court, a motion directed to a complaint defers the time for filing an answer to a date directed by the court in disposing of the motion (107 Ill. 2d R. 181), and in such cases, default judgments are regarded as a last resort, to be utilized only where factors such as a pattern of delay, unwillingness to proceed to trial, or a light regard for court procedure would justify entry of such a judgment.

The District asserts its motion requesting deferral to arbitration addressed the central issue stated in the unfair labor practice complaint, and the motion thus informed the respondents of the District’s position regarding the complaint. The District further states had it been allowed to file an answer instcmter, the proceedings would have been delayed for only a few days at most, which could not have prejudiced the Association.

Also, the District argues it demonstrated good cause for not timely filing an initial pleading designated as an “answer.” The principal basis for this argument is the IELRB hearing officer assigned to this cause did not advise the District’s counsel that the filing of an answer was necessary in order to preserve the deferral to arbitration issue. The District asserts it made a good-faith effort to comply with the applicable procedures as explained by the IELRB’s hearing officer and was not dilatory in responding to the unfair labor practice complaint. Finally, the District argues the IELRB’s decision in this case is inconsistent with prior IELRB decisions concerning time limitations, as well as with decisions from other jurisdictions in the realm of both public and private sector labor relations which address this subject.

The Association asserts because some IELRB reviews of unfair labor practice charges precede issuance of unfair labor practice complaints (see 80 Ill. Adm. Code §1120.30(b) (1985)) and because complaints are not issued on the basis of all unfair labor practice charges, the IELRB taking the action it did in this case is not analogous to the entry of a default judgment. The Association notes (1) unlike in civil cases where a default judgment is entered, the allegations of an unfair labor practice complaint have to some extent been substantiated by the precomplaint investigation procedure, and (2) the action which the IELRB took in this case has no impact whatsoever on the ability of a party to present argument as to the proper legal conclusions to be drawn from admitted facts.

The Association further argues the District should be deemed bound by the strict terms of the IELRB’s rule governing answers, because this rule had been in existence for several years at the time of the events here at issue, and the complaint itself clearly informed the District of the consequences of failing to file an answer. The Association argues in view of these facts, the failure of the IELRB’s hearing officer to specifically inform the District’s counsel of the requirement the District file an answer in addition to its motion to defer to grievance arbitration is of no consequence. The Association states:

“The District is attempting to place the blame on the Board *** by claiming misinformation by omission. This is analogous to counsel calling a court clerk with a question regarding motion practice and then claiming that the clerk’s failure to advise counsel of a deadline for filing an answer is an excuse, which would not be an excuse under any circumstances.”

The Association also contends the time limit forfiling an answer to an unfair labor practice complaint is jurisdictional in nature and, thus, cannot be waived. The Association states decisions of the National Labor Relations Board (NLRB) support the imposition of the sanction for failure to timely file an answer which the IELRB imposed in this case.

Finally, the Association asserts the District’s action in this case amounted to an improper and inexcusable refusal on its part to submit to the IELRB’s jurisdiction. The Association states NLRB cases hold a belief a labor dispute should be resolved in a different forum provides no excuse for failure to submit to the NLRB’s jurisdiction. The Association argues, since the District should have known arbitration was not the proper forum in which to resolve the dispute over evaluations, the same rule should be deemed applicable to the present case, and we should hold the District acted at its peril in refusing to submit to the IELRB’s jurisdiction by not filing an answer.

The IELRB, noting the language of the complaint clearly informed the District of the consequences of its failing to file an answer, argues the clear and unambiguous language of the rule governing the filing of answers to complaints (80 Ill. Adm. Code §1120.30(d) (1985)) should be held applicable to the District. The IELRB adopts the Association’s argument, the type of order here at issue is not analogous to a traditional default judgment. Furthermore, the IELRB asserts the District’s motion to defer to grievance arbitration was no substitute for an answer. The IELRB argues allowing a motion such as that to stand for answer would be unworkable in the sense it would leave opposing parties and the hearing officer to guess at what allegations of the complaint are admitted, denied, or explained. The IELRB further asserts, allowing such motions to substitute for answers would thwart the legislative goal of promoting the prompt resolution of educational labor disputes. (See Ill. Rev. Stat. 1987, ch. 48, par. 1701.) Finally, the IELRB argues the District’s reliance on the advice of the IELRB hearing officer was not good cause for failing to timely file an answer, since the District’s counsel did not ask the hearing officer whether a motion could be filed in lieu of an answer or whether a motion would toll the time for the filing of an answer.

In its reply brief, the District maintains it did not refuse to submit to the IELRB’s jurisdiction, but rather made a good-faith effort to defend against the unfair labor practice charge filed against it, by asserting the proper forum for resolution of the dispute was binding arbitration pursuant to the collective-bargaining agreement between the District and the Association.

We conclude the IELRB acted properly in deeming the material facts alleged in the unfair labor practice complaint admitted as a result of the District’s failure to timely file an answer. Generally speaking, administrative agencies must enforce as written the rules which they promulgate and may not make ad hoc exceptions to or departures from their rules when adjudicating. (S. Breyer & R. Stewart, Administrative Law & Regulatory Policy 526-27 (2d ed. 1985).) Exceptions to this requirement of strict compliance with administrative rules exist where “the regulations in question relate to internal agency procedures or where a rule is waived to afford more lenient treatment of a person.” S. Breyer & R. Stewart, Administrative Law & Regulatory Policy 527-28; see also Du Page Area Vocational Education Authority v. Illinois Educational Labor Relations Board (1988), 167 Ill. App. 3d 927, 941, 522 N.E.2d 292, 300 (agency rule establishing time limit for issuance of decision by hearing officer is a “measure of internal administration,” and noncompliance with such rule does not require a new administrative hearing).

In the present case, the applicable administrative rule clearly re- - quires the filing of an answer within 15 days of service of an unfair labor practice complaint. The rule contains no exceptions to this requirement. Absent compliance with this rule, the charged party is deemed to have admitted the material facts alleged in the complaint. The rule imposes obligations upon parties to unfair labor practice proceedings before the IELRB, and thus does not pertain solely to internal agency procedures.

Furthermore, the District was fully informed of the requirement for the filing of an answer and of the consequences of not doing so. Not only did an administrative rule plainly set forth the requirement for the filing of an answer, but the unfair labor practice complaint which was served on the District’s representative clearly spelled out this requirement. Moreover, the charged party in this case is a rather large governmental unit which is represented by counsel. This is not the case of an unsophisticated layman lost in a maze of administrative rules which he or she does not comprehend. For these reasons, we hold the “afford[ing] more lenient treatment of a person” exception to the general requirement of strict enforcement of administrative agency rules is inapplicable to this case.

The NLRB decisions on which the District relies are inapposite to interpretation of the IELRB rule governing the filing of answers to unfair labor practice complaints. The comparable NLRB rule provides the time for filing an answer may be extended by the Regional Director. (29 C.F.R. §102.22 (1988).) Furthermore, if no answer is timely filed, the allegations of the complaint are deemed admitted “unless good cause to the contrary is shown.” (29 C.F.R. §102.20 (1988).) By contrast, the IELRB rule applicable to the present case simply provides failure to file an answer within 15 days after service of a complaint is deemed an admission of the material facts alleged in the complaint and a waiver of a hearing. (80 Ill. Adm. Code §1120.30(d) (1985).) Unlike in the NLRB regulations, there are no provisions which permit extension of the time for filing an answer or the filing of a late answer for good cause shown. In other words, the NLRB allowing the filing of a late answer for good cause shown does not violate its regulations, but the IELRB allowing the filing of a late answer, for whatever reason, would violate IELRB regulations.

Under this same reasoning, the case before us is distinguishable from the situation in which a default judgment is vacated by the circuit court. There are statutory provisions which authorize the circuit court to set aside default judgments. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1301(e) (within 30 days of entry); Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401 (31 days to 2 years after entry).) At the time of the events which resulted in this appeal there were, however, no IELRB rules which permitted the filing of an answer after the deadline for doing so had passed or the setting aside of admissions which occurred as a result of failure to timely file an answer.

We are also not persuaded that the IELRB applying its rules in a seemingly less stringent manner in addressing other factual situations requires reversal of its decision in this case. The decisions of the IELRB interpretating the legislation which it is charged with enforcing are entitled to deference on review. (E.g., Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 447 N.E.2d 295; American Federation of State, County & Municipal Employees, Council 31, AFL-CIO v. Illinois State Labor Relations Board (1989), 187 Ill. App. 3d 585, 543 N.E.2d 562.) In view of this principle, we cannot say the IELRB committed reversible error in concluding the fact situation involved in the present case warranted a stricter application of its procedural rules than was appropriate under the facts of Charleston Community Unit School District No. 1,4 Pub. Employee Rep. (Ill.) par. 1054, case No. 88 — CA—9015—S (Illinois Educational Labor Relations Board, Mar. 17, 1988), Kildeer Community Consolidated School District No. 96, 2 Pub. Employee Rep. (Ill.) par. 1057, case No. 85—CA—0037—C (Illinois Educational Labor Relations Board, April 16, 1986), and Oak Lawn Community High School District No. 218, 2 Pub. Employee Rep. (Ill.) par. 1014, case No. 85— CA—0002—C (Illinois Educational Labor Relations Board, Nov. 20, 1985).

In addition to the above three decisions of the IELRB, the District also relies on several public employee labor board decisions from other States in support of its contention the IELRB should have allowed the filing of a late answer in the present case. In the exercise of its power to interpret the legislation which it is charged with enforcing, the IELRB reasonably could have chosen not to follow these decisions. Also, the District did not provide this court with copies of these decisions as it was required to do by Uniform Appellate Rule 8 (Ill. Rev. Stat. 1987, ch. 110A, par. 908), thus making it impossible for this court to fully consider their possible relevance to the issue involved in the present appeal.

We also reject the District’s argument that reversal is required because it was misled by the IELRB’s advice. As the IELRB points out, the District’s counsel merely asked the IELRB hearing officer for information concerning the proper manner in which to request deferral to arbitration of the unfair labor practice charge stated in the complaint which was served on the District. The IELRB hearing officer replied this could be done by filing a motion to defer to grievance arbitration. The District’s counsel did not inquire whether such a motion is a permissible substitute for an answer to an unfair labor practice complaint, and the hearing officer provided no information as to that matter. Under these circumstances, it cannot be said the District relied to its detriment on the IELRB’s advice in failing to timely file an answer.

The public has an interest in the speedy resolution of unfair labor practice charges in the educational labor relations area. IELRB regulations prescribing time frames for unfair labor practice proceedings and the IELRB’s strict enforcement of the time frames set forth in those regulations further this interest. (See Ill. Rev. Stat. 1987, ch. 48, par. 1705; cf. Skokie Federal Savings & Loan Association v. Savings & Loan Board (1967), 88 Ill. App. 2d 373, 232 N.E.2d 167.) The IELRB did not err in interpreting and enforcing its administrative rules in the manner it did in this case.

The decision of the Illinois Educational Labor Relations Board is affirmed, and the stay order which this court previously entered in this case is vacated.

Affirmed, stay order vacated.

LUND and SPITZ, JJ., concur.


author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES H. RIDEOUT, Defendant-Appellee.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ERIC CHENOWETH, Defendant-Appellee.
    Fourth District
    Nos. 4—89—0609, 4—89—0610 cons.
    Opinion filed February 1,1990.

      Richard L. Broch, State’s Attorney, of Tuscola (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Mark T. Petty, of Areola, for appellees.
   JUSTICE SPITZ

delivered the opinion of the court:

These now consolidated appeals were instituted by the State from orders of the circuit court of Douglas County dismissing the cases against the respective defendants, James H. Rideout and Eric W. Chenoweth. The basis for the dismissals was the failure of the State to bring the defendants to a jury trial within 120 days of arrest as provided by Supreme Court Rule 505 (113 Ill. 2d R. 505).

Rideout was arrested for driving under the influence of alcohol, illegal transportation of alcohol, and having no rear license plate light, and issued uniform traffic citations for each offense on March 18, 1989. (Ill. Rev. Stat. 1987, ch. 95V2, pars. ll-501(a)(2), ll-502(a), 12 — 201(c).) On the same day, he posted a bond and was released. On April 14, 1989, Rideout filed a written demand for a speedy trial by jury. On April 17, 1989, Rideout’s demand was noted at his arraignment, and the cause was set for a pretrial hearing on July 5, 1989, with a jury trial scheduled to commence on July 24, 1989. On July 6, 1989, Rideout filed a motion to dismiss, stating he could not be brought to trial within 120 days of his arrest. The trial court granted the motion on July 11, conditioned upon defendant being brought to trial by July 17, 1989. Rideout was not brought to trial. However, the State filed a motion to reconsider on July 18, 1989, which was argued on July 24, 1989, and denied.

Chenoweth was arrested for driving while under the influence of intoxicating liquor and speeding on March 10, 1989 (Ill. Rev. Stat. 1987, ch. 95V2, pars. 11 — 501(a)(2), 11 — 601(b)), and was admitted to bail the same day. On April 10, 1989, defendant filed a motion for an immediate and speedy trial by jury. His motion was noted at his arraignment the next day on April 11, 1989. The cause was set for pretrial hearing on July 5, 1989, and a jury trial on July 24, 1989. On July 5, 1989, at the pretrial hearing, Chenoweth announced he was ready for trial. On July 6, 1989, Chenoweth filed a motion to dismiss, claiming he could not be brought to trial within 120 days of his arrest on the proposed trial date. On July 11, 1989, the motion was granted. A motion to reconsider was filed on July 18, 1989. The motion to reconsider was denied on July 24,1989.

Initially, we note the defendants’ briefs each challenged the jurisdiction of this court in the “Jurisdiction” section of the appellees’ briefs (Supreme Court Rule 341(e)(4) (July 6, 1988), Official Reports Advance Sheet No. 14, 134 Ill. 2d R. 341(cX4)). The defendants contend the State’s notices of appeal are deficient because they recite that the order appealed from was the July 11, 1989, order of dismissal rather than from the orders denying the motions for reconsideration. First, we believe any deficiencies in the notices of appeal are of form, not of substance, and therefore this court is not deprived of jurisdiction thereby. (Ebert v. Dr. Scholl’s Foot Comfort Shops, Inc. (1985), 137 Ill. App. 3d 550, 484 N.E.2d 1178.) Second, defendants’ method of raising the issue of appellate jurisdiction is inappropriate. While the “Jurisdiction” section of an appellee’s brief may challenge a statement of jurisdiction in the appellant’s brief (107 Ill. 2d R. 341(f)), so doing does not relieve the appellee of the responsibility of discussing the issue and appropriate authority in the “Argument” section of the appellee’s brief. (107 Ill. 2d Rules 341(e)(7), (f).) This issue is not discussed in the “Argument” section of either defendant’s brief, nor is any authority cited to support the defendants’ contention of want of appellate jurisdiction.

On appeal, the State raises two issues. These issues are: (1) whether the trial court erred in dismissing each of these causes because 160 days had not elapsed from the date each defendant was arrested and admitted to bond or moved for a speedy trial; and (2) whether the motion to dismiss filed by each defendant tolled the running of the rule requiring trial within 120 days of the date of arrest.

Effective August 1, 1987, Supreme Court Rule 505 was amended to read as follows:

“When issuing a Uniform Citation and Complaint, a conservation complaint or a Notice to Appear in lieu of either, in counties other than Cook, the officer shall also issue a written notice to the accused in substantially the following form:
AVOID MULTIPLE COURT APPEARANCES
If you intend to plead ‘not guilty’ to this charge, or if, in addition, you intend to demand a trial by jury, so notify the clerk of the court at least 5 days (excluding Saturdays, Sundays or holidays) before the day set for your appearance. A new appearance date will be set, and arrangements will be made to have the arresting officer present on that new date. Failure to notify the clerk of either your intention to plead ’not guilty’ or your intention to demand a jury trial may result in your having to return to court, if you plead ‘not guilty’ on the date originally set for your court appearance.
Upon timely receipt of notice that the accused intends to plead ‘not guilty,’ the clerk shall set a new appearance date not less than 7 days nor more than 49 days after the original appearance date set by the arresting officer, and notify all parties of the new date and the time for appearance. If the accused demands a trial by jury, the trial shall be scheduled within 120 days of arrest. The proper prosecuting attorney shall be served with any separate written demand for speedy trial under section 103 — 5 of the Code of Criminal Procedure of 1963, as amended (Ill. Rev. Stat. 1985, ch. 38, par. 103 — 5). If the accused fails to notify the clerk as provided above, the arresting officer’s failure to appear on the date originally set for appearance may, in counties other than Cook, be considered good cause for a continuance. Any State agency or any unit of local government desiring to be exempt from the requirements of this Rule 505 may apply to the Conference of Chief Circuit Judges for an exemption.” (113 Ill. 2d R. 505.)

The State concedes this is the version of the rule which is applicable to the case at bar. (See People v. Martin (1989), 185 Ill. App. 3d 547, 542 N.E.2d 27.) Nevertheless, the State argues that, by reason of the language in the rule relating to a written demand for a speedy trial pursuant to section 103 — 5 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5) being served on a prosecuting attorney, the trial need not occur until 160 days from the dates each of these defendants was arrested or demanded a speedy trial. The State also contends that section 103 — 5 of the Code and Rule 505 must be construed together since they deal with the same subject matter. (See Spring Hill Cemetery of Danville v. Ryan (1960), 20 Ill. 2d 608,170 N.E.2d 619.) Section 103 — 5 states in relevant part:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by an examination for fitness ordered pursuant to Section 104 — 13 of this Act, by a fitness hearing, by an adjudication of unfitness to stand trial, by a continuance allowed pursuant to Section 114 — 4 of this Act after a court’s determination of the defendant’s physical incapacity for trial, or by an interlocutory appeal.
(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant, by an examination for fitness ordered pursuant to Section 104 — 13 of this Act, by a fitness hearing, by an adjudication of unfitness to stand trial, by a continuance allowed pursuant to Section 114 — 4 of this Act after a court’s determination of the defendant’s physical incapacity for trial, or by an interlocutory appeal.” Ill. Rev. Stat. 1987, ch. 38, pars. 103— 5(a), (b).

One of the purposes of Rule 505 (113 Ill. 2d R. 505) is to set an appropriate timetable to provide a right to a speedy trial to defendants charged with traffic and other minor offenses similar to that afforded to criminal defendants by the legislature in section 103 — 5 of the Code. (See People v. Lorah (1986), 142 Ill. App. 3d 163, 491 N.E.2d 793.) The rule is also designed for the convenience of traffic defendants who might reside some distance from the trial court, and to preserve the freshness of evidence and the memory of witnesses for the hearing on the merits. (People v. Mears (1980), 84 Ill. App. 3d 265, 405 N.E.2d 443.) Therefore, although Rule 505 may refer to section 103 — 5, it is clear these two provisions relate to distinctly different situations and need not be construed together in order to ascertain the proper time limit for a speedy trial under Rule 505. Had the supreme court intended for the speedy trial provision of section 103 — 5 of the Code to apply to traffic cases, the court could have simply so stated.

In fact, resort to rules of statutory construction need only be made when a statute or court rule is ambiguous and the intent of the promulgating authority cannot be derived from the plain meaning of the words employed. (People v. Goins (1988), 119 Ill. 2d 259, 518 N.E.2d 1014.) If there is an ambiguity in a statute or rule relating to criminal matters, the ambiguity must be resolved in favor of the defendant, although the provision should not be so rigidly construed as to defeat the intent. People v. Foster (1983), 99 Ill. 2d 48, 457 N.E.2d 405; People v. Sass (1986), 144 Ill. App. 3d 163, 494 N.E.2d 745.

We recognize, as the State points out, that Rule 505 has evolved over time. Prior to the version of the rule applicable to the case at bar, Rule 505 provided, in relevant part: “If the accused demands a trial by jury, the trial shall be scheduled within the time prescribed by section 103 — 5 of the Code ***.” (87 Ill. 2d R. 505) However, the fact the Illinois Supreme Court amended the rule’s reference to the time prescribed in section 103 — 5 of the Code and added the sentence requiring trial within 120 days of the date of arrest (compare 87 Ill. 2d R. 505, to 113 Ill. 2d R. 505) evidences an intent to depart from the time prescription of section 103 — 5 by providing a more rapid processing of the types of cases to which Rule 505 applies. (See People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416.) We also note that Rule 505 was subsequently amended again, effective August 1, 1989, to provide that for a defendant not in custody to invoke the right to a speedy trial, an appropriate separate demand for a speedy trial consistent with section 103 — 5 “must” be filed. (Supreme Court Rule 505 (June 19, 1989), Official Reports Advance Sheet No. 13,_Ill. 2d R. 505.) This subsequent amendment evidences a realization that the version of Rule 505 applicable to the case at bar does not require the filing of such a demand for speedy trial by the instant defendants. See People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416.

Even without utilizing these rules of statutory construction, the plain language of the version of Rule 505 applicable to the case at bar clearly indicates that when a defendant makes a jury demand, trial must be had within 120 days of the date of arrest. This is mandatory. The use of the word “shall” generally indicates a mandatory meaning and will not be given a permissive meaning when it is used with reference to a person’s right or benefit, as here, and the right or benefit depends on the mandatory meaning. (Newkirk v. Bigard (1985), 109 Ill. 2d 28, 485 N.E.2d 321.) If the accused files a separate written demand for speedy trial, such demand for speedy trial must be served on the prosecuting attorney, but it is not required that defendant file such a separate written demand. (See People v. McCarrey (1984), 122 Ill. App. 3d 61, 460 N.E.2d 781.) Even if defendant does file a separate written demand for speedy trial, that fact does not invoke the time limitation of section 103 — 5 of the Code in lieu of the 120-day period set forth in Rule 505 — even though Rule 505 does not make a distinction between defendants out on bail and defendants in custody, as does section 103 — 5 of the Code. There is no ambiguity. The proper time period relevant to the consideration of both instant cases is 120 days from the date of arrest for each defendant.

The State also contends the filing of the defendants’ motions to dismiss tolled the running of the 120-day period. Any actual delay of the time occasioned by a defendant’s acts or by circumstances in which a defendant has agreed or concurred will toll the speedy trial period set forth in section 103 — 5 of the Code. (People v. Jones (1984), 104 Ill. 2d 268, 472 N.E.2d 455; People v. Perkins (1980), 90 Ill. App. 3d 975, 414 N.E.2d 110; People v. DeCarlis (1980), 88 Ill. App. 3d 634, 410 N.E.2d 677.) However, it has been held that a motion for dismissal for failure to bring a defendant to trial within the speedy trial time limitation is not a delay of the trial which will toll the speedy trial period, but is in fact a motion for discharge. And the fact the trial court does not hear the motion immediately does not establish that the trial was delayed by the defendant. People v. Moriarity (1966), 33 Ill. 2d 606, 213 N.E.2d 516; People v. McKinney (1978), 59 Ill. App. 3d 536, 375 N.E.2d 854.

Even if the filing of such a motion could create a delay occasioned by defendant, it would be difficult to conceive how the trials in the consolidated cases at bar could actually have been delayed by the filing of the motions to dismiss herein. The motions were not filed until after the causes were set for jury trial to commence at a time beyond the 120-day period. While the issue of delay occasioned by the defendant could have simply been avoided by defendants’ motions being filed after the 120-day period had completely run, there is nothing in the record which indicates the trial court could have set these cases for a jury trial at an earlier date or that the State made any effort to move up the trial date after being warned of the impending running of the 120-day speedy-trial period by the filing of defendants’ motions.

In the State’s brief, the case of People v. Brown (1982), 110 Ill. App. 3d 443, 442 N.E.2d 534, is cited for the proposition that a motion to dismiss for want of a speedy trial can toll the running of the speedy-trial period. Brown, however, is distinguishable from the case at bar in that in Brown the motion to dismiss was ill-founded, there having been a prior stipulation between the parties that the speedy-trial period had tolled. In addition, several motions to continue the hearing on the motion to dismiss for want of a speedy trial were either made by or apparently concurred in by defendant such that the hearing was conducted some 63 days after the motion was filed.

In the case at bar, at the pretrial conference the State had made an oral motion to consolidate Rideout’s traffic case with another matter pending against him, Douglas County No. 89 — CM—37. Ride-out objected to this consolidation, and the motion was to be reduced to writing and heard at 3 p.m. on July 11, 1989. Therefore, when Ride-out filed his motion to dismiss on July 6, 1989, that motion, as well as the July 6, 1989, motion of Chenoweth, was noticed up for 3 p.m. on July 11, 1989. Both trials had previously been set for July 24, 1989, and if defendants were unsuccessful on their motions, the trials would have been conducted on July 24, 1989, pursuant to the order enacted at the arraignment of each defendant in April 1989. Had defendants not filed their motions, the speedy-trial period would have run on July 8 for Chenoweth and July 16 for Rideout. The defendants’ motions for discharge having been properly granted, no delay of the trial can be attributed to these defendants by reason of filing the motions to dismiss.

Accordingly, the judgments of the circuit court of Douglas County in these consolidated cases are affirmed.

Affirmed.

KNECHT, P.J., and GREEN, J., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES M. WOOLERY, Defendant-Appellant.
    Fourth District
    No. 4—89—0237
    Opinion filed February 1, 1990.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and William H. Hall IV, all of the State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Charles M. Woolery (defendant) was convicted of unlawful possession of more than 30 grams, but less than 500 grams of cannabis, in violation of section 4(d) of the Cannabis Control Act (Ill. Rev. Stat. 1987, ch. 56V2, par. 704(d)) in the circuit court of Macon County, after a bench trial and based on stipulated evidence. He was sentenced to a two-year term of probation, conditioned on a 90-day term in the county jail and a fine of $180. Defendant appeals from the conviction, contending his motion to suppress should have been granted because he did not consent to the search of the trunk of his automobile.

At approximately 3:35 a.m. on October 6, 1988, defendant was stopped by a State police officer on Interstate 72 for driving 72 miles per hour. The officer noticed an odor of alcohol, and defendant admitted drinking. There was no other evidence indicating defendant’s intoxication. According to the officer, the defendant was asked if there was alcohol or drugs in his auto and, after he replied “No,” the officer asked if he could search the vehicle. Defendant allegedly said, “Yeah, go ahead.”

The officer searched the passenger compartment of the auto, finding no alcohol or drugs but finding some plastic baggies in a shaving kit which “gave me the impression that there might be cannabis activities in or around the vehicle.” He then took the keys from the ignition and began searching the trunk of the auto. According to the officer, he opened the trunk, picked up a jacket and did a quick visual search, at which time the defendant exited the squad car and walked up to him. The defendant had remained in the squad car during the search of the passenger compartment of the automobile. At this time, according to the officer, he was holding the jacket and defendant asked him why he was searching the trunk. The officer testified:

“I explained that I had asked to search the vehicle and I was doing so. I also at this time explained to him he did have the right to refuse any further search of the vehicle.
Q. Did he tell you at that point and time not to continue to the search of the trunk?
A. No, he did not.
Q. Did he ever tell you not to search the trunk?
A. No.
Q. While you were explaining to him that he had the right to not, or to revoke his consent to the search of the trunk, or had the right to tell you to stop searching the trunk, what, if anything did you observe?
A. I observed a plastic bag, clear plastic bag sticking out of one of the pockets of the jacket, containing a green leafy substance, known to me as Cannabis.”

The defendant testified the officer said he wanted to search the automobile for liquor. He also testified:

“A. He asked me could he search my car and I said ‘For what?’ He said ‘For liquor’. I said — he asked me was there any liquor in the car and I said ‘No liquor in the car.’ He said ‘Can I search your car?’ I said ‘Particularly,’ I said ‘You mean inside there where my people are sitting?’ and he told me ‘Yes’.”

Defendant further testified that, upon seeing the officer enter the trunk, he approached the officer, asked him why he was searching the trunk, and “told him I gave consent for him to search inside my vehicle, not my trunk.” He denied giving permission to search the trunk and said after he had asked the officer what he was doing, the officer “felt inside my jacket and he felt the bag and then he unsnapped my bag — my snap on my pocket and pulled the bag out.” Defendant testified he did not think the officer was asking to search the trunk when he originally asked for consent to search the automobile. He did not tell the officer specifically that he did not want him to search the trunk.

It is a well-settled proposition that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States (1967), 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585, 88 S. Ct. 507, 514; also see People v. Sanders (1976), 44 Ill. App. 3d 510, 514, 358 N.E.2d 375, 378.

“The rule for determining the voluntariness of a consent to a search is set forth in Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248-49, 36 L. Ed. 2d 854, 875, 93 S. Ct. 2041, 2059:
'*** [WJhen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.’
The trial court’s determination of the voluntariness of a consent is to be accepted on review unless its findings are clearly unreasonable. People v. DeMorrow (1974), 59 Ill. 2d 352, 358, 320 N.E.2d 1, 5.” People v. Sommer (1977), 45 Ill. App. 3d 459, 460-61, 359 N.E.2d 1190, 1191.

There is a direct conflict in the testimony. The defendant testified that he made it clear that the consent was for the passenger compartment. The officer testified that there was no limitation given, that the consent was to search the automobile. The defendant’s actions in leaving the squad car and approaching the officer when the trunk was opened appears to be an indication of defendant’s lack of intent to consent to the search of the trank. However, the trial court specifically questioned the defendant’s credibility. It appears the fact finder believed the officer’s testimony. The officer’s testimony, as set forth above, indicated that he advised the defendant of his opportunity to withdraw the consent to search the trank. According to the officer, the defendant did not react after this warning. Based on this evidence, the trial court could conclude that the initial consent could properly be interpreted by the officer as a consent to search the entire vehicle. We hold that a consent to search an automobile can reasonably be interpreted by the searching officer as authority to search the entire vehicle, including the trank area. The trial court’s determination that consent to search the entire vehicle was voluntarily given was not clearly unreasonable.

Because of our holding above, it is not necessary to address the State’s contention that upon finding the empty plastic bags in the passenger area probable cause existed to search the trunk area. If there is probable cause for searching an automobile which has been stopped for a traffic violation, a search warrant is not necessary, but some evidence of illicit activity does not always establish probable cause. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 227, 36 L. Ed. 2d 854, 863, 93 S. Ct. 2041, 2048.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES COMPTON, Defendant-Appellant.
    Fourth District
    No. 4—89—0408
    Opinion filed February 1,1990.

      Daniel D. Yuhas and M. Jeffrey Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Nancy Owen, State’s Attorney, of Charleston (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Defendant Compton (defendant) and Kim Parse were charged by information with forgery and both pleaded guilty. Parse is not involved in this appeal. The trial court sentenced defendant to five years’ imprisonment and later denied his motion to reconsider the sentence and for leave to withdraw his guilty plea. Defendant appeals.

On November 29, 1988, defendant and Kim Parse were charged with forgery after they took a check belonging to Amy McLain, forged her endorsement, and cashed the check. Defendant and Parse originally pleaded not guilty to the charge, but later withdrew their pleas and entered guilty pleas on March 6, 1988. Pursuant to the plea agreement, the court sentenced Parse to a two-year term of probation, 100 hours’ public service work, $5-a-month probation fee, restitution in the amount of $170.40, and a fine and court costs equal to the bond posted. The court also directed the probation officer to prepare a presentence investigation report for defendant.

On April 17, 1989, the trial court sentenced defendant to five years’ imprisonment. The court failed to give defendant credit for time spent in custody prior to the conviction. On May 8, 1989, the court denied defendant’s motion to reconsider sentence and for leave to withdraw his guilty plea.

On appeal, defendant argues that (1) his sentence must be vacated and the cause remanded for a new sentencing hearing; (2) his sentence was excessive and should be reduced; and (3) he is entitled to one day of sentence credit. Defendant first argues that his sentence must be vacated and the cause remanded for a new sentencing hearing. We grant defendant a one-day sentence credit, but otherwise affirm the trial court.

Defendant believes two errors were committed during sentencing: (1) the court improperly considered defendant to be eligible for an extended-term sentence when sentencing him to a nonextended term; and (2) the State represented to the court just prior to sentencing that defendant was the instigator of the offense.

We find defendant’s argument concerning the court’s consideration of an extended-term sentence to be waived. To preserve a question of trial error for review, there must be both a trial objection and a written post-trial motion raising the issue. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) There was no objection at trial when the court made its statement or when it imposed the sentence, and the issue was not included in the written post-trial motion presented for appeal. Furthermore, this is not an instance where the plain error rule applies. The alleged error is waived.

We do note, however, that defendant’s contention is without merit. Defendant points to a portion of the trial court’s comments prior to sentencing, which contains the following:

“But as I understand the law and the record, he would, under these circumstances be eligible for a sentence of up to ten years in the penitentiary.”

The trial court was alluding to the fact that defendant was eligible for an extended term. Later, at the motion to reconsider defendant’s sentence, the trial court stated: Once again, the trial court alluded to the fact that defendant was eligible for an extended-term sentence. Defendant argues that because the court found he had a prior juvenile and criminal history, and discussed the possibility of an extended-term sentence, he is entitled to a new sentencing hearing.

“Isn’t this a case where the extended term applies? So, he didn’t receive the maximum. He received the maximum without extended term.”

Defendant relies on People v. Killen (1982), 106 Ill. App. 3d 65, 435 N.E.2d 789, in demanding a new sentencing hearing. In Kitten, the trial court made an express finding that the offense involved was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. This finding is a factor to be considered in imposing an extended sentence. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5— 3.2(b)(2).) However, the trial court in Kitten failed to impose an extended-term sentence. Instead, the court used the finding of exceptionally brutal or heinous behavior to impose the maximum nonextended sentence for the offense. We held in Kitten that the trial court’s approach short-circuited the sentencing procedures set forth in the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(2)). We further held in Kitten that a court may only consider a finding under section 5—5—3.2(b)(2) of the Code (exceptionally brutal or heinous behavior of wanton cruelty) in imposing an extended-term sentence and that such finding may not be used to impose the maximum sentence allowed. This prohibition was to prevent a trial court from imposing a maximum term without considering factors in aggravation and mitigation. Killen, 106 Ill. App. 3d 65, 435 N.E.2d 789.

Defendant maintains that, like the court in Killen, the trial court here used an extended-term factor to impose the maximum sentence. Defendant is wrong in his assertion. Furthermore, we now overrule Kitten.

During the sentencing hearing, the trial court first considered factors in aggravation and mitigation. Factors in aggravation included defendant’s adjudication as a delinquent on an attempt (burglary) charge, and his conviction as an adult of burglary and residential burglary. Only after the court considered factors in aggravation and mitigation did it mention the possibility of an extended-term sentence. Defendant, however, argues that the court’s finding of a prior juvenile and criminal history was an extended-term factor listed under section 5—5—3.2(b)(1) of the Code (conviction of any felony, after having been previously convicted in Illinois of the same or greater class felony, when such conviction has occurred within 10 years after the previous conviction). (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(b)(1).) What defendant fails to realize is that the trial court’s finding was an aggravating factor listed under section 5 — 5—3.2(a)(3) of the Code (defendant has a history of prior delinquency or criminal activity) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(a)(3)), and, as such, was properly used to impose a more severe sentence. The trial court did not engage in the type of analysis this court found improper in Killen.

Furthermore, the record does not support defendant’s view that the trial court used his eligibility for an extended term as a basis for imposing the maximum nonextended sentence. A trial court’s sentence will not be reversed unless it is clear that the sentence was improperly imposed. (People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422, cert. denied (1987), 479 U.S. 1096, 94 L. Ed. 2d 168, 107 S. Ct. 1314.) The court articulated other substantial bases for its imposition of the maximum nonextended sentence. The court was most concerned with defendant’s prior criminal history involving the taking of others’ property. Defendant had also previously been sentenced to concurrent three- and four-year sentences for burglary, which failed to deter him from engaging in the present crime. Thus, it cannot be said the court’s belief that an extended sentence could be imposed had any effect on the sentence it did impose.

Finally, we conclude that Killen must be overruled. Nothing in the sentencing code prevents courts from assessing the brutal character of an offender’s conduct in the commission of a crime when evaluating a nonextended term. Instead, section 5 — 5—3.2 allows courts to impose extended terms only when certain aggravating factors are found. The fact that section 5 — 5—3.2 sets forth aggravating factors does not prohibit the consideration of such factors in imposing nonextended terms. (See People v. Butts (1985), 135 Ill. App. 3d 132, 481 N.E.2d 987.) Furthermore, it does not matter if a court first determines whether defendant was eligible for extended-term provisions and then determines a nonextended sentence should be imposed. People v. Angelly (1988), 167 Ill. App. 3d 477, 521 N.E.2d 306.

Defendant next argues that he is entitled to a new sentencing hearing because the State represented to the court, just prior to sentencing, that he was the instigator of the offense, when there was no such evidence in the case. However, we also find this issue to be waived. As stated previously, an issue presented for appeal must be preserved by objecting at the trial level and including the issue in a post-trial motion. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130.) The record shows that although defendant included the issue in a post-trial motion, defendant’s counsel failed to object to the State’s remarks at trial.

Furthermore, defendant’s claim fails on the merits. When the record indicates that the weight placed on an improperly considered aggravating factor was so insignificant that it did not result in a greater sentence, remand for a new sentencing hearing is not required. (People v. Bourke (1983), 96 Ill. 2d 327, 449 N.E.2d 1338.) There is no indication whatsoever that the trial court placed any weight on the State’s remark. The remark was never mentioned by the court, and there was adequate evidence to support the five-year sentence. Defendant’s request for a new sentencing hearing is denied.

Defendant’s second contention is that his sentence must be reduced because the record as a whole demonstrates that a five-year term is excessive. Defendant first argues that because of the presence of mitigating factors, his sentence is excessive. Statutory mitigating factors defendant argues are present include: (1) defendant’s conduct neither caused nor threatened serious physical harm to another; (2) defendant did not contemplate that his criminal conduct would cause or threaten serious physical harm to another; (3) defendant’s conduct was induced or facilitated by another person; (4) defendant’s character and attitudes indicate he is unlikely to commit another crime since he stated to the court that he knew he made a mistake and was sorry; and (5) the imprisonment of defendant would entail excessive hardship to his dependents, since his fiancee is pregnant and defendant supports a child from a previous marriage. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.1(a).

It is apparent from the record, however, that the trial court carefully considered the statutory mitigating factors. Moreover, where mitigation evidence is before the court, it is presumed that the sentencing judge considered the evidence, absent some indication, other than the sentence imposed, to the contrary. (People v. Goodman (1983), 116 Ill. App. 3d 125, 127-28, 451 N.E.2d 607, 609.) Absent an abuse of discretion on the part of the trial court, a sentence will not be altered on review. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

Defendant also argues that his sentence is excessive in light of the fact that he cooperated "with authorities and pleaded guilty to the charge. The fact that defendant made such a plea is a relevant factor in mitigation. (People v. Bergman (1984), 121 Ill. App. 3d 100, 458 N.E.2d 1370.) The record shows that the trial court looked favorably on the fact that defendant had cooperated with the authorities.

Defendant next argues that his sentence is excessive because his partner in crime, Parse, received probation. Fundamental fairness and respect for the law require that defendants similarly situated not receive grossly disparate sentences. (People v. Henne (1973), 10 Ill. App. 3d 179, 293 N.E.2d 172.) Defendant and Parse were not similarly situated. While defendant had a string of juvenile and adult offenses, Parse had none. Disparate sentences may be imposed when the defendants’ criminal records differ. People v. Krankel (1985), 131 Ill. App. 3d 887, 476 N.E.2d 777.

Defendant’s next argument is that his sentence is excessive because the probation department failed to recommend imprisonment. While the final sentencing determination is exclusively a matter for the court, the recommendation of a probation officer is entitled to some weight. (People v. Krueger (1974), 21 Ill. App. 3d 1084, 316 N.E.2d 189.) In the instant case, the probation officer described the chances of defendant successfully completing a term of probation only as “fair.” Furthermore, the probation "officer never specifically recommended probation. It is apparent from the record that the court considered the probation department’s presentence report.

Defendant’s final argument concerning his sentence is that it is excessive because the trial court failed to give adequate consideration to his rehabilitative potential. Specifically, defendant argues that the trial court failed to take into account his age, work history and future employment prospects. In a sentence determination, the objective of restoring the offender to useful citizenship is to be accorded no greater consideration than that which establishes the seriousness of the offense. The prime responsibility for striking the proper balance between the potential for rehabilitation and the seriousness of the offense rests with the trial court. (People v. Waud (1977), 69 Ill. 2d 588, 596, 373 N.E.2d 1, 4.) The trial court here specifically considered defendant’s rehabilitative potential and found the best sentence to be five years’ imprisonment. Defendant was not rehabilitated after juvenile proceedings, nor was he rehabilitated after his three- and four-year consecutive sentences. Thus, the court determined a five-year sentence was necessary to rehabilitate defendant.

A trial court is normally in a better position to determine the punishment to be imposed than a court of review. Therefore, absent an abuse of discretion on the part of the trial court, a sentence will not be altered on review. (Perruquet, 68 Ill. 2d 149, 368 N.E.2d 882.) The trial court did not abuse its discretion in sentencing defendant. Defendant’s sentence is upheld.

Defendant’s final contention is that he is entitled to one day of sentence credit. The State concedes that defendant is so entitled. Defendant was arrested and taken into custody on November 30, 1988, and later that day posted bond and was released. At trial, the prosecutor represented to the court that defendant was taken into custody and released the same day after posting bond and that he did not spend any time incarcerated. The court determined that defendant was not entitled to any sentence credit.

Section 5 — 8—7(b) of the Code provides: “The offender shall be given credit on the determinate sentence or maximum term and the minimum period of imprisonment for time spent in custody as a result of the offense for which the sentence was imposed ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—7(b).) If defendant is held in custody for any part of a day, he is entitled to credit against his sentence for that day. (People v. Johns (1984), 130 Ill. App. 3d 548, 474 N.E.2d 739.) Defendant is entitled to one day of credit on the sentence imposed for this offense.

Affirmed in part; reversed in part and remanded with instructions to give defendant one day of credit on his sentence.

Affirmed in part; reversed in part and remanded.

STEIGMANN and McCULLOUGH, JJ., concur.