author: JUSTICE PINCHAM

text:
    ABE M. LINDERMAN, Plaintiff-Appellant, v. THE ILLINOIS CIVIL SERVICE COMMISSION et al., Defendants-Appellees.
    First District (5th Division)
    No. 1 — 88—1955
    Opinion filed September 8, 1989.

      Stephen A. Yokich, of Cornfield & Feldman, of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE PINCHAM

delivered the opinion of the court;

Plaintiff, Abe M. Linderman, filed with the Illinois Civil Service Commission (the Commission) for administrative review of the Illinois Department of Employment Security’s (IDES’) decision to terminate his employment. The Commission upheld his termination. Plaintiff then filed a complaint in the circuit court of Cook County naming as defendants the Commission, IDES, and the Illinois Central Management Services (ICMS). The trial court affirmed the Commission’s ruling which upheld plaintiff’s employment termination with IDES. Plaintiff appeals. We affirm.

Plaintiff was employed by IDES as a hearing supervisor. In 1986, a budgetary crisis occurred in IDES (which ultimately resulted in the layoff of hundreds of IDES employees). As a result of this fiscal crisis, a layoff plan was mandated and approved by ICMS, and a series of layoff warnings were given IDES employees. On April 15, 1986, plaintiff was first advised of his proposed layoff, which was to be effective at the close of the business day on May 15, 1986. At various points thereafter, on April 30 and also on May 15, 1986, plaintiff was again informed by various supervisors that he would be laid off. Each date came and went without plaintiff’s layoff being implemented. On May 30, 1986, Linderman again received notice of his layoff, in the mail, effective that day.

Linderman appealed his layoff to the Commission. The Commission requested additional information from him. In his response, Linderman asserted that IDES violated section 302.540 of the Illinois Personnel Rules by imposing a layoff only two days after approval by ICMS. Section 302.540 of the Illinois Administrative Code (80 Ill. Adm. Code §302.540 (1985)) provides that “unless extraordinary operating conditions or events are specified in the proposed layoff plan, no indeterminate layoff shall be effective until ten days after” the director’s approval of the plan.

The Commission acknowledged that 10 working days did not elapse between the approval of the layoff plan by ICMS and the effective date of plaintiff’s layoff. The Commission, however, concluded that the layoff plan specified “extraordinary operating conditions or events,” and that, therefore, the ten-day ICMS approval of the layoff plan was not required, and upheld plaintiff’s termination.

Plaintiff filed a complaint in the trial court to review the Commission’s decision. The trial court upheld the decision of the Commission.

On this appeal, we consider plaintiff’s assertion that he was laid off without proper notice, as required by Illinois Personnel Rules. The other issues presented by the plaintiff were not urged before the trial court and are deemed waived before this court. Smith v. Ashley (1975), 29 Ill. App. 3d 932, 332 N.E.2d 143.

In Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 426 N.E.2d 885, the supreme court mandated a two-step process for a reviewing court in reviewing an administrative agency’s (the Commission’s) decision to discharge an employee: (1) to determine whether the agency’s findings of fact are contrary to the manifest weight of the evidence; and (2) to determine whether the findings of fact provide a sufficient basis for the conclusion that cause for discharge does or does not exist. The latter is not tested by the manifest weight of the evidence, but rather whether the decision is arbitrary, unreasonable, or unrelated to the requirements of the service. Sutton v. Civil Service Comm’n (1982), 91 Ill. 2d 404, 438 N.E.2d 147; Secretary of State v. Kunz (1983), 116 Ill. App. 3d 736, 739, 452 N.E.2d 387, 389; Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1982), 103 Ill. App. 3d 954, 431 N.E.2d 1330.

In the case at bar, the facts are undisputed and thus the findings are not contrary to the manifest weight of the evidence and there is compliance with the first step. Hence, the second step, whether the Commission’s decision is arbitrary and unreasonable, is the determinative issue before us.

Section 302.540 of Title 80 of the Illinois Administrative Code provides:

“Unless extraordinary operating conditions or events are specified in the proposed layoff plan, no indeterminate layoff shall be effective until ten working days after the Director’s approval of the layoff plan.” (80 Ill. Adm. Code §302.540 (1985).)

The issue before this court is whether the Commission properly found that “extraordinary operating conditions” existed at the time of Linderman’s layoff.

On May 19, 1986, the director of IDES submitted her layoff plan to ICMS for approval. In the layoff plan, the director explained the loss of Federal funding which necessitated the reduction of 300 positions in the workforce. The director further detailed the steps taken by IDES to notify its employees of the funding crisis and its efforts to place IDES employees with other State agencies. At the conclusion of the layoff plan, the director requested a waiver of the 10-day notice rule based on “the severe budgetary crisis in which the agency finds itself.” On May 28, 1986, ICMS approved the waiver of the 10-day notice “based on the reason for the layoff and prior employee notification.”

On the foregoing facts, the Commission found and ruled that IDES and ICMS had not violated section 302.540. The Commission based its finding on the “extraordinary operating conditions or events” specified in the proposed layoff plan and the notices provided to employees prior to the layoff.

The language of an administrative regulation is to be given its ordinary meaning. (Kern v. Uregas Service of West Frankfort, Inc. (1980), 90 Ill. App. 3d 182, 412 N.E.2d 1037.) “Extraordinary” is defined as “not of the ordinary order or pattern.” (Webster’s Third New International Dictionary 807 (1971).) The Commission validly concluded that a crisis which necessitated the layoff of 300 employees was an extraordinary operating condition. The Commission’s decision that IDES and ICMS did not violate section 302.540 by waiving the notice requirement is neither arbitrary nor unreasonable.

Plaintiff asserts that this budgetary crisis was not extraordinary because it was foreseeable. However, there is no language in section 302.540 which defines extraordinary in terms of foreseeability. Section 302.540 was promulgated by ICMS under the authority of the Personnel Code. (80 Ill. Adm. Code §302 (1985); Ill. Rev. Stat. 1985, ch. 127, par. 63b108.) An agency’s interpretation of its own rule is entitled to deference on administrative review. (Buchanan v. Lenz (1983), 115 Ill. App. 3d 722, 728, 450 N.E.2d 1298.) Therefore, ICMS’s interpretation of extraordinary as encompassing IDES’s fiscal crisis was properly credited by the Commission and the trial court.

Plaintiff further asserts that IDES’ actions caused uncertainty as to whether he would be laid off. Plaintiff admittedly received written notice from the director of IDES on April 15, 1986, advising him that he would be laid off on May 15, 1986. This notice was never rescinded, although the director did not actually lay plaintiff off on May 15. The Commission properly noted this prior warning to plaintiff in determining that ICMS properly waived the notice requirement. But even if plaintiff had received no prior warnings of the impending layoff, the Commission correctly held that ICMS properly waived the required notice under section 302.540.

At the conclusion of plaintiff’s challenge to the Commission’s decision, plaintiff suggests that the Commission erred in failing to grant him a hearing. We disagree.

In an analogous case, Cohen v. Civil Service Comm’n (1988), 168 Ill. App. 3d 994, 523 N.E.2d 122, plaintiff, Michael Cohen, as plaintiff in the case at bar, was employed by IDES as a hearing supervisor. Also as in the instant case, Cohen was laid off as a result of a decreased agency budget. Cohen appealed his termination to the Commission asserting that he was laid off in contravention of section 8b. 13 of the Personnel Code, which provides that in determining who should be laid off, by reason of lack of funds or work, consideration must be given to one’s performance record, seniority and the impact on achieving equal employment opportunity goals. (Ill. Rev. Stat. 1985, ch. 127, par. 63b.108b.13.) Cohen maintained that seniority was not taken into consideration in his termination. The Commission upheld Cohen’s termination, and the trial court upheld the Commission’s ruling. On appeal, Cohen maintained, as Linderman does in the case at bar, that he was improperly deprived of a hearing by the Commission. This court rejected Cohen’s argument and held that “the record before us demonstrates that plaintiff was given an opportunity to respond at every step of the Commission’s decision-making process.” (Cohen, 168 Ill. App. 3d at 999.) Plaintiff in the case at bar likewise presented the Commission with his arguments and was given an opportunity to respond to the contentions of IDES. After a review of both parties’ contentions, the Commission determined that no hearing was necessary. We cannot say the Commission’s decision that no substantial issue of fact or law existed was in error or that any due process violation occurred.

The facts surrounding plaintiff’s layoff were not disputed. The question of law presented was resolved by reference to a resolution of the language of section 302.540. Whether a budget crisis which resulted in the layoff of hundreds of employees constituted “extraordinary operating conditions” was not a question which required a hearing prior to its resolution.

For the above and foregoing reasons, we conclude that the Commission’s decision that IDES and ICMS did not violate section 302.540 is neither arbitrary nor capricious and we affirm the trial court’s order upholding plaintiff’s termination by the Commission.

Affirmed.

LORENZ and COCCIA, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE EGAN JUSTICE QUINLAN,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDDIE GONZALEZ, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 87—0550
    Opinion filed September 8, 1989.

      QUINLAN, J., dissenting.
    Randolph N. Stone, Public Defender, of Chicago (Thomas J. Brosnan and Emily Eisner, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and Sari L. Slivnick, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendant, Freddie Gonzalez, was found guilty by a jury of armed robbery and aggravated battery; and he was sentenced to imprisonment for 4x/2 years. No issue is made of the sufficiency of the evidence. The case against the defendant was based on his identification by the complainant, Jose Asia, and statements the defendant made to the police.

Before the trial began, the defendant made an oral motion in limine requesting that the State be prohibited from introducing any testimony that the defendant was in any way affiliated with a gang and that any testimony regarding the police photo books used to identify the defendant exclude any reference to the Spanish Cobras gang. The judge held that he would allow testimony regarding the defendant’s gang membership for the limited purpose of showing the procedure and circumstances leading to his identification.

Asia testified that on September 4, 1986, at about 1:20 p.m. he went home from school. After spending a little time there, he went to the home of his friend Kenneth Siaz at 2321 N. Albany in Chicago. Siaz had a new racing bicycle worth about $200 which he allowed Asia to borrow.

Asia took the bicycle for a ride around the neighborhood at approximately 2:30 p.m. As he was riding in the street through the 3100 block of West Belden, he saw a group of 8 to 10 boys standing on the sidewalk in front of a burned-down building. He knew only one of the boys standing there, and his name was Pony Boy. Asia had lived in the neighborhood for five years before moving out the previous year. He continued to visit everyday and previously had seen a group of individuals in front of the burned-down building who “represented” that they were members of the Spanish Cobras gang. They would so “represent” by yelling out their gang name and making a hand signal like a “C.” On the day of the robbery the burned-down building had an “SC” with pitchforks written on it. That symbol meant Spanish Cobras to him.

After riding by the building, Asia’s friend Danny stopped him. Asia was about three houses away with his back to the burned-down building. He talked with Danny for five minutes, and Danny left. As Asia was about to leave, a man he later identified as the defendant came up behind him and grabbed the bicycle’s handlebars. Asia was still sitting on the bicycle. He said that the defendant was “with the guys in the group behind” him, but he could not say for sure where the defendant had come from, because he had his back to the defendant when he grabbed the handlebars.

He had never seen the defendant before that day, and after the defendant grabbed the handlebars they were face to face and roughly two feet apart. He made an in-court identification of the defendant. He told the defendant it was his friend’s bicycle. The defendant threatened that if Asia did not give him the bicycle he was going to hit him. Asia would not give it to him, and the defendant struck him with his clenched fist in the face below his left eye. Asia remained on the bicycle, and the defendant hit him a second time in the forehead. After receiving the second blow, Asia released his grip on the handlebars, and the defendant rode off on the bicycle down Belden.

Asia returned to Kenneth Siaz’s house and called the police. When Officer Leo Velez arrived, Asia gave him the physical description for a male Puerto Rican and a description of his clothing. He told Velez that he thought the robber was a Spanish Cobra. The next day Asia went to the police station and met with Officer Noon. He looked at about 75 photographs of young men in a book. The book contained photos of blacks as well as whites; however, the majority of the individuals were Hispanic. He picked out the defendant’s photograph from the book. He did not know whether the defendant belonged to a gang. He acknowledged that he did not give Officer Velez the defendant’s eye color because he could not tell what color they were. The entire incident with the defendant lasted a minute. He did not identify the defendant from a lineup; instead, the next time he saw the defendant was at a preliminary hearing after the defendant had been arrested. He identified him at that time.

Officer Noon testified that he observed a bump on Asia’s forehead. He gave Asia two Chicago police department photo albums which contained photographs of “self-admitted Spanish Cobra gang members.” The court sustained the objection of the defendant and instructed the jury as follows:

“With respect to the last answer, ladies and gentlemen, that these two books contain that of self-admitted Spanish Cobras, the comment of self-admitted is hereby stricken from the record as irrelevant and the defense objection to that is hereby sustained. I must remind you once again, ladies and gentlemen, this testimony concerning the gang membership, the Spanish Cobras, of the defendant is admissible in evidence solely or only to show the circumstances and the procedures that were used in the identification of the defendant in this case.”

Noon further testified that on September 11, 1986, after looking for the defendant for a few days, he and his partner Officer John Guzman saw him at 3800 West Leland with one or two other white Hispanic males. As the officers approached, the defendant asked, “If [they were] looking for [him] for that robbery where [he] took the kid’s bike.” At that point Noon placed the defendant under arrest and took him to Area 5 headquarters.

Noon questioned the defendant alone after giving him his Miranda warnings for a second time. The defendant told him he was on Belden Street when he saw a “guy” on a new bicycle. He went up to the person and told him to get off the bike. The person did not want to get off the bike so the defendant forced him off. He then got on the bike and rode off with it. Noon asked the defendant where the bike was, and the defendant replied that he kept it for a day and then gave it to a person named Gunner, a member of the Simon City Royals gang. The defendant denied hitting Asia. The police were unable to recover the bicycle.

On cross-examination, Noon testified that he and his partner did not have time to say anything to the defendant before he made the statement asking if they were looking for him for the robbery where he took the “kid’s bike.” Noon typed out a supplemental police report after questioning the defendant which included the defendant’s statement that he had taken the bike, did not hit the person from whom he had taken the bike and that he gave the bike to a Simon City Royal gang member named Gunner.

The defendant’s evidence consisted, in part, of a stipulation to the testimony of an official court reporter who was present at the defendant’s preliminary hearing at which Asia was asked if it took the defendant five minutes to tell him to get off the bike and he answered, “or ten [minutes] or so.”

Officer Leo Velez testified for the defense that he met with Asia at approximately 3 p.m. He did not think that Asia provided him with the hair or eye color of the person who robbed him. Velez marked in his report that the hair and eye color were unknown. On cross-examination, he testified that Asia was ’ “hysterical, all shook up.” Asia was able to provide a description of the robber’s clothes and gave his age, height and weight.

The defendant first contends that the trial court erred in denying his motion in limine and allowing the State to introduce testimony of the defendant’s gang affiliation with the Spanish Cobras.

The supreme court has spoken on the admissibility of evidence showing a defendant’s affiliation with a gang:

“To prevent the conviction of one accused of a crime merely because of his membership in an organization that is unpopular, it is the thrust of [United States v.] Rosenberg that proof of membership is admissible only if there is also sufficient proof to show that membership is related to the crime charged, for example, to show common design or purpose.” People v. Hairston (1970), 46 Ill. 2d 348, 372, 263 N.E.2d 840.

We cite People v. Hairston as the expression by the highest court of this State of the applicable principle of law governing admissibility of evidence of gang affiliation. By no means do we say or imply that Hairston is factually apposite here. We recognize that the supreme court affirmed the conviction holding that the evidence of gang affiliation in that case met the court’s standard.

The potential for prejudice in the admission of such evidence has been recognized in People v. Parrott (1976), 40 Ill. App. 3d 328, 331, 352 N.E.2d 299:

“It is common knowledge that there is a deep, bitter, and widespread prejudice against street gangs in every large metropolitan area in America.”

In the trial court, the State argued, and the judge agreed, that evidence was admissible for the purpose of showing the procedure and circumstances leading to the defendant’s identification. No Federal or State court case is cited to support introduction of evidence of gang affiliation to show the procedure and circumstances leading to the defendant’s identification. Our research has disclosed none.

The issue should not be clouded by reference to this evidence in connection with the rule concerning proof of other crimes or in connection with the hearsay rule. Those issues may be addressed on another day in another case. The narrow issue is whether this evidence was relevant and prejudicial. When evidence is relevant but prejudicial, it is the duty of the judge to weigh the prejudicial effect of the evidence and its probative weight. But the first hurdle is relevance; and we conclude that the evidence was not relevant and its prejudicial effect was considerable. Put another way, the issue is whether proof that the defendant was a member of the Spanish Cobras is “related [or relevant] to the crime charged.” We conclude that it was not.

The argument advanced by the State in this court is that “[i]t was necessary for the jury to know how the police were able to obtain a positive identification of defendant and thereafter to be able to find and arrest defendant.” (Emphasis added.) Our answer is that it was not “necessary.” This was a trial; not a motion to suppress evidence. The issue before the jury was whether Asia’s identification was correct, not whether the police had probable cause to arrest the defendant and not whether the police acted efficiently. Asia properly testified to the description he gave the police of the physical characteristics of the defendant and the clothing he was wearing, but there was no need for his statement that he “thought” the offender was a Spanish Cobra. The State’s argument reduced to its essentials is this: Asia thought the defendant was a Spanish Cobra; the defendant was a Spanish Cobra. Since Asia was right about the defendant’s association with the Spanish Cobras, Asia must have'been right about his identification of the defendant. To follow the State’s syllogism to its logical conclusion, in other cases where identification is the issue, a witness should be permitted to testify, for example, that he thought the perpetrator was an ex-convict, or a pervert, if in fact it can be later shown that the person was an ex-convict or a pervert. As should be obvious, validity of the syllogism, which we doubt, is heavily outweighed by the great prejudice to the defendant.

Asia also properly testified about his identification of the defendant’s picture in a book. But there was no necessity to have the book identified as one containing pictures of Spanish Cobras. The State further tells us that with Asia’s statement that he believed the man to be a Spanish Cobra, Officer Noon “was able to narrow down the investigation.” Again to follow the State’s argument to its logical conclusion, in a trial of a person charged with a sex offense, for example, an identifying witness would be able to testify to selection of a picture from a group of photographs of sex offenders, because, the State would argue, the police narrowed its search to known sex offenders.

In our judgment, all references to the Spanish Cobras, including evidence of the actions of a group of persons calling out their gang affiliation and making signs indicating they were members of the Spanish Cobras, were irrelevant and prejudicial. That evidence of the actions of the group of boys was introduced as a circumstance that would lead to the inference that the defendant was a member of the Spanish Cobras, an inference of doubtful validity. But it was also used in a prejudicial manner in the final arguments.

In the opening argument the following occurred:

STATE’S ATTORNEY: “He gives the police a description, a physical description, a clothing description and he tells him, I think he belongs or I think he is a Spanish Cobra. And he explains to you why he made that statement. Here’s a young man who grew up in the neighborhood, who spent his summer there because that is where all his friends are and he knows about this particular group, the Spanish Cobras, and again use your common sense. These kids that live in the neighborhood where these groups hang out know about these groups. They know what they do, what they represent and the signs they use and the graffiti and the hassle they put up with every day.

DEFENSE ATTORNEY: Objection, Judge.

THE COURT: That is sustained. The last comment, the hassle they put up with every day, the jury is instructed to disregard that.” (Emphasis added.)

In an attempt to soften the impact of the improperly admitted evidence, the defendant’s attorney argued that the jury should not convict the defendant because “he may be a member of a gang” and that the gang evidence “has nothing to do with this case.” The State now argues that that argument invited the following remarks by the assistant State’s Attorney:

“STATE’S ATTORNEY: Counsel has just got through telling you it is not a gang case. Well, let me tell you this. It took a lot of guts for Jose to get on that stand and face this man and say he did — .

DEFENSE ATTORNEY: Objection, Judge.

THE COURT: Sustained.

* * *

STATE’S ATTORNEY: Why would he say that to the police officers that he has committed this robbery. Maybe he didn’t think Jose Asia would be here. Maybe he didn’t think he would testify.

DEFENSE ATTORNEY: Objection, Judge.

THE COURT: Sustained.

STATE’S ATTORNEY: We don’t live in a vacuum in this city. You know what happens in the streets of the city ***.

* * *

STATE’S ATTORNEY: Now, [Noon] is an experienced officer. He deals in gang crimes. He knew he had this information that this person may have been a Spanish Cobra and lo and behold, he is a Spanish Cobra. He was picked out of the book. He is brought in and he admits to it.”

In spite of the fact that the court had already sustained an objection to the prosecutor’s remarks about the courage displayed by Asia in testifying, the following occurred:

“STATE’S ATTORNEY: Based on the overwhelming [sic] in this case, the fact that Jose had the guts to come in here and testify ***.

DEFENSE ATTORNEY: Objection, Judge.

THE COURT: That is sustained.”

We first observe that there was no admissible evidence that the defendant was a Spanish Cobra nor any evidence that he admitted he was a member of the Spanish Cobras; and we reject the argument that the prosecutor’s remarks were invited by the defendant’s attorney.

This case is similar to People v. Parrott (1976), 40 Ill. App. 3d 328, 352 N.E.2d 299, in which the defendant was convicted of unlawful use of weapons. Hearsay testimony was admitted which included evidence of gang activity. The court held that the evidence was inadmissible as hearsay, and on the additional ground that the evidence was prejudicial, citing People v. Hairston (1970), 46 Ill. 2d 348, 363 N.E.2d 840. The State there made an argument similar to that made here: the evidence was relevant to show “the motive, knowledge and intent of the arresting officers.” (40 Ill. App. 3d at 328.) The court rejected that argument and emphasized that the prejudicial effect of the evidence, as in this case, was accentuated by the State’s improper argument. The State relies upon People v. Rivera (1986), 145 Ill. App. 3d 609, 495 N.E.2d 1088. In that case, however, the State showed that leaders of the Latin Kings had instructed the defendants, who were also members of the Latin Kings, to execute a man because he was selling drugs in an area under the control of their gang without paying dues. The court concluded that the evidence was relevant because it indicated that the gang had not only provided the motive for the murder but the executioners and their weapons as well. In addition, one of the defendants conceded the relevance of gang affiliation in his case.

In passing, we note that the State here made a point of establishing, over objection by the defendant, that neither Asia nor his friend Danny was a member of a gang. While the State’s purpose of introducing such evidence was to remove any possible stigma from Asia that it was placing on the defendant, it also removed any possible motive that would justify the admission of the evidence. An argument that this testimony of Asia was probative to counteract any suggestion that Asia was intentionally lying to implicate a rival gang member is considerably weakened by the fact that he was permitted to testify that his friend Danny also was not a gang member, and Danny did not testify. We do not agree with the State’s argument that the statement of the defendant that he gave the bicycle to a member of another gang provided the basis of the admissibility of the evidence.

Since we have determined that the evidence was prejudicial, the issue becomes whether or not it was so prejudicial that its admission requires a new trial.

The defendant does not contend that the evidence is not sufficient to establish his guilt beyond a reasonable doubt; and we hold that it was. The evidence consisted of an identification and an oral confession; but each aspect of the evidence, although admissible, had some weakness affecting its weight. First, there is an element of suggestion in showing a witness a book marked “Spanish Cobras” after that witness has told the police he thinks the perpetrator was a Spanish Cobra. Second, the defendant was not identified in a lineup, but rather in a courtroom in a preliminary hearing. Such identifications have been criticized. Last, no explanation was given for failure to have a lineup identification.

Passing on to the confession, it was oral and is, in part, at variance with the testimony of Asia. Moreover, the officer testified that the only thing he put in his report was that the defendant said he took the bike but did not hit the victim and that he gave the bike to a man named Gunner. The officer had taken written statements many times; and normally, he either writes the statement out by hand or has a court reporter take it. He never explained why neither procedure was followed in this case. He wrote out a summation of what the defendant had said, not “completely” what he had said. He never showed it to the defendant nor asked him to sign it. No explanation was made for his failure to show the summary to the defendant or to ask him to sign it.

By these observations we do not mean to suggest that the testimony of Asia and Officer Noon should be disregarded as not credible. We do mean to suggest that their testimony, with its weaknesses, such as they were, does not constitute overwhelming evidence.

We note that in Rivera this court reversed the conviction and remanded for a new trial because of the introduction of improper evidence of gang affiliation on the part of a witness’ husband in spite of the fact that both defendants had made written confessions. We also note that in Parrott this court reversed and remanded for a new trial because of the introduction of prejudicial evidence of gang affiliation without even discussing the sufficiency of the evidence.

We have previously warned against the practice of offering evidence for a limited purpose and, after admission, making impermissible use of the evidence in closing argument. (People v. Hunter (1984), 124 Ill. App. 3d 516, 464 N.E.2d 659.) We said that in flagrant cases that practice might lead to reversal. In our judgment, this is such a case. In fact, grounds for reversal in this case are even more compelling since the evidence of gang affiliation was not admissible for any purpose. In our judgment, the defendant did not receive a fair trial.

In wew of the position we take on the prejudicial effect of the evidence and the State’s argument, it is unnecessary to pass on. the defendant’s argument that the testimony of the officer that the books contained the pictures of Spanish Cobras was inadmissible hearsay and his argument that an instruction on circumstantial e-vidence was improperly given.

For these reasons, the judgment of the circuit court is reversed and the cause remanded for a new trial.

Reversed and remanded.

McNAMARA, J., concurs.

JUSTICE QUINLAN,

dissenting:

I respectfully disagree Avith the decision of the majority as well as the rationale for its discussion. In my opinion, the judgment of the trial court should be affirmed. I believe the trial court’s denial of the defendant’s motion in limine, and its admission of the testimony regarding the defendant’s gang membership, for the limited purpose of showing the procedure and circumstances leading to the identification of the defendant, was proper. Furthermore, to the extent that the limitation was exceeded by the State, the defendant objected, and the court sustained the objection and properly instructed the jury concerning the limited purpose of the evidence. However, in any event, I am of the opinion that any error that might have occurred here was harmless error under the circumstances, because the evidence of defendant’s guilt was overwhelming.

Additionally, I do not find People v. Parrott (1976), 40 Ill. App. 3d 328, 352 N.E.2d 299, or People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840, which are relied upon by the majority, to be apposite in this situation. In fact, I believe that both cases can readily be distinguished from the present case. In Parrott, the defendant was charged with knowingly possessing and selling an illegal shotgun. There, the State apparently began its case by introducing the testimony of the arresting officers, who testified concerning a department memorandum which stated that the sale of firearms by gangs was occurring within the city and also included Mr. Parrott’s name and address as part of the memorandum. (Parrott, 40 Ill. App. 3d 328, 352 N.E.2d 299.) It appears quite clear from the opinion that this information was completely irrelevant to the charge of possession and sale of the shotgun involved there. Moreover, the specific basis on which the evidence was excluded by the court there was on the ground that the officer’s testimony was impermissible hearsay, and not because of the gang nature of the testimony. (Parrott, 40 Ill. App. 3d at 330, 352 N.E.2d at 302.) The Parrott court’s observation about the widespread prejudice against street gangs, as noted by the majority here, only occurred later in the Parrott opinion and was merely a secondary reason for the court’s reversal. Furthermore, even then, the Parrott court expressly observed that the reason this information (concerning gangs) was incompetent was because, under the circumstances of that case, as noted above, it was irrelevant to the offenses charged. The court said, “[t]he identity of the alleged buyer of weapons had no relationship to the intent, design or motives of the police officers [in investigating the sale of firearms].” Parrott, 40 Ill. App. 3d at 331, 352 N.E.2d at 303.

This is not similar to our case. In the Parrott case, as stated, the evidence concerning gangs was introduced by the testimony of police officers, and, as found by the court there, for the sole purpose of establishing the truth of gang activity and the defendant’s membership in the gang. That was not the case here. In contrast to the reason for introducing the gang evidence in Parrott, the evidence here was introduced initially by the victim, for the purpose of identifying the defendant, and the victim’s statement regarding gangs was merely part of the description of his observations concerning the defendant. In fact, this description subsequently led to the defendant’s identification and arrest. Such descriptive information seems to me most relevant and, under circumstances such as those here, most proper. Thus, it was not error for the trial court to allow this evidence, even though it may have been prejudicial to the defendant. As this court noted in People v. Jones (1987), 161 Ill. App. 3d 688, 515 N.E.2d 166, “evidence of gang membership is admissible if there is sufficient proof that it is related to the crime charged *** and need not be excluded merely because it may tend to prejudice the defendant where it is otherwise relevant and admissible.” Jones, 161 Ill. App. 3d at 697, 515 N.E.2d at 171; see also People v. McClendon (1986), 146 Ill. App. 3d 1004, 1009, 497 N.E.2d 849, 852 (where no error was found in the admission of the victim’s testimony that he heard gang slogans being shouted as the defendant struck him and that the defendant was a member of a gang).

In addition, I do not find that People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840, relied upon by the majority, requires a reversal of this case because of the admission of the “gang related” evidence either. In that case, the court actually found that the evidence of gang membership was properly admitted. The court stated that the evidence introduced permitted, at least, a reasonable inference that there was a common design or performance to do an unlawful act, and then noted that, contrary to the defendant's contentions, where the evidence of gang activity is relevant and otherwise admissible, it is not to be excluded merely because it may also have a tendency to prejudice the accused. (Hairston, 46 Ill. 2d at 372, 263 N.E.2d at 854-55.) That court also found that there was no error in the failure of the trial judge to give a cautionary instruction since, as the court noted, it was the obligation of the defendant to request such an instruction and the defendant had failed to do so. (Hairston, 46 Ill. 2d at 372-73, 263 N.E.2d at 855.) Consequently, the court affirmed the defendant’s conviction there even though no cautionary instruction had been given.

In the present case, as in the Jones case discussed previously, the trial court did, however, properly instruct the jury as to the limited purpose of the gang membership testimony. I think it is worthy to note that in Jones, this court concluded that such a limiting instruction was sufficient to protect the defendant from any prejudice. (Jones, 161 Ill. App. 3d at 697, 515 N.E.2d at 171.) Hence, I likewise believe that the trial court’s limiting instruction here was sufficient to protect the defendant from any alleged prejudice and, thus, unlike Hairston, any potential prejudice here was offset by the jury instruction. Moreover, I also believe that, in any event, the references here to the defendant’s gang membership, when viewed in context, were minor in light of the overwhelming evidence of the defendant’s guilt. Therefore, in such circumstances, the testimony concerning the gang membership could not be so prejudicial that it would have prevented the jury from rationally evaluating the proper evidence before it. See People v. Portis (1986), 147 Ill. App. 3d 917, 928, 498 N.E.2d 675, 682.

Furthermore, I find it is also noteworthy that Professor Graham, in his Handbook on Federal Evidence, in commenting on the admissibility of evidence of other crimes, wrongs, or acts, observes that great inroads upon the prior rule of exclusion of such evidence has taken place under the modern federal rules of evidence. In fact, he notes that the Federal rule permits the introduction of evidence of another crime, wrong or act unless the sole purpose for the offer is to establish the defendant’s propensity for crime. (M. Graham, Handbook of Federal Evidence §404.5, at 200-10 (2d ed. 1986); see also United States v. Ford (9th Cir. 1980), 632 F.2d 1354, 1375 (where the court there observed that “[the] rule is one of inclusion which admits evidence of other crimes except where that evidence tends to prove only criminal disposition).”) Professor Graham also makes a similar observation in E. Cleary & M. Graham, Handbook of Illinois Evidence section 404.5, at 162-69 (4th ed. 1984), where he again emphasizes that evidence of other crimes, wrongs or acts is usually admissible where it is offered for any purpose other than to merely show a propensity on the part of the defendant to commit the crime. He further observes there that the decision with respect to the admissibility of such evidence will be overturned only if there exists a clear abuse of discretion. Hence, it would appear that the admission of the gang evidence here was also consistent with the current view of admissibility of such evidence both in the Federal and State courts.

Accordingly, I find the reversal of the defendant’s conviction, as the majority’s decision holds, based solely on the admission of the evidence relating to gangs to be unwarranted and unnecessary. I especially find reversal to be unnecessary because, as stated earlier, the evidence of the defendant’s guilt is clear. When there is sufficient and competent evidence establishing a defendant’s guilt beyond a reasonable doubt, and there has been no showing that an alleged error was the basis for the jury’s verdict, the error is harmless and reversal is not warranted. (See People v. Johnson (1986), 150 Ill. App. 3d 1075, 1083, 502 N.E.2d 304, 310.) I do not believe that defendant has shown, or could show, that the alleged error here formed the basis for the jury’s verdict. Furthermore, to the extent that the majority suggests that portions of the State’s evidence should be discounted, apparently as not credible because it was inconsistent with normal prosecution procedures, this is not a proper issue to be decided by this court. Resolution of factual disputes and the assessment of the credibility is for the jury and will not be overturned on appeal unless the evidence is so unsatisfactory or improbable that a reasonable doubt of defendant’s guilt remains. (People v. Williams (1982), 93 Ill. 2d 309, 315, 444 N.E.2d 136, 138.) This was not the case here, for, as noted by the majority itself, the defendant did not contend that the evidence was insufficient to establish his guilt beyond a reasonable doubt. Consequently, any error here was harmless and did not require reversal.

For these reasons, I would affirm the judgment of the trial court.

       The majority also specifically observed that the State made a point of establishing that neither the victim, Asia, nor his friends were gang members and that this evidence was introduced to remove any stigma from Asia that the State was attempting to place on the defendant by associating him with a gang. This, the majority asserts, in effect destroyed any basis for the State’s contention that the introduction of gang evidence was for any purpose other than to prejudice the defendant. I respectfully disagree with this unsupported assertion by the majority. It seems to me more reasonable that the State’s basis for doing so was to counteract any contention that Asia was lying for purposes of “getting back at” a member of a rival gang, as was the assertion in the Hairston case. See Hairston, 46 Ill. 2d 348, 263 N.E.2d 840.

       The majority, however, states that it does not mean that the evidence should be disregarded as not credible, but only that it is weakened, so that in the majority’s view, this evidence was not overwhelming. Respectfully, I do not see the legal significance of this distinction. First, the procedures employed here are not, nor does the majority say they were, improper (i.e., not in conformance with some mandatory standard of conduct), illegal, or unconstitutional, so that their use alone would require a reversal. The procedures were just not the normal procedures or the best procedures available to the State. Second, the question of the weight to be given to the evidence is also a proper function of the jury or trier of fact, and the decision of the trier of fact should not be set aside on appeal unless the verdict is against the manifest weight of the evidence. (People v. Hermann (1988), 180 Ill. App. 3d 939, 946-47, 536 N.E.2d 706, 711.) Finally, a conviction also should not be set aside simply because the evidence is not overwhelming, but, as observed above in my dissent, should be set aside only where there is a reasonable doubt of the defendant’s guilt. (People v. Jaffe (1986), 145 Ill. App. 3d 840, 847, 493 N.E.2d 600, 606.) Moreover, a reasonable doubt arises on appeal only when, after viewing all the evidence in a light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Jimerson (1989), 127 Ill. 2d 12, 43-44, 535 N.E.2d 889, 903.) This was not, as noted by the majority opinion, the situation here.


author: PRESIDING JUSTICE EGAN

text:
    DOUGLAS THEATER CORPORATION, d/b/a Ivanhoe Theater, Plaintiff-Appellant and Cross-Appellee, v. GOLD STANDARD ENTERPRISES, INC., Defendant-Appellee and Cross-Appellant.
    First District (6th Division)
    No. 1 — 88—0717
    Opinion filed September 8, 1989.
    Rehearing denied October 10, 1989.

      John August Cook, of Chicago, for appellant.
    Jack J. Herman and Herbert C. DeYoung, both of Chicago, for appellee.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

This case involves a dispute between two businesses that shared a parking lot. The plaintiff, Douglas Theater Corporation (Douglas), which operates the Ivanhoe Theater in Chicago, filed a complaint for injunction against the defendant, Gold Standard Enterprises, Inc. (Gold Standard), which operates a liquor store. Gold Standard filed a counterclaim for injunction against Douglas. After a bench trial, the judge denied any relief sought by Douglas and granted some of the relief sought by Gold Standard. Both appeal.

At the outset we address two motions of the defendant, contained in its brief, one to strike the statement of facts of the plaintiff and the other to strike a sketch which is included as an exhibit in the plaintiff’s brief. The plaintiff did not file a reply brief or respond to the motions which, we observe, did not comply with Supreme Court Rule 361 (107 Ill. 2d R. 361) in that they were made in the body of the brief. While we do not mean to express satisfaction with the statement of facts submitted by the plaintiff, we deny the motion to strike, since some parts of the statement of facts are accurate and the inaccuracies and incompleteness of the other parts have been called to our attention by the defendant. Consequently, our ability to review the case has not been hindered. See James v. Yasunaga (1987), 157 Ill. App. 3d 450, 510 N.E.2d 531.

The sketch to which the defendant objects is copied, with some additions, from plaintiff’s exhibit 3, a plat of survey (which is virtually identical to defendant’s exhibit 8). The plaintiff has added lines purporting to illustrate the location of parking spaces and has also added typewritten descriptions of various aspects of the exhibit. For example, some of the typewritten additions purport to show points of exit and entrance to the parking lot, the “Ivanhoe encroachment on alley,” the “vacated alley” and the number of parking spaces as established by the testimony. The defendant does not contend that the exhibit is inaccurate. We are frank to say that we find the exhibit helpful in understanding the case. Therefore, since the sketch is based on exhibits in evidence, there is no claim that it is inaccurate and it does assist the court, we deny the motion to strike.

The parties were tenants of a common landlord which also owned the parking lot. The Gold Standard lease was dated May 22, 1978, and ran to September 30, 2003; the Douglas lease was dated March 15, 1982, and ran to June 30, 1987.

In 1982, Harold Binstein, the sole owner of Gold Standard, purchased the property including the parking lot, subject to the leases. The Douglas lease contained a purchase option which included an extension of the lease rights to the parking lot. The option was exercised, and Douglas received title to the underlying theater property. On June 30, 1987, Douglas and Binstein entered a separate parking lot lease which ran to September 30, 2003, containing the same provisions as the original lease. Both the Douglas lease and Gold Standard lease contained detailed parking provisions. Each lessee promised to operate the lot in compliance with all Federal, State and local laws; and both leases give Gold Standard “primary responsibility for the supervision, maintenance and operation” of the parking lot during the hours that Gold Standard is open. Both leases also provide that each lessee’s use shall be in common with the other on a “first-come-first-serve basis.” Both lessees pay the same amount of rent.

The lot has approximately 115 feet of frontage on Clark Street with two driveways. The main entrance to the Ivanhoe Theater is on the north side of Wellington and the theater is immediately to the west of Gold Standard. The lot in question is to the north of the Ivanhoe and Gold Standard, Between the Ivanhoe, Gold Standard and the parking lot is a public alley 14 feet wide which runs from Clark Street on the east to Halsted Street on the west. The alley was vacated a few months before the trial began. The main entrance of Gold Standard is on the southeast corner of the juncture of the alley and Clark Street. Entry to the Ivanhoe may also be made directly from the parking lot. The focal point of this case is an area of 10 feet from the wall of Gold Standard to 66 feet west of the sidewalk on Clark Street and includes a 30-foot by 7-foot section just outside the entrance to Gold Standard. The rest of the area includes, in part, the Gold Standard loading dock.

At the time Douglas began its operation in 1982, Douglas was able to direct most of its patrons to a parking lot on the east side of Clark Street. In April 1985 that lot became unavailable when a shopping mall was built on it. From that time, Douglas began to put in the parking lot as many of its patrons that would fit the approximately 60 spaces.

Gold Standard is open year round from 10 a.m. to 10 p.m. on weekdays and Saturday and noon to 6 p.m. on Sundays. The Ivanhoe was in use about 40 weeks each year. A typical week ran from Tuesday through Sunday for a total of about eight shows. The weekday evening performance ran from 8 p.m. until after the 10 p.m. closing of Gold Standard; the Saturday shows began about 6 p.m. and 9 p.m., while the Sunday shows began at 3 p.m. and 7 p.m. Beginning in 1985, Douglas instructed its employees to fill first the parking spaces farthest from Gold Standard. When the lot was filled, the employees were instructed to park next to the north wall of the Gold Standard store. The area would hold seven to nine cars parked at right angles to the store. There was testimony that these cars would block the loading zone and the fire exits. There was also evidence that the parking lot was inadequate for both businesses and that Gold Standard customers were often unable to park in the lot. Some of Gold Standard’s suppliers had to unload on Clark Street.

Gold Standard employed a security guard to direct parking only three or four times each year, when business at the liquor store was especially heavy. During performances Douglas charged $3 to park in the lot and employed a security guard whose duty it was to collect the fee and direct the cars into the lot. Before April 1985, the guard worked at the lot across Clark Street and would use the subject lot only for overflow. The guard was instructed to ask each driver which establishment he intended to patronize; and Gold Standard customers were to be allowed to park at no charge.

Both sides had been using Lincoln Towing Company to remove illegally parked cars and cars of non-customers. The arrangement was that Lincoln would begin towing after 11 p.m. or after 10 p.m., if all the customers had already gone. Binstein, the owner of Gold Standard, testified that the defendant rarely towed cars because when a car was illegally parked, the store would make an announcement asking the driver to move the vehicle. However, the Gold Standard manager testified that he had towed cars during the day if he saw the driver park the car and go someplace other than to the theater or the store. He did not have cars towed at night during theater performances, because he thought the theater was supervising the lot at those times. Binstein denied that there was an arrangement between Gold Standard and Douglas to allow Douglas to tow cars; but Douglas Bragan, the president of Douglas, testified that Douglas did tow cars but only after checking with Gold Standard to make certain that the car did not belong to a Gold Standard customer.

Gold Standard began objecting in December of 1984, during a sellout theater performance, because the cars parked along its north wall were impeding access to the store; and Gold Standard threatened to tow them. Bragan called the Chicago police, who instructed him to move the cars. Despite that instruction, however, Douglas continued to park along the north wall when needed. Gold Standard argued that this practice prevented customers from entering the store and ultimately caused the store to lose business and good will. The dispute came to a head a year later in December of 1986. Gold Standard painted striped yellow lines to indicate no parking in the area about 10 feet wide next to the north wall of the store. Signs were posted warning that violators would be towed. On one occasion Gold Standard placed stickers on cars parked in that area warning that they would be towed.

On December 9, 1986, and again on February 25, 1987, attorneys for the plaintiff wrote letters to Lincoln Towing advising Lincoln of the dispute and that it could be subject to litigation if Lincoln towed any of the cars of the theater patrons. As a result Lincoln refused to tow cars from the lot.

This suit was filed on December 23, 1986. The plaintiff requested that the defendant be enjoined: “(a) from designating any area of said lot as exclusively for its own use; (b) from putting up any notice of illegal parking or threatening to tow or actually towing any automobile of Plaintiff’s employees, invitees or patrons parked in said parking lot; (c) from instructing Lincoln towing to not respond to Plaintiff’s request for towing service in regard to said parking lot; and (d) from interfering in any way from plaintiff’s use of said parking lot pursuant to the Lease terms.”

The defendant filed its counterclaim on January 12, 1987, asking that the plaintiff be enjoined: “(a) from directing or permitting the parking of cars in any portion of said parking lot other than designated parking spaces, especially in any area within 30 feet of counter-plaintiff’s store, and from blocking any entrances or access to said parking lot or spaces; (b) from instructing Lincoln Towing Company not to respond to counter-plaintiff’s request for towing service in regard to said parking lot; (c) from interfering in any way with counter-plaintiff’s use of the loading and entrance areas adjacent to its store; (d) from interfering in any way with counter-plaintiff’s supervision and operation of said parking lot during the hours counter-plaintiff is open for business.”

At the conclusion of the trial the judge denied all relief sought by the plaintiff but did grant the following injunctive relief:

“Plaintiff and counter-defendant, Douglas Theater Corporation and defendant and counter-plaintiff Gold Standard Enterprises, Inc., are hereby permanently enjoined and prohibited from directing or permitting the parking of cars in any portion of the parking lot other than the designated parking spaces, especially an area within 30 feet of counter-plaintiff Gold Standard Enterprises, Inc.’s store, and from blocking the entrances and exits to the parking lot or spaces during the hours the Gold Standard store is open for business. All other relief sought by counter-plaintiff, Gold Standard, in its counterclaim, is denied.”

We will first consider the plaintiff’s appeal. We interpret the plaintiff’s appeal to be restricted to the denial of its prayer for an order barring the defendant from designating any area as “exclusively for its own use.” The plaintiff’s threshold argument is that the court erred in construing the language of the lease, because the judge, in the opinion of the plaintiff, hinged his ruling on the language of the lease that gave the defendant “primary responsibility for the supervision, maintenance and operation” of the parking lot. The plaintiff further contends that the judge ignored the provision of the lease that makes the lot available to both parties on a “first-come-first-serve basis.” We do not construe the judge’s remarks to be a refusal to consider all of the provisions of the lease. To do so would require that we ignore the evidence that the judge heard and in addition the order for a preliminary injunction he had previously entered.

On August 24, 1987, while this case was pending, the Chicago Bureau of Fire Prevention issued a notice to the defendant to discontinue parking in front of the exit doors at the premises. The defendant then filed a petition for a “temporary [sic] injunction” seeking to bar the plaintiff from directing or permitting the parking of vehicles in front of all of the entrances, exits and doors of the Gold Standard store and from contacting any towing companies for the purpose of inducing the companies not to tow cars from the lot at the request of Gold Standard. The record does not reflect what evidence the judge heard; but, he granted what we construe to be a preliminary injunction enjoining the plaintiff from permitting the parking of vehicles near the north wall; and he denied the relief seeking to bar the plaintiff from contacting towing companies.

The defendant has raised several arguments in support of the judge’s holding; but the plaintiff has not responded in a reply brief. We believe that those arguments have merit.

The defendant presented the testimony of a fire inspector that parking in front of the exit was a violation of the fire code. The plaintiff, in rebuttal, called another inspector who testified that since the doors open 30 inches, cars parking four feet away would provide adequate clearance. Bragan testified that the theater’s patrons’ cars were never parked any closer than four feet. However, his testimony was weakened by his written instructions to his parking attendant to “disregard all ‘no parking’ signs and ‘loading zone’ fire exit doors” and by his deposition testimony that no special parking instructions were given to the theater employees limiting where cars could be parked. In addition, the defendant’s manager testified that the theater’s patrons’ cars were frequently parked right up to the north wall.

The defendant points out that it is the public policy of this State to preserve access to public facilities for the handicappéd. (See Ill. Rev. Stat. 1987, ch. 111½, par. 3712, 3713(r)(2).) The defendant established that the doors on the north wall are entrances for handicapped persons which were not accessible on some occasions to handicapped persons when cars were parked close to the wall. The defendant also cites the loading zone ordinances that require retail establishments such as Gold Standard to have an off-street loading area of two berths, consisting of an area 10 feet by 25 feet each, for a total of 500 square feet. (See Chicago Municipal Code §§194A— 8.10(2)(3), 194A-8.10-1(3), 194A-8.10-4(1), 194A-9.10(2), 194A-9.10 — 1(7) (1987).) The four-foot zone proposed by the plaintiff would not be sufficient to meet that requirement.

In deciding whether an injunction should issue, the judge must also consider the effect of the order on the public; an injunction will not be issued where it will cause serious public loss without corresponding great advantage to the plaintiff. (Biggs v. Health & Hospitals Governing Comm’n (1977), 55 Ill. App. 3d 501, 370 N.E.2d 1150.) The right to first-come-first-served use of the lot cannot mean that the lot may be used in such a way as to interfere with the use by another lessee for the normal operation of its business and, most importantly, it cannot mean that the lot may be used in violation of existing laws or contrary to the public interest.

The plaintiff’s principal contention is that the order should be reversed because it allows cars of the defendant’s customers to be parked in the disputed area while barring the plaintiff from doing so. That is not what the order says. The order enjoins both the plaintiff and the defendant from permitting cars to be parked in the specific area while the defendant is open for business. Contrary to the plaintiff’s argument, Douglas is not powerless. If the defendant violates the injunction order, it is subject to the discipline of the court.

For these reasons, we believe that there was sufficient evidence to support the judge’s finding; and it is not for this court to substitute our judgment for his. (Brown v. Commercial National Bank (1969), 42 Ill. 2d 365, 247 N.E.2d 894.) The order denying the plaintiff’s ■ prayer for injunctive relief is affirmed.

We will consider the merits of the cross-appeal even though the plaintiff has not filed a brief in response. (See First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.) The defendant first contends that the court erred in refusing to enjoin Douglas from charging a parking fee.

The defendant’s counterclaim did not pray for an order enjoining the plaintiff from collecting a parking fee, although it did plead that the parking fee was illegal. Therefore, this court may not consider relief not requested in the trial court. (Bowman v. Austin (1946), 393 Ill. 593, 67 N.E.2d 168; Bell v. Yale Development Co. (1981), 102 Ill. App. 3d 108, 429 N.E.2d 894.) Moreover, the defendant has made us aware that the plaintiff was in violation of a municipal ordinance: it was not licensed to operate a parking lot and it failed to reimburse the City of Chicago. Therefore, since the conduct of which the defendant complains is quasi-criminal and does not constitute any irreparable injury to property, denial of an injunction would not be an abuse of discretion. (See 21A Ill. L. & Prac. Injunctions §111 (1977).) The defendant did not establish any irreparable injury to its property. The e /idence it introduced that people complained about being approached for payment for parking was not admitted to establish the truth of the evidence.

The defendant also contends that the court erred in refusing to order the plaintiff to refrain from communicating with Lincoln Towing in an attempt to keep Lincoln from towing at the request of the defendant. The defendant’s argument is based on two letters sent by attorneys for the defendant to Lincoln Towing. The last is dated February 25, 1987, and was sent after the lawsuit was filed. The defendant’s argument must fall for at least two reasons that an examination of the letter will disclose. First, the prayer of the complaint was for an order to enjoin the plaintiff from “instructing” Lincoln not to tow cars from the lot; and there is no proof that the plaintiff “instructed” Lincoln. For that matter, it is clear that the plaintiff was in no position to “instruct” Lincoln. Second, circumstances now exist after the entry of the order that obviate any difficulty for Lincoln to agree to tow cars from the lot at the request of either the plaintiff or the defendant.

By no means can the letter be construed as an “instruction” by the attorneys for the plaintiff to Lincoln Towing. The letter provides, in part, as follows:

“I suggest that if you begin to resume towing, you should recognize both parties’ authority to tow as part of their right to full utilization of the lot. Moreover, I have also suggested that before Lincoln Towing tow any cars from anywhere in the joint parking lot, based on a Gold Standard tow request, that Lin-coin Towing first check with the Ivanhoe Theater manager or the theater security person on duty to determine if the car belongs to a theater patron; and if it does, the car should not be touched. Otherwise, if any theater customer’s car is towed, under sole authority purportedly granted by Gold Standard Liquors, the theater may have to look to Lincoln Towing to answer for damages, including loss of good will, which may accrue directly or indirectly from the towing. Lincoln Towing could thus be brought into the lawsuit.”

In addition, and more important, is the following language of the letter:

“Moreover, at this time there is no court order limiting where cars may park in this lot nor any court order regarding towing.
* * *
At this time there is, I reiterate, no agreement and no court order regarding towing rights in the parking lot. You are therefore, on notice of the theater’s interest in the entire parking lot area and I strongly suggest you govern your actions accordingly until this dispute is resolved between the two parties.” (Emphasis in letter.)

There now is a court order, and the dispute has been resolved. Consequently, the letter does not constitute support for the issuance of the injunction requested by the defendant. There seems no likelihood that Lincoln or any other towing company would now be dissuaded from towing from the proscribed area.

The judge, in denying the injunction, also said that it would constitute an infringement of the plaintiff’s first amendment rights to free speech and that he had no right to interfere with the actions of Lincoln Towing, which was not before him. The defendant has not addressed those grounds advanced by the judge. An extensive discussion of those grounds is not necessary in view of our holding; but we do believe they were matters properly considered by the judge in the exercise of his discretion. For these reasons, the order denying part of the relief claimed by the defendant is affirmed.

Judgment affirmed.

McNAMARA and QUINLAN, JJ., concur.


text:
    720 RAND, INC., d/b/a Honey Bee Snack Shop, Plaintiff-Appellant, v. THE HOME INDEMNITY COMPANY, Defendant-Appellee.
    First District (6th Division)
    No. 1 — 88—2553
    Opinion filed September 8, 1989.
    Rehearing denied October 10, 1989.
    Martin & Karcazes, Ltd., of Chicago (George D. Karcazes and Allen C. Wesolowski, of counsel), for appellant.
    Leahy & Eisenberg, Ltd., of Chicago (John J. Mclnerney and Paul 0. Watkiss, of counsel), for appellee.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court: The plaintiff first filed a chancery complaint and later a law complaint against its insurer to recover for losses resulting from a fire on November 26, 1985. The circuit court first dismissed the chancery complaint and later the law complaint, which was dismissed pursuant to section 2 — 619(a)(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(5)) on the ground that the law complaint was not filed within the one-year period after the loss as required by the insurance policy. The dismissal of the law complaint is the basis of this appeal; but, contrary to the defendant’s argument, the chancery complaint will be considered here. The defendant has argued at great length that we have no jurisdiction over the chancery complaint. That argument was unnecessary. The plaintiff has never suggested that we do have jurisdiction; and we wish to make it clear that by discussing the chancery complaint, which we believe is very relevant, we are not suggesting we have jurisdiction over that complaint.

The plaintiff submitted a proof of loss to the defendant seeking a total of $181,725.56. Over six months later, the defendant denied coverage on the grounds that the plaintiff had made fraudulent representations and that the plaintiff caused the fire.

The policy required that the insured bring “suit within one year after the date loss occurs.” Section 143.1 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 755.1) provides that the one-year period is tolled from the time the insured submits the proof of loss until the insurer informs the insured that the claim has been rejected.

The following is the pertinent sequence of events:

(1) The loss occurred on November 25, 1985, and the insured filed proof of loss on January 21,1986, thus tolling the limitation.

(2) On July 31, 1986, the defendant denied the claim, thus ending the tolling.

(3) On December 5, 1986, the plaintiff filed a declaratory judgment complaint in the chancery division to recover on the policy. The complaint also prayed for specific performance and punitive damages. It is clear that the complaint was filed within the term required by the policy.

(4) The defendant filed a motion to dismiss the complaint or, alternatively, to transfer the case to the law division. That motion is not part of the record, but from remarks of counsel in the trial court and statements made in oral argument in this court, we know that the motion in part maintained that the plaintiff’s claims for declaratory judgment and specific performance were actually for breach of contract, an action at law. Our conclusion is buttressed by the fact that the motion alternatively sought removal of the case to the law division.

(5) On February 10, 1987, the judge dismissed the chancery complaint without prejudice and granted the plaintiff 21 days to file an amended complaint. It is the effect of this order which is the heart of this case. The court did not rule on the motion to transfer to the law division.

(6) The plaintiff never did file an amended complaint. Instead, on February 10, 1988, exactly one year from the dismissal of the chancery complaint, the plaintiff filed an action for breach of contract and for recovery under the Insurance Code for vexatious refusal to pay. The factual allegations of the law complaint are virtually identical to those of the chancery complaint.

(7) On April 14, 1988, the chancery complaint was dismissed for want of prosecution.

(8) On May 20, 1988, the defendant filed a motion to dismiss the law complaint on the ground that it had not been filed within the one-year policy requirement.

On June 7, 1988, the judge allowed the motion to dismiss with prejudice for not having been timely filed under the requirements of chapter 110, section 13 — 217 (Ill. Rev. Stat. 1985, ch. 110, par. 13— 217).

On July 13, 1988, the plaintiff filed a motion to vacate that part of the dismissal order which specified that the dismissal was with prejudice or, in the alternative, to enter a dismissal order without prejudice based on the pendency of the chancery complaint. The judge denied the motion to vacate.

The plaintiff contends that the judge abused his discretion in dismissing the law complaint with prejudice pursuant to section 2— 619(a)(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619(a)(5)) and in denying the motion to vacate.

We wish to express some puzzlement over the issue as posited by the plaintiff. We do not understand how discretion enters into a decision whether to dismiss because of the expiration of a statutory or contractual limitation. If the period has run, the judge must dismiss, absent any tolling circumstances, such as the statute, or other circumstances excusing performance, such as waiver or estoppel; if it has not run, the judge may not dismiss. Therefore, the first question before us is whether the contractual limitation period had expired at the time the law complaint was filed.

Since the law complaint was filed more than two years after the proof of loss was submitted, and the tolling period was six months, the law complaint was filed six months after the expiration of the policy period. The next question is whether any circumstances exist which excuse performance. There are none. The final question then is why the complaint should not have been dismissed. The plaintiff provides answers to that question which we will discuss later.

A preliminary discussion of the applicable law is required. The principal statute involved is section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 217), which provides that a new action may be filed within one year or within the remaining period of a limitation after any of the following: a judgment entered for the plaintiff but reversed on appeal; a verdict rendered in favor of the plaintiff but judgment then entered against the plaintiff in arrest of judgment; an action voluntarily dismissed by the plaintiff; an action dismissed for want of prosecution; and an action dismissed by the United States District Court for want of jurisdiction.

At this juncture we refer to the order dismissing the chancery case which was without prejudice and with leave to amend. This was not a final order (O’Hara v. State Farm Mutual Automobile Insurance Co. (1985), 137 Ill. App. 3d 131, 484 N.E.2d 834) and is obviously not one of the orders included in section 13 — 217. The order subsequently entered in the chancery case dismissing the complaint for want of prosecution, which was entered after the law complaint had been filed, just as obviously is included in section 13 — 217. Thus, the posture of this case is this: the plaintiff filed an action before rather than after the dismissal for want of prosecution. At first blush, it appears that the plaintiff is being punished for doing something before an occurrence rather than after and that such punishment is unfair and contrary to the liberal spirit of the repleading statute. See Roth v. Northern Assurance Co. (1964), 32 Ill. 2d 40, 203 N.E.2d 415.

But other considerations exist. As the supreme court said in a case cited by the plaintiff (Gendek v. Jehangir (1988), 119 Ill. 2d 338, 343, 518 N.E.2d 1051, 1053):

“The purpose of section 13 — 217, and its predecessor, section 24 of the Limitations Act (Ill. Rev. Stat. 1981, ch. 83, par. 24a), is to facilitate the disposition of litigation upon the merits and to avoid its frustration upon grounds that are unrelated to the merits. (Roth v. Northern Assurance Co. (1964), 32 Ill. 2d 40.) We agree with our appellate court, however, that the provision was intended to serve as an aid to the diligent, not a refuge for the negligent(Emphasis added.)

An analysis of the record requires a discussion of what the plaintiff could have done and did not do. After the chancery case was dismissed with leave to amend, the plaintiff could have done just that: filed an amended complaint. Even after the expiration of the time granted for leave to amend, it could have sought leave to file. It did neither; and the plaintiff has provided us with no explanation why it did neither. Exactly one year later, it filed a new action at law. We must assume that the plaintiff received notice of the dismissal for want of prosecution of the chancery complaint on April 14, two months after it had filed the law complaint. Therefore, the plaintiff had until April 14, 1989, to commence a new action. A little over a month after the chancery complaint was dismissed, the defendant filed its motion to dismiss the law complaint, thus alerting the plaintiff to the fact that a problem existed.

Despite the fact that section 13 — 217 provided a clear right to file an action after the dismissal of the chancery complaint for want of prosecution, the plaintiff, rather than exercising that right, insisted on contesting the motion to dismiss and responded thus:

“6. The complaint filed on December 5, 1986, was filed within the one year contractual limitations as tolled under Ill. Rev. Stat. ch. 73, §755.1.
7. Such complaint was dismissed without prejudice on February 10, 1987. A copy of said dismissal order is attached as exhibit B.
8. The instant Complaint filed on February 10, 1988, was filed within one year of the prior dismissal without prejudice.
9. The instant Complaint has therefore commenced within the contractual limitations.”

Therein, we believe, lies the core of the plaintiff’s self-inflicted problems. It seems inescapable that the plaintiff did not understand the effect of the order dismissing the chancery complaint without prejudice and with leave to amend. During argument on the motion to dismiss, the defendant’s attorney said that the plaintiff was relying on section 13 — 217, and the plaintiff did not contradict him. It was the trial judge who pointed out that the chancery order of dismissal was a “non-final, interlocutory order dealing with pleading only.”

The plaintiff now concedes that the law complaint was not one of those following any of the circumstances expressed in section 13— 217. It asks “in recognition of judicial economy” that the law complaint “be deemed to be a single re-filing within one year permitted by section 13 — 217.” In effect, it asks us to rewrite the statute, and it asks too much.

The plaintiff also argues here that the law complaint was no more than a procedurally deficient attempt to amend its chancery complaint and adds that the “law division filing was its attempt to amend its complaint and transfer the case to the proper administrative division of the circuit court of Cook County.” In support of those statements it relies on section 2 — 616(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(b)). There is no doubt that the complaint at law, if filed as an amendment to the chancery complaint, would have met the requirements of section 2 — 616(b), which provides in substance that no cause of action set up in any amended pleading shall be barred by lapse of time if the time had not expired when the original pleading was filed and if the amended pleading grew out of the same transaction or occurrence set up in the original pleading. This is an appealing argument, and we regret that we must reject it. Apart from the fact that section 2 — 616(b) refers specifically to amend pleadings and not refilings, there are two reasons why we must: the argument was never made in the trial court, and the complaint did not “attempt to amend” its chancery complaint. It is obvious that the plaintiff thought that the chancery case was beyond amending.

It is the general rule that only issues, questions, points or contentions presented in the trial court will be considered on appeal; and a trial court should be held accountable for ruling only on what is asked of it. (See 2 Ill. L. & Prac. Appeal & Error §181 (1953).) As we have pointed out, rather than refiling after the chancery complaint had been dismissed, the plaintiff insisted on contesting the motion to dismiss, and it relied on section 13 — 217. Whether that section was applicable was the sole issue before the judge, and he properly held that section 13 — 217 did not apply. The plaintiff later filed a motion to vacate and asked that the dismissal order be made without prejudice. Such an order would have been self-contradictory. It was an involuntary dismissal and as such operated as an adjudication on the merits. (107 Ill. 2d R. 273.) The addition of the words “without prejudice” was designed to render it inoperative as an adjudication on the merits. See O’Hara v. State Farm Mutual Automobile Insurance Co. (1985), 137 Ill. App. 3d 131, 484 N.E.2d 834.

The only other argument made to the trial judge on the motion to vacate was that he should treat the motion to dismiss on the ground of lack of timeliness as a motion to dismiss for pendency of another cause of action, the chancery complaint (even though it was no longer pending). The judge understandably refused to engage in such procedural legerdemain.

The plaintiff never advanced the argument before the trial judge that it does here: that the law complaint be considered an amended pleading under section 2 — 616. To permit that argument to be advanced here for the first time would not only be unfair to the trial judge but contrary to a basic principle of appellate law. Wilcox Co. v. Bouramas (1979), 73 Ill. App. 3d 1046, 392 N.E.2d 198.

For these reasons the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and LaPORTA, JJ., concur.