author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES CHARLES, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—3614
    Opinion filed November 30, 1992.

      Rita A. Fry, Public Defender, of Chicago (Evelyn G. Baniewicz, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

A jury found defendant James Charles guilty of the attempted armed robbery and the murder of Willie Rodgers, and the armed robbery of DeWanda Rodgers. The trial court sentenced defendant to concurrent prison terms of 60 years for murder, 30 years for armed robbery and 15 years for attempted armed robbery. On appeal, defendant contends that the trial court erred in denying his motion in limine to exclude evidence of a pending attempted murder charge; that the State exercised its peremptory challenges in a discriminatory manner; that prosecutorial closing argument shifted the burden of proof; and that the sentence is excessive.

Prior to trial, defendant filed a motion in limine to bar the admission of evidence concerning a charge of attempted murder pending against defendant. The court denied the motion.

During voir dire the State exercised 7 out of 11 peremptory challenges against black individuals. Defendant moved for a mistrial based on discriminatory use of peremptory challenges, and the court denied the motion. The trial court considered the prosecutor’s reasons for excluding six of the seven prospective black jurors; the prosecutor could not remember the reason for excluding the seventh venireperson. The court then denied defendant’s motion.

At trial, DeWanda Rodgers, the victim’s wife, testified for the State. On May 29, 1986, between 2:30 p.m. and 3 p.m., she was upstairs at her mother’s home in Chicago with her sister, Edwina Cummings, and their children. DeWanda’s husband, Willie Rodgers, was downstairs. She heard fighting downstairs and heard Willie calling for help from Edwina. DeWanda went downstairs, where she saw Willie holding defendant by the wrists. DeWanda did not know defendant, but knew that Willie’s cousin was married to defendant’s sister. Defendant was holding a small handgun and a shotgun and was demanding $105 from Willie. As DeWanda entered the room, the two men separated. Defendant sat down in a chair. Willie stepped through the room’s doorway and picked up his wallet.

DeWanda testified further that Willie returned through the doorway, stood about six feet from defendant, and told defendant, “You move your m— f-— feet” off the chair. Defendant “sat up and pulled the [shotjgun and shot” Willie. Defendant stood up, pointed the shotgun at DeWanda and demanded money. DeWanda picked up Willie’s wallet and handed defendant the $32 that was in the wallet. Willie died at the hospital at 7:30 p.m. that evening. DeWanda denied later telling Willie’s cousin that defendant only fired after Willie slapped his feet off the table.

Edwina Cummings testified similarly to DeWanda Rodgers. Cummings added that she knew defendant because defendant’s sister was married to Willie’s cousin. While the two men were arguing, Cummings telephoned the police. After defendant shot Willie, Cummings saw defendant leave in a blue car with a sunroof. When the police arrived, she gave them defendant’s name, a description of defendant, and a description of his car. At a subsequent lineup which included defendant, Cummings did not identify him as the assailant because she was “shaken up” and “scared.”

James Sanford, a salesman for Midwest Appliances, testified for the State that on May 24, 1986, he sold a stove and refrigerator to defendant. On May 29, 1986, defendant entered the store between 2 p.m. and 2:30 p.m., carrying a shotgun. As he stood about 15 feet from Sanford, defendant raised the gun and shot Sanford in the stomach.

Officer Willie Anderson testified that on May 29, 1986, at 2:30 p.m., he and his partner responded to a radio call of shots fired at the appliance store. At the store, defendant was named as the assailant, and the police were given defendant’s receipt for the appliances he had purchased. The receipt showed defendant’s name and address. While proceeding to that address, 10 to 15 minutes after they received the Sanford shooting report, the officers heard a radio report of the Rodgers shooting. The officers stopped at the Rodgers home, where they received a description of defendant and of his blue Thunderbird. The police immediately proceeded to defendant’s home, where they arrested defendant when he drove up in the Thunderbird. A search revealed a revolver and a live 12-gauge shotgun shell.

Dr. Shaku Teas, a medical examiner, testified for the State that she performed an autopsy on the decedent. The cause of death was a shotgun wound to the abdomen. The gun was fired at “fairly close range,” somewhere between a few inches and 10 feet. There was also an abrasion near decedent’s left eyelid and a bruise on the lower lip with a cut on the inside of the lip. These injuries were consistent with blunt trauma which might have occurred during a fight or from falling.

Officer Robert Smuda testified for the State that he was an evidence technician and that on May 29, 1986, he photographed the murder scene at the Rodgers home. Later, he was at the appliance store where he recovered a fired shotgun shell. He later performed a gunshot residue test on the shell.

Officer Raymond Lenz testified for the State that he was a crime laboratory technician. He performed a gunshot residue test on a shell, and the test was positive.

Daniel Friel, an assistant public defender, testified for the defense that in investigating the case in April 1987 he spoke with DeWanda Rodgers. DeWanda told him the fight between defendant and Willie lasted approximately 5 to 10 minutes.

Tyra Rodgers, Willie’s second cousin, testified for defendant that he has known defendant for 10 or 12 years. Defendant and Willie had a “drug related” relationship. About six months before the shooting, defendant began giving Willie drugs to sell. On May 29, 1986, at the hospital where Willie had been taken, Tyra heard DeWanda say that Willie was shot after he approached defendant and slapped his feet off a table.

James Schreiner, a Chicago police officer, testified for the defense that he interviewed DeWanda on the night of the murder. DeWanda told him the argument between the decedent and defendant was about “$105 that was — had something to do with the sale of leaf.”

Opinion

Defendant contends that the prosecution exercised its peremptory challenges in a discriminatory manner in violation of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. Under Batson, the defendant must first state a prima fade case of purposeful discrimination. Once a prima facie case of discrimination has been established, the State then bears the burden of coming forward with its race-neutral explanations for the challenges. (Batson, 476 U.S. at 93-98, 90 L. Ed. 2d at 85-89, 106 S. Ct. at 1721-24.) The trial court must then make “a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case.” People v. Fuentes (1991), 54 Cal. 3d 707, 718, 818 P.2d 75, 81, 286 Cal. Rptr. 792, 798.

The trial court here did not make a finding regarding defendant’s prima facie case; instead, it requested an explanation from the State for its reasons for the exclusions. However, once the State offers its reasons, the question of a prima facie case becomes moot. See Hernandez v. New York (1991), 500 U.S. 352, 358, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1866; People v. Walls (1991), 220 Ill. App. 3d 564, 581 N.E.2d 264.

Moreover, the prima facie case can be established by showing that defendant belongs to a cognizable racial group; the State excused venirepersons of that race; and any other relevant circumstances. (Batson, 476 U.S. at 93-96, 90 L. Ed. 2d at 85-87, 106 S. Ct. at 1721-22.) Other relevant circumstances include whether there is a pattern of strikes; whether the group of venirepersons is otherwise heterogeneous, sharing race as their only common characteristic; and the prosecutor’s statements during voir dire. Batson, 476 U.S. at 96-97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723; People v. McDonald (1988), 125 Ill. 2d 182, 196, 530 N.E.2d 1351.

In the present case, defendant is black. The final jury included four blacks and two Hispanics, along with one black alternate and one Asian alternate. While four black jurors were seated, this is not determinative, since a “single invidiously discriminatory governmental act” is sufficient to require a new trial. Batson, 476 U.S. at 95, 90 L. Ed. 2d at 87, 106 S. Ct. at 1722; see also People v. McDonald, 125 Ill. 2d at 200.

The State exercised 11 of its 14 peremptory challenges, seven of which were used to exclude black persons, and four of which were exercised against nonblacks. See People v. Lockhart (1990), 201 Ill. App. 3d 700, 710-11, 558 N.E.2d 1345 (five out of eight challenges exercised against blacks); People v. Colley (1988), 173 Ill. App. 3d 798, 806-07, 528 N.E.2d 223 (four out of eight challenges exercised against blacks); People v. Seals (1987), 153 Ill. App. 3d 417, 422, 505 N.E.2d 1107 (6 out of 10 challenges exercised against blacks).

In addition, the excluded black persons comprised a heterogeneous group. Their occupations varied, including a State inspector, a shipping and receiving clerk, a full-time student, several office workers and unemployed persons. Some of the venirepersons had grown children, some had school-age children, and some had no children.

We also note the prosecutor referred to one black venireperson, Mr. Zebedee M. Braithwaite, as “Zippodee Dooda.”

“[PROSECUTOR]: *** [0]f those seven challenged, two of them were challenged by the defense. One being in the first panel, that being Mr. Brethweidic, Zippodee Dooda (phonetic spelling) Brethweidic.
[DEFENSE COUNSEL]: Judge, I would note for the record the statement made by the State’s Attorney, calling the black gentleman Zippodee Dooda.
[PROSECUTOR]: That’s his name.
THE COURT: Number one, I don’t know. Well, go out and get the list now.
[PROSECUTOR]: Judge, I mispronounced the man’s name.
[DEFENSE COUNSEL]: I would point out, Judge, for the record, that Zippodee Dooda refers to, I suppose, the [‘Song of the South’] language of the old black man in that movie.
[PROSECUTOR]: Judge, that wasn’t my intent. I mispronounced the man’s name.
THE COURT: Be that as it may, you have stated it.”

The court may consider such prosecutorial remarks in finding that a prima facie case was made. People v. McDonald, 125 Ill. 2d 182, 530 N.E.2d 1351.

Thus, notwithstanding the absence of a specific finding by the trial court, the record demonstrates that defendant established a prima facie case of discrimination.

We need not discuss the race-neutral reasons offered by the State for excusing six of the seven venirepersons, since we reverse based solely on the State’s failure to offer any explanation at all for its excusing one person, Colette Amico. As stated above, the “exclusion of even just one minority venireperson on account of race is unconstitutional and would require reversal of the conviction below.” (People v. Harris (1989), 129 Ill. 2d 123, 175, 544 N.E.2d 357, 380.) In regard to Amico, the prosecutor simply stated: “I don’t recall exactly for Miss [Amico]. If we could move on.”

The State “cannot rebut a prima facie case of discrimination by stating that it does not know why it exercised its peremptory challenges.” (People v. Harris, 129 Ill. 2d at 181; see also People v. Drew (1990), 201 Ill. App. 3d 271, 277, 559 N.E.2d 40.) Although the prosecutor’s reason need not rise to the level of a challenge for cause (Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723), the prosecutor may not “rebut the defendant’s case merely by denying that he had a discriminatory motive or ‘affirming] [his] good faith in individual selections.’ ” (Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723-24.) We are forced to conclude that the prosecutor’s failure to recall his reason for using a peremptory challenge to strike this juror was insufficient to satisfy the Batson requirement that the “prosecutor *** must articulate a neutral explanation related to the particular case to be tried.” Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1724.

The court in Harrison v. Ryan (E.D. Pa. April 12, 1990), No. 87—7439, _ F. Supp. _, aff’d (3d Cir. 1990), 909 F.2d 84, explained the reasoning for finding that a prosecutor’s failure to recall his reason for using a peremptory challenge to strike a black juror does not meet the burden under Batson:

“[The prosecution] seems to argue that ‘not knowing’ is the functional equivalent of providing a neutral reason, particularly when a period of years has elapsed. This court does not agree. There are no degrees of ‘not knowing.’ A statement by a prosecutor that he does not remember his reasons for exercising his peremptory strike can only be found to be a lapse in proof or gap in evidence. This court does not agree that the appropriate interpretation of Batson would be to find that a lapse in memory, even when several years have passed, is presumptively a neutral reason for exclusion of a black juror. Such a finding would thwart the constitutional principles expounded in Bat-son.” Harrison v. Ryan, _ F. Supp. at _(prosecution’s motion for stay of order pending appeal denied).

Accord Harrison v. Ryan (3d Cir. 1990), 909 F.2d 84, 87-88 (prosecutor articulated race-neutral explanations for challenging five of six venirepersons, but was not able to recall why he dismissed the sixth person; court granted defendant’s writ of habeas corpus and ordered a new trial); United States v. Cunningham (M.D.N.C. 1988), 713 F. Supp. 165, 170-71 (prosecutor unable to recall specific reasons for challenging five black jurors; court found that “the only remedy [was to grant] a new trial,” despite the fact that defendant had already completed his sentence, because “the effect of the lack of recollection is that the prosecutor has not rebutted the prima facie case as a matter of law”); People v. Mitchell (1992), 228 Ill. App. 3d 167, 172, 592 N.E.2d 175 (where prosecutor merely stated that defense counsel “knows our reason” for excusing one juror and trial judge stated “I think I know why,” appellate court held that the remark did not constitute a race-neutral explanation, reversed the conviction, and remanded for a new trial); People v. Blunt (1991), 176 A.D.2d 741, 742, 574 N.Y.S.2d 812, 813 (prosecutor unable to recall specific reason for peremptorily striking all but 2 of 11 females; court orders new trial, since prosecutor’s testimony “amounted to little more than a denial of discriminatory purpose and a general assertion of good faith”); Brooks v. State (Tex. Crim. App. 1991), 802 S.W.2d 692, 695 (prosecutor could not remember reasons for striking two of five black venirepersons; court had “no alternative” but to remand for a new trial since the State “utterly failed to demonstrate that it struck [these two] venirepersons *** for permissible race neutral justifications”); Henry v. State (Tex. App. Nov. 19, 1987), No. B14—84—592—CR, slip op. at 2 (prosecutor unable to recall why he struck two jurors; court has “no choice but to reverse and remand for a new trial”). See also People v. Turner (1986), 42 Cal. 3d 711, 725, 726 P.2d 102, 110, 230 Cal. Rptr. 656, 664 (prosecutor did not “remember exactly” why he excused a black woman, but thought it might have been due to “something in her work”; court found the explanation was “so lacking in content” as to amount to no explanation at all), quoted in People v. Kindelan (1991), 213 Ill. App. 3d 548, 556, 572 N.E.2d 1138. But see State v. Bell (Tenn. 1988), 745 S.W.2d 858, 867 (court remands for “a further [Batson] hearing” where the State would be “given an opportunity to explain its reasons for the racial exclusion,” notwithstanding the fact that when the Batson issue was raised prior to trial, the prosecutor expressly stated that he could not recall why he had challenged one venireperson).

The State relies on People v. Mack (1989), 128 Ill. 2d 231, 243, 538 N.E.2d 1107, where the prosecutor was “unable to recall” during a Batson hearing on remand why he challenged one juror. The Illinois Supreme Court held, without addressing the prosecutor’s failure to recall a reason, that the trial court’s finding of race-neutral reasons was not against the manifest weight of the evidence. We presume, however, that the court considered the fact that it was a pre-Batson trial, and consequently the prosecutor did not have the benefit of the Supreme Court’s decision in Batson prior to jury selection.

For the reasons discussed above, therefore, we hold that the State failed to rebut the prima facie evidence of discrimination, and we reverse the conviction and remand for a new trial.

Ordinarily, the fact that we have found defendant is entitled to a new trial would alleviate our need to address any remaining issues raised by defendant. However, one other issue raised in defendant’s appeal may reoccur on retrial, and, thus, we go on to discuss that issue.

Defendant contends that the trial court erred in admitting evidence of the attempted murder charge pending against defendant. The trial court denied defendant’s pretrial motion in limine to exclude the evidence. The court later cautioned counsel not to “get involved in the nature and extent of the injuries that Mr. Sanford sustained as a result of this incident.” The court instructed the jury at the close of the trial to consider the other crimes evidence for only two purposes — identification and intent.

The parties agree that there is no question regarding the identification of Rodgers’ killer. The evidence established that the eyewitnesses knew defendant, who was related to Rodgers by marriage. Moreover, in his opening statement, defense counsel admitted that defendant shot Willie. The State recognizes this when, on appeal, it concedes in its brief that “identity was not in issue in this case.” It maintains, however, that the Sanford shooting was relevant to prove defendant’s intent in killing Rodgers. (See People v. Tipton (1990), 207 Ill. App. 3d 688, 696, 566 N.E.2d 352.) The State maintains that the evidence was properly admitted to establish “that defendant did not act in self-defense or by accident, but intended to shoot both Willie Rodgers and James Sanford.”

Evidence of other crimes is not admissible for the purpose of showing that defendant has a general propensity to commit crimes. (People v. Bean (1990), 137 Ill. 2d 65, 107, 560 N.E.2d 258.) However, evidence of other crimes is admissible “if relevant to any other material issue.” (People v. Bean, 137 Ill. 2d at 107.) For example, evidence of other crimes may be relevant to prove modus operandi, intent, identity, motive, or absence of mistake. (People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821; see generally 2 J. Wigmore, Evidence §304 (Chadbourn rev. ed. 1979).) It is within the sound discretion of the trial court to determine whether evidence of other crimes is relevant to a material issue and whether the probative value of such evidence outweighs its prejudicial impact. People v. Bean, 137 Ill. 2d 65, 560 N.E.2d 258; People v. Tipton, 207 Ill. App. 3d 688, 566 N.E.2d 352.

Defendant argues that the Sanford shooting was not sufficiently similar to the Rodgers shooting to meet the threshold for admissibility because the only two details they had in common were that they both occurred on the afternoon of May 29, 1986, and both involved the use of a shotgun. In his brief, defendant states that the Sanford shooting was apparently “in some way related to the purchase of appliances some five days earlier,” and there was no indication that robbery was the purpose, while, in contrast, the Rodgers shooting involved family members and apparently money owed for selling narcotics.

Generally, the two offenses must be similar enough that evidence of one offense tends to prove the defendant guilty of the other offense. (People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59; 2 J. Wigmore, Evidence §304, at 249 (Chadbourn rev. ed. 1979).) The degree of similarity required is less, however, where the other offense is introduced to prove criminal intent.

“[T]he same degree of identity of the two offenses is not necessary when evidence of defendant’s involvement in another offense is not offered to prove the commission of the crime charged, but is offered to prove the absence of an innocent frame of mind or the presence of criminal intent. In such a case, mere general areas of similarity will suffice. If these general similarities are shown, evidence of the defendant’s involvement in another offense may be shown to establish the necessary criminal intent of the defendant in the offense charged.” People v. McKibbins, 96 Ill. 2d at 185-86, 449 N.E.2d 821, citing 2 J. Wigmore, Evidence §§302, 304, at 241-47, 249-51 (Chadbourn rev. ed. 1979).

The State counters that the Sanford and Rodgers shootings were strongly similar because (1) both involved a shooting with a shotgun from a distance of 6 to 10 feet; (2) both occurred within 10 to 15 minutes of each other; and (3) both occurred in close geographical proximity to each other.

The trial court was free to weigh the unique facts here, where within minutes of the Sanford shooting, the police received a report of the Rodgers shooting, along with facts which immediately pointed to the same assailant for both crimes.

Time and place proximity, without more, is an insufficient basis for admission of other crimes evidence. (People v. Lindgren (1980), 79 Ill. 2d 129, 139, 402 N.E.2d 238; People v. Lee (1986), 151 Ill. App. 3d 510, 520, 502 N.E.2d 399.) Notably, however, the other crimes evidence was not admitted merely to show that defendant was in the area near the time of the Rodgers murder. Instead, the “evidence was used to prove the intent of defendant, the critical issue in this case.” (People v. Tiller (1982), 94 Ill. 2d 303, 318, 447 N.E.2d 174.) The defense theory was that the Rodgers killing was committed in self-defense.

The reasoning behind the rule permitting other crimes evidence to show criminal intent, and a corresponding absence of an innocent frame of mind, is that showing criminal intent for one crime increases the probability that defendant also acted deliberately in the second crime. People v. Brown (1990), 199 Ill. App. 3d 860, 875, 557 N.E.2d 611; see also Commonwealth v. Donahue (1988), 519 Pa. 532, 543, 549 A.2d 121, 127 (“It is merely a matter of probabilities”), cited in People v. Brown, 199 Ill. App. 3d at 875. See generally 2 J. Wigmore, Evidence §302 (Chadbourn rev. ed. 1979).

Other crimes evidence, therefore, may be found relevant to defendant’s intent to kill because it tends to negate inadvertence, accident or other forms of innocent intent. (See, e.g., People v. Tucker (1988), 176 Ill. App. 3d 209, 222, 530 N.E.2d 1079 (defendant claimed shooting was done in self-defense; that several hours prior to the shooting in question defendant placed a gun against another man’s stomach, saying he was going to take care of a “war” between murder victim and another man; court held that the other crimes evidence was “particularly relevant to the issue of whether [defendant’s] stated purpose in introducing the gun into the confrontation *** was as an instrument of protection or as an instrument of aggression”).) While an innocent state of mind might be present in one instance, the more often it occurs with similar results, the less likely that it was without criminal intent to kill with legal justification. (See 2 J. Wigmore, Evidence §302, at 241 (Chadbourn rev. ed. 1979).) “Since it is the improbability of a like result being repeated by mere chance that carries probative weight, the essence of this probative effect is the likeness of the instance.” 2 J. Wigmore, Evidence §302, at 245 (Chadbourn rev. ed. 1979). Accord United States v. Weddell (8th Cir. 1989), 890 F.2d 106 (evidence of defendant’s general habit of using knives was admissible to rebut defendant’s claim of self-defense in stabbing victim); United States v. Fountain (7th Cir. 1985), 768 F.2d 790 (evidence of defendant’s prior use of knife in prison, including stabbing an inmate 57 times, was admissible to illuminate intent in defendant’s stabbing and killing prison guards where defendant claimed self-defense); Sadowski v. McCormick (D. Mont. 1992), 785 F. Supp. 1417, 1420 (“evidence pertaining to his previous use of a weapon for the purpose of threatening or attacking another individual was legitimately admitted to rebut [defendant’s] claimed purpose”); State v. Sadowski (1991), 247 Mont. 63, 72-73, 805 P.2d 537, 542-43 (other crimes evidence relevant to issue of whether defendant acted with criminal intent or in self-defense); State v. Groves (1989), 324 N.C. 360, 370, 378 S.E.2d 763, 770 (other crimes evidence relevant to negate self-defense); State v. Harris (La. 1980), 383 So. 2d 1, 8 (“While a single instance of a killing in self-defense may rationally and hypothetically be occasioned by an act in self-defense, four similar killings by the same person in an eight week span under peculiarly similar circumstances are not nearly as likely to be in self-defense”); State v. Hereford (La. App. 1987), 518 So. 2d 515, 517 (other crimes evidence relevant to rebut self-defense theory).

Thus, the relevance of the evidence derives from the logic that the mere fact that defendant fired a shotgun into one person’s abdomen (and clearly not acting in self-defense) made it less likely that he fired the same shotgun into Rodgers’ abdomen in self-defense 15 minutes later. This “matter of probabilities” is relevant evidence which the jury is permitted to weigh along with the other evidence.

Defendant argues that even if the evidence was admissible, the prejudicial effect outweighed the probative value. It is not always possible to limit the prejudicial effect of other crimes evidence. (See People v. Tiller, 94 Ill. 2d at 317 (holding no abuse of discretion in admitting “gory” evidence of other offense; “[t]he evidence was gruesome because the crime was gruesome”).) In any event, the balancing of the prejudicial effect against the probative value is an exercise of discretion which will have to be made by the trial court at defendant’s new trial.

Defendant argues further that, even if some evidence of other crimes could be properly admitted, the State admitted excessive details, conducting a mini-trial of the Sanford shooting. Our supreme court has cautioned against such a practice.

“We agree that it was not necessary to conduct a mini-trial of the [subsequent] jewelry store robbery case in order to establish acts from which defendant’s criminal intent with regard to the [charged offense of] robbery-murder could be inferred, and for the sake of economy of judicial time, we advise against such detailed evidence of other offenses.” People v. McKibbins, 96 Ill. 2d at 186-87.

See also People v. Diaz (1979), 78 Ill. App. 3d 277, 397 N.E.2d 148 (in reversing conviction for armed robbery of a tavern, court held that limited amount of evidence of subsequent robbery of two women was admissible to show circumstances of defendant’s arrest and recovery of the gun used in both crimes, but detailed evidence of the robbery, including details of threats made to the women and their children, was error).

Sanford testified that he sold a stove to defendant on May 24, 1986, five days before Willie was killed. He was permitted to testify at length regarding the store’s invoice system, the sale of appliances to defendant, and the delivery of the appliances to defendant’s address. Sanford testified further regarding the May 29, 1986, shooting, when defendant walked into the appliance store and, without speaking, shot Sanford in the abdomen.

Two police officers testified about their investigation of the incident. Smuda testified that he recovered a shotgun shell from the appliance store and later performed a gunshot residue test on the shell. Anderson also testified about the expended shotgun shell and his search of the store. In addition, Lenz, a criminologist, testified regarding his analysis of the gunshot residue kit, concluding that it tested positive. The State also offered as exhibits the store’s copy of the invoice; defendant’s copy of the invoice; and the shotgun shell.

On retrial, the trial judge should therefore consider carefully whether all of these details are necessary in proving defendant’s intent in shooting Rodgers. The extensive nature of the testimony and physical evidence may unnecessarily result in trying defendant for the attempted murder of Sanford. See People v. Bartall, 98 Ill. 2d at 315; People v. Kimbrough (1985), 138 Ill. App. 3d 481, 489, 485 N.E.2d 1292.

In view of our disposition of this case, we need not consider the remaining issues raised by defendant.

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

Reversed and remanded.

McNULTY, P.J., and MURRAY, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McNULTY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD RABUS, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—1167
    Opinion filed November 30, 1992.
    Rita A. Fry, Public Defender, of Chicago (Lisa S. Ottenfeld and Bruce Landrum, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Laura E. Forester, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

After a bench trial, defendant was convicted of aggravated criminal sexual assault. The court found defendant guilty but mentally ill and sentenced him to eight years in the Illinois Department of Corrections with directions that he be sent to the Department of Mental Health as soon as possible. Defendant appeals, contending that: (1) the trial court erred in denying his motion to suppress statements; (2) the State failed to prove him guilty beyond a reasonable doubt; and (3) the trial court improperly considered defendant’s sentence prior to the sentencing hearing and considered inadmissible evidence as an aggravating factor in sentencing defendant.

The hearing on defendant’s motion to suppress was held simultaneously with the trial. D.R. testified that in the winter of 1987, while he was eight years old, he was at the school playground when defendant approached him and offered to take him to the candy store. After buying D.R. candy and soda pop, defendant took D.R. to a “big building with a fence around it” that defendant called the “clubhouse.” Once there, defendant got on top of D.R. and rubbed against him. Defendant unbuttoned D.R.’s pants and performed oral sex on D.R. Defendant then pulled D.R.’s clothes back up, told him not to tell anybody what had just happened, and took D.R. back to the playground.

D.R. stated on cross-examination that a few days after the incident, he told his father what had occurred at the clubhouse. D.R. then took his father to the clubhouse, which was defendant’s place of residence.

Officers Rider and Williams testified that they went to defendant’s place of residence and spoke with Ms. Flowers, defendant’s foster mother, and Ms. Colburn, a friend of the defendant. Officer Williams advised defendant of his Miranda rights. After acknowledging that he understood his rights, defendant agreed to speak with the officers. When Officer Williams asked defendant if he knew D.R., defendant responded that he had been playing with D.R. that day. Defendant was then placed under arrest and taken to the police station. Colburn went with defendant to the station and told the officers not to question defendant. Detective Nuccio informed defendant of his Miranda rights. Defendant stated that he understood his rights and agreed to talk to Nuccio. During this conversation, defendant told Nuccio that he had simulated intercourse and performed oral sex on D.R. in the clubhouse. Defendant’s account of the incident was virtually identical to that given by D.R.

Assistant State’s Attorney Paula Becker testified that she also gave defendant his Miranda rights and explained to defendant that she was a lawyer working with the police and not his lawyer. Defendant acknowledged that he understood and he then told Becker essentially the same story of simulating intercourse and performing oral sex on D.R. Becker asked defendant if he would give a written statement and he refused. Becker stated that at no time did defendant appear to have any problem understanding her questions. Defendant was responsive and never said that he did not understand what Becker was talking about. Becker also stated she did not notice anything unusual or peculiar about defendant’s speech, although defendant did not seem like the smartest person she had met.

Flowers testified on behalf of the defense that when the police came to her house, she told them not to question defendant because “if he get [sic] nervous, he is going to say yes to everything you ask him.”

When defendant testified at trial, he denied having any sexual contact with D.R. or even taking D.R. to his house. He stated that after he was read his rights, the officer asked defendant if he understood his rights, and defendant responded that he did not. Defendant said that he told the officers that he did not do anything to D.R. but defendant was told if “I say it, I can go home.”

The parties stipulated that defendant was 22 years old at the time of the incident. They also stipulated to a report submitted by Dr. Mark Andur following his psychiatric evaluation of defendant. In this report, Dr. Amdur concluded that defendant did not suffer from any mental illness or defect to the extent that he lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. The report also indicated that defendant had an IQ of 69, placing him at the highest end of the mild mental retardation range. Dr. Amdur found that defendant was able to understand the work of psychiatrists, the fact that a report would be prepared, and the judge would read the report, and decide what to do with the case. Defendant gave the name of his attorney and said it was his attorney’s job to defend him. Dr. Amdur noted that defendant had a poor understanding of the State’s Attorney’s role and at one point said that the State’s Attorney’s job was to help him. According to Dr. Amdur, defendant knew he had been charged with sexual assault but denied any sexual activity with D.R. Occasionally, questions had to be simplified and repeated for defendant, but Dr. Amdur was always able to obtain comprehension.

The court denied defendant’s motion to suppress defendant’s statements and found him guilty of sexual assault.

Defendant’s first contention is that the trial court erred in denying defendant’s motion to suppress. We disagree. A valid waiver of Miranda rights must be voluntary, intelligent and knowing. (Colorado v. Connelly (1986), 479 U.S. 157, 93 L. Ed. 2d 473, 107 S. Ct. 515; People v. Bernasco (1990), 138 Ill. 2d 349, 562 N.E.2d 958.) A mental deficiency alone is not enough to render a confession or statement involuntary, but rather it is one issue to be considered in reviewing the totality of circumstances under which the statement was made. (People v. Turner (1973), 56 Ill. 2d 201, 306 N.E.2d 27.) A reviewing court will not disturb a trial court’s determination on a motion to suppress unless it is against the manifest weight of the evidence. People v. Phillips (1992), 226 Ill. App. 3d 878, 589 N.E.2d 1107.

Applying these principles to the facts here, we do not find the trial court’s denial of the motion to suppress to be against the manifest weight of the evidence. Defendant was advised of his Miranda rights three times, and each time defendant stated that he understood them. At no time did defendant state that he did not understand nor did he ask that questioning cease.

Defendant directs our attention to Ms. Flowers’ statement that defendant will say “yes” to anything asked of him when he gets nervous. In addition, defendant cites an article stating that mentally retarded people are predisposed to answer in the affirmative. What the record in this case reveals, however, is that defendant was indeed capable of giving a negative response and did so when involved in stressful situations. When defendant was first confronted by the police, he denied the charges against him. (See People v. Burke (1987), 164 Ill. App. 3d 889, 518 N.E.2d 372 (defendant’s refusal to confess his involvement in the crime at the time he was first arrested belies his argument that he confessed later only because he did not understand those rights and the police took advantage of his limited mental abilities).) Moreover, when Assistant State’s Attorney Becker asked defendant to put his statement into writing, defendant refused. (See People v. Long (1991), 217 Ill. App. 3d 940, 578 N.E.2d 26 (defendant’s indication that he did not want to put statement into writing indicates defendant had the ability to make choices).) Furthermore, when defendant was questioned about the incident by Dr. Amdur, he not only denied the charges against him, but he responded negatively to many of the questions asked by Dr. Amdur. What is most significant is that during trial, which is undeniably a stressful situation, defendant denied that he made the statements attributed to him and denied having any sexual contact with D.R. These incidents demonstrate defendant’s ability to make choices and his ability to evaluate and understand his rights.

We also note that the police officers and Assistant State’s Attorney Becker testified that at the time defendant gave his statements, he appeared normal and coherent. In addition, the trial court had the opportunity to observe defendant and evaluated his ability to respond to verbal questioning. (People v. Ellison (1984), 126 Ill. App. 3d 985, 446 N.E.2d 1024.) Based on these factors, we cannot conclude that the trial court’s decision denying the motion to suppress was against the manifest weight of the evidence.

Defendant next maintains that his conviction should be reversed because his trial counsel rendered him ineffective assistance of counsel when he insufficiently raised the issue of whether defendant was capable of waiving his Miranda rights. We find absolutely no merit to defendant’s contention. It is clear that defense counsel did in fact raise the issue of the waiver of defendant’s Miranda rights. Defense counsel filed a motion to suppress the defendant’s statement and the court ruled on this motion. “The mere fact that counsel was unable to secure the suppression of the confessions does not constitute incompetence.” People v. Murphy (1978), 72 Ill. 2d 421, 438, 381 N.E.2d 677.

Nor is there any merit to defendant’s contention that the State failed to prove defendant guilty beyond a reasonable doubt. The standard of review is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Schott (1991), 145 Ill. 2d 188, 582 N.E.2d 690.) Based on the testimony presented at trial, the trial court had sufficient evidence from which to find defendant guilty beyond a reasonable doubt.

Defendant’s final contention is that the trial court erred in sentencing him to eight years in prison because the court determined his sentence before the sentencing hearing and the court improperly considered an arrest in aggravation, without any substantive evidence regarding that arrest. While it was improper for the trial court to consider as aggravation defendant’s mere arrest, there is no rational reason to remand for resentencing, since defendant has already served his sentence. People v. Dunn (1976), 40 Ill. App. 3d 684, 353 N.E.2d 48.

Accordingly, based on the reasons set forth above, we affirm.

Affirmed.

LORENZ and GORDON, JJ., concur.


text:
    SAMUEL SHUSTER, Plaintiff-Appellee, v. ROBERT M. BRANTLEY et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—91—0332
    Opinion filed November 30, 1992.
    Orner & Wasserman, of Chicago (Norton Wasserman and Mary A. Mazurk, of counsel), for appellants.

      Herbert F. Stride, Ltd., and William J. Harte, Ltd., both of Chicago (Herbert F. Stride, William J. Harte, and Joan M. Mannix, of counsel), for appellee.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

This appeal arises out of a dispute between the parties as to the amount of interest owed by the defendant judgment debtors on a judgment entered on plaintiffs behalf. After a trial on plaintiff Samuel Shuster’s personal injury suit against defendants Robert M. Brantley, Diane Newman and James Newman, the jury returned a verdict in favor of the plaintiff in the amount of $950,000 but reduced the award to $76,000 after finding plaintiff 92% contributorily negligent. Judgment was entered in the amount of $76,000 against Robert Brantley and Diane Newman. A directed verdict was entered in favor of defendant James Newman.

Following entry of the judgment, plaintiff filed a post-trial motion requesting a new trial on the issue of comparative negligence or, in the alternative, a new trial on all issues. The trial court denied plaintiff’s post-trial motion and plaintiff appealed.

While plaintiff’s appeal was pending in the appellate court, defendants’ insurance carrier tendered to plaintiff’s attorney a check, dated December 28, 1988, in the sum of $84,005.17 as satisfaction of the judgment entered against defendants. The check was made payable to “Samuel Shuster, Herbert F. Stride, Ltd., William J. Harte, Ltd., and the Law Offices of Richard S. Bennett, his attorneys, American Ambassador Casualty Company, as subrogee of Samuel Shuster, Benefit Trust Life Insurance Company, as subrogee of Samuel Shuster.” Plaintiff’s counsel returned the check with a letter stating:

“This cause is on appeal in the Illinois Appellate Court, First District. The outcome of that appeal will have to be realized before a proper tender of the satisfaction funds can be considered.”

The appellate court affirmed the judgment of the trial court, and plaintiff petitioned the supreme court for leave to appeal. Following the denial of plaintiff’s petition for leave to appeal, plaintiff demanded satisfaction of the judgment, with interest to date. Defendants refused, asserting that the tendered check dated December 28, 1988, served to stop the further accrual of interest on the judgement.

Plaintiff then moved for summary judgment on the issue of whether the December 28, 1988, check, sent to plaintiffs counsel by defendants’ insurance carrier, constituted a valid tender in satisfaction of the judgment debt.

On January 3, 1991, the trial court entered an order granting plaintiff’s motion for summary judgment. The court found that the check dated December 28, 1988, was an invalid tender because it was a conditional tender including the names of payees in addition to the judgment creditor, and that plaintiff is entitled to interest accruing by the statutory amount until satisfaction of the judgement.

The sole issue on appeal is whether the tender made by defendants on December 28, 1988, stopped the accrual of interest on the judgment. For the following reasons, we reverse the decision of the trial court.

Under section 2—1303 of the Code of Civil Procedure, “[¡judgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1303.) Interest continues to accrue even when an appeal is pending. (In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 494 N.E.2d 541.) Section 2—1303 does, however, provide a means for a judgment debtor to stop further accrual of interest. The provision provides:

“The judgment debtor may by tender of payment of judgment, costs and interest accrued to the date of tender, stop the further accrual of interest on such judgment notwithstanding the prosecution of an appeal, or other steps to reverse, vacate or modify the judgment.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1303.)

Defendants claim that they stopped the accrual of interest on the judgment in accordance with section 2—1303 when they tendered the check for $84,005.17 to plaintiff on December 28, 1988. Plaintiff, in turn, contends that the accrual of interest on the judgment was not stopped in 1988 since the check proffered by defendants “was not a certified check and contained payees names who are not judgment creditors” and thus did not constitute a valid tender.

We initially note that there is no merit to plaintiff’s contention that defendants’ tender was invalid because it was not made by certified check. Neither the relevant tender statute (Ill. Rev. Stat. 1989, ch. 110, par. 2—1303) nor the case law applying the tender statute imposes the requirement that the tender be made by certified check.

The trial court reached its decision that defendants’ tender was invalid based solely on the fact that defendants listed as payees on the December 28, 1988, check (in addition to plaintiff and his attorneys) the American Ambassador Casualty Company and the Benefit Trust Life Insurance Company, thereby improperly making the tender conditional. According to the doctrine of subrogation, if the tortfeasor or his insurance carrier had knowledge of the insurersubrogees’s interest prior to tender, but the tender does not include an amount designated as covering the insurer’s subrogation interest, the insurer-subrogee may bring a subrogation action against the tortfeasor or his insurance carrier. (Home Insurance Co. v. Hertz Corp. (1978), 71 Ill. 2d 210, 375 N.E.2d 115.) Therefore, if defendants’ insurance carrier did in fact have notice that both American Ambassador and Benefit Trust Life were subrogated to the rights of plaintiff, naming these parties as payees would have been a proper procedure to protect defendants and their insurance carrier from claims by unreimbursed lien holders. While defendants claim to have received notice of American Ambassador and Benefit Trust Life’s subrogation rights, the record is devoid of any document proving the receipt of such notice.

Despite this fact, we still conclude that defendants’ tender on December 28, 1988, stopped the accrual of interest on the judgment. Our decision is based on the fact that at the time of tender, plaintiff never objected to the form of tender. When plaintiff refused to accept the tender, he stated only that “the outcome of [the] appeal will have to be realized before a proper tender of the satisfaction funds can be considered.” It is clear that plaintiff would have rejected defendants’ tender regardless of whether or not the lien holders were included as payees. The tender was rejected solely because plaintiff hoped to get a more favorable result on appeal. Plaintiff now objects to the form of tender. However, if no specific objection to the form or contents of the tender is made at the time of tender, the objection is waived. (Gravelot v. Skender (1956), 9 Ill. 2d 15, 135 N.E.2d 756; Ricke v. Ricke (1980), 83 Ill. App. 3d 1115, 405 N.E.2d 351; Loveless v. Loveless (1972), 3 Ill. App. 3d 967, 279 N.E.2d 531.) In failing to specifically list his objection to the tender at the time of tender, plaintiff denied defendants the opportunity to cure the deficiency. (Thompson v. Crains (1920), 294 Ill. 270, 128 N.E. 508; Gradle v. Warner (1892), 140 Ill. 123, 29 N.E. 1118.) We therefore find that plaintiff’s failure to make a timely objection to the inclusion of the lien holders prevents plaintiff from now raising that objection.

Accordingly, we reverse the order of the trial court granting summary judgment in favor of plaintiff, and we find that the interest accrual on plaintiff’s judgment terminated December 28, 1988, and that the sum of $84,005.17 constitutes full and complete satisfaction of the judgment entered against defendant.

Reversed.

LORENZ and GORDON, JJ., concur.


author: PRESIDING JUSTICE EGAN

text:
    CONTINENTAL CABLEVISION OF COOK COUNTY, INC., Plaintiff-Appellee and Counterdefendant, v. SIDNEY MILLER et al., Defendants-Appellants (Triumvera Homeowners’ Association et al., Counterplaintiffs-Appellants).
    First District (6th Division)
    Nos. 1—91—1873, 1—91—2158 cons.
    Opinion filed November 30, 1992.
    Rehearing denied December 31,1992.

      Marshall N. Dickler, Ltd., of Arlington Heights (Marshall N. Dickler, Michael R. Ek, and Jeffrey A. Goldberg, of counsel), for appellants.

      Richard J. Prendergast, Ltd., of Chicago (Richard J. Prendergast, James Prendergast, Joseph E. Tighe, and Ellen M. Murphy, of counsel), for appellee.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendants are Triumvera Homeowners’ Association (Triumvera), a development located in unincorporated Cook County near Glenview, Illinois, which comprises the other defendants, nine different condominium associations, and Sidney Miller, the president of Triumvera. The plaintiff is Continental Cablevision of Cook County, Inc. (Continental), a cable television system operating pursuant to a franchise granted by the Cook County Board. The defendants appeal from an order granting Continental’s motion for a preliminary injunction which in part enjoined the defendants from interfering with the servicing of Continental’s existing Triumvera residents and an order which conditionally approved a plan to install cable television for one Triumvera resident.

Truimvera has 538 residential units and includes townhouses, mid-rise apartment buildings and a tower building. Triumvera owns and maintains the common areas of the development; the individual condominium associations are responsible for the common areas located within their respective buildings.

Continental entered into negotiations with Triumvera to provide cable television service at a discount bulk rate. Continental and Triumvera failed to reach an agreement on the bulk rate for cable services. The parties did, however, reach an agreement whereby Continental was allowed to enter onto the common areas of the property, install a cable television system and maintain its equipment and services. In accordance with this agreement, in November 1988, Continental representatives met with Triumvera representatives and plotted the underground cable runs through the common areas of the development. The underground cable work was completed in April 1989. According to the Sidney Miller, Triumvera’s president, the association terminated this agreement in a letter sent June 5, 1989, for alleged nonperformance on the part of Continental.

After the agreement was terminated, the parties continued to negotiate over terms, price, and internal wiring of the system; they could not reach an agreement. On November 16, 1990, Miller sent a letter to Continental demanding that Continental remove all of its equipment from the development. A Continental employee testified that he was supervising the installation of cable services when he was asked to leave the Triumvera development sometime in November 1989.

The defendants also took other actions to discourage residents from continuing to receive or order Continental’s cable services. The Triumvera board notified certain residents by letter that they must have all their cable equipment removed from their units until Continental was granted a license. The defendants threatened these residents with legal action if they did not comply with the development’s instruction. The defendants also copied Continental’s marketing materials, stamped them with the phrase “Disregard this Notice” and distributed the materials to all unit owners.

On December 5, 1990, Continental filed a three-count complaint, seeking a declaratory judgment, a temporary restraining order, and preliminary and permanent injunctive relief, barring the defendants from interfering with Continental’s servicing of Triumvera residents who wanted cable television. The complaint also sought to bar the defendants from interfering with Continental’s construction of a cable television system at the development. Another count of the complaint sought damages in excess of $15,000.

On December 7, 1990, Continental filed a motion for a temporary restraining order. «A hearing was held on December 12, 1990, and Judge Robert Sklodowski denied Continental’s motion for a temporary restraining order; he held that such an order sought to modify the status quo and obtain mandatory relief; however, he also said that Continental could have access to the development property to service its existing customers and equipment.

Continental filed a second motion for a temporary restraining order on December 21, 1990, alleging that its employees were ordered to vacate the Triumvera property when they were servicing existing customers, despite Judge Sklodowski’s order and that the defendants had threatened legal action to a resident if she continued to receive cable service from Continental. Judge Edward Hofert, who took over the case after Judge Sklodowski resigned from the bench, denied Continental’s request for a temporary restraining order; he said that the harm suffered by Continental at that point was minimal considering all of the surrounding circumstances.

On January 3, 1991, Triumvera and the condominium associations filed a counterclaim seeking injunctive relief prohibiting further entry on the common areas of the development by Continental. The counterclaim also sought a declaratory judgment that Continental breached its agreement and that the cable access statute (Ill. Rev. Stat. 1989, ch. 34, pars. 5—1095, 5—1096) is unconstitutional.

On January 8, 1991, Judge Hofert heard arguments on whether the individual unit owners had to be joined as necessary parties. He determined that the owner of a unit which needs to be accessed for installation of cable services is a necessary party and must be joined. He also determined that all of the unit owners were to receive notice of the proposed plan of installation and be invited to join the proceedings.

On February 25, 1991, the judge began to hear testimony on Continental’s motion for a preliminary injunction. During this hearing Paul Carson, a Continental employee in its commercial development department, testified that about 13 Triumvera residents were interested in receiving cable television service. Carson also testified that the company had sent out interest surveys and received written requests for service, but that most of the requests for service came by phone.

Continental’s plant manager, Steve Fedeczko, detailed Continental’s proposed plan of installation of a cable television system at the development. Fedeczko stated that he was responsible for all aspects of design of the cable systems for Continental.

Continental’s plan of installation included attaching plastic troughs or moldings to some of the condominium buildings. Cable would be run inside the troughs. When an individual owner requested service, a hole would be drilled through the outer wall of the unit, and a cable would be run from the owner’s unit to the cable in the trough. In some buildings, cable would be run in the basement and attached to the walls or the ceilings of the basement. On cross-examination, Fedeczko testified that the implementation of this plan was not necessary for Continental to continue service to its existing customers, but some of this installation would be necessary when a nonsubscribing Triumvera resident requested cable.

No testimony on Continental’s motion for a preliminary injunction was heard between February 26 and April 16. During the interim, Continental filed its third motion for a temporary restraining order. On April 5,1991, the judge denied Continental’s motion.

On May 6, 1991, the hearing on the motion for a preliminary injunction resumed. Bruno Aiello, a Triumvera resident, testified he wanted to receive cable television. He had received and completed an interest survey sent out by Continental. Also admitted into evidence were certain surveys sent out by Continental and completed by residents which showed that these people were interested in receiving cable television service.

On May 22, 1991, the trial judge issued a preliminary injunction enjoining the defendants from interfering with Continental’s servicing of its existing customers and equipment or with Continental’s marketing or promotional activities. The judge found that Continental had a protectable interest in providing cable service to requesting customers by virtue of the cable access statute and the franchising agreement. The judge also held that under the cable access statute the residents of the development were entitled to receive cable service from Continental.

The judge denied Continental’s request to implement the installation plan proposed at the preliminary injunction hearing. He said that Continental’s plan was excessive and did not bear any relationship to the needs of the 1 to 14 people who had expressed interest in receiving cable services.

The judge did enjoin the defendants from interfering with Continental’s installation of cable services for Aiello. The judge ruled that for future installation Continental was required to give seven days’ notice before any installation; the notice had to detail who requested the cable service and the date of the installation. The judge retained jurisdiction to insure that the parties agreed upon an equitable plan of installation.

On July 5, 1991, over the defendants’ objection, the judge entered a second order conditionally approving an installation plan to install cable television for a second Triumvera resident, Roy Beaty, who had requested cable service. As a condition of installation, Continental was to post a $5,000 bond to insure that the defendants received just compensation and to protect against potential damage caused by the installation. The order also required Continental to give the defendants two days’ notice before installation and to indicate the proposed location of installation, giving the defendants an opportunity to determine whether the installation would disrupt the building. Subsequent to the filing of this appeal, the defendants have purchased a satellite television system.

The defendants have assigned several grounds for reversal of the judge’s orders. We will first discuss the defendants’ claim that the judge erred in conducting a hearing before passing on the defendants’ motion to dismiss the complaint brought under section 2—619 of the Code of Civil Procedure. Ill. Rev. Stat. 1989, ch. 110, par. 2—619.

The defendants’ motion to dismiss is not in the record, but we have read the plaintiff’s response to the motion and the defendants’ reply. It is apparent that the defendants’ motion to dismiss raised all the arguments which the defendants raised at the hearing and have raised in this court. The trial judge passed on all the arguments raised, except the constitutionality of the cable access statute. He deferred from passing on the constitutional question on the basis of Lake Louise Improvement Association v. Multimedia Cablevision of Oak Lawn, Inc. (1987), 157 Ill. App. 3d 713, 510 N.E.2d 982, which both parties here apparently accept as authority for the proposition that the constitutionality of a statute may never be decided on a motion for a preliminary injunction. We do not accept so broad a proposition, and we do not believe that the Lake Louise opinion supports it. The court simply said that “[a]s a general rule, an attack on the constitutionality of a statute should not be resolved upon application of a temporary injunction.” (157 Ill. App. 3d at 717.) The court reversed a finding of the trial judge that the act was unconstitutional, not on the merits, but because the judge’s ruling might have been unnecessary. The effect of Lake Louise, however, is academic because we have determined that the cable access statute is constitutional. That being so, the fact that the judge passed on all the other arguments raised by the defendants in their motion to dismiss leads to the conclusion that no prejudice inured to the defendants when the case proceeded to a hearing without a ruling on their motion to dismiss. Consequently, any claim of error on this point is rejected.

We agree that the judge did not abuse his discretion by abstaining from passing on the constitutional question, and we agree with the plaintiff that we would be justified in refraining from passing on the question as well. However, the question has been raised by the defendants, at least in the supplemental brief, and we will address it for the sake of finality. The cable access statute provides that where a county grants a franchise to a television company to construct, operate or maintain a cable television system within a designated franchise area, no property owner may forbid or prevent any occupant of any building from receiving cable television service from the television company. Ill. Rev. Stat. 1989, ch. 34, par. 5—1096.

Where a cable franchisee intends to install cable facilities, it must send notice of its intention to the property owner. The notice “shall include the address of the property, the name of the cable television franchisee, and information as to the time within which the owner may give notice, demand payment as just compensation and initiate legal proceedings.” Ill. Rev. Stat. 1989, ch. 34, par. 5—1096(c).

The statute sets forth the procedures available to the property owner, including trial by jury, through which the property owner may obtain just compensation for the “taking of property.” Ill. Rev. Stat. 1989, ch. 34, pars. 5-1096(c), (d).

The statute expressly forbids a property owner seeking compensation, including a condominium association, from delaying the right of the cable franchisee to construct or install cable television facilities even while the property owner is pursuing any legal claims. Ill. Rev. Stat. 1989, ch. 34, par. 5—1096(e).

It would serve no purpose to repeat and answer all the arguments advanced by the defendants in their claim that the statute is unconstitutional. All those arguments were raised and rejected by the Fourth District Appellate Court in Times Mirror Cable Television of Springfield, Inc. v. First National Bank (1991), 221 Ill. App. 3d 340, 582 N.E.2d 216, which upheld the constitutionality of the cable access statute. We agree with the reasoning of the Fourth District Appellate Court and its holding. We note that, although the First District Appellate Court in Lake Louise declined to reach the constitutional issue, it commented unfavorably on the trial judge’s decision that the statute was unconstitutional. In particular, the Lake Louise court stated that the Illinois Constitution does not “preclude the prior taking of private property for a public use when provisions for just compensation for the property and damages assure the landowner that he will receive just compensation.” Lake Louise, 157 Ill. App. 3d at 717, citing Department of Public Works & Buildings v. Butler Co. (1958), 13 Ill. 2d 537, 150 N.E.2d 124.

The defendants filed a supplemental brief, citing two cases from other jurisdictions in support of their claim that the statute is unconstitutional. (City of Lansing v. Edward Rose Realty, Inc. (1992), 192 Mich. App. 551, 481 N.W.2d 795; Cable Holdings of Georgia, Inc. v. McNeil Real Estate Fund VI, Ltd. (11th Cir. 1992), 953 F.2d 600.) Neither case is persuasive here. In City of Lansing the Michigan Appellate Court, applying a two-part test established by Michigan courts, determined that the owner’s land was taken for a private purpose. Both Times Mirror and the dicta in Lake Louise are contrary to the holding of City of Lansing. In Cable Holdings, the Eleventh Circuit Court of Appeals addressed the interpretation of a section of the Cable Communications Policy Act, 47 U.S.C. §521 et seq. (1988), which allowed access by cable companies to easements on private property where the owner of the property dedicated the easement to the general use of utilities. The court of appeals’ holding was based on the district court’s misinterpretation of the statute involved, not the unconstitutionality of the statute. Moreover, the court of appeals stated that the district court’s interpretation would render the statute unconstitutional because the interpretation would permit permanent physical occupation of the owner’s property without just compensation.

The defendants also argue that the judge’s interpretation of the statute was in conflict with section 14.3 of the Condominium Property Act (Ill. Rev. Stat. 1989, ch. 30, par. 314.3), which provides that a 50% vote of the condominium unit owners may authorize the grant of an easement for the purpose of laying television cable. The defendants insist that section 14.3 is actually a threshold requirement to the cable access statute; only after this 50% threshold has been met, may an individual unit owner request cable television service. We disagree with the defendants’ argument.

First, the just compensation provision in the cable access statute would be rendered meaningless by the defendants’ reading. If the easement statute were actually a threshold requirement, an easement would be granted when this 50% requirement was satisfied by the condominium association. As such, no taking could occur because the easement would have already been voluntarily conveyed to the cable franchisee. Moreover, there would be no need to determine just compensation because no taking had occurred. While the defendant conténds that section 14.3 would be rendered meaningless if this threshold interpretation is not followed, it is actually the cable access statute, which expressly includes condominium associations, which would be rendered meaningless if the defendants’ interpretation were followed.

Second,-the purpose of section 14.3 is to cure a potential title defect which occurs when a condominium association attempts to grant an easement. (See Ill. Ann. Stat., ch. 30, par. 314.3, Historical & Practice Notes, at 205 (Smith-Hurd Supp. 1991).) As the common elements of a condominium are owned in common by all the members of a condominium, an agreement of all the unit owners would be necessary for an easement to be granted to a cable television franchise. As the Historical and Practice Notes indicate, the statute allows the granting of an easement in this particular situation because obtaining an easement in the condominium situation would be “virtually impossible” as 100% approval would be needed, “a next to impossible task.” Ill. Ann. Stat., ch. 30, par. 314.3, Historical & Practice Notes, at 205 (Smith-Hurd Supp. 1991).

The defendants contend that two situations demonstrate that the cable access statute renders the easement statute meaningless. First, they question why an association would go through the trouble of gaining 50% of the vote when one party can merely request cable. Second, the defendants argue that a failed vote could be negated by a single owner requesting cable. The defendants’ argument ignores the difference between a compensable taking and an easement. The end result of the two statutes is the same in that cable service is installed on the property. The difference, however, is the process.

Under the cable access statute the property is taken, used for the purposes enumerated in the statute and just compensation paid; it is irrelevant whether the condominium association opposes this. Under the easement statute, the precise conveyance and amount of consideration can be negotiated. The easement could be broader than the purposes enumerated in the statute; the easement could allow the condominium association to shape the conditions of the easement. Moreover, the easement statute would allow a condominium to grant a cable television service an easement without having to deal with the adversarial problems inherent in the cable access statute.

The interpretation offered by Continental is reasonable. Under this interpretation, the easement statute is discretionary and the condominium association could decide whether or not to grant the easement. Accordingly, the two statutes serve two different purposes and interest groups. The cable access statute insures access to cable television for all residents; the easement statute cures the potential title defect problem inherent in the granting of an easement by a condominium.

The defendants next contend that the trial judge’s ruling allowed Continental to execute a taking of property. Citing Department of Public Works & Buildings v. Ryan (1934), 357 Ill. 150, 191 N.E.2d 259, the defendants contend that the right of eminent domain can be exercised by a corporation or a department of government only upon a specific grant of the legislature and that section 5—1096 is not a specific grant of such a right. This arguiAent was rejected in Times Mirror. The court noted that the statute “implicitly recognizes cable installation involves a taking.” (Times Mirror, 221 Ill. App. 3d at 344.) The court further noted that the Illinois Constitution does not require that every taking be accomplished through eminent domain proceedings, only that just compensation be provided. 221 Ill. App. 3d at 349.

The defendants next argue that in order to exercise the power of eminent domain, Continental must have submitted a written request to Cook County so that Cook County could exercise its powers of eminent domain in order to effect a taking under section 5—1095 of the statute. That section provides in part:

“The County Board may, upon written request by the franchisee ***, exercise its rights of eminent domain solely for the purpose of granting an easement *** from any lot line for the purpose of extending cable across any parcel of property in the manner provided for by the law of eminent domain.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 34, par. 5—1095.

We make the same response to this argument that we made to the defendants’ argument that the Condominium Property Act provided a threshold requirement to the cable access statute. A reading of section 5 — 1095(c) advanced by the defendants would make many of the provisions contained in section 5 — 1096 potentially inapplicable. The just compensation provisions would not be necessary because compensation is provided for in eminent domain proceedings. Notice provisions would be irrelevant when the power granted under section 5— 1095(c) was exercised; no notice would be required. A more reasonable reading of section 5 — 1095 indicates that the provision applies to easements across parcels of property owned by noncable subscribers. To require the type of written request described in section 5 — 1095(c) and a full eminent domain hearing upon every application by a condominium resident would be unreasonable.

The defendants also maintain that the trial judge allowed an improper “Quick-Take” as defined in section 7—103 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 7—103.) Section 7—103 provides for the procedure to be followed by specifically identified public bodies to take property in an eminent domain proceeding before just compensation is finally determined. Cable companies are not named in section 7—103. The defendants seem to argue that because the legislature did not amend section 7—103 to include cable companies, the judge exceeded his authority by granting a “Quick-Take” to the plaintiff by an injunction order. We would agree with the defendants if the cable access statute did not exist.

In Times Mirror, the property owner compared the cable access statute to section 7 — 103 and argued that the cable access statute did not adequately protect the land owner’s rights because it required no judicial intervention and allowed the franchisee to proceed with cable installation even while just compensation was being disputed. The court rejected the argument because “the statute adequately protects the owner’s rightfs] [of] just compensation as it allows the owner to sue the franchisee if the parties are unable to agree on what constitutes just compensation.” Times Mirror, 221 Ill. App. 3d at 340.

We turn to the defendants’ claim that the plaintiff failed to establish the necessary elements to support a preliminary injunction. To obtain a preliminary injunction a party must show the following: (1) a clearly ascertainable right which needs protection; (2) that the party would suffer irreparable injury without the protection of the injunction; (3) the absence of an adequate remedy at law; and (4) a likelihood of success on the merits. (American Telephone & Telegraph Co. v. Village of Arlington Heights (1988), 174 Ill. App. 3d 381, 387, 528 N.E.2d 1000.) The party seeking the injunction bears the burden of proving these elements by a preponderance of the evidence. In re Marriage of Weber (1989), 182 Ill. App. 3d 212, 218-19, 537 N.E.2d 1024.

The granting of injunctive relief is within the discretion of the trial judge. (Regional Transportation Authority v. Burlington Northern, Inc. (1981), 100 Ill. App. 3d 779, 784, 426 N.E.2d 1143.) The reviewing court must restrict itself to a determination of whether the trial judge correctly exercised its broad discretionary powers. (Wessel Co. v. Busa (1975), 28 Ill. App. 3d 686, 690, 329 N.E.2d 414.) The test for determining whether an abuse of this discretion is present is whether the judge’s decision is against the manifest weight of the evidence. Jefco Laboratories, Inc. v. Carroo (1985), 136 Ill. App. 3d 793, 483 N.E.2d 999.

The standard for establishing a sufficient legal right is not difficult. The party seeking relief need only raise a fair question as to the existence of the right claimed. (Weber, 182 Ill. App. 3d at 219.) The right to conduct a business may be sufficient to warrant the issuance of an injunction. Morrison Metalweld Process Corp. v. Valent (1981), 97 Ill. App. 3d 373, 422 N.E.2d 1034.

The defendants’ argument that the plaintiff failed to establish a clearly ascertainable right is that the evidence was insufficient to show that the requirements of the statute had been met. We disagree. The statute provides that a request from a single tenant is sufficient to give the franchisee the right to access. The last paragraph of sub-paragraph (a) is phrased in the singular—if an occupant requests service. (Ill. Rev. Stat. 1989, ch. 34, par. 5—1096 (a).) The defendants implicitly concede that proof that one occupant requests service triggers the application of the statute. The defendants do not reasonably consider the testimony of Aiello or the request for service by Ray Beaty. Aiello and Beaty are obviously interested in receiving cable services, and as the duly franchised cable service, Continental has a right to install and maintain their service. We are not persuaded by the defendants’ attempt to denigrate Aiello’s testimony because he expressed an interest in cable service after the lawsuit was filed and because his response at trial was allegedly elicited by a leading question by the judge.

The defendants next contend that the judge abused his discretion in issuing the preliminary injunction because the plaintiff did not suffer an irreparable injury and that if any injury was suffered, Continental has an adequate remedy at law.

To show irreparable injury, the moving party “need not show injury that is beyond repair or compensation in damages, but rather, need only show transgressions of a continuing nature.” (Greenspan v. Mesirow (1985), 138 Ill. App. 3d 294, 300, 485 N.E.2d 1196.) In this case, the efforts by the defendants to deny Continental access were a continuing transgression. Without the injunctive relief granted by the trial court, Continental would still be suffering the same injury.

A remedy at law is adequate if it is “ ‘clear, complete, and as practical and efficient to the ends of justice and its prompt administration as the equitable remedy.’ ” American Telephone & Telegraph Co. v. Village of Arlington Heights (1988), 174 Ill. App. 3d 381, 388, 528 N.E.2d 1000, quoting K.F.K. Corp. v. American Continental Homes, Inc. (1975), 31 Ill. App. 3d 1017, 1021, 335 N.E.2d 156.

It is difficult to determine the extent of the injury or loss suffered by Continental. The nature of the cable television business, which relies heavily on a service component, coupled with the fact that Continental is basically attempting to enter a new area, would make damage calculations extremely difficult. Moreover, even if Continental’s immediate loss could be ascertained, the potential loss of future business is generally incapable of adequate compensation and would require a. finding that no adequate remedy of law exists. Eagle Books, Inc. v. Jones (1985), 130 Ill. App. 3d 407, 411, 474 N.E.2d 444.

The defendants cite several cases where injunctive relief was denied because monetary damages were available. These cases primarily involved the payment of rent and overtime compensation where monetary damages can be easily calculable. Even if Continental’s ultimate relief were in the form of monetary damages, injunctive relief is not necessarily improper. (K.F.K. Corp. v. American Continental Homes, Inc. (1975), 31 Ill. App. 3d 1017, 1021, 335 N.E.2d 156.) That Continental’s complaint also seeks monetary damages does not foreclose injunctive relief.

The defendants rely most heavily on the case of Best Coin-Op, Inc. v. Old Willow Falls Condominium Association (1983), 120 Ill. App. 3d 830, 458 N.E.2d 998, where the court determined that money damages provided an adequate remedy at law. Best Coin, however, which was an affirmance of a denial of injunctive relief, dealt with a breach of contract claim. The only potential uncertainty was the loss of potential profits. The court concluded that these profits could be ascertained with reasonable certainty because the concern in question, a laundry, was being operated by one of the parties and that the losses could be easily calculated by reference to that party’s gross receipts.

The defendants’ claim that the plaintiff has failed to prove a likelihood of success on the merits is based on the same ground as their claim that the plaintiff failed to prove a clearly ascertainable right: insufficiency of the evidence to establish that one resident had requested service. We reject this argument for the same reason we previously advanced.

We conclude that the plaintiff has sufficiently established the elements necessary to sustain the issuance of a preliminary injunction.

The defendants’ last claim is that the preliminary injunction was improper because it allegedly granted mandatory relief, determined controverted rights and granted the ultimate relief requested.

The determination of whether an injunction is mandatory or prohibitory should be determined by the effect the injunction has on the parties involved. (42 Am. Jur. 2d Injunctions §17 (1969).) In determining whether an injunction is mandatory or prohibitory, “it is necessary to consider what will have to be done in order to comply with it.” An injunction is considered prohibitory when “the thing complained of results from present and continuing affirmative acts, and the injunction merely orders the defendant from doing those acts.” (42 Am. Jur. 2d Injunctions §17 (1969).) Simply put, a mandatory injunction is one which commands the performance of a positive act. John Deere Co. v. Hinrichs (1962), 36 Ill. App. 2d 255, 183 N.E.2d 309.

We judge that the defendants are not required to perform any act and neither is Continental. Continental gets a preliminary right of access; the defendants are enjoined from interfering with that right. Neither party is required to perform any action under the court’s order, and as such, the injunction should not be considered mandatory. The defendants have actively interfered with Continental’s right of access; therefore, an injunction enjoining such action should be considered prohibitory.

The defendants also contend that the injunction was improper because it allegedly altered the status quo between the parties. As the defendants note, the purpose of a preliminary injunction is to provide relief to the injured party and preserve the status quo until the trial on the merits is held. In American Telephone & Telegraph Co. v. Village of Arlington Heights (1988), 174 Ill. App. 3d 381, 528 N.E.2d 1000, the plaintiff telephone company filed an action seeking injunctive relief when the defendant halted the plaintiff’s installation of cable under the defendant’s street. The plaintiff had complied with the public utilities statute in question by sending the defendant the requisite notice. The trial judge issued a preliminary injunction allowing the defendant to continue its installation.

The court affirmed the issuance of part of the injunction with this observation:

“Illinois courts have consistently defined the status quo as ‘the last actual, peaceful, non-contested status which preceded the pending controversy.’ [Citations.] Although the general practice is to preserve the status quo by keeping all actions at rest, ‘it sometimes happens that the status quo is a condition not of rest, but of action, and the condition of rest is exactly what will inflict the irreparable injury on the complainant.’ [Citation.] Here, plaintiffs were legally engaging in the installation of their cable system when defendants put a stop to any further construction.” (174 Ill. App. 3d at 387-88.)

Similarly, in the case before us, the plaintiff was operating under a valid statute before the defendants interfered with its operation. The status quo was a condition of action and was preserved by the issuance of the preliminary injunction.

We disagree that the judge granted the ultimate relief requested by Continental. The judge’s order provides certain restrictions which show that the preliminary injunction did not grant the ultimate relief. First, Continental was required to post bond which is not required under the statute. The bond gives the defendants greater protection than the cable access statute because it apparently provides insurance against damage caused, regardless of whether the defendants claim just compensation. Second, Continental must have a hearing and propose a plan of installation for a single customer hookup. Under the statute, Continental is not required to provide as stringent a notice as was required under the judge’s order. The imposition of the bond, hearing, and additional notice requirements evidence more restrictive relief than the ultimate relief Continental seeks under the statute. In addition, the plan that was approved by the judge was more restrictive than the plan submitted by the plaintiff.

To the defendants’ claim that the judge erred in deciding controverted rights we have a brief answer: The judge decided the controverted rights because the defendants asked him to. The judge had before him the relatively simple issue of whether the plaintiff had established rights under the cable access statute, which expressly grants authority to a cable franchisee to install cable and maintain television service even while legal action to enforce the franchisee’s claim is pending. It was the defendants who raised several arguments against the plaintiff, all of which the judge decided against the defendants. The defendants should not now be heard to complain. Their complaint really is not that the judge decided controverted rights; their complaint is that he decided the issue of controverted rights against the defendants.

For all these reasons, we conclude that the judge did not abuse his discretion by the issuance of the temporary injunction and approval of the plan to install cable to Beaty. The judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and RAKOWSKI, JJ., concur.

       We are also unable to find any answer to the plaintiff’s complaint or an answer to the petition for preliminary injunction in the record.


author: JUSTICE MANNING

text:
    FOAMCRAFT, INC., Plaintiff-Appellant, v. FIRST STATE INSURANCE COMPANY, Defendant-Appellee.
    First District (1st Division)
    No. 1—90—2305
    Opinion filed November 23, 1992.

      Law Offices of Michael J. Rovell, of Chicago (Michael J. Rovell, Lisa I. Fair, and Matthew N. Young, of counsel), for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Frank L. Schneider, Marta A. Stein, and Susan Condon, of counsel), for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

This is an appeal by plaintiff Foamcraft Corporation from an order of the court granting defendant First State Insurance Company’s motion to dismiss and denying plaintiff’s motion to amend its complaint.

In October 1986 plaintiff procured an all-risks property insurance policy from defendant. The initial policy was issued from October 1, 1987, through October 1, 1988, to cover plaintiff’s property located on Van Burén Street in Chicago, Illinois. The policy contained a clause which barred any suit brought under the policy if such suit was brought more than 12 months after discovery of an occurrence giving rise to a claim.

On April 8, 1988, plaintiff reported a loss to defendant for damage to its premises allegedly sustained by a windstorm that occurred April 6, 1988. The claim was referred to the Alper Agency and a representative began discussion of the coinsurance provision of the policy with Matthew Greene, an adjuster for defendant. No other issues related to the policy were discussed. Greene inspected the premises with Paul Gordon, a structural engineer. Based on his investigation, Greene concluded that the damage was due to structural deterioration called ‘ ‘rust jacking. ’ ’

Defendant sent a letter to plaintiff dated July 18, 1988, denying its claim. Plaintiff then retained George A. Kennedy & Associates, an engineering firm, to examine plaintiff’s premises. Kennedy determined that the damage to plaintiff’s premises was the result of wind damage and provided a report of these findings to defendant. In light of this evidence, on September 15, 1988, plaintiff sent a letter requesting that defendant reconsider its decision denying plaintiff’s claim. On December 20, 1988, defendant denied plaintiff’s claim a second time.

On December 1, 1989, plaintiff filed a complaint against defendant for breach of contract. Defendant filed a motion to dismiss the complaint pursuant to section 2 — 619(aX5) of the Code of Civil Procedure. Defendant asserted that under the limitations clause of the policy, plaintiff was barred from bringing the suit. Plaintiff argued that defendant could not rely on the limitations clause because: (1) its denial of the claim was an “anticipatory repudiation” of the policy, and (2) defendant had a duty to inform plaintiff in writing of the suit limitations provision and the date the period expired. Plaintiff also argued that defendant initially indicated it would pay defendant’s claim, that the denial of coverage was “gross and willful,” and that the limitations clause was inconspicuous. The trial court granted defendant’s motion to dismiss the complaint with prejudice.

Plaintiff then filed a motion to reconsider and for leave to amend its complaint. The amended complaint did not include additional facts other than those contained in the motion to dismiss. The court denied that motion.

Plaintiff argues on appeal that the trial court erred in granting defendant’s motion to dismiss and denying its motion to amend the complaint. Specifically, plaintiff asserts that it attempted to amend its complaint to show bad faith and that defendant should be estopped from asserting the limitations provision of the policy.

If the terms of an insurance policy are clear and unambiguous, the words of the policy will be given their plain meaning. (Giardino v. American Family Insurance (1987), 164 Ill. App. 3d 389, 517 N.E.2d 1187.) The insured cannot blame the insurance company for its failure to read the policy to discover the requirements for bringing suit. It is not the duty of the insurer to inform the insured of his duties. (Schoonover v. American Family Insurance Co. (1991), 214 Ill. App. 3d 33, 572 N.E.2d 1258.) Compliance with the contractual limitations provisions is a condition precedent to recovery under a policy of insurance. (McMahon v. Millers National Insurance Co. (1971), 131 Ill. App. 2d 339, 341, 266 N.E.2d 714.) A breach of the one-year limitations provision precludes the insured’s recovery under the policy and renders his suit subject to dismissal. Schoonover v. American Family Insurance Co. (1991), 214 Ill. App. 3d 33, 572 N.E.2d 1258.

Here, plaintiff did not file suit until December 1, 1989, eight months after the limitations period had lapsed, and almost one year after the claim was denied a second time. Defendant moved for dismissal of plaintiff’s complaint under section 2 — 619(a)(5), asserting that plaintiff’s claim was barred by its failure to bring suit within the applicable limitations period. The policy that plaintiff had with defendant specifically stated:

“No suit, action or proceeding for the recovery of any claim under this policy shall be sustainable in any court of law or equity unless the same shall be commenced within twelve (12) months next after discovery by the insured of the occurrence which gives rise to the claim, provided however, that if by the laws of the State within which this policy is issued such limitation is invalid, then any such claims shall be void unless such action, suit or proceeding be commenced within the shortest limit of time permitted by the laws of the State.”

The decision to grant a motion to dismiss is in the sound discretion of the trial court. (Keller v. State Farm Insurance Co. (1989), 180 Ill. App. 3d 539, 546, 536 N.E.2d 194.) The court’s decision will not be reversed on appeal absent an abuse of discretion. In this case, it is clear from the language in the policy that the condition precedent for recovery on any claim is that the claim must be filed within one year of the occurrence. The record reveals that the occurrence for which plaintiff sought recovery occurred on April 6, 1988. Plaintiff filed its claim with defendant on April 8, 1988, which claim was denied on July 18, 1988. Plaintiff filed the claim a second time on September 15, 1988, and that claim was again denied by defendant on December 20, 1988. We find that these denials placed plaintiff on notice that the claim would not be paid. Plaintiff at that point could have taken action to preserve its rights under the policy by filing suit. Therefore, we find that the court did not abuse its discretion in granting defendant’s motion to dismiss.

We find unpersuasive plaintiff’s argument that defendant should be estopped from raising the limitations provision of the policy. Plaintiff contends that defendant acted in bad faith by calculating the coinsurance penalty for 10 weeks, then failing to indicate that the loss would not be covered, and by burying the limitations clause of the policy in fine print. Plaintiff maintains that under these circumstances, the court should have allowed it to amend the complaint to plead estoppel and anticipatory breach of contract.

Cases in which an insurer’s conduct is found to amount to estoppel typically involve a concession of liability by the insurer, advance payments by the insurer to the plaintiff in contemplation of eventual settlement, and statements by the insurer which encourage the plaintiff to delay filing his action. (Myers v. Centralia Cartage Co. (1981), 94 Ill. App. 3d 1139, 1143, 419 N.E.2d 465.) Plaintiff has offered no evidence of either of the above criteria. Instead, plaintiff summarily concludes that defendant anticipatorily breached the contract by negotiating in bad faith. The record is quite clear that there were no negotiations as to liability. The only discussion between plaintiff and defendant dealt -with the calculation of the coinsurance penalty under the policy. There are no facts in the record to support an assertion that defendant represented that it would settle the claim, that defendant offered advance payment, or encouraged plaintiff not to sue. In fact, after the second denial of the claim, plaintiff had every reason to believe that defendant would not settle. At that time, plaintiff had four months remaining within which it could have filed a timely suit, but did not do so.

Moreover, the evidence in the record shows that plaintiff’s amended motion did not set forth additional facts that were not before the court at the time of the original motion to dismiss. Plaintiff itself conceded:

“We were before the court on May 22nd on defendant’s motion to dismiss the complaint of plaintiff.
* * *
Some of the arguments were not contained within the complaint; namely we argued an estoppel argument. We also argued anticipatory breach. We made those arguments to the court. The court listened to them and rejected them and granted the motion. We again ask the court to grant us leave to file a first amended complaint which would contain specific counts asserting anticipatory breach and equitable estoppel counts against the insurance company.”

The denial of leave to amend a complaint will be upheld absent an abuse of discretion. (Melko v. Dionisio (1991), 219 Ill. App. 3d 1048, 580 N.E.2d 548.) Here, the court had earlier heard plaintiff’s argument as to the issues of anticipatory repudiation and estoppel. Plaintiff offered no new argument that would support the court’s decision to grant plaintiff leave to amend the complaint. Thus, we cannot say that the trial court abused its discretion in denying plaintiff’s motion to amend the complaint.

For the above reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.