text:
    WESTFIELD HOMES, INC., et al., Plaintiffs-Appellants, v. MICHAEL HERRICK et al., Defendants-Appellees.
    Second District
    No. 2—91—0796
    Opinion filed May 12, 1992.

      Bernard Wysocki, of Bernard Wysocki & Associates, P.C., of Waukegan, for appellants.
    Richard J. Nakon and James W. Kaiser, both of Richard J. Nakon & Associates, of Wauconda, for appellees.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Plaintiffs, Westfield Homes, Inc., and Westridge Homeowners Association, filed suit seeking to enjoin defendants, Michael and Andrea Herrick, from maintaining and using an above-ground swimming pool on their property allegedly in violation of a restrictive covenant applicable to defendants’ property. The trial court denied relief, and plaintiffs appeal, contending that the court misconstrued the language of the covenant and ignored unrebutted testimony of the violation of the covenant when it refused to grant an injunction. Defendants filed a motion to strike plaintiffs’ reply brief. We ordered defendants’ motion and plaintiffs’ response to be taken with the case. We affirm.

Plaintiff Westfield Homes is the developer of the Westridge subdivision in Island Lake, Illinois. In conjunction with the development, Westfield recorded a “Declaration of Covenants, Conditions, Restrictions and Easements For Westridge Homeowners Association” (hereafter the covenant). By this document, all lots in Westridge became subject to its terms. The covenant provides for the creation of the Westridge Homeowners Association, which is to be the governing body for the administration of Westridge. The covenant also provides for an architectural review committee which is to review the plans for all construction and improvements in the subdivision, except homes constructed by Westfield.

In January 1990, defendants visited Westridge while looking for a new home. They were helped by one of Westfield’s sales agents, Marjorie “Misty” Wright. Defendants returned to Westridge in March. At that time, they asked Wright whether above-ground pools were permitted in the subdivision because they had an above-ground pool at their present home and this would be a “very big factor” in deciding whether to purchase a new home. According to Andrea Herrick, Wright then referred to the covenant. She pointed out that certain structures, such as television antennas, clotheslines and satellite dishes are specifically prohibited, but that an above-ground pool was not so prohibited. Andrea Herrick said that Wright then told her that a pool was “not specifically mentioned and that it wouldn’t be a problem.”

The Herricks told Wright that they were interested in purchasing a lot. However, only one lot was available for the model home they wanted, and the Herricks determined that the lot was unsuitable for their purposes, which included construction of the pool. Wright advised them to return on April 20, when additional lots would become available. They returned on that day and put down a $500 deposit on a lot. Two days later, they returned to sign the contract with Wright. At that time, they were given a copy of the covenant. The Herricks sent the contract and covenant to their attorney for review.

During the summer of 1990, Michael Herrick returned to the sales office numerous times. He often discussed having a pool with members of the sales staff. Since the Herricks’ lot is adjacent to the sales office, the staff joked about using the pool during their lunch hours.

After the Herricks purchased their home, Christa Zink and her husband also signed a contract to purchase a home in Westridge. Mrs. Zink also discussed the possibility of an above-ground pool with Wright. According to Zink, Wright had a telephone conversation with Robert Siuda, plaintiff’s vice-president of sales and marketing, who determined that the Zinks’ lot would be sufficient for an above-ground pool.

Defendants’ home was subsequently completed and they moved in. They purchased a pool on April 18, 1991. According to Michael Herrick, excavation work for the pool began between April 21 and April 26, and construction was completed sometime during the day of Saturday, May 18.

Brian Harris is Westfield’s vice-president of construction. He and Bob Siuda also comprise the architectural review committee. On May 14, 1991, Harris noticed some excavation on defendants’ property. On May 15, he sent a letter as president of the Westridge Homeowners Association to defendants. The letter stated that it appeared defendants were constructing an above-ground pool, that they had to submit a request to the architectural review committee for such an improvement, and that they must discontinue further work. The letter referred specifically to the provisions of the covenant.

The Herricks maintain that they did not retrieve the letter from their mailbox until Sunday, May 19, after construction of the pool was complete. They promptly submitted a request which included plans for the pool, a deck, a shed, a screened-in porch and a sandbox.

On May 29, 1991, defendants received a letter from the Association approving their deck, screened-in porch and sandbox, but disapproving the pool and shed. Michael Herrick immediately called Harris. Herrick spoke to both Harris and Siuda by speakerphone, but the three were unable to resolve the dispute. Plaintiffs then filed the instant suit for an injunction requiring the removal of the pool.

The trial court initially granted a temporary restraining order. Following trial, the court ruled that the covenant did not give plaintiff the power to prohibit an above-ground pool. The court held that the provisions of the covenant requiring plans to be submitted to the architectural review committee were valid, but that the committee had to exercise its review powers in a reasonable, nonarbitrary manner. The court further held that a complete prohibition was not reasonable under the facts of the case. The court also found that the reasons given for the disapproval of defendants’ plans were vague. The court granted plaintiffs eight days to provide defendants with reasonable conditions and restrictions for the construction of an above-ground pool on their property. The court stated that it would then issue a permanent injunction in accordance with the reasonable conditions and restrictions.

At the end of the eight days the attorneys for all parties again appeared before the trial court. Plaintiffs’ attorney stated that plaintiffs were unwilling to provide conditions for the construction of a pool, but would stand on their unconditional denial. The court thereupon dissolved the temporary restraining order and entered judgment for defendants.

DEFENDANTS’ MOTION TO STRIKE

Defendants filed a motion to strike plaintiffs’ reply brief, and we ordered the motion and plaintiffs’ response taken with the case. Defendants’ motion appears to be merely a surreptitious surreply to the reply brief. Defendants essentially contend that any arguments not strictly raised in the plaintiffs’ opening brief should be stricken for being raised for the first time in the reply and any arguments which were previously raised should be stricken as redundant. In fact, the vast majority of the material which defendants find objectionable is proper reply to arguments raised in the defendants’ brief. (See, e.g., People v. Brownell (1984), 123 Ill. App. 3d 307, 319-20.) We therefore deny the motion to strike the reply brief, but will disregard any improper matter contained therein.

TRIAL COURT’S DENIAL OF PERMANENT INJUNCTION

On appeal plaintiffs raise two issues, which can be summarized as a contention that the trial court abused its discretion in failing to grant a permanent injunction where it was essentially undisputed that defendants violated the covenant.

In reviewing a trial court’s decision to deny an injunction, our function is to determine whether the lower court’s factual findings are contrary to the manifest weight of the evidence. (Millard Maintenance Service Co. v. Bernero, 207 Ill. App. 3d 736, 743.) The trial court’s ruling will not be set aside absent an abuse of discretion. Millard Maintenance Service (1990), 207 Ill. App. 3d at 744.

The trial court’s ruling was based on the language of the covenant, as well as principles of law applicable to covenants generally. Thus, before we proceed to a discussion of the relevant authorities, we must set forth the relevant provisions of the covenant at some length. Article VI sets forth numerous specific “restrictions,” which are actually complete prohibitions. Within that article, paragraph 6.01 provides that no lot shall be used for other than residential purposes. Paragraph 6.02 provides that front and side yards must be seeded or sodded to the curb line and that owners shall not permit grass or weeds to grow to a height in excess of five inches. Paragraph 6.03 specifically prohibits several types of structures and provides as follows:

“6.03 Lot Use Restrictions
(a) No outdoor clothes-lines, microwave, shortwave or other towers for the reception or transmission of television electrical signals, or electrical or high intensity lighting shall be erected, constructed or placed on any portion of the Property.
(b) There shall be no parking of recreational vehicles, boats, trailers, tent trailers or tractor/trailer components, permanently or temporarily, in any location in front of the front building line of the lot.”

Article VII provides for the creation and operation of the architectural review committee (ARC). Within that article, paragraph 7.01 provides that as long as the developer owns any real estate in the development it shall be the sole member of the ARC. Paragraph 7.02 then sets forth the requirements for obtaining review, providing as follows:

“7.02 Architectural Controls: In addition to the ordinances set forth in 6.02, above, no building, fence of any kind whatsoever (including metal or cyclone fences), wall, structure (except for a residence which may be constructed by Developer), or other improvement shall be commenced, erected, or maintained on any Lot, nor shall any addition to or change or alteration therein be made, except interior alterations, until the construction plans and specifications, showing the nature, kind, shape, height and materials, color scheme, location on the Lot, and the grading plan and landscape plan of the Lot be [sic] built upon, shall have been submitted to and approved in writing by the Architectural Review Committee, except as noted below. The Architectural Review Committee shall, in its sole discretion, have the right to refuse to approve any such construction plans, specifications or grading plan for aesthetic or other reason, and in so passing upon such construction plans and specifications, or grading plan, the Committee shall have the right to take into consideration the suitability of the proposed improvement with the surroundings, and the erection of the improvement on the view from adjacent or neighboring properties. Pressure treated lumber, cedar, and redwood lumber decks and concrete patios shall be permitted by the Architectural Review Committee without written approval provided that the decks and patios are at the rear of the residential unit and provided further that no wood railing appurtenant thereto shall be greater than six (6) feet in height.”

In reaching its decision, the trial court noted that article VI specifically prohibits several types of structures, including television antennas and clotheslines, but that above-ground swimming pools are not specifically prohibited. The court then reasoned that, since pools are not specifically prohibited under article VI, the ARC could not exercise its discretion to completely bar construction of a pool. Rather, the exercise of its discretion was limited to imposing reasonable restrictions on the design and construction of a pool to minimize the auditory and visual impact on the neighboring properties under article VII. The court noted that the decisions of an ARC pursuant to a restrictive covenant must be reasonable and not arbitrary and capricious. The court held that a flat denial of a structure not specifically prohibited amounted to an unreasonable exercise of discretion.

Plaintiffs disagree with this interpretation. They contend that “[y]ou cannot have an ability to regulate unless you have the ability to prohibit, through your regulations.” Plaintiffs maintain that they cannot be expected to anticipate every possible type of structure which they might subsequently wish to prohibit and thus the listing in article VI was not intended to be exclusive. Defendants respond that the trial court was correct in finding that plaintiffs’ prohibition was unreasonable under the circumstances.

A restrictive covenant should be construed to give effect to the actual intention of the parties at the time the covenant was made. (Streams Sports Club, Ltd. v. Richmond (1983), 99 Ill. 2d 182, 188; Saddle Hills Community Association v. Cavallari (1986), 150 Ill. App. 3d 134, 136.) Such intention should be determined from the language of the document as a whole and in connection with the circumstances surrounding its execution. (Amoco Realty Co. v. Montalbano (1985), 133 Ill. App. 3d 327, 331.) In general, covenants should be strictly construed in favor of the full and unlimited use of property. (Engler v. Tenhaaf (1979), 74 Ill. App. 3d 799, 803.) However, the rule of strict construction will not be applied to defeat the obvious purpose of the covenant. Amoco Realty, 133 Ill. App. 3d at 331-32.

A restrictive covenant in which the developer reserves the right to consent to building plans will be enforced, but the exercise of the power of review in a particular case must be reasonable and not arbitrary. (Rhue v. Cheyenne Homes, Inc. (1969), 168 Colo. 6, 9, 449 P.2d 361, 363; 20 Am. Jur. 2d Covenants §182 (1965); Annot., 40 A.L.R.Sd 879 (1971).) The parties have not cited, nor has our research uncovered, any case in which a blanket prohibition of a particular type of structure not specifically prohibited by the covenant was considered. The majority of the reported cases deal with construction of residences. In these cases, the construction of some type of residence is expressly contemplated, and the only question is whether the style, size or cost of the residence comports with the scheme of development of the community. In Rhue, for example, plaintiffs desired to move a 30-year-old, Spanish-style ranch onto a lot in defendants’ subdivision, which consisted of modern, split-level houses. (Rhue, 168 Colo, at 7, 449 P.2d at 362.) The court held in the context of the declaratory judgment action that a refusal to approve the plan would not be unreasonable. (Rhue, 168 Colo, at 10, 449 P.2d at 363.) The developer did not state that it would not approve any type of residence.

We note that the parties do not dispute that a swimming pool is a “structure *** or other improvement” within the meaning of the covenant. (See Lindner v. Woytowitz (1977), 37 Md. App. 652, 657, 378 A.2d 212, 216; Greenberg v. Koslow (Mo. App. 1971), 475 S.W.2d 434, 437.) In determining whether a flat denial of an above-ground pool is reasonable under the circumstances, we must consider the purposes sought to be served by the covenant. One court summed up the purpose of such agreements as follows:

“The purpose of such a provision is to afford mutual protection to the property owners living in the development against injury, whether taking the form of diminished property values or otherwise, that would result from the construction of a residence or other improvement that was unsightly, in singularly bad taste, discordantly at variance with neighboring homes in architectural appearance, or otherwise offensive to the proposed or developed standards of the neighborhood.” (Syrian Antiochian Orthodox Archdiocese v. Palisades Associates (1970), 110 N.J. Super. 34, 40, 264 A.2d 257, 261.)

The preamble to the covenant in question declares that it is “for the purpose of enhancing and protecting the value of” the lots in the subdivision. The trial court noted that the proposed pool was not unsightly or in singularly bad taste such as to justify a total prohibition. The court contrasted the instant proposal with “a structure just as simple as a birdhouse, if it would be a small birdhouse *** but the colors were to be bright yellow with chartreuse polka dots.” Photographs and samples of exterior siding from defendant’s home and pool were introduced into evidence. This evidence shows that the proposed pool, rather than having chartreuse polka dots, is relatively harmonious with the exterior of defendants’ house.

Complete prohibitions of structures other than residences have been discussed in only a few cases. In Plymouth Woods Cory. v. Maxwell (1962), 407 Pa. 539, 181 A.2d 321, the covenant provided that “[b]uyer shall not place any sign, fence, or other structure upon the premises without first obtaining the written consent of Seller.” (Plymouth Woods, 407 Pa. at 540, 181 A.2d at 322.) The developer denied defendant’s request to place a “for sale” sign in front of his house. The court denied the developer’s request for an injunction requiring the removal of the sign. The court applied a balancing of the equities test and concluded that the injury to defendant far outweighed any conceivable benefit to plaintiff. (Plymouth Woods, 407 Pa. at 543, 181 A.2d at 324.) While Illinois courts have not expressly adopted a balancing of the equities test in enforcing the provisions of restrictive covenants, we believe that, read another way, the Plymouth Woods court was merely saying that the blanket prohibition was unreasonable under the circumstances. There was nothing in the record to show that the sign was unusually large or in bad taste.

In Lindner v. Woytowitz (1977), 37 Md. App. 652, 378 A.2d 212, the structure at issue was an above-ground pool. The court affirmed the awarding of an injunction to the developer because defendants had never submitted plans to the ARC at all. The court went on to state:

“[NJothing in this opinion would preclude the [homeowners] from submitting to the [developer] for approval the plans and specifications for an above-ground swimming pool. [The developer] would then be required to approve or disapprove in accordance with the principles enunciated in a number of cases * * *,
'*** that approval or disapproval must be reasonable.’ ” Lindner, 37 Md. App. at 659-60, 378 A.2d at 217, quoting Carroll County v. Buckworth (1964), 234 Md. 547, 200 A.2d 145.

See also Saddle Hills Community Association v. Cavallari (1986), 150 Ill. App. 3d 134 (court affirmed the awarding of an injunction to the developer ordering homeowner to remove a chain-link fence where homeowner never submitted plans to ARC).

In the instant case, we agree with the trial court that the blanket denial was unreasonable under the circumstances. Nothing in the covenant states that an above-ground pool will be prohibited under any circumstances, although other items are specifically prohibited. Nothing in the record indicates that defendants’ proposed improvements would be unsightly or in “singularly bad taste.” The court offered plaintiffs ample opportunity to promulgate reasonable conditions for the construction, but plaintiffs chose not to submit such conditions to the court. Plaintiffs could, for example, have required fencing around the pool area, which would have addressed concerns about noise, visibility and safety. We conclude that the trial court did not abuse its discretion in denying plaintiffs a permanent injunction.

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

UNVERZAGT and NICKELS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GEIGER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOEL HICKOX, Defendant-Appellant.
    Second District
    No. 2—90—0095
    Opinion filed April 27, 1992.
    Modified on denial of rehearing June 15, 1992.

      G. Joseph Weller and Beth Katz, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

Defendant, Joel Hickox, appeals the dismissal of his post-conviction petition without an evidentiary hearing. On appeal, he contends that his pro se petition, alleging that his convictions were based on perjured testimony, was sufficient to merit an evidentiary hearing.

The circuit court of Du Page County convicted defendant of two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(b)) and three counts of criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(aX3)). The victim was defendant’s daughter, K., who was eight years old at the time of trial. The court sentenced defendant to 48 months’ probation. On direct appeal, this court affirmed the convictions and sentence. People v. Hickox (1990), 197 Ill. App. 3d 205.

On December 27, 1989, defendant filed a pro se petition for post-conviction relief. The petition contains a number of vague, disjointed allegations of trial errors. The petition, however, does allege that defendant’s convictions were based on perjured testimony. Attached to the petition is the affidavit of Barney Evans.

In the affidavit, Evans alleges that he is the husband of Joan Patricia Evans, who was formerly married to defendant and is the mother of the complaining witness. Evans further states that, on the night prior to trial, Evans:

“[HJeard Joan my wife coaching, telling and having minor child of just seven years, [K.J recite the answers to trial questions. The responding answers were conditioned by [K.’s] mother whose deceitful allegations in the counts of aggravated criminal sexual abuse and criminal sexual assault *** against defendant Joel Hickox were fabricated as so witnessed to be by Barney J. Evans.”

The second paragraph of the affidavit alleges that Evans “was not a co-conspirator” with his wife. Evans “remained unsure of what to do until a similar pattern developed against himself and son.” K. told Evans that “her ‘Mom told her *** she would teach her how to get anything she wanted from a man.’ ”

On January 3, 1990, the trial court dismissed the petition without appointing counsel for defendant or conducting an evidentiary hearing. The court found the petition to be patently without merit (see Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2.1(aX2)). Defendant filed a timely notice of appeal, and this court appointed the appellate defender to represent him on appeal.

On appeal, defendant contends that the allegations of perjury raised the possibility of a substantial denial of his constitutional rights so as to entitle him to the appointment of counsel and an evidentiary hearing. The State responds that the court correctly determined that the petition is vague and patently without merit and that, even if perjured testimony was used, defendant has not shown that the State was aware of the perjury.

The purpose of the Post-Conviction Hearing Act (the Act) is to provide a post-conviction remedy for violations of substantial constitutional rights at trial. (People v. Cihlar (1986), 111 Ill. 2d 212, 216.) A post-conviction petitioner is not entitled to an evidentiary hearing as a matter of right; a hearing is allowed only if the petitioner makes a substantial showing of a constitutional violation and the allegations are supported by the record or affidavits. People v. Del Vecchio (1989), 129 Ill. 2d 265, 279.

It has long been recognized that the deprivation of an individual’s liberty based upon false testimony is contrary to fundamental principles of fairness in a civilized society. (Cihlar, 111 Ill. 2d at 216-17; People v. Griffin (1992), 148 Ill. 2d 45 (Bilandic, J., concurring in part and dissenting in part).) Thus, an allegation of perjury may demonstrate a violation of substantial rights (Cihlar, 111 Ill. 2d at 217), but alleged perjury does not always rise to the level of a constitutional violation. Del Vecchio, 129 Ill. 2d at 280.

The State contends that defendant’s petition is too vague to allege adequately a constitutional violation. Furthermore, Barney Evans’ affidavit demonstrates that he came forward only after charges similar to those in the instant case were levelled against him. According to the State, this “obvious animosity” between Barney and Joan Evans renders Barney Evans’ allegations “incredible and unreliable.”

( The State cites Del Vecchio in support of its argument that defendamos petition is patently without merit. In Del Vecchio, defendant’s affidavit did not directly show the use of perjured testimony, but only attempted to show that certain testimony at defendant’s trial was inherently implausible. Moreover, the testimony, even if perjured, went only to a collateral matter and thus could not have been a critical factor in defendant’s conviction. Del Vecchio, 129 Ill. 2d at 280-81.

Del Vecchio is distinguishable from the instant case. In this case, the allegations of perjury concern the testimony of the complaining witness. A fair reading of Evans’ affidavit is that the complaining witness’ entire testimony was completely fabricated at the direction of her mother. Unlike the testimony in Del Vecchio, this evidence was at the heart of the prosecution’s case.

In People v. Cihlar (1986), 111 Ill. 2d 212, the supreme court affirmed the awarding of an evidentiary hearing on a post-conviction petition where defendant alleged that he had located a former neighbor of the victim who would substantially impeach her identification of defendant. The court found that defendant had alleged a substantial violation of his constitutional rights since the victim’s identification was the only evidence tying defendant to the crime. Cihlar, 111 Ill. 2d at 217; see also People v. Cornille (1983), 95 Ill. 2d 497 (defendant entitled to new trial where critical State expert lied about his credentials).

Similarly, in the instant case, the victim’s testimony was obviously critical; there was no physical or other evidence linking defendant to the sexual assaults. If in fact the victim’s testimony was entirely fabricated by her mother, defendant was clearly deprived of a fair trial.

The State objects that defendant’s petition is too vague to warrant relief. This objection begs the question. Part of the relief which defendant requests is the appointment of counsel to redraft the petition. We do not believe an important constitutional right should hinge on a pro se defendant’s skills as a legal draftsman. That is why the Act provides for the appointment of counsel once a threshold showing has been made. See Ill. Rev. Stat. 1989, ch. 38, par. 122 — 4.

The State also contends that Barney Evans’ affidavit demonstrates his antagonism toward Joan Evans and that this bias renders his testimony inherently unreliable. The State points out that Evans apparently came forward with this evidence only after similar charges of sexual abuse were made against him. While this fact might well give him a motive to lie, it also supports another inference. If believed, Barney Evans’ testimony would show a pattern of preferring charges of sexual abuse by K. at the instance of Joan Evans. Thus, the same fact cited by the State to impeach Barney Evans might further support defendant’s argument that the testimony against him was fabricated. Choosing from among conflicting inferences from the evidence is peculiarly a function of the trier of fact.

The State finally contends that, even if the petition adequately alleges the use of perjured testimony, it fails to allege that the State was aware of the perjury at the time of trial. It is generally true that only the knowing use of perjured testimony by the prosecution or its agents results in a constitutional violation. (See Cihlar, 111 Ill. 2d at 219.) However, the “State action” requirement has been relaxed in some cases, as where the State failed to investigate adequately the credentials of its witness. (See Cornille, 95 Ill. 2d at 514.) While the petition fails to allege specifically that the State knew of the alleged perjury, it is at least infer-able from the allegations of the petition and affidavit that, if the complaining witness’ testimony was substantially fabricated on the eve of trial, the State would be chargeable with knowledge of this fact. The State or its agents must have interviewed the witness prior to that time and would necessarily know if her testimony changed substantially. Once again, we do not believe that substantial constitutional rights should hinge on technicalities of legal draftsmanship by a pro se petitioner.

We emphasize that we make no determination regarding defendant’s ultimate success on his petition. We hold only that, given the nature of the defendant’s allegations of perjury, the trial court incorrectly dismissed the petition as patently without merit. Consequently, we remand the case for further consideration in accordance with sections 122 — 4 through 122 — 6 of the Act (Ill. Rev. Stat. 1989, ch. 38, pars. 122 — 4 through 122 — 6). See People v. Rutkowski (1992), 225 Ill. App. 3d 1065.

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

Reversed and remanded.

DUNN and BOWMAN, JJ., concur.


author: JUSTICE BOWMAN

text:
    FRANCIS WORKMANN, Plaintiff-Appellant, v. ILLINOIS STATE BOARD OF EDUCATION et al., Defendants (Emil Jones, Jr., et al., Defendants-Appellees).
    Second District
    No. 2—91—0889
    Opinion filed May 21, 1992.
    John T. Jursich, of North Chicago, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Kathleen McCabe and Deborah L. Ahlstrand, Assistant Attorneys General, of Chicago, of counsel), for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Francis Workmann, appeals from an order of the circuit court which denied his motion for the imposition of attorney fees against defendants, Emil Jones, Jr., and Richard Mulcahey. Pursuant to the Freedom of Information Act (Act) (Ill. Rev. Stat. 1989, ch. 116, par. 201 et seq.), plaintiff sought an injunction to compel defendants to deliver certain records. The issue in this appeal is whether the trial court erred in determining that plaintiff did not “substantially prevail” in his action so as to warrant the award of attorney fees to plaintiff under section ll(i) of the Act (Ill. Rev. Stat. 1989, ch. 116, par. 211(i)).

We will summarize briefly only the relevant facts. Following a bench trial, the court issued its findings in a written order, as follows:

“1. That a Joint Committee on Secondary and Elementary School Sports was created for the purpose of studying and making recommendations to the General Assembly on sports and athletic programs conducted in the States [sic] Secondary and Elementary Schools, by reason of a Joint Resolution Number 166, passed by the Illinois Senate and House of Representatives ***.
2. That Senator Emil Jones and Representative R. Mulcahey were made Co-Chairman [sic] of said Joint Committee.
3. That considerable public money was used to study the abuses of school sports in the Secondary and Elementary Schools in Illinois, as a result of said Joint Resolution.
4. That evidence was introduced at five hearings held throughout the State of Illinois by the Joint Committee; and, that the evidence and the contents of the records of same, were of clearly significant interest to the general public.
5. That various outside groups had endeavored to influence the decisions and recommendations of the Joint Committee.
6. That the Joint Committee was unable to make a decision or make recommendations to the House and the Senate by reason of the Joint Committee being unable to agree on any recommendations, and accordingly the Joint Committee never made a final report to the House and Senate.
7. That by reason of the Joint Committee not asking for an extension of time to make a final report, and further by reason of the House and Senate not extending time for the extensions of same, the Joint Committee ceased to exist by operation of law on June 30,1987.
8. That all of the records of the hearings in the personal possession of Senator Emil Jones, or in the possession of the Senate Records Keeper could not be found and accordingly are deemed to be lost.
9. That the Plaintiff had made an appropriate request, as required under the Freedom of Information Act [citation], and that said requests were received by Senator Emil Jones and Representative R. Mulcahey, all as contemplated by said Act.
10. That Senator Emil Jones and Representative R. Mulcahey furnished no records to the Plaintiff, and failed to advise the Plaintiff as to why the records were not furnished; and, further failed to advise the Plaintiff that he had a right to Administrative Appeal under the statute; that Senator Emil Jones and Representative R. Mulcahey had not contacted the Plaintiff in any manner whatsoever, by letter, telephone or otherwise after receiving the Plaintiff’s request for information.
11. That the Plaintiff had exhausted his administrative remedies, and accordingly this Court has jurisdiction of this cause.
12. That by reason of the records being lost, which is the subject matter of this cause, there is no remedy to afford to the Plaintiff, as the Court can not [sic] compel the performance of an impossible act, namely the furnishing of lost records.”

The court denied plaintiff’s request for an injunction. The court also granted plaintiff leave to dismiss voluntarily his claim against the Illinois State Board of Education and Leininger.

Within 30 days of the order, plaintiff filed a petition for the imposition of attorney fees against defendants. Plaintiff alleged that he had “substantially prevailed” in the proceeding and was therefore entitled to attorney fees to be paid by defendants pursuant to section ll(i) of the Act. There is no transcript or bystander’s report from the hearing on the petition. The court denied the petition because it found that “plaintiff did not substantially prevail on the merits of this cause.” Although the record is unclear regarding whether the count against Leininger and the Board was ever dismissed, the order provided the required language regarding appealability as set forth in Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Plaintiff’s timely appeal followed.

Plaintiff contends that the trial court erred in failing to award him attorney fees. In support of this contention, plaintiff cites to section ll(i) of the Act, which provides that a court may award attorney fees to a plaintiff who “substantially prevails” on a claim under the Act. (Ill. Rev. Stat. 1989, ch. 116, par. 211(i).) According to plaintiff, he “substantially prevailed” in his cause, despite the trial court’s inability to impose an injunction, because defendants refused to furnish the records and did not inform plaintiff that the records were lost. Plaintiff argues that, by denying his request for fees, the trial court has encouraged public officials who refuse to furnish records requested pursuant to the Act to claim that the records in question were lost.

Defendants respond that plaintiff did not “substantially prevail” on the merits and, therefore, is not entitled to attorney fees under section ll(i) of the Act (Ill. Rev. Stat. 1989, ch. 116, par. 211(i)). Defendants make several arguments in support of their assertion; however, most of these arguments are irrelevant or are waived because defendants did not cross-appeal from the trial court’s finding that plaintiff exhausted his administrative remedies (see People ex rel. Hartigan v. Knecht Services, Inc. (1991), 216 Ill. App. 3d 843, 852-53). Defendants’ point regarding the purpose of the fee award has merit, however. As defendants argue, awarding attorney fees pursuant to section ll(i) of the Act for purposes of punishing a public body is improper. The fee provision of the Act was not “intended as either a reward for successful plaintiffs or as a punishment against the government.” Hamer v. Lentz (1989), 132 Ill. 2d 49, 62.

We note, initially, that the trial court found that plaintiff had not “substantially prevailed.” Plaintiff has not argued why the trial court’s finding in this regard is erroneous, but he has merely ignored this finding. Plaintiff argues that the court could not have found that defendants had a reasonable basis in law for withholding the records. Plaintiff evidently is relying on section 7 of the Act, which establishes exceptions a public body may invoke to refuse to furnish documents. (See Ill. Rev. Stat. 1989, ch. 116, par. 207.) The problem which plaintiff fails to account for is that, although there was no reasonable basis in law for the refusal to furnish the records, defendants had a reasonable basis in fact for the refusal, namely, the records did not exist because they were lost.

Neither party cites any authority regarding a request for lost or destroyed documents, nor has our research uncovered any such Illinois cases. We turn, then, to Federal cases which interpret the Federal Freedom of Information Act (Federal Act). (Hamer, 132 Ill. 2d at 58.) In Kissinger v. Reporters Committee for Freedom of the Press (1980), 445 U.S. 136, 63 L. Ed. 2d 267, 100 S. Ct. 960, the United States Supreme Court held that a public agency did not “withhold” documents that were not in its possession as the Federal Act “does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained.” Kissinger, 445 U.S. at 150-52, 63 L. Ed. 2d at 281-82, 100 S. Ct. at 968-69; see also National Security Archive v. Archivist of the United States (D.C. Cir. 1990), 909 F.2d 541.

Similarly, in Safecard Services, Inc. v. Securities & Exchange Comm’n (D.C. Cir. 1991), 926 F.2d 1197, 127 documents that were the subject of a request under the Federal Act mistakenly were destroyed. The district court granted the agency’s motion for summary judgment. The reviewing court noted that an agency is not required to recreate a document that no longer exists, explaining, “[i]f the agency is no longer in possession of the document, for a reason that is not itself suspect, then the agency is not improperly withholding that document.” Safecard Services, 926 F.2d at 1201.

Applying these principles to the facts herein, we conclude that defendants did not refuse to furnish the documents because they did not have possession of them. Plaintiff has not appealed the court’s denial of the injunction; thus, he cannot challenge the implicit finding that the reason the records cannot be found is not suspect. Moreover, there was no evidence to suggest that the records were lost after plaintiff made the request for them.

Aside from the above authority, we will also consider the statutory authority applicable in this cause and apply the standard rules for statutory construction. The objective of statutory construction is to ascertain and give effect to the legislature’s intent in enacting the statute. (People ex rel. LeGout v. Decker (1992), 146 Ill. 2d 389, 394.) Where the language of the statute is clear and unambiguous, the court must enforce the statute as enacted without resorting to other aids of statutory construction. Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1991), 146 Ill. 2d 175, 207.

The records of a hearing before a commission of the General Assembly are governed by “An Act in relation to hearings before commissions” (Ill. Rev. Stat. 1989, ch. 63, par. 13.1 et seq.). Section 4 of that act provides, in relevant part:

“An accurate record *** may be kept of the proceedings of any hearing. Upon his written request *** a witness shall be furnished at a reasonable charge with a transcript of the record insofar as it pertains to him or his testimony, if such record was taken at a public hearing ***.” (Ill. Rev. Stat. 1989, ch. 63, par. 13.4.)

In most circumstances, the word “may” is used in the permissive sense (In re Marriage of Freeman (1985), 106 Ill. 2d 290, 298), and this meaning fits within the context of section 4. We conclude that the making of a record of a hearing before a commission of the General Assembly is not mandatory.

If the commission was not required to make a record in the first instance, it could not be found liable under the Freedom of Information Act for refusing to furnish a copy of the nonexistent record to plaintiff, since there is no duty on a public body to create a record for purposes of the Act (Kenyon v. Garrels (1989), 184 Ill. App. 3d 28, 32). By analogy, then, it is clear that since the commission was not required to make a record, its refusal to furnish a lost record which it was not required to make could not violate the Act.

Thus, under either the applicable Illinois statutory sections or Federal case law, the trial court correctly found that plaintiff did not “substantially prevail” on the merits and was therefore not entitled to attorney fees under section ll(i) of the Act (Ill. Rev. Stat. 1989, ch. 116, par. 211(i)).

The judgment of the circuit court is affirmed.

Affirmed.

INGLIS, P.J., and DUNN, J., concur.


author: JUSTICE McLAREN

text:
    AFFILIATED BANK, Plaintiff-Appellee, v. EVANS TOOL AND MANUFACTURING COMPANY, INC., Defendant-Appellant (Argee Manufacturing Company, Defendant-Appellee).
    Second District
    No. 2—91—0915
    Opinion filed May 21, 1992.

      Paul A. Lewis and Lisa M. Nyuli, both of Alschuler, Putnam, McWethy, Funkey & Lewis, P.C., of Aurora, for appellant.
    Jonathan L. Loew and David H. Addis, both of Spitzer, Addis, Susman & Krull, of Chicago, and Mark N. Mathias, of Morton Grove, for appellee Affiliated Bank.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Evans Tool & Manufacturing Company, Inc. (Evans), appeals the order of the circuit court of Kane County granting summary judgment in favor of plaintiff, Affiliated Bank (Affiliated), on its complaint for declaratory judgment. The court held that Affiliated’s perfected security interest in certain plastic molds took priority over Evans’ lien under the Tool and Die Lien Act (Ill. Rev. Stat. 1989, ch. 82, par. 351 et seq.). On appeal, Evans contends that the court erred in determining that Affiliated’s security interest was superior to Evans’ statutory lien. We affirm.

In 1986, Argee Manufacturing Company, Inc. (Argee), gave Affiliated a security agreement covering personal property then owned or thereafter acquired by Argee. The agreement covered all Argee’s physical assets, including machinery, equipment, inventory, raw materials, work in progress, finished goods, tools and service parts. The agreement was perfected pursuant to the Uniform Commercial Code (the Code) (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 204).

On January 25, 1991, Argee executed a promissory note to Affiliated in the principal amount of $150,000. The note provided for monthly payments of approximately $15,000. In March and April 1991, Argee defaulted on its monthly installment payments. Affiliated exercised its option to accelerate the note and demanded payment of the principal balance of $135,000 plus accrued interest.

Evans was also a creditor of Argee. Evans is engaged in plastic and metal processing and had Argee as one of its customers. Pursuant to an agreement with Argee, Evans processed sheet plastic into video-cassette cases using molds owned by Argee but physically kept at Evans’ plant.

Argee became indebted to Evans in the amount of $81,577.27 for the plastic processing work done by Evans. On February 1, 1991, Evans sent notice that it was claiming a lien on the Argee molds and other items pursuant to the Tool and Die Lien Act (the Act) and stated its intention to retain possession of the molds to secure the debt from Argee.

On May 1, 1991, Affiliated filed a complaint against Evans and Argee. The complaint contained three counts and sought: (a) replevin of the molds from Evans; (b) a declaratory judgment that its lien under the Uniform Commercial Code was entitled to priority over Evans’ statutory lien; and (c) an injunction to prevent Evans and Ar-gee from disposing of the molds.

Evans filed an answer asserting the priority of its statutory lien over Affiliated’» security interest and also filed a counterclaim against Argee for the balance due. Argee appeared but did not file an answer.

At that time, a buyer was willing to purchase the molds for their fair-market value. The parties entered into a stipulation allowing the immediate sale of the molds for $60,000 without prejudice to the rights of the parties. The proceeds were to be placed in an interest-bearing account pending resolution of the rights of the parties by the court.

Subsequently, Affiliated moved for summary judgment, and the parties briefed the issues relative to the priority of their respective liens. The court granted summary judgment for Affiliated, finding that its claim pursuant to the Code security agreement was superior to that of Evans under the Act. The court found that the replevin and injunction counts were moot. Evans filed a timely notice of appeal.

Argee is not a party to this appeal and apparently does not contest the right of either remaining party to the molds. Evans does not dispute that Affiliated properly perfected its security interest prior to Evans’ notice of its lien claim. Thus, the sole issue for our determination is whether Affiliated’s security interest under the Uniform Commercial Code is entitled to priority over Evans’ lien claim under the Act.

The Tool and Die Lien Act became effective January 1, 1988. This is apparently the first case to construe this statute. Section 1 of the Act provides:

“Plastic or metal processors or persons conducting a plastic or metal processing business shall have a lien on the tools, dies, molds, jigs, fixtures, forms or patterns in their possession belonging to a customer, for the balance due them from such *** work. The processor may retain possession of the tool, die, mold, jig, fixture, form or pattern until such balance is paid, subject only to a security interest properly perfected pursuant to Article 9 of the Uniform Commercial Code.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 82, par. 351.

Affiliated maintains that the plain, unambiguous language of the Act makes the lien subject to a properly perfected security interest under the Code. Evans rests its claim of priority, however, on section 6 of the Act providing for the distribution of proceeds following the sale of the collateral. Section 6 of the Act provides:

“If the sale is for a sum greater than the amount of the lien, the excess shall be paid to any prior lienholder and any remainder to the customer.” Ill. Rev. Stat. 1989, ch. 82, par. 356(B).

Evans contends that section 6 gives it priority to the sale proceeds to the extent of its claim. Since the sale proceeds were insufficient to cover the entire indebtedness from Argee to Evans, Evans contends it is entitled to the entire amount.

Since there are no prior cases which have interpreted the Act, we resolve this issue through ordinary principles of statutory construction. The overriding goal of statutory construction is to determine and give effect to the intent of the legislature. (People v. Steppan (1985), 105 Ill. 2d 310, 316; In re Application of County Collector (1989), 181 Ill. App. 3d 345, 348.) When the statutory language is clear and unambiguous, our only function is to enforce the law as enacted by the legislature. (County Collector, 181 Ill. App. 3d at 348.) A statute should be construed, if possible, so as to give meaning to every portion of it. (People v. Fabing (1991), 143 Ill. 2d 48, 54.) In construing statutes, courts will presume that the legislature did not intend absurdity, inconvenience or injustice. Steppan, 105 Ill. 2d at 316.

With these principles in mind, we determine that the circuit court correctly determined that Affiliated’s lien is entitled to priority. The clear language of the Act provides that the lien created thereby is “subject to” a properly perfected security interest under the Code. The language in section 6 refers only to the distribution of the sale proceeds and not to the priority of the lien. Moreover, it is clear that the reference to prior liens in this section concerns the possible existence of a prior lien which is not entitled to priority, such as perhaps an unperfected security interest. Any other construction of this section would render the express priority provision of section 1 meaningless. Reading the two sections in pari materia it would appear that a perfected security interest had priority over the statutory lien as long as the lien creditor was in possession, but that the priority was lost as soon as the creditor sold the collateral. The lien creditor could then entirely defeat the prior security interest simply by selling the collateral and retaining the proceeds to the extent of the debt. We are convinced that the legislature did not intend such a result.

Evans contends, however, that section 9 — 310 of the Code supports its claim to priority. That section provides:

“When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 310.)

This argument ignores the plain language of the Act, which does “provide otherwise,” providing that the lien created by the Act is subject to a perfected security interest under the Code.

Moreover, this section does not appear to apply to the instant case. It has been held that this section applies only to a lien created by virtue of work done on the collateral which enhances or preserves the value of the collateral. (Ill. Ann. Stat., ch. 26, par. 9 — 310, Illinois Code Comment, at 88 (Smith-Hurd Supp. 1992); Peterson v. Ziegler (1976), 39 Ill. App. 3d 379, 385.) Here, the lien claimed by Evans resulted from work which did not enhance the value of the molds; rather, the molds were simply used to produce other goods at Argee’s order.

In the absence of enhancement, the proper priority provision of the Code is section 9 — 301. (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 301; see Peterson, 39 Ill. App. 3d at 385-86.) Section 9 — 301 provides, in relevant part, as follows:

“A person who becomes a lien creditor while a security interest is perfected takes subject to the security interest only to the extent that it secures advances made before he becomes a lien creditor or within 45 days thereafter or made without knowledge of the lien or pursuant to a commitment entered into without knowledge of the lien.” Ill. Rev. Stat. 1989, ch. 26, par. 9-301(4).

It is not disputed that all the advances made by Affiliated occurred prior to Evans’ becoming a lien creditor or within 45 days thereafter. The lien did not attach until, at the earliest, February 1, 1991. Argee executed the note to Affiliated on January 25, 1991. Thus, Evans’ lien was “subject to” Affiliated’s prior security interest.

For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

UNVERZAGT and DOYLE, JJ., concur.


author: JUSTICE COOK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LARRY HUGHES, Defendant-Appellee.
    Fourth District
    No. 4—91—0787
    Opinion filed May 14, 1992.

      Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Rebecca White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Lisa C. Lovelace, Assistant Public Defender, of Danville, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

On January 8, 1991, defendant Larry Hughes was charged by information in Vermilion County case No. 91 — CM—26 as follows:

“In that he then and there knowing Inv. Jerry Davis, to be a peace officer did knowingly obstruct said officer in the performance of an act within his official capacity, to wit: while trying to Service [síc] an arrest notice to David Hughes, in violation of niinois Revised Statutes, Chapter 38, Section 31 — 1.”

A bench trial was held on August 20, 1991. After the evidence was completed defendant made a motion for directed verdict, which was denied. Defendant was found guilty of obstructing a peace officer, a Class A misdemeanor (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 1). On August 23, 1991, defendant filed a motion in arrest of judgment claiming that the information did not charge an offense in that it failed to set forth the nature and elements of the offense as required by section 116 — 2(c) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 116 — 2(c)). Relying on People v. Fox (1983), 117 Ill. App. 3d 1084, 454 N.E.2d 824, the trial court entered an order allowing the motion in arrest of judgment. The State appeals. We affirm.

When an information is attacked before trial the information must strictly comply with the pleading requirements set out in section 111 — 3(a) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. Ill — 3(a)). People v. Thingvold (1991), 145 Ill. 2d 441, 448, 584 N.E.2d 89, 91-92.

“A defendant has the fundamental right, under both the Federal (U.S. Const., amend. VI) and State constitutions (Ill. Const. 1970, art. I, sec. 8), to be informed of ‘the nature and cause’ of criminal accusations made against him. In Illinois this general right is given substance by section 111 — 3(a) of the Code ***.” People v. Smith (1984), 99 Ill. 2d 467, 470, 459 N.E.2d 1357, 1359.

Section 111 — 3(a) of the Code provides specific requirements for criminal charges:

“(a) A charge shall be in writing and allege the commission of an offense by:
(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
(3) Setting forth the nature and elements of the offense charged;
(4) Stating the date and county of the offense as definitely as can be done; and
(5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty.” Ill. Rev. Stat. 1989, ch. 38, par. Ill — 3(a).

When attacked for the first time on appeal, however, the sufficiency of an information is not determined by whether its form precisely follows the provisions of section 111 — 3(a) of the Code. (People v. Gilmore (1976), 63 Ill. 2d 23, 29, 344 N.E.2d 456, 460.) Rather, it is sufficient that the information “apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.” (People v. Pujoue (1975), 61 Ill. 2d 335, 339, 335 N.E.2d 437, 440; see also Thingvold, 145 Ill. 2d at 448, 584 N.E.2d at 91.) “In other words, the appellate court should consider whether the defect in the information or indictment prejudiced the defendant in preparing his defense.” (Thingvold, 145 Ill. 2d at 448, 584 N.E.2d at 91; see also Pujoue, 61 Ill. 2d at 339-40, 335 N.E.2d at 440.) The appellate sufficiency standard follows the requirements of the due process clause. (Gilmore, 63 Ill. 2d at 28-29, 344 N.E.2d at 460.) Before Pujoue it was often said that a defective indictment failed to confer “subject-matter” jurisdiction, that the lack of jurisdiction could not be waived, and that any resulting conviction was void and could be attacked at any time. (Gilmore, 63 Ill. 2d at 26, 344 N.E.2d at 458.) Failure to allege an element of the offense in the complaint does not necessarily violate the appellate sufficiency standard. (Pujoue, 61 Ill. 2d at 339, 335 N.E.2d at 440.) This is not to say that the supreme court approves of a failure to comply with section 111 — 3(a) of the Code. Gilmore, 63 Ill. 2d at 29, 344 N.E.2d at 460; Pujoue, 61 Ill. 2d at 339, 335 N.E.2d at 440.

In People v. Lutz (1978), 73 Ill. 2d 204, 210, 383 N.E.2d 171, 173, the supreme court concluded that the appellate sufficiency standard applied in Pujoue should not be applied to defective pleadings challenged by a motion in arrest of judgment; an indictment challenged by a motion in arrest of judgment was required to charge the nature and elements of the offense as required by section 111 — 3(a)(3) of the Code (see Ill. Rev. Stat. 1973, ch. 38, par. Ill — 3(a)(3)). In Smith, the supreme court recognized that the reasons for a different standard on appeal might apply with equal force to motions in arrest of judgment, but followed the holding in Lutz, stating: “If [this decision seems] bitter to those who expect complete harmony in the law, it is for the legislature to provide the sweetener, not this court.” Smith, 99 Ill. 2d at 475, 459 N.E.2d at 1361.

Since Smith the legislature has acted, by an amendment effective August 30, 1989, (see Pub. Act 86 — 391, eff. Aug. 30, 1989 (1989 Ill. Laws 2495)) to add the following subsection to section 116— 2 of the Code:

“(c) A motion in arrest of judgment attacking the indictment, information, or complaint on the ground that it does not charge an offense shall be denied if the indictment, information or complaint apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution out of the same conduct.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 116 — 2(c).)

The emphasized language is nearly a direct quote of the appellate sufficiency standard as stated in Pujoue (61 Ill. 2d at 339, 335 N.E.2d at 440). The legislative change discussed in Smith has taken place, and therefore the standard used to determine the sufficiency of an indictment, information, or complaint when raised in a motion in arrest of judgment is now the same as when raised for the first time on appeal.

A number of cases have discussed the sufficiency of a charge alleging obstruction of a peace officer, applying the test of section 111 — 3(a) of the Code. The statute defining the offense of obstructing a peace officer (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 1) is in general terms; it does not particularize the offense and does not describe the acts which constitute the crime. (People v. Leach (1972), 3 Ill. App. 3d 389, 394, 279 N.E.2d 450, 453; Fox, 117 Ill. App. 3d at 1086, 454 N.E.2d at 826.) Where the statute defining an offense specifies the type of conduct prohibited, the particular act at issue need not be alleged, and the information may simply set out the offense in the language of the statute. (People v. Gerdes (1988), 173 Ill. App. 3d 1024, 527 N.E.2d 1310; People v. Yarbrough (1987), 162 Ill. App. 3d 748, 516 N.E.2d 607.) Where, on the other hand, the statute defines the offense in general terms, a charge couched in the language of the statute is insufficient, and the facts which constitute the crime must be specifically set forth. (Gerdes, 173 Ill. App. 3d 1024, 527 N.E.2d 1310; Yarbrough, 162 Ill. App. 3d 748, 516 N.E.2d 607.) A conviction for resisting or obstructing a peace officer requires an act of physical resistance or obstruction. (People v. Pruitt (1988), 166 Ill. App. 3d 679, 520 N.E.2d 1113; People v. Stoudt (1990), 198 Ill. App. 3d 124, 555 N.E.2d 825.) A complaint charging the defendant with resisting or obstructing a peace officer solely in the language of the statute is not sufficient. (Leach, 3 Ill. App. 3d at 395, 279 N.E.2d at 454.) The charge must contain language describing the act(s) alleged to have obstructed the officer. Fox, 117 Ill. App. 3d at 1084, 454 N.E.2d at 825.

These cases are helpful in determining whether the motion in arrest of judgment in this case met the appellate sufficiency test. Although Fox was decided under section 111 — 3(a) of the Code, that court held that the charge did not particularize the offense or describe the acts which constituted the crime, and that the language used did not sufficiently describe defendant’s acts so as to afford him the full protection of the double jeopardy clause. (Fox, 117 Ill. App. 3d at 1086, 454 N.E.2d at 826.) The findings in Fox support the decision of the trial court in this case, since the motion in arrest of judgment analysis in Fox met the appellate sufficiency standard now articulated in section 116 — 2(c) of the Code.

The information in this case did not apprise defendant of the precise offense charged. From the information it is impossible to ascertain what act of obstruction defendant is charged with. In addition, it is not clear from the record whether a conviction based on the information would be a bar to future prosecution arising out of the same conduct. We could look to the record of proceedings to determine whether defendant is adequately protected against double jeopardy (People v. Allen (1974), 56 Ill. 2d 536, 543, 309 N.E.2d 544, 548; People v. Maxwell (1992), 148 Ill. 2d 116, 138-39), but the State included only the common law record in the record on appeal. It is the responsibility of appellant to have prepared and submitted to this court a record sufficient to allow the review of an issue. People v. Foster (1990), 199 Ill. App. 3d 372, 377, 556 N.E.2d 1289, 1292; People v. Moore (1991), 215 Ill. App. 3d 836, 848, 576 N.E.2d 900, 908; People v. Jackson (1991), 145 Ill. 2d 43, 92, 582 N.E.2d 125, 148; cf. 134 Ill. 2d R 608 (duty of clerk of circuit court to prepare record on appeal in criminal cases).

The charging instrument here did not meet the appellate sufficiency standard in section 116 — 2(c) of the Code; therefore, the trial court properly granted defendant’s motion in arrest of judgment. We note that after a motion in arrest of judgment is granted the State is not estopped from filing a new information against the defendant (People v. Miller (1983), 116 Ill. App. 3d 361, 368, 452 N.E.2d 391, 396), at least where no question is raised as to the sufficiency of the evidence to sustain the conviction. (People v. Moore (1984), 121 Ill. App. 3d 570, 573, 459 N.E.2d 1120, 1121-22; see also Thingvold, 145 Ill. 2d at 450, 584 N.E.2d at 92 (where a conviction is reversed because of a defective charge under section 111 — 3(a) of the Code, State may opt to recharge defendant).) We affirm the trial court’s ruling.

Affirmed.

KNECHT and LUND, JJ., concur.


author: JUSTICE STEIGMANN PRESIDING JUSTICE GREEN,

text:
    BOARD OF EDUCATION OF ROCHESTER COMMUNITY UNIT SCHOOL DISTRICT No. 3A, Petitioner, v. THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—91—0423
    Opinion filed May 14, 1992.
    GREEN, P.J., specially concurring.

      David M. Smith, of Springfield, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Alison E. O’Hara, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Allen J. Oehlert, of Deffenbaugh, Loewenstein, Hagen, Oehlert & Smith, P.C., of Springfield, for respondent Helen Verner.
    Sandra J. Holman, of Illinois Education Association-NEA, of Springfield, for respondent Rochester Education Association.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In October 1990, petitioner, Rochester Community Unit School District No. 3A (Rochester), filed a complaint with the Illinois Educational Labor Relations Board (Board) against Helen Verner, a teacher employed by Rochester and the Rochester Education Association, IEA-NEA (Association). The complaint alleged that Verner and the Association refused to bargain collectively in good faith by filing an action in the circuit court, thereby violating section 14(bX3) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 1714(bX3)).

The Board dismissed the charges against both Verner and the Association (Rochester Community School District No. 3A, 7 Pub. Employee Rep. (Ill.) par. 1066, No. 91 — CB—0005—S (Illinois Educational Labor Relations Board, May 17, 1991) (hereinafter 7 Pub. Employee Rep. (Ill.) par. 1066)), and Rochester seeks administrative review of the opinion and order of the Board. We affirm.

I. Background

The event giving rise to the charge occurred in May 1990 when Verner filed a complaint in the circuit court against Rochester. (Verner v. Board of Education of Rochester Community Unit District No. 3A (Cir. Ct. Sangamon Co.), No. 90 — LM—0867.) In her complaint, Verner alleged that Rochester’s refusal to place her on the appropriate salary schedule breached her contract and violated various sections of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 1 — 1 et seq.). Rochester responded that because the collective-bargaining agreement set forth salary schedules and contained a grievance procedure designed to resolve issues pertaining to the pay scale, the grievance and arbitration procedure provided the exclusive mechanism for resolving Vemer’s dispute. The Association was not a party to the suit. However, Rochester alleged in its complaint that the Association aided, abetted, advised, or otherwise participated in the filing of the suit. According to Rochester, Vemer and the Association failed to bargain in good faith and violated the agreement by circumventing the grievance and arbitration procedure and filing a charge in the circuit court.

After conducting an investigation of the allegations, the Executive Director of the Board dismissed Rochester’s complaint, finding that it failed to establish a prima facie violation of the Act. (Rochester Community Unit School District 3A, 1 Pub. Employee Rep. (Ill.) par. 1023, No. 91 — CB—0005—S (Hlinois Educational Labor Relations Board, Executive Director’s recommended decision and order, Jan. 11, 1991).) The parties filed timely exceptions to the Executive Director’s recommended order and opinion. Upon review, the Board agreed that Rochester failed to present “ ‘a facially plausible theory or argument reasonably based on [the] statute, which [it] [had] not previously addressed’ ” and affirmed the dismissal of the charges. (7 Pub. Employee Rep. (Ill.) par. 1066, at IX-258.) The Board reasoned that Vemer could not violate section 14(bX3) of the Act because she was not among the class of organizations or persons whose conduct was proscribed by that section. As to the charges against the Association, the Board maintained that arbitration did not provide the exclusive means available to Vemer to resolve her dispute because arbitration, alone, would limit her ability to prosecute her statutory cause of action, thereby contravening section 10(b) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 1710(b)). Rochester appeals this order.

II. Appellate Court Jurisdiction

Initially, we address the jurisdiction of this court. In July 1991, the Association filed a motion to dismiss Rochester’s petition for administrative review for want of jurisdiction, alleging that under sections 3 — 102 and 3 — 103 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 3 — 102, 3 — 103) and Supreme Court Rules 11(a), 11(c), 335(b), and 303(d) (134 Ill. 2d Rules 11(a), 11(c), 335(b), 303(d)), Rochester improperly and untimely filed its petition because Rochester failed to serve the Association’s attorney of record with the petition for administrative review within 35 days. Instead, Rochester served the president of the Association at his school address after the school year had ended. Although Rochester did not serve the Association’s attorney, she nonetheless acknowledged that she received notice of the appeal from a third party.

We denied this motion when the Association first presented it in July 1991. On appeal, the Association requests that we reconsider that ruling. We again conclude that this court has jurisdiction over the case because there was no error in the service of the petition for administrative review. Timely service was made upon the actual party (see 134 Ill. 2d R. 335(b)). Further, while it would have been preferable for Rochester to have also served the Association’s attorney of record, its failure to do so does not deprive this court of jurisdiction. We note that the Association’s attorney received actual notice, filed a brief, and appeared for oral argument. Accordingly, we find that the Association was not prejudiced. See Echols v. Olsen (1976), 63 Ill. 2d 270, 274-75, 347 N.E.2d 720, 722; Kawa v. Harnischfeger Corp. (1990), 204 Ill. App. 3d 206, 209, 561 N.E.2d 1179, 1181.

III. Analysis Of Board’s Decision

We next consider Rochester’s argument that the Board erred in dismissing the claim against Vemer and the Association. Section 14(b)(3) of the Act reads as follows:

“Employee organizations, their agents or representatives or educational employees are prohibited from:
* * *
(3) Refusing to bargain collectively in good faith with an educational employer, if they have been designated in accordance with the provisions of this Act as the exclusive representative of employees in an appropriate unit.” (Ill. Rev. Stat. 1989, ch. 48, par. 1714(b(3).)

The Board construed section 14(b)(3) as applying to employee organizations and their agents or representatives, and not to individual educational employees. The Board also found no evidence that Vemer was an agent or representative of the Association. We agree with both of these conclusions. In so holding, we acknowledge that the introductory paragraph of section 14(bX3) also covers educational employees, and there is no doubt that Vemer, as a teacher, is an educational employee. In this case, she is, nevertheless, not among the entities which could violate section 14(b)(3).

Section 14(bX3) of the Act specifically prohibits employee organizations, their agents or representatives from refusing to bargain collectively in good faith “if they have been designated *** as the exclusive representative of employees in an appropriate unit.” (Ill. Rev. Stat. 1989, ch. 48, par. 1714(bX3).) The Act defines “exclusive representative” as follows:

“[T]he labor organization which has been designated by the Illinois Educational Labor Relations Board as the representative of the majority of educational employees in an appropriate unit, or recognized by an educational employer prior to January 1, 1984[,] as the exclusive representative of the employees in an appropriate unit or, after January 1, 1984, recognized by an employer upon evidence that the employee organization has been designated as the exclusive representative by a majority of the employees in an appropriate unit.” (Ill. Rev. Stat. 1989, ch. 48, par. 1702(d).)

Although Vemer is an educational employee, she is not the exclusive representative of employees in a unit. To construe section 14(bX3) of the Act otherwise would violate its plain meaning. (See In re Marriage of Logston (1984), 103 Ill. 2d 266, 277, 469 N.E.2d 167, 171.) The Association is the exclusive representative for the teachers at Rochester; accordingly, Vemer’s actions cannot violate this section 14(bX3), and we affirm the decision of the Board dismissing the charges against Vemer.

We also affirm the Board’s decision dismissing the charges against the Association, although we base our decision on different grounds. The Association was not a party to the suit filed in circuit court against Rochester and, therefore, could not have violated section 14(bX3) in this case.

Rochester also argued that the Board’s decision declining to rule on the arbitrability of the issue under section 14(bX3) was contrary to law. Since the Board concluded that Vemer could pursue her statutory claim in circuit court without her doing so being an unfair labor practice, it declined to address Rochester’s contention that the arbitrator must determine jurisdiction between the courts and the arbitration process. We agree with the Board’s ruling.

IV. Conclusion

For the reasons stated, we affirm the decision of the Board.

Affirmed.

KNECHT, J., concurs.

PRESIDING JUSTICE GREEN,

specially concurring:

I concur in the decision of the majority to affirm the decision of the Board. I agree that we have jurisdiction and that Vemer, as merely an educational employee and not an exclusive representative, is not subject to being charged under section 14(b)(3) of the Act.

The majority concludes that the Association could not be subject to such a charge because it was not a party to the lawsuit upon which the claim of an unfair labor practice is brought. No authority is cited for this conclusion and this issue has not been briefed in depth. I am unwilling to pass upon the question of whether an exclusive representative could be guilty of a section 14(b)(3) of the Act violation by encouraging and abetting an improper lawsuit by an educational employee against an educational employer.

I conclude we need not decide the foregoing question here because, as long as the complaint at law is limited to a statutory violation by the educational employer, such a suit is not improper. While the issues which may be raised in such a suit may be narrower than those which could be raised before an arbitrator, the selection of the remedy is a decision for Verner to make.


author: JUSTICE WELCH

text:
    MARGARET BELSHAW, Plaintiff-Appellant, v. HILLSBORO HOTEL, INC., Defendant-Appellee.
    Fifth District
    No. 5—91—0443
    Opinion filed June 1, 1992.

      Kelly D. Long, of Kelly D. Long Law Office, of Hillsboro, and Gregg Johnson, of Calvo Law Offices, of Granite City, for appellant.
    Stephen R. Cullison, of Cullison & Vandever Law Office, of Hillsboro, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Margaret Belshaw, plaintiff-appellant, appeals from a judgment entered May 15, 1991, by the circuit court of Montgomery County following a jury trial, in favor of defendant-appellee, Hillsboro Hotel, Inc. Plaintiff had filed a complaint against defendant seeking damages for injuries she suffered when she fell on the stairs at a Red Rooster Restaurant owned and operated by defendant.

Plaintiff’s complaint, filed May 16, 1989, alleged that the stairway on which she fell was dark and dimly lit, that the stairway and the lower-level floor had the same color, dark carpeting, and that the bottom step of the stairway was of a different size than the other steps. The complaint further alleged that the defendant breached its duty of reasonable care to plaintiff in failing to warn her of the dangers and in failing to take reasonable steps to protect her from the dangers. The accident occurred on July 11,1987.

On June 9, 1989, defendant filed an answer to plaintiff’s complaint raising the affirmative defenses that plaintiff was contributorily negligent in failing to keep a proper lookout, in descending the steps at an unsafe speed and in an unsafe manner, in tripping or stumbling while descending the steps and, most pertinently, in failing to hold on to the handrailing or utilize other safety measures when she knew or should have known she was prone to falling. Plaintiff denied all the allegations of contributory negligence.

On May 14, 1991, the day jury trial commenced, plaintiff filed a motion in limine, seeking to exclude any reference to:

"3) Whether plaintiff, Margaret Belshaw, sustained other injuries or illnesses prior or subsequent to this occurrence unless there is a showing by defendant outside the presence of the jury that there will be a causal connection by competent medical testimony between said injuries or illnesses and the plaintiff’s claimed injuries in this case. [Citations.]
4) Whether plaintiff was involved in the prior or subsequent accidents, unless connected by competent medical testimony outside the presence of the jury to plaintiff’s claimed injuries in this case. [Citations.]”

Hearing was held on the motion on that same date, just before trial commenced. Defendant argued that the fact that plaintiff had suffered three previous falls during the six to seven years preceding the instant fall evidenced the fact that she had a propensity to fall, and that this propensity to fall was a substantial cause of the accident in question. Plaintiff countered that her previous falls were the result not of her negligence or propensity to fall but of the negligence of others or hazardous conditions outside of her control. Plaintiff also argued that evidence of prior falls had no relevancy to the case at bar and would be highly prejudicial. The court ruled as follows:

“I will allow the Defense to get into that evidence, that, the fact that she has fallen on those occasions, but not to go into the, the extent. She can testify that she broke the bones in question, but that is it. We don’t go any further into that. This is a separate case and I think just simply to the isse [sic] as to prone to falling, just as if there had been other falls to that staircase, that is relevant. But, limited to that. We don’t go any further into that because we are not going to try those cases again and as Mr. Long has indicated we don’t know what the circumstances were, she could be totally without fault.
The only issue here is whether she has the notice herself that she has fallen before, I think. And I think that can be considered by a jury in determining any comparative negligence on her part. But, that is the extent of that disability.”

On cross-examination of plaintiff, defendant inquired of plaintiff whether she had suffered from previous falls. Plaintiff's counsel objected, arguing that the evidence was not relevant for the same reasons he had raised before. The objection was overruled. Plaintiff responded that she had fallen on three occasions. She explained that she had fallen in a store and broken her left wrist. The fall was caused by an object protruding into the aisleway. Plaintiff had also fallen at her church. When she entered the church it had been raining. When she came out, the rain had frozen and she slipped on the ice, breaking her right shoulder. Plaintiff broke her left shoulder when leaving a friend’s house. When plaintiff entered the house, it had been raining. When she left, the rain had turned to ice. Plaintiff slipped on the ice. These falls occurred during the 1980’s, the last one being in 1985.

At the close of all the evidence, plaintiff moved for a directed verdict on defendant’s affirmative defenses. With respect to prior falls, defendant argued that there was evidence that plaintiff suffered three previous falls during the 1980’s and therefore she should have known that she was somewhat prone to falling and should have utilized some sort of safety measures when descending steps to help prevent her from falling. The trial court denied plaintiff’s motion.

In closing argument, defendant argued:

“I think if someone has in a period of approximately seven or so years received broken bones in three prior falls they would understand they might have some tendency perhaps at times to lose their balance and fall. Might take some extra precaution when they are descending steps. Particularly steps they might not be familiar with. Might ask someone that was with them for some extra assistance or perhaps hold on to the railing until they had both feet on the floor they were going to, or something of that nature. But just because a fall occurs does not mean that, that someone is automatically liable for the events that resulted, the damages that occur.”

Following the jury verdict and judgment in favor of defendant, plaintiff filed a motion for new trial alleging that she had been deprived of a fair trial by the trial court’s denial of her motion in limine respecting her prior falls and by the admission of highly prejudicial and irrelevant evidence of plaintiff’s prior falls. Plaintiff’s motion was denied on June 19, 1991. In denying the motion, the court found that, while evidence of other specific falls may not be presented simply to show that plaintiff was more likely to have fallen here, it was properly admissible in support of defendant’s affirmative defense that plaintiff, knowing of her propensity to fall, was contributorily negligent in failing to take added precautions.

It is well settled that evidence of a plaintiff’s prior conduct is irrelevant on the question of her conduct on the occasion in issue. (Le- Master v. Chicago Rock Island & Pacific R.R. Co. (1976), 35 Ill. App. 3d 1001, 1020, 343 N.E.2d 65, 81.) Thus, prior negligent conduct by a plaintiff is irrelevant and inadmissible to establish plaintiff’s negligent conduct on the occasion in issue. The parties do not dispute that this is so.

Defendant argues, however, that it did not introduce the evidence of plaintiff’s prior falls to show her negligence on those prior occasions and, by implication, her negligence on the occasion in question. Defendant introduced the evidence of plaintiff’s prior falls only to establish that she knew she had a propensity to fall and therefore was obligated to take additional precautions in descending the defendant’s stairway, more than one who had no propensity to fall.

Defendant argues that, in Illinois, a party may introduce evidence of a prior accident to show notice of the existence of a dangerous condition. (Rittenhouse v. Tabor Grain Co. (1990), 203 Ill. App. 3d 639, 649, 561 N.E.2d 264, 271.) The admissibility of such evidence is not dependent on any factual similarity between the accidents. (Rittenhouse, 203 Ill. App. 3d at 649/561 N.E.2d at 271.) As expressed in Henderson v. Illinois Central Gulf R.R. Co. (1983), 114 Ill. App. 3d 754, 757, 449 N.E.2d 942, 944:

“The law is well settled that evidence of prior accidents *** is competent, not for the purpose of showing independent acts of negligence, but for the limited purposes of showing that the common cause of such accidents was the unsafe condition or thing, and that frequency of such accidents tends to show knowledge of such condition.”

Thus, defendant argues, it was properly allowed to introduce evidence of plaintiff’s prior falls to demonstrate her knowledge or notice of an unsafe condition, that is, her propensity to fall. Evidence of prior accidents is only admissible if it is relevant to the proponent’s case. Henderson, 114 Ill. App. 3d at 758, 449 N.E.2d at 945.

Defendant argues that the evidence of plaintiff’s prior falls is relevant to the issue of whether she knew she had a propensity to fall, which issue is probative of the issue of plaintiff’s contributory negligence. Defendant concludes that the admission of evidence is within the discretion of the trial court (Windeguth v. National Super Markets, Inc. (1990), 201 Ill. App. 3d 35, 39, 558 N.E.2d 548, 550), and that the trial court did not abuse its discretion in the instant case.

Defendant may be correct that failure of a plaintiff to take precautionary measures in descending stairs when she is on notice of a propensity to fall may, under proper circumstances, constitute contributory negligence in a slip-and-fall case. However, the evidence presented by defendant of the three prior falls by plaintiff does not establish even remotely that plaintiff has a greater propensity to fall than does the ordinary or average person. The evidence indicates that plaintiff, who was 80 years of age in 1987, had fallen three times in her lifetime. Each fall was attributed not to a physical defect or condition from which she suffered, or to her clumsiness, but to sudden icy conditions or an object protruding into an aisleway in a store. Defendant presented no evidence that plaintiff suffered from any disabling or debilitating condition, that she was ill or weak or suffered from a defect which made it more likely that she would fall. The evidence presented by defendant does not establish that plaintiff had any unusual propensity to fall. No jury could reasonably infer from the evidence that plaintiff had any greater propensity to fall than the ordinary person. Indeed, we think that the evidence demonstrates quite the contrary. Three falls in a lifetime of 80 years, each attributed to some cause out of plaintiff’s control, would demonstrate that plaintiff was a strong, able-bodied woman with no unusual propensity to fall.

Relevancy describes evidence that has a legitimate tendency to prove or disprove a given proposition that is material as shown by pleadings. (Caley v. Manicke (1961), 29 Ill. App. 2d 323, 330, 173 N.E.2d 209, 212, rev’d on other grounds (1962), 24 Ill. 2d 390, 182 N.E.2d 206.) The material proposition which defendant sought to prove by the evidence of plaintiff’s prior falls is that she was contributorily negligent in failing to take added precautions in light of her known propensity to fall. Because the evidence of plaintiff’s prior falls here had no legitimate tendency to prove or disprove this proposition, it was irrelevant. Relevancy has been defined as a tendency to establish a fact in controversy, or to render a proposition in issue more or less probable. To be probable, evidence must be viewed in the light of logic, experience and accepted assumptions concerning human behavior. (Caley, 29 Ill. App. 2d at 330, 173 N.E.2d at 212.) So viewed, the evidence of three falls in a lifetime of 80 years, all of which were attributable to some cause outside the control of plaintiff, does not make it more probable that plaintiff has any greater propensity to fall than the ordinary, average person. See also Marut v. Costello (1964), 53 Ill. App. 2d 340, 202 N.E.2d 853, affd (1965), 34 Ill. 2d 125, 214 N.E.2d 768.

Matters improperly in evidence should be stricken to remove whatever impact they may have on the jury. (Caley, 29 Ill. App. 2d at 331, 173 N.E.2d at 212.) Such evidence is prejudicial because of the innuendos to which such evidence is susceptible. (Simpson v. Johnson (1977), 45 Ill. App. 3d 789, 795, 360 N.E.2d 144, 149.) While in the instant case plaintiff did not move to strike the evidence, her objection to the line of questioning at its inception was overruled. Furthermore, she had unsuccessfully filed a motion in limine to exclude the evidence. These actions were sufficient to preserve the question for review.

The evidence presented by defendant as to plaintiff’s prior falls was erroneously admitted. It should have been stricken by the trial court and the jury instructed to disregard it. Furthermore, the trial court erred in denying plaintiff’s motion in limine to exclude this evidence and in denying plaintiff’s motion for a directed verdict on this evidence and issue. Because of the nature of the improperly admitted evidence, the innuendos to which it is susceptible, and the erroneous conclusion to which it can lead, we find that plaintiff was prejudiced by its admission. Accordingly, we reverse the judgment of the circuit court of Montgomery County in favor of defendant and remand this cause for a new trial.

Reversed and remanded.

GOLDENHERSH, P.J., and HARRISON, J., concur.