author: JUSTICE LEWIS

text:
    LINDA WEGMAN, Plaintiff-Appellant, v. PAUL L. PRATT, Defendant-Appellee.
    Fifth District
    No. 5—90—0353
    Opinion filed September 12, 1991.
    Rehearing denied October 21, 1991.

      Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., of Alton, for appellant.
    Charlene A. Cremeens, of Belleville, and Catalina M. Alvarez, of Clayton, Missouri, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The plaintiff, Linda Wegman, brought an action in two counts against the defendant, Paul L. Pratt. In the first count the plaintiff sought both compensatory and punitive damages with respect to personal injury resulting from an alleged battery by the defendant upon her on July 5, 1988, in Ginny’s Dugout, a tavern located in East Alton, Illinois. In the second count the plaintiff sought compensatory damages for personal injury arising out of the same incident, alleged, in this count, to have been caused by the defendant’s negligence associated with the consumption of alcohol.

In his answer the defendant asserted as an affirmative defense with respect to the first count of the complaint, alleging battery, that upon verbal provocation he had attempted to leave the tavern but had been kicked by the plaintiff, whereupon,

“[immediately after Plaintiff kicked Defendant, Defendant intentionally, knowingly and voluntarily struck Plaintiff by shoving her on or about the upper chest area, but he did so only in self-defense, and upon Plaintiff’s provocation, and that in shoving Plaintiff on or about the upper chest area, Defendant used only such force as was necessary to repel Plaintiff’s attack upon Defendant.”

The defendant moved the trial court to dismiss the second count of the complaint, alleging negligence, “for the reason that in light of the pleadings herein, the alternative Count II of negligence cannot be made in good faith as no genuine doubt exists as to the facts insofar as they define Plaintiff’s cause of action.”

The defendant is an attorney. On the day the complaint was filed, August 22, 1988, plaintiff filed a motion for change of judge, asking the trial court to assign the case “to a judge from outside of Madison County, and a judge who does not know the defendant or any of his law partners, and a judge who has no political dealings with the defendant and his law partners” for the reason that “the plaintiff has heard from numerous persons that the defendant is very active in the Democratic party, has supported numerous judges in their election campaigns; is friendly with numerous judges, and is friendly with the Clerk of the Circuit Court.” The plaintiff stated further in the motion that she “believes that she will not be able to receive a fair and impartial trial if this case is heard by any judge who knows the defendant, or has had any political dealings with him.” On September 26, 1988, the plaintiff filed another motion for change of judge, identical to that filed on August 22, 1988. On November 3, 1988, plaintiff filed a supplement to her motion for change of judge, stating, inter alia, that her attorney “believes that it would be difficult for the plaintiff to receive a fair and impartial trial from any Judge in Madison and St. Clair Counties and from any Judge who knows or has had any association with the defendant, Paul Pratt, or any members of his law firm.” Plaintiff asked that the case be assigned “to a Judge from outside of Madison and St. Clair Counties and one who does not know Attorney Paul Pratt or any members of his law firm.” Plaintiff stated as grounds, among other things, the defendant’s activity “in Democratic politics,” the number of judges who have been connected with the defendant’s present or prior law firms, and “substantial contributions” for a number of years by the defendant’s law firm and individuals in the firm “to many current sitting judges.”

On May 5, 1989, Judge Moran, the third judge assigned to this cause, heard and denied plaintiff’s motion and supplemental motion for change of judge. Thereafter, the plaintiff, as petitioner in the supreme court of Illinois, filed a motion on June 9, 1989, requesting that court to exercise its supervisory authority over three separate causes of action, including the instant one, in which Paul Pratt was a party and to “assign the cases to a judge or judges from outside of the Third Judicial Circuit who do not know Attorney Pratt or any members of his law firm.” On June 29, 1989, the supreme court denied the motion for a supervisory order.

On August 11, 1989, the trial court dismissed count II of the complaint and on September 13, 1989, granted plaintiff leave to file an amended complaint in two counts, the first alleging battery and the second negligence. On December 1, 1989, the court granted the defendant’s motion to strike paragraph six of count I of the amended complaint, which stated, “That defendant knew or should have known of his violent nature when drinking or when becoming intoxicated, and with that knowledge, intentionally became intoxicated and intentionally struck the plaintiff without provocation.” The trial court also granted the defendant’s motion to dismiss count II of the amended complaint. The court granted leave to file a second amended complaint in conjunction with and supported by a supplemental memoranda of law. In its order the trial court stated that “[t]he instant leave granted to plaintiff to submit memoranda of law and amend her complaint shall be the last such leave granted plaintiff to plead a negligence theory in this action.”

On January 17, 1990, the plaintiff filed her second amended complaint in two counts, the first alleging battery and seeking both compensatory and punitive damages, the second alleging negligence and seeking compensatory damages. On February 5, 1990, the defendant filed his answer stating that he “does admit, however, that at or about 4:33 p.m., on July 5, 1988, Defendant did strike Plaintiff by shoving her, as fully described in Defendant’s AFFIRMATIVE DEFENSE, set forth herein.” In his affirmative defense defendant made the same statements he had made in the affirmative defense filed in response to the complaint, including the statement that he had “intentionally, knowingly and voluntarily struck” her in the area of the upper chest in self-defense and upon her provocation. The defendant moved as well to strike paragraphs six and seven of count I of the second amended complaint and count II in its entirety. Paragraphs six and seven of count I state as follows:

“6. That defendant knew or should have known that he suffered from alcoholism and that a foreseeable consequence of drinking was that defendant was subject to violent outbursts.
7. That defendant intentionally became intoxicated and intentionally struck the plaintiff without provocation.”

Plaintiff denied each and every allegation of defendant’s affirmative defense. In an order entered on February 16, 1990, the trial court expressly found that “[t]he only issue as far as liability is concerned is whether or not defendant’s conduct was justified as self-defense.” The court allowed the defendant’s motions and accordingly ordered stricken paragraphs six and seven of count I and all of count II of the second amended complaint. The court stated that “[pjlaintiff is not permitted in the future to plead a negligence theory in this action as per prior Order of this Court.” On that day the case was set for jury trial on August 6, 1990.

On May 4, 1990, the defendant moved to strike the prayer for punitive damages in count I of the second amended complaint. In an order entered May 31, 1990, the trial court granted the motion, having determined that, “based upon the record as a whole and including the transcript of the criminal trial [People of the State of Illinois v. Paul L. Pratt, No. 88 EACM 129, in the Circuit Court for the Third Judicial Circuit, Madison County, Illinois, on September 19, 1988,] submitted by plaintiff to this Court, *** punitive damages are not appropriate in this case and are hereby stricken.”

On May 22, 1990, plaintiff filed a notice to take discovery depositions of 14 persons, including “George Moran, Jr.,” the judge presiding in the instant case, described as a “preoccurrence” witness in a supplement, filed the same day, to plaintiff’s answers to defendant’s interrogatories. In an order entered the same day the trial court sua sponte quashed the depositions of the individuals named on the notice to take discovery depositions, stating, “It is obvious that the Attached Notice to Take Discovery Depositions has nothing to do with the merits of this case.”

The next day, on May 23, 1990, plaintiff filed an “Additional Motion for Change of Judge and for the Honorable George Moran, Jr. To Be Disqualified in This Case, and To Revoke the Order of May 22, 1990 Quashing the Deposition Notice,” stating in part:

“c. George Moran, Sr.[,] is believed to have information concerning one or more prior incidents when the Defendant was intoxicated and may have been involved in a physical altercation with the Defendant, when the Defendant is rumored to have been inebriated at a bar association meeting.
d. George Moran, Jr.[,] is believed to have personal information concerning the event concerning his father, George Moran, Sr.[,], as stated above and is believed to have been involved in the incident following the bar association meeting. All of this would be relevant in the area of punitive damages and the Defendant’s predisposition to physical altercations when he becomes intoxicated.”

The plaintiff stated further in the motion that the court’s unilateral striking of the notice to take discovery depositions “without even giving the Plaintiff an opportunity to be heard on the matter, shows that the Court should in fact not hear this case, and that the Order of May 22, 1990 should be rescinded.” The plaintiff asserted that “the quashing of the deposition notice by the Court shows a predisposition by the Court in this case to rule in favor of the Defendant and is further evidence that the Court should be disqualified.”

On the same day, May 23, 1990, plaintiff filed another motion for change of judge, requesting that Judge Moran disqualify himself from the case. Plaintiff stated that “one of the theories of [her] case is that the defendant, Paul Pratt, has an alcohol problem, and that when he drinks he becomes aggressive and ends up in fights.” She stated further that it has been brought to the attention of her attorney that George Moran, Jr., and George Moran, Sr., “may have specific knowledge concerning these facts and that there is a good probability that they will be witnesses at the trial.” A hearing was conducted on May 30, 1990, and in the order entered May 31, 1990, the trial court found “that plaintiff’s Motion For Change of Judge and Additional Motion for Change of Judge contain matters which have previously been brought to this Court’s attention and that the plaintiff and her attorney have previously filed numerous Motions for Change of Judge and Change of Venue including a Motion for Supervisory Order to the Illinois Supreme Court.” The trial court denied these motions of the plaintiff.

In the order of May 31, 1990, the trial court expressly took under advisement a motion of the defendant for sanctions that was filed on May 29, 1990, and argued at the hearing on May 30, 1990. In that motion the defendant sought an order dismissing the second amended complaint with prejudice pursuant to Supreme Court Rule 219(d) (134 Ill. 2d R. 219(d)) and section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 611) for the reason that “Plaintiff and her attorneys have wilfully engaged in unwarranted, abusive and contumacious discovery procedures designed to circumvent this Court’s previous orders ***.” Defendant stated further that:

“Plaintiff’s Additional Motion for Change of Judge contains allegations that the material sought thereby would be relevant when she and her attorneys know that to be untrue, and instead they are employing these tactics purely as a subterfuge to accomplish a reinstatement of paragraphs 6 and 7 of Count I and Count II of her Complaint, which were previously stricken and dismissed, respectively, and once more to accomplish the unwarranted removal of this action from Madison County.”

In an order entered June 1, 1990, the trial court, acting upon defendant’s motion for sanctions, dismissed count I of plaintiff’s second amended complaint with prejudice. In the order the trial court first addressed plaintiff’s attorney’s having notified the media of the hearing on May 30, 1990:

“This hearing had been specially set for this date and time during a telephone conference between the attorneys and this Court on May 29, 1990 at 4:15 p.m., the day before. No other persons were privy to this conversation or the date and time said Motion would be heard. At the time of the hearing an individual in the courtroom identified himself as a newspaper reporter. Both attorneys for the defendant and the Court denied contacting the media. It was obvious to the Court that Mr. Shaikewitz [plaintiff’s counsel] alerted the media of this hearing, a fact which Mr. Shaikewitz did not deny in open court. The Court finds the conduct of Mr. Shaikewitz in open court to be inappropriate, direct and intentional. He has repeatedly attempted to create a circus atmosphere in this court and make a mockery of our judicial system.”

The trial court found as well that “the plaintiff and her attorney have demonstrated in the past a pattern of conduct which demonstrates a deliberate and willful disregard of the Court’s orders and authority. It is obvious that plaintiff and her attorney have attempted to expand this litigation and try the defendant’s character rather than the facts of this case.” The court reasoned that, in light of the defendant’s admission that he intentionally struck the plaintiff and his pleading of justification and self-defense as an affirmative defense,

“the issues in this case became simple and clearly defined. Nevertheless, plaintiff refuses to follow the Court’s orders and has committed a severe abuse of process by subpoenaing this Judge and other witnesses for deposition who by plaintiff’s own admission had no knowledge of the facts of this case but were called to testify on irrelevant matters. This is clearly an abuse of process for an obvious ulterior motive and purpose by the plaintiff and her attorney to have this Judge removed from this case. When the depositions were quashed, plaintiff now claims judicial bias by filing an Additional Motion for Change of Judge. Plaintiff and her attorney have repeatedly filed numerous Motions for Change of Judge and Change of Venue including a Motion For Supervisory Order to the Illinois Supreme Court. Plaintiff and her attorney have refused to try this case on its merits and follow the Court’s orders, have committed a severe abuse of process, and inappropriately contacted the media.
Although this Court recognizes that a dismissal is a drastic sanction, a situation can hardly be imagined where it would be more appropriate and justified than the present one.”

The plaintiff has appealed presenting four issues for review: (1) whether the trial court erred in dismissing count I of the plaintiffs second amended complaint with prejudice as a sanction for alleged abuse of process and for allegedly conducting improper discovery; (2) whether the trial judge erred in failing to recuse himself from hearing this matter “when it was apparent that he may be called as a witness in this case and when it is a matter of public record that defendant was and is a major contributor to his campaign”; (3) whether the trial court erred in dismissing with prejudice count II of the second amended complaint which was based on negligence and pleaded as an alternative theory of recovery; and (4) whether the trial court erred in striking the prayer for punitive damages in count I of the second amended complaint, which count alleged the intentional tort of battery.

With respect to the first issue presented for review, concerning the sanction of dismissal of count I with prejudice, the plaintiff argues that her subpoenaing of the trial judge for discovery deposition was not improper “in light of the fact that the trial judge may have been a witness to a prior instance of alcohol[-]induced violence committed by the Defendant.” Because of the nature of the alleged attack and the defenses of self-defense and provocation asserted, she urges, discovery concerning defendant’s pugnaciousness or combativeness is relevant to the issues in the case. She states that “her motive for subpoenaeing [sic] Judge Moran and his father was simply to explore what they knew about Pratt’s history of pugnaciousness related to the incident at the Madison County Bar Association meeting.” The plaintiff cites civil cases from foreign jurisdictions in support of her position that in a civil action for battery or assault, when the defendant raises the issue of who initiated the aggression, as did the instant defendant, evidence of the defendant’s reputation for violence or pugnaciousness is admissible. “Assuming for the sake of argument that noticing the discovery deposition of the trial judge is inappropriate (Plaintiff asserts it was proper),” she contends, “then the sanction of quashing the deposition is the appropriate sanction, not striking all deposition notices, including eyewitnesses, and then dismissing the case.” Plaintiff seeks reversal of the trial court’s dismissal of count I with prejudice.

In his brief the defendant maintains that the trial court’s dismissal with prejudice as a sanction for abuse of discovery and abuse of process was completely justified by the blatant and contemptuous refusal of plaintiff and her attorney to accept the authority of the trial court and the supreme court with respect to the issues of change of venue and negligent intoxication. Defendant argues that “[ujnder the guise of simple discovery, Plaintiff obviously sought to circumvent the prior rulings which were adverse to her,” attempting to reintroduce the theory of negligent intoxication through such discovery in disregard of the trial court’s order eliminating that theory from the case. “Furthermore,” he urges, “by serving a subpoena upon Judge Moran, Plaintiff hoped to ‘make’ him a witness in the case, thus requiring him to recuse himself.”

Sanctions for failure to comply with discovery are provided in Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)). (Gallo v. Henke (1982), 107 Ill. App. 3d 21, 436 N.E.2d 1068.) Rule 219(d) (134 Ill. 2d R. 219(d)) provides in part that

“[i]f a party wilfully obtains or attempts to obtain information by an improper discovery method, wilfully obtains or attempts to obtain information to which he is not entitled, or otherwise abuses these discovery rules, the court may enter any order provided for in paragraph (c) of this rule.”

Among the sanctions that may be imposed pursuant to Rule 219(c) is dismissal of an action with or without prejudice (134 Ill. 2d R. 219(c)(v)). (Gallo, 107 Ill. App. 3d 21, 436 N.E.2d 1068.) Discovery rules permit the imposition of sanctions upon a party deemed by the trial court to have abused or disregarded discovery rules and procedures. (Harris v. Harris (1990), 196 Ill. App. 3d 815, 555 N.E.2d 10.) The imposition of sanctions under Rule 219(c) is a matter within the discretion of the trial court, and the reviewing court will uphold the trial court’s decision, absent an abuse of discretion. Fine Arts Distributors v. Hilton Hotel Corp. (1980), 89 Ill. App. 3d 881, 412 N.E.2d 608.

In determining which sanction to impose, the trial court must seek to accomplish discovery rather than to inflict punishment; because dismissal is a severe sanction, it should be invoked only in those cases where the actions of the party show a deliberate, contumacious, or unwarranted disregard of the court’s authority. (Jones v. Healy (1981), 97 Ill. App. 3d 255, 422 N.E.2d 904.) The entry of a dismissal under Rule 219(c) should be employed as a last resort in order to enforce the rules of discovery and should be set aside when a trial on the merits may be had without hardship or prejudice. (Humboldt-Armitage Corp. v. Illinois Fair Plan Association (1980), 86 Ill. App. 3d 888, 408 N.E.2d 307.) An order of sanctions that is just within the meaning of Rule 219 is one that provides both for discovery and for trial on the merits. Gallo, 107 Ill. App. 3d 21, 436 N.E.2d 1068.

The trial judge indicated in his order of dismissal of count I with prejudice that plaintiff had committed a severe abuse of process by subpoenaing him to testify about “irrelevant matters” “for an obvious ulterior motive and purpose,” namely, removal of him from the case. The court concluded in its order that plaintiff and her attorney had refused to try the case on its merits and follow the court’s orders, had committed a severe abuse of process, and had inappropriately contacted the media. Because legal process may not be used to accomplish some improper ulterior purpose, a subpoena used for any purpose other than to compel the attendance of a person as a witness is an abuse of the process of the court. (People v. McWhorter (1986), 113 Ill. 2d 374, 498 N.E.2d 1154.) However, here the record does not show that the subpoenaing of Judge Moran was intended to accomplish an improper ulterior motive.

Prior to the entry of the trial court’s order on May 31, 1990, striking the prayer for punitive damages in count I of the second amended complaint, the plaintiff urged in her “Additional Motion for Change of Judge and for the Honorable George Moran, Jr. To Be Disqualified in This Case, and To Revoke the Order of May 22, 1990 Quashing the Deposition Notice” filed on May 23, 1990, that personal information of Judge Moran concerning the incident following the bar association meeting “would be relevant in the area of punitive damages and the Defendant’s predisposition to physical altercations when he becomes intoxicated.” At the hearing conducted on May 30, 1990, plaintiff argued that evidence of prior acts is admissible to show wilful and wanton misconduct with reference to punitive damages. In this court she has cited support, albeit in the form of case law from foreign jurisdictions, for her position that evidence of the defendant’s character for violence or pugnaciousness is admissible when the defendant has raised the affirmative defense of self-defense in a civil suit for battery. Although we make no determination concerning the admissibility of such evidence in Illinois or the applicability of her argument concerning punitive damages to an intentional tort, we do not think that the plaintiff’s actions with respect to the subpoenaing of Judge Moran may be said to show a deliberate, contumacious, or unwarranted disregard of the trial court’s authority. Certainly, contacting the media as described by the trial court does not display such disregard. Nor does the record indicate that a trial on the merits may not be had without hardship or prejudice. Under all of the circumstances, imposition of the ultimate sanction of dismissal of count I of the second amended complaint was an unreasonable exercise of the trial court’s discretion. That part of the trial court’s judgment is accordingly reversed and the cause remanded for further proceedings. We note that when count I of the second amended complaint was dismissed, paragraphs six and seven thereof had been stricken. The plaintiff has asserted no error with respect to the trial court’s striking of these two paragraphs. Hence, upon remand count I shall not include paragraphs six and seven.

Concerning the second issue plaintiff raises for review, whether Judge Moran erred in failing to recuse himself from hearing this matter, she states that “after it had become apparent that Judge Moran had knowledge of relevant facts involved in the case, and since he may have been called as a witness, Plaintiff filed an Additional Motion to Change Venue for Judge Moran to disqualify himself, which was denied.” She asks this court to reverse the trial court’s denial of her motion for a change of venue and to allow this case to proceed “before another judge from outside of Madison County or St. Clair County who doesn’t know the Defendant or members of his law firm.”

Contrary to plaintiff’s assertion, however, the instant record does not show that Judge Moran had knowledge of relevant facts involved in the case; in her motion for change of judge filed on May 23, 1990, plaintiff stated that “it has been brought to plaintiff’s attorney’s attention that George Moran, Jr.[,] and George Moran, Sr.[,] may have specific knowledge concerning these facts.” Plaintiff has not raised as error on review the trial court’s quashing in the order entered May 22, 1990, of the depositions of the individuals named on the notice to take discovery depositions, including Judge Moran. Under our Code of Judicial Conduct, a judge is required to disqualify himself if he is “likely to be a material witness in the proceeding.” (People v. Ernest (1990), 141 Ill. 2d 412, 566 N.E.2d 231; see 134 Ill. 2d R. 63(C)(1)(e)(iv).) However, the record before us does not indicate that Judge Moran is likely to be a material witness in these proceedings.

The plaintiff makes numerous other assertions with reference to her argument that “[t]he totality of the circumstances surrounding this case provide the factual basis for Plaintiff’s perception of prejudice resulting if the case is heard in Madison County by a judge who knows Attorney Pratt or members of his firm.” The plaintiff has, however, already advanced these assertions before the supreme court, which denied her motion for a supervisory order on June 29, 1989. Nothing in the record since that date supports her contention that the trial judge erred in failing to recuse himself from hearing this matter. Therefore, that part of the judgment of the trial court denying these motions for change of judge is affirmed.

With regard to the third issue raised for our review, pertaining to the dismissal of count II of the second amended complaint, plaintiff relies heavily upon Blackburn v. Johnson (1989), 187 Ill. App. 3d 557, 543 N.E.2d 583, in support of her position that the trial court must recognize the viability of plaintiff’s negligence claim despite defendant’s admission of intentionally striking plaintiff. Defendant contends that the issue is whether the plaintiff should be allowed to “plead and pursue the alternative claim of negligence in Count II when the uncontested facts disclose that an assault/battery and only an assault/battery occurred.”

In Blackburn the plaintiffs brought an action for wrongful death in two counts, one based on intentional tort, the other on negligence. Plaintiff’s counsel abandoned the intentional tort theory and argued for a verdict based on negligence. The jury returned a verdict for defendant on the intentional tort count and for plaintiffs in the amount of $599,000 on the negligence count. On appeal the principal issue related to whether the fact situation could sustain a negligence verdict. The defendant argued that an intentional tort, namely, a stabbing, had occurred and that the jury verdict could not stand. The defense at trial was one of self-defense. The negligence theory of the plaintiff was that the victim’s father had “either (1) flailed or swung the knife, a dangerous instrumentality, in such a fashion as to injure [the deceased victim], or (2) used excessive force in his self-defense, in that he should have known with the exercise of ordinary care that the use of deadly force was unreasonable.” (187 Ill. App. 3d at 559-60, 543 N.E.2d at 585.) The plaintiffs did not disagree that the conduct of the victim’s father in stabbing him was intentional. Plaintiffs argued, however, that the negligence arose out of the decision of the necessity to use deadly force. The court observed:

“The parties’ arguments focus on different conduct. Defendant focuses on the act of the stabbing, and maintains this was done intentionally. She [as executor of the estate of the victim’s father,] argues, therefore, that any recovery based on negligence is improper.
Plaintiffs point, not to the stabbings, but the conduct surrounding them. They believe [the victim’s father’s] negligence is based on a misperception of the need to use deadly force in self-defense. They, in essence, would find that a person using self-defense would have a duty to the other party to only use so much force as a reasonably prudent person would in that situation. In the case of deadly force, a person could only employ it if a reasonably prudent person would determine it was necessary to do so to avoid imminent harm or death to himself or others. Thus, whether the ultimate act (the stabbing) is intentional or not is immaterial. The focus is on the determination of the necessity of the use of the force. Therefore, under these facts, an intentional act can be performed negligently.” (187 Ill. App. 3d at 560, 543 N.E.2d at 585.)

The court expressed its awareness of “possibly treading on new ground” but concluded that “the plaintiffs’ arguments have merit” (187 Ill. App. 3d at 562, 543 N.E.2d at 586) and determined that the evidence could have justified a finding that the victim’s father overreacted in gaining control of his intoxicated son who had struck his mother.

The instant plaintiff maintains that, as in Blackburn, it is reasonable for her to assert that the defendant’s attack may have been a result of his misperception as to the need to use force. In her second amended complaint, plaintiff alleged negligence with respect to the conduct associated with or “surrounding” the striking of the plaintiff and not with the striking itself. Plaintiff expressly alleged the following “negligent acts or omissions on the part of the defendant”:

“e. using excessive force in striking plaintiff in response to wholly imagined threats, which were induced as a foreseeable consequence of his intoxication;
f. misinterpreting plaintiff’s conduct and striking her which was a foreseeable consequence of defendant’s intoxication.”

As in Blackburn, the defense of self-defense has been asserted with respect to the claim of battery. A factual question exists concerning that defense. In light of the holding in Blackburn, we agree with the plaintiff that the trial court erred in dismissing count II of the second amended complaint.

Further, section 2 — 613(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 613(b)) authorizes alternative pleadings even when counts may be contradictory or inconsistent. (See Neff v. Davenport Packing Co. (1971), 131 Ill. App. 2d 791, 268 N.E.2d 574.) This section does not mean that the plaintiff must submit evidence and attempt to prove two inconsistent alternatives. (See Johnson v. Illini Mutual Insurance Co. (1958), 18 Ill. App. 2d 211, 151 N.E.2d 634.) The plaintiff may choose which alternative he will prosecute or abandon. (Johnson, 18 Ill. App. 2d 211, 151 N.E.2d 634.) In the instant case the plaintiff could later have chosen to abandon her theory of battery and to proceed only upon the claim of negligence. For this further reason we think that the trial court erred in dismissing count II of the second amended complaint. That part of the trial court’s judgment is therefore reversed and the cause remanded for further proceedings.

With respect to the fourth and final issue raised for review, pertaining to the striking of the prayer for punitive damages of count I, the trial court granted the defendant’s motion to strike the prayer based in part upon a reading of the transcript of the criminal trial that arose out of the incident giving rise to the instant suit. We deem the motion to strike the prayer to be a motion made under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615). The determination of a section 2 — 615 motion to strike is made by considering only the facts alleged in the pleading. (Maas v. Cohen Associates, Inc. (1983), 112 Ill. App. 3d 191, 445 N.E.2d 517.) It is error for a trial court to consider affidavits, depositions, or exhibits when considering a section 2 — 615 motion to strike or dismiss a complaint for failure to state a cause of action. (Maas, 112 Ill. App. 3d 191, 445 N.E.2d 517.) We conclude that it was error for the trial court to consider the transcript of the criminal proceeding arising out of this incident in ruling upon the defendant’s motion to strike the prayer for punitive damages of count I of the second amended complaint.

Battery is an intentional tort. (Walker v. Dominick’s Finer Foods, Inc. (1981), 92 Ill. App. 3d 645, 415 N.E.2d 1213.) It has long been established that punitive or exemplary damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts wilfully, or with such negligence as to indicate a wanton disregard of the rights of others. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) It is undisputed that the plaintiff in count I has alleged battery. Under a section 2 — 615 motion all facts well pleaded by the complaint are taken as true. (See Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 325 N.E.2d 799.) Under the circumstances, the trial court erred in striking the prayer for punitive damages in count I of the second amended complaint, and we accordingly reverse that part of the judgment and remand the cause for further proceedings.

In summary, our disposition is as follows: that part of the judgment dismissing counts I and II of the second amended complaint is reversed, and the cause is remanded, count I upon remand to include a prayer for punitive damages but not to include paragraphs six and seven; that part of the judgment denying the plaintiff’s motions for change of judge is affirmed.

Affirmed in part; reversed in part and remanded with directions.

LUND and KNECHT, JJ., concur.

       Justices Lund and Knecht were assigned to this case following oral argument in substitution of Justices Harrison and Welch. Justices Lund and Knecht have read the briefs and listened to the tape of oral argument.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    HORACE FILE et al., Petitioners-Appellants, v. D & L LANDFILL, INC., et al., Respondents-Appellees.
    Fifth District
    No. 5—90—0630
    Opinion filed October 3, 1991.

      James E. Buchmiller, of Greenville, for petitioners.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Elizabeth Schroer Harvey, Special Assistant Attorney General, of Chicago, of counsel), for respondent Pollution Control Board.
    W.A. Dillow III, of Greenville, for respondent D & L Landfill, Inc.
   JUSTICE WELCH

delivered the opinion of the court:

On October 10, 1989, appellee, D & L Landfill, Inc., filed an application with the Bond County Board of Supervisors for siting approval for a regional pollution control facility. Application was made pursuant to section 39(c) of the Environmental Protection Act, which provides that

“no permit for the development or construction of a new regional pollution control facility may be granted by the [Environmental Protection] Agency unless the applicant submits proof to the Agency that the location of said facility has been approved by the County Board of the county if in an unincorporated area *** in accordance with Section 39.2 of this Act.” (Ill. Rev. Stat. 1989, ch. lll1^, par. 1039(c).)

After an extensive public hearing held January 24, 1990, the Bond County Board of Supervisors entered an order on April 3, 1990, granting the site approval subject to numerous specified conditions.

On May 7, 1990, appellants, a group of 35 citizens of Bond County calling themselves Bond County Concerned Citizens, who had participated in the hearing before the Bond County Board of Supervisors, filed a petition with the Illinois Pollution Control Board for a hearing to contest the decision of the Bond County Board of Supervisors. Their petition was filed pursuant to section 40.1(b) of the Environmental Protection Act, which provides:

“[i]f the county board *** grants approval under Section 39.2 of this Act, a third party other than the applicant who participated in the public hearing conducted by the county board *** may petition the [Pollution Control] Board within 35 days *** to contest the approval of the county board.” (Ill. Rev. Stat. 1989, ch. III1/2, par. 1040.1(b).)

In their petition, appellants alleged that the finding of the Bond County Board of Supervisors that the applicant had satisfied the requirements of section 39.2 of the Environmental Protection Act was against the manifest weight of the evidence in several respects.

Section 39.2 of the Environmental Protection Act provides in relevant part as follows:

“(a) The county board of the county *** shall approve or disapprove the request for local siting approval for each regional pollution control facility which is subject to such review. An applicant for local siting approval shall submit sufficient details describing the proposed facility to demonstrate compliance, and local siting approval shall be granted only if the proposed facility meets the following criteria:
(i) the facility is necessary to accommodate the waste needs of the area it is intended to serve;
(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;
(iii) the facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property;
(iv) the facility is located outside the boundary of the 100 year flood plain or the site is flood-proofed;
(v) the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents;
(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows.
* * *
The county board *** may also consider as evidence the previous operating experience and past record of convictions or admissions of violations of the applicant *** in the field of solid waste management when considering criteria (ii) and (v) under this Section.” Ill. Rev. Stat. 1989, ch. HV-k, par. 1039.2(a).

Appellants’ petition alleged that the Bond County Board of Supervisors' findings with respect to criteria (i), (ii), (iii), and (vi) were against the manifest weight of the evidence and that the evidence indicated previous operating violations by the applicant. The petition prayed that the Pollution Control Board reverse the decision of the Bond County Board of Supervisors granting site location approval to D & L Landfill, Inc.

On July 11, 1990, the Pollution Control Board held a hearing on appellants’ petition. In accordance with section 40.1(b) of the Environmental Protection Act, the Bond County Board of Supervisors and D & L Landfill, Inc., were named as co-respondents, the hearing was based exclusively on the record before the county board, and appellants bore the burden of proof. (Ill. Rev. Stat. 1989, ch. llLMa, par. 1040.1(b).) On August 30, 1991, the Pollution Control Board issued its opinion and order affirming the decision of the Bond County Board of Supervisors. Attached to the opinion were a separate concurring opinion and a dissenting opinion. The dissenting opinion found that the Bond County Board of Supervisors’ finding as to the need for the landfill (criterion (i)) was against the manifest weight of the evidence.

Appellants appeal to this court pursuant to section 41(a) of the Environmental Protection Act, which provides that any party to a hearing before the Pollution Control Board may obtain judicial review in the appellate court pursuant to the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.). (Ill. Rev. Stat. 1989, ch. IIIV2, par. 1041(a).) On appeal, they argue that the opinion and order of the Pollution Control Board affirming the decision of the Bond County Board of Supervisors is against the manifest weight of the evidence in that the evidence presented at the hearing before the Bond County Board of Supervisors failed to show compliance with criteria (i), (ii), (iii), and (vi) of section 39.2(a) of the Environmental Protection Act.

The standard of review to be exercised by both the Pollution Control Board and this court is whether, respectively, the decisions of the county board and Pollution Control Board are contrary to the manifest weight of the evidence. (Waste Management of Illinois, Inc. v. Pollution Control Board (1988), 175 Ill. App. 3d 1023, 530 N.E.2d 682.) This court should not reweigh the evidence or substitute its judgment for that of the agency (McHenry County Landfill, Inc. v. Environmental Protection Agency (1987), 154 Ill. App. 3d 89, 100, 506 N.E.2d 372, 379), and a decision is contrary to the manifest weight of the evidence only if the opposite result is clearly evident, plain, or indisputable from a review of the evidence. (Tate v. Pollution Control Board (1989), 188 Ill. App. 3d 994, 1022, 544 N.E.2d 1176, 1195.) We must determine whether the decision of the Pollution Control Board that the Bond County Board’s finding that D & L Landfill, Inc., had satisfied the requirements of section 39.2 was not against the manifest weight of the evidence is itself against the manifest weight of the evidence. To do so we must review the evidence presented to the Bond County Board.

David Kimmle, a civil engineer, testified on behalf of applicant. Kimmle had helped prepare the application for D & L Landfill, Inc. He explained that the new landfill for which D & L Landfill, Inc., sought approval was an expansion of, and adjacent to, its existing landfill. Out of 193 acres of property, 72 would be used for trash placement. A tree and shrub line was going to be placed along the highway in hopes of concealing the site. The Environmental Protection Agency required a 200-foot setoff between the border of the property and the area of trash placement. Soil borings indicated that the site is primarily glacial till, which is a hard, compact soil. Throughout the site, there are numerous sand lenses, which are small seams of sand associated with ground water. Applicant planned to excavate down to the hard glacial till, excavating out any sand lenses. The Environmental Protection Agency requires 10 feet of suitable clay liner at the bottom of the landfill before trash placement may occur. Applicant hoped to use the existing glacial till as its clay liner. Any sand lenses or unsuitable soil would be excavated and replaced with clay. Kimmle believed that, with this plan, there would be no groundwater contamination.

When the site begins operation, approximately 10 to 15 monitor wells will be placed around the site. Three to four will be upgradient, giving a background analysis of the groundwater. The rest will be located in the lowland area and will indicate if leachate is migrating from the site. Four times a year, an independent firm, hired and paid by applicant, will sample and test the groundwater from these wells for contaminants.

On cross-examination by the attorney for Bond County Concerned Citizens, Kimmle explained that he had only graduated from college in 1986 and had only been an engineer for years. The present landfill was the second one which he had helped to design. One had been completed. Kimmle had closed none. Kimmle testified regarding a letter he had received from a hydrogeologist with the Illinois State Geological Survey. Such a report is required by the Environmental Protection Agency. Its purpose is to determine whether the proposed landfill will affect the drinking water at the site. The report found a moderate chance of groundwater contamination from the proposed site expansion. The report indicated that shallow sand is widespread throughout the area and has been used as a drinking water source for several people living near the proposed expansion. Such material has a relatively high potential for contamination. The report concluded that the native geologic materials at the proposed landfill expansion appear to offer only a moderate to low level of protection to the shallow sand and gravel aquifer present in the area.

Kimmle did not agree with the report and indicated that the shallow sand referred to the sand lenses which would be excavated out. The hydrogeologist had not visited the site, but used soil borings sent by applicant. All sand lenses will be excavated out and replaced with suitable material, thereby protecting the shallow groundwater. Kimmle explained that there would also be a sheet of synthetic material placed on top of the glacial till and sealed. On top of that would go one foot of sand, which would act as a leachate collection system. The sand is dumped on the synthetic sheet by trucks and pushed out by dozers. Trucks weighing 20 to 40 tons would be driving over this sand layer. Kimmle did not believe holes would be punched in the synthetie membrane by this process. Selected trash (excluding such things as car batteries and metal) is then placed in the first four feet of depth of the landfill. Trash is dumped in layers of four feet and then compacted. Kimmle did not see a substantial danger of holes being punched in the synthetic membrane.

When the entire landfill is filled, it will be approximately 20 to 30 feet above the highway elevation. Oak trees will be planted around the perimeter. It will take 20 to 30 years for these trees to grow enough to block the site. The trees will lose their leaves in the winter.

Kimmle was cross-examined about a report by the Environmental Protection Agency to the Governor of the State of Illinois which indicated that the existing Bond County landfill was estimated to have a remaining useful life of 16 years. Kimmle disputed this figure. He described the remaining capacity of the existing landfill as very minimal.

Kimmle explained that, in an effort to minimize incompatibility with the surrounding area, the height of the completed landfill would be limited to 20 to 30 feet above the highway, a six-foot-high woven-wire perimeter fence would be installed, and the landfill would be covered with clean dirt at the end of each day. Kimmle admitted that he did not think the fence would contribute much. Providing daily cover would reduce odor, rodents, birds, and flies.

In order to minimize impact on existing traffic flows, the entrance to the new landfill will be via the existing landfill. Traffic patterns will not be changed. There could possibly be an increase in the amount of traffic.

The new landfill has a projected life span of 29 years. In order to insure that the landfill will be properly taken care of over the years, the owners must post a sufficient bond to provide funds to care for the site for a 15-year period after closing.

Kimmle did not conduct a study to determine the effect of the new landfill on surrounding property values. The plan included nothing for earthquake preparedness although earthquakes had occurred in the area in the past. None had been serious enough to do damage to the landfill.

Kimmle acknowledged that there is a spring on the site of the proposed landfill. This spring would be excavated out.

Thomas Connor, another civil engineer, was called to testify on behalf of applicant. He graduated from college in 1972. For the past 18 years, he had been working in the area of geotechnical engineering, which involves soil, rock, and hydrology. He also worked on the design for the proposed landfill. He explained that any leachate collected by the layer of sand on top of the synthetic membrane would be treated and not discharged into the groundwater. Even if leachate got down to the clay liner, it would take years for it to reach the groundwater. If a hole was punched in the synthetic liner, the effect on groundwater would be minimal. Furthermore, the monitor wells will ensure that, if leachate does get through, it will be detected and remedial actions taken. Connor described the life of the existing landfill as minimal, less than two years.

On cross-examination, Connor explained that they hoped to use the existing glacial till as their 10-foot clay liner. If the glacial till did not meet specifications, clay would be trucked in.

Leroy Wiese and Mike Eaton testified for applicant that each had purchased homes approximately 900 feet from the existing landfill and the proposed landfill site. On cross-examination, Eaton testified that he believed the proposed expansion of the landfill would devalue his home. Eaton had paid $62,500 for the home. He can see the existing landfill from his home.

Thomas Connor was recalled by applicant. He testified that around the perimeter of the site the dirt will be built up so as to shield the trash operations from the roadway. The hill will be landscaped and mowed and maintained. After the landfill is completed and closed, it will be landscaped and maintained and any problems must be corrected. All trash must be covered daily with six inches of soil.

Diana Johnston testified for applicant that she is with the Bond County Health Department. She is a registered sanitarian and has a bachelor’s degree in environmental studies and planning. She is familiar with the site of the proposed landfill and has done soil and water studies at the site. The Bond County Health Department has no objection to the proposed landfill.

On cross-examination, Johnston was asked whether she was aware of a letter from the Environmental Protection Agency to Senator Frank Watson which detailed certain violations by the existing landfill. D & L Landfill, Inc., had been cited and penalized for various violations over the years.

On redirect examination, Johnston testified that the soil found at the proposed site is one of the better types found in the county for a landfill. She also testified that as of September 20, 1988, and August 23, 1989, D & L Landfill, Inc., was found to be in full compliance with all Illinois Environmental Protection Agency regulations. The applicant rested.

Bond County Concerned Citizens called Erwin Hediger to testify. He lives right across the highway from the site of the proposed landfill, probably 250 to 300 feet from the actual area of the fill. He has a fruit orchard and farm on the property. He identified an aerial photograph of the area surrounding the proposed landfill. There are approximately 20 houses in close proximity to the site. Many are within 800 feet of the proposed site. He opined that the proposed landfill will reduce property values in the area. He identified appraisals of property in the area of the proposed landfill done by area realtors. They estimated that property values would be reduced by at least 45% to 50%.

Hediger testified that traffic on the road passing the proposed site is heavy. The road is very narrow. Hediger is opposed to the proposed landfill.

LeRoy McCray testified that he and his brother Don own D & L Landfill, Inc. The two brothers own a considerable amount of real estate in Bond County. Some of it is of sufficient size to be used as a landfill and is farther from any residential developments than the proposed site. At this point, Bond County Concerned Citizens rested.

The county board then allowed comments from others in attendance. The chairman and president of the Industrial Commission of the City of Greenville stated that the proposed new landfill was needed to attract new industry to the area. Most others were opposed to the proposed landfill. Several exhibits were admitted into evidence.

The Bond County Board of Supervisors found that, with the imposition of certain conditions, the applicant had satisfied the requirements of section 39.2 of the Environmental Protection Act and granted approval for the proposed landfill location. Those conditions include a monthly cap on the amount of trash to be disposed of at the site; a comprehensive plan for collecting and disposing of leachate from the leachate collection system; set-back lines of 500 feet, a green belt of dense evergreen screening at least six rows in depth, and limited hours of operation.

In its opinion and order, the Pollution Control Board set forth the law and evidence and found as follows:

Criterion (i) (need) — “The Board finds that the County Board could have reasonably rejected reliance upon the Agency’s report [that the existing landfill had a remaining life span of 16 years] and concluded that the proposed facility is needed based upon the testimony presented by D & L [that the life span of the existing landfill was minimal, less than two years]. The County Board could have also accepted the evidence of remaining capacity in the Agency report, yet still concluded [sic] that the proposed facility is ‘needed’. As noted above, merely because the County Board could have drawn different inferences and conclusions from this conflicting testimony is not a basis for this Board to reverse the County Board’s finding. [Citation.] The Board cannot say, based upon the record, that the County Board’s decision that the proposed facility is necessary is *** against the manifest weight of the evidence.”

Criterion (ii) (public health) — “D & L provided sufficient evidence, both in its application and supporting documents and testimony, to support the County Board’s decision that criterion 2 has been satisfied.”

Criterion (iii) (incompatibility) — “D & L presented sufficient evidence of proposed measures to be taken to minimize the proposed facility’s impact on the surrounding area. The County Board could reasonably have concluded that D & L’s proposed actions were reasonably calculated to minimize incompatibility. Additionally, criterion 3 requires only that the applicant establish that the facility be located to minimize, not eliminate, the effect on surrounding property values. The Board cannot say that the County Board’s rejection of reliance upon the realtor’s appraisals, where those persons were not available for cross-examination, is wholly unwarranted in light of testimony that homes were purchased near the existing [landfill].”

Criterion (vi) (traffic flow) — “Given the evidence concerning use of the existing entrance to the [existing landfill], the County Board could have concluded that the impact on existing traffic patterns would be minimal. Again, the Board is constrained in its review by the ‘manifest weight of the evidence standard of review’ and concludes that the County Board, being familiar with the means of access to the proposed facility, could have reasonably concluded that D & L met its burden of proof on criterion 6.”

We agree with the Pollution Control Board that the findings of the Bond County Board of Supervisors are not against the manifest weight of the evidence and therefore affirm the decision of the Pollution Control Board. In support of our decision, we will briefly discuss the law with respect to each criterion as it applies to the facts of this case.

With respect to the requirement of showing that the new landfill is necessary to accommodate the waste needs of the area it is intended to serve, the applicant need not show absolute necessity. However, the applicant must demonstrate an urgent need for the new facility as well as the reasonable convenience of establishing a new or expanding an existing landfill. (Waste Management of Illinois, Inc. v. Pollution Control Board (1988), 175 Ill. App. 3d 1023, 1031, 530 N.E.2d 682, 689.) The applicant must show that the landfill is reasonably required by the waste needs of the area, including consideration of its waste production and disposal capabilities. (Waste Management of Illinois, Inc., 175 Ill. App. 3d at 1031, 530 N.E.2d at 689.) The applicant need not show that every other potential landfill site in the region is unsuitable but must show more than mere convenience. Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 123 Ill. App. 3d 1075, 1084, 463 N.E.2d 969, 976.

In the instant case, the only evidence with respect to need was contradictory. Witnesses for applicant testified that the existing Bond County landfill had a minimal life span. However, a report by the Environmental Protection Agency to the Governor of the State of Illinois indicated that the landfill had an estimated lifespan of 16 years. Both the county board and the Pollution Control Board found that the evidence of a minimal life span was credible and persuasive. It is not for us to reweigh this evidence. McHenry County Landfill, Inc. v. Environmental Protection Agency (1987), 154 Ill. App. 3d 89, 100, 506 N.E.2d 372, 379.

With respect to the second criterion, that the facility be so designed, located, and proposed to be operated that the public health, safety, and welfare will be protected, the evidence was again conflicting. It has been held that the determination of this question is purely a matter of assessing the credibility of expert witnesses. Fairview Area Citizens Taskforce v. Pollution Control Board (1990), 198 Ill. App. 3d 541, 552, 555 N.E.2d 1178, 1185.

Again, in the instant case, the county board and the Pollution Control Board found the applicant’s expert witnesses to be credible and persuasive. It is noteworthy that Bond County Concerned Citizens presented no expert testimony on this point other than a letter from a hydrogeologist which was disputed by applicant. Again, it is not our place to reweigh the evidence. McHenry County Landfill, Inc., 154 Ill. App. 3d at 100, 506 N.E.2d at 379.

The third disputed criterion is whether the proposed facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property. This criterion requires an applicant to demonstrate more than minimal efforts to reduce the landfill’s incompatibility. An applicant must demonstrate that it has done or will do what is reasonably feasible to minimize incompatibility. (Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 123 Ill. App. 3d 1075, 1090, 463 N.E.2d 969, 980.) Furthermore, an applicant should not be able to establish compatibility based upon a preexisting facility. (Waste Management of Illinois, Inc., 123 Ill. App. 3d at 1088, 463 N.E.2d at 979.) It is important to note, however, that the statute does not speak in terms of guaranteeing no increase of risk concerning any of the criteria. City of Rockford, v. Pollution Control Board (1984), 125 Ill. App. 3d 384, 390, 465 N.E.2d 996, 1001.

We agree with the Pollution Control Board that the evidence before the county board indicates that D & L Landfill, Inc., will take whatever actions are reasonably feasible to minimize incompatibility. Indeed, the conditions placed upon the site approval by the Bond County Board of Supervisors go a long way toward minimizing incompatibility with the surrounding area and minimizing the effect of the expanded landfill on the value of surrounding property. The decision of the Pollution Control Board on this point is not against the manifest weight of the evidence.

The final criterion which the parties dispute is whether the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows. This criterion does not refer to traffic noise or dust, nor does it relate to the potential negligence of the truck drivers. (Tate v. Pollution Control Board (1989), 188 Ill. App. 3d 994, 1024, 544 N.E.2d 1176, 1196.) The operative word is “minimize,” and it is recognized that it is impossible to eliminate all problems. Tate, 188 Ill. App. 3d at 1024, 544 N.E.2d at 1196.

The evidence in the instant case supports the findings of the county board and the Pollution Control Board that D & L Landfill, Inc., has made a reasonable effort to minimize the impact of the expanded landfill on existing traffic flows. Indeed, existing traffic flows will be impacted only slightly as all trucks entering or leaving the landfill will be using the existing entrance. Any impact on existing traffic flows will result only from any increase in traffic which, according to the evidence, should not be substantial.

In conclusion, we find that the decision of the Pollution Control Board affirming the decision of the Bond County Board of Supervisors granting site approval is supported by evidence and is not contrary to the manifest weight thereof.

For the foregoing reasons, the decision of the Pollution Control Board is hereby affirmed.

Affirmed.

RARICK, P.J., and HARRISON, J., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODNEY MASSEY, Defendant-Appellant.
    Fifth District
    No. 5—89—0594
    Opinion filed October 8, 1991.
    Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Scott Mansfield, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant, Rodney Massey, was convicted of first-degree murder, attempted first-degree murder, armed violence, and aggravated battery. (Ill. Rev. Stat. 1989, ch. 38, pars. 9-1, 8-4, 33A-2, 12-4.) He was sentenced to concurrent prison terms of 15 years for attempted first-degree murder, 15 years for armed violence, and five years for aggravated battery. The sentence for attempted first-degree murder was to be served consecutively to a 35-year prison sentence imposed on the first-degree murder conviction. On appeal, defendant contends that: (1) the armed violence and aggravated battery convictions must be vacated because they are based on the same physical act which is the basis for the attempted first-degree murder conviction; (2) the cause should be remanded for resentencing because the court considered the offenses which should be vacated when it imposed sentence for attempted murder; and (3) the court improperly denied his motion for release of property.

At trial, Anthony Manning testified that he and his brother, Robert Manning, came to Illinois from their home in New York with defendant in April 1989. The three had been staying at a house in Washington Park, Illinois. On the morning of April 7, 1989, at approximately 11 a.m., defendant came out of the bathroom and shot Anthony Manning in the head. Defendant then shot Robert Manning and kept firing the gun. After defendant ran out of the house, Anthony Manning ran to get help. Anthony Manning denied that he or his brother ever threatened defendant, denied that he or Robert Manning had a gun, and denied that defendant had any reason to shoot them because they all had been friends.

Frank Franklin, police officer for the City of Washington Park, testified that at approximately 9:30 a.m. on April 7, 1989, a mail carrier advised him that she thought that a man had been shot in the front yard of the 5200 block of East Gate. Franklin proceeded to that address and observed Anthony Manning sitting on the porch. Anthony Manning stated that he had been shot. Other police officers arrived, and the body of Robert Manning was found in the house. Anthony Manning furnished the officers with the name of the suspect. The suspect was described as wearing a black jogging-type suit and having a goatee and some facial hair, possibly a mustache. Franklin and another police officer, Paul Apostol, started to search for the suspect. After patrolling on different streets, Franklin observed the suspect, who had a pistol in his hand, running. Franklin and Apostol then started foot pursuit of the suspect, whom Franklin identified in court as the defendant. Herbert Woodall, another officer, joined in the pursuit. Woodall was the officer who captured defendant, who was wearing a black jogging suit and had a goatee and mustache.

Paul Apostol testified that after arriving at the scene of the shooting, Anthony Manning advised him that defendant, who was wearing an all-black outfit, had shot him and then ran off. Defendant had short hair, a goatee, and a mustache. Apostol corroborated much of Franklin’s testimony concerning the pursuit of defendant. After defendant was captured, Eddie Thomas handed Apostol a blue steel .32 caliber revolver.

Herbert Woodall, a newspaper carrier and deputy marshall with the Washington Park police force, testified that he heard the police radio traffic concerning the pursuit of the defendant and joined the hunt. Woodall observed defendant run down a driveway from between two garages. When Woodall told him to “Stop! police,” defendant, who had his hand in his right pocket, turned toward Woodall, and Woodall fired three shots at him. Defendant was shot in the leg.

John Matt, another Washington Park police officer, testified that he went to the place where defendant was captured and searched him. Matt found two sealed baggies which contained money and one open baggie which contained money. He found no weapons on defendant.

Eddie Thomas testified that he saw a man, who was wearing all black and was being chased by the police, in his backyard. About 10 minutes later, he saw the chase continue across a parking lot. Thomas found a .32 caliber Smith & Wesson gun in his backyard and gave the gun to the police. Defendant resembled the man Thomas had seen in his backyard.

Frederick Cason, a surgeon, testified that on April 7, 1989, he observed Anthony Manning, who had suffered four gunshots, in the emergency room of St. Mary’s Hospital in East St. Louis, Illinois. One gunshot wound traveled from behind the ear to the front of the ear, passing through the ear canal, but not fracturing any bone. A second wound was to the upper right thigh. A third wound was below the right knee. The last wound was at the base of the right buttock.

Dr. Cason examined Robert Manning and ordered him transferred to a neurosurgeon at St. Louis University Hospital. Robert Manning suffered from one gunshot wound which passed from one hemisphere of the brain to the second hemisphere, with coma.

Philip Burch, a physician and medical examiner, testified that an autopsy report of Dr. Michael Graham of the medical examiner’s office listed the cause of death of Robert Manning as a gunshot wound to the head. The bullet which penetrated the brain was recovered.

The presentence report reveals that defendant, age 21, has approximately three months’ verifiable employment. Defendant stated that he earned approximately $2,000 per month as a self-employed furniture refinisher. Defendant was sentenced to three years’ confinement in 1986 after a general court martial by the United States Army and was given a bad-conduct discharge. He has no other convictions or history of juvenile delinquency.

Defendant initially contends that his convictions for armed violence and aggravated battery should be vacated because those convictions are based on the same act as the attempted first-degree murder conviction. Count II of the indictment alleged attempted first-degree murder in that defendant, intending to kill Anthony Manning, “shot Anthony Manning in the head with a gun.” Count III of the indictment alleged armed violence in that defendant, while armed with a dangerous weapon, a gun, committed aggravated battery where he “intentionally and without legal justification shot Anthony Manning in the head with a gun, thereby causing great bodily harm to Anthony Manning.” Count IV alleged aggravated battery in that defendant, “without legal justification, intentionally caused great bodily harm to Anthony Manning in that he shot Anthony Manning in the head with a gun.”

In Illinois, it is well established that multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges. (People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477; People v. Johnson (1990), 200 Ill. App. 3d 1018, 558 N.E.2d 607.) The elements of the offense of armed violence are simply stated: “A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law.” (Ill. Rev. Stat. 1989, eh. 38, par. 33A — 2.) Therefore, “[o]ne cannot violate the armed violence statute without first committing a felony. The alleging of that felony in the armed violence charge has the effect, upon conviction, of making it a necessarily included offense.” Donaldson, 91 Ill. 2d at 170, 435 N.E.2d at 479.

Here, there was only one alleged act, a single shot to Anthony Manning’s head. Therefore, defendant’s convictions for both armed violence and its underlying felony, aggravated battery, were improper and the aggravated battery conviction must be vacated. People v. Kujawa (1985), 132 Ill. App. 3d 828, 829, 477 N.E.2d 759, 760; Donaldson, 91 Ill. 2d at 170, 435 N.E.2d at 479; Johnson, 200 Ill. App. 3d at 1021, 558 N.E.2d at 609.

Further, when more than one offense arises from the same physical act, convictions for both attempted first-degree murder and armed violence cannot stand. (People v. Edwards (1988), 167 Ill. App. 3d 324, 337, 521 N.E.2d 185, 194.) In the case at bar, both offenses charged the same act: the shooting of Anthony Manning in the head with a gun. Judgment should be entered and sentence imposed only on the more serious offense. Both armed violence and attempted first-degree murder constitute serious offenses and both are Class X felonies, carrying a prison sentence of from 6 to 30 years. Nevertheless, attempted first-degree murder is a specific intent crime whereas armed violence is a general intent crime. Because attempted first-degree murder constitutes the more specific offense, it is the offense of the two in question upon which the court should have entered judgment and imposed sentence. (Edwards, 167 Ill. App. 3d at 337, 521 N.E.2d at 194.) Therefore, where armed violence, aggravated battery, and attempted first-degree murder are based on the same act, armed violence and aggravated battery must be vacated so that only the attempted first-degree murder conviction remains. People v. Wilkerson (1984), 123 Ill. App. 3d 527, 537, 463 N.E.2d 139, 147.

The State responds that in People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844, our supreme court held that prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Such pr^udice might occur if the parole board considers parole eligibility based on multiple convictions arising out of the same act. (King, 66 Ill. 2d at 564, 363 N.E.2d at 844.) The State further responds that indeterminate sentencing and the discretion of the parole board for determining parole eligibility in effect at the time of the King decision have been abolished; therefore, one of the reasons for the King decision no longer exists. (See Ill. Rev. Stat. 1979, ch. 38, par. 1003 — 3—2(a).) The State concludes that it should not be disadvantaged by the prohibition of multiple convictions based upon the same act.

However, we believe that other adverse consequences, such as the societal stigma accompanying multiple convictions and the ramifications of those convictions on future sentences defendant may receive, continue to be valid reasons for the prohibition of multiple convictions. (See Ball v. United States (1985), 470 U.S. 856, 865, 84 L. Ed. 2d 740, 748, 105 S. Ct. 1668, 1673.) Furthermore, it is fundamental that appellate courts are without authority to override the supreme court or to modify its decisions. (Beagley v. Andel (1978), 58 Ill. App. 3d 588, 591, 374 N.E.2d 929, 932; see also People v. Hall (1986), 143 Ill. App. 3d 766, 780, 491 N.E.2d 757, 768.) This court, therefore, must follow the King decision and vacate the convictions for armed violence and aggravated battery.

Defendant next contends that if the armed violence and aggravated battery convictions are vacated, the case should be remanded for resentencing on the attempted first-degree murder conviction, because the two lesser convictions may have been improperly considered as aggravating factors in calculating the sentence for attempted first-degree murder. The State responds that due to the heinous and premeditated nature of the offenses the sentences were fully justified; therefore, no consideration was given to the vacated sentences when sentences were imposed for attempted first-degree murder and first-degree murder.

At the sentencing hearing, no evidence in aggravation or mitigation was introduced. In sentencing defendant, the court stated, inter alia:

“So as far as factor or factors in mitigation, the fact that you have no substantial criminal record is something the Court will take into consideration. *** It is clear from the verdict that the jury returned that I believe that you committed the offense of First Degree Murder of Robert Manning as charged, and Attempt Murder of Anthony Manning, and out of that Attempt Murder conviction arose also the Armed Violence and Aggravated Battery convictions.
Factors in aggravation would be the fact that you did cause serious bodily harm to Anthony Manning. Of course, there was also the death of Robert Manning. Any lengthy sentence, I believe, might have some deterrent effect on other people in the community. That is not the primary factor for a Court to consider sentencing, but it is a factor. I believe the State has correctly pointed out that under Section 1005 — 8—4 of Chapter 38, where you are convicted of a Class X or Class 1 Felony, and you inflicted severe bodily harm or injury, the Court shall enter sentences to run consecutively. And, accordingly, the sentences that will be imposed will run consecutively on the charges, or on the verdicts of Murder and Attempt Murder.
Mr. Massey, for the conviction of the First Degree Murder of Robert Manning, I’m going to sentence you to a term of 35 years to the Illinois Department of Corrections. For the conviction of the charge of the Attempt Murder of Anthony Manning, I’m going to sentence you to 15 years to the Illinois Department of Corrections. Those terms to run consecutively.
With regard to the Armed Violence and Aggravated Battery charges, the Armed Violence is also a Class X Felony. I’m not going to impose any additional time, unless it is incumbent upon the Court to impose a penalty, and in that case the sentence would be 15, to run concurrently with the Attempt Murder, and five years on the Aggravated Battery, to run concurrently.”

A cause need not be remanded for resentencing in the absence of any indication that the court improperly considered the vacated convictions. (People v. Bridges (1989), 188 Ill. App. 3d 961, 969, 545 N.E.2d 367, 372; see also People v. Poe (1984), 121 Ill. App. 3d 457, 463, 459 N.E.2d 667, 671-72.) Here, there is no reason to believe that the court increased defendant’s sentence for attempted first-degree murder because he was also convicted of aggravated battery and armed violence arising from the same act. Indeed, the court’s statement that it was not going to impose any additional time for the aggravated battery and armed violence convictions unless it was “incumbent” upon the court to do so demonstrates that it did not improperly consider those convictions as enhancing the seriousness of defendant’s attempted first-degree murder conviction. Defendant’s 15-year prison sentence for attempted first-degree murder is therefore affirmed.

Defendant finally contends the trial court erred in denying his motion for release of property, because he had not been charged with any crime relating to the money, and the money is not contraband. The State does not respond to this argument but asks this court to decide the issue “upon the strength of the argument presented in defendant’s brief.” Immediately after trial, defendant moved for release of money that had been found on his person at the time of his arrest on the basis that there was no reason for the State to continue to hold this money. The money, alleged to be $2,593, had been admitted into evidence at trial. After pronouncing sentence, the trial court denied defendant’s motion pending results of any appeal.

Section 108 — 2 of the Code of Criminal Procedure of 1963 (the Code) provides:

“Custody and Disposition of Things Seized. An inventory of all instruments, articles or things seized on a search without warrant shall be given to the person arrested and a copy thereof delivered to the judge before whom the person arrested is taken, and thereafter, such instruments, articles or things shall be handled and disposed of in accordance with Sections 108 — 11 and 108 — 12 of this Code. If the person arrested is released without a charge being preferred against him all instruments, articles or things seized, other than contraband, shall be returned to him upon release.” (Ill. Rev. Stat. 1989, ch. 38, par. 108-2.)

Section 108 — 11 of the Code provides: “Disposition of things seized. The court before which the instruments, articles or things are returned shall enter an order providing for their custody pending further proceedings.” Ill. Rev. Stat. 1989, ch. 38, par. 108 — 11.

There are two categories of contraband. Contraband per se are items the possession of which alone constitutes a criminal offense, i.e., certain narcotics and counterfeit money. Such articles need not be returned to the owner even if improperly seized by law enforcement officers. Derivative contraband are articles which are not inherently illegal, but which have been or are used in an unlawful manner. Money is inherently legal and is not an item the possession of which alone constitutes a criminal offense. Money is not contraband unless it is statutorily declared to be such because of its use in an unlawful manner. When an article is not contraband per se its use must have a rational relationship to an unlawful purpose before it is subject to forfeiture. In re $53,263.00 (1987), 159 Ill. App. 3d 114, 118, 512 N.E.2d 740, 742.

In the case at bar, defendant was not charged with an offense involving the money, and no evidence was presented at trial that the money is the property of someone other than defendant. The money is not contraband per se, and the trial court erred in denying defendant’s motion for release of property. (See People v. Apartment No. 16 In The Two-Story Brick Apartment Building Located At 1334 Juniper, Rantoul (1977), 52 Ill. App. 3d 912, 368 N.E.2d 787 (trial court erred in denying motion for return of $2,500 alleged unlawfully seized from apartment where no prosecution of apartment’s lessee had occurred and no action for forfeiture of the money had been brought).) This court, therefore, remands this cause with directions to the trial court to return whatever money is due defendant.

For the foregoing reasons, defendant’s conviction and sentence for attempted first-degree murder are affirmed, his convictions and sentences for the offenses of armed violence and aggravated battery are vacated, and the cause is remanded with directions. Defendant’s conviction for first-degree murder is affirmed.

Affirmed in part; vacated in part; and remanded with directions.

CHAPMAN and HOWERTON, JJ., concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY WHITLEY, Defendant-Appellant.
    Fifth District
    No. 5—90—0478
    Opinion filed October 8, 1991.
    Daniel M. Kirwan and Janet Gandy Fowler, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert R. Haida, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Defendant, Jeffrey Whitley, was found guilty of forgery and sentenced to two years’ probation. Defendant argues the information fails to state an offense. The issue concerning the sufficiency of the charging instrument was first raised on appeal. For the reasons which follow, we hold the information is sufficient. We, therefore, affirm.

The evidence established that on June 13, 1989, Mr. Jeffrey Whitley allegedly received two checks in payment for services as a security guard from a man he identified only as Jerome. That evening defendant approached an acquaintance, Barbara Yantze, and asked if she knew where he could cash a check. Barbara Yantze replied that her old boss, Charles Merritts at Regal Package Liquor Store, might do it. The two went to the store, but only Yantze entered. She was not able to cash the check because Mr. Merritts was not there. The next day Yantze and Whitley returned to the store, but again only Yantze went in. Merritts told her to return later in the day when he would have sufficient funds. Yantze returned later that day, but Merritts refused to cash the check unless Whitley came in himself with identification. Mr. Whitley then went into the store and presented his driver’s license, his address, and a phone number. Merritts cashed the check. Subsequently it was discovered that the account upon which the check had been drawn was closed and that the account holder, Starlita Grant, had thrown away the blank checks. Jeffrey Whitley was arrested, signed a statement, and was eventually charged in a criminal information with forgery.

The challenged portion of the information states that Jeffrey Whitley committed the offense of forgery in that:

“The said defendant with the intent to defraud, knowingly delivered to Charles Merritts, Jr., a document apparently capable of defrauding another in that it was purported to have been made by another, Starlita Grant, said document being a check numbered 160 of Starlita Grant, drawn on the Citizens Bank of University City, dated June 14, 1989, payable to Jeff Whitey [sic], in the amount of $439.00 and signed as maker Starlita Grant, knowing the document to have been thus made *** in violation of Section 17 — 3(a)(2) Chapter 38, Illinois Revised Statutes.”

Appellant argues the information merely alleges that Whitley delivered a two-party check to Mr. Merritts without describing the fraudulent nature of the check and, therefore, fails to state an offense. In a similar case the Illinois Supreme Court ruled that the words “purported to have been made by another” and “knowing the document to have been thus made” alleged that the check was forged and that the defendant knew of the forgery. (Emphasis in original.) People v. Hockaday (1982), 93 Ill. 2d 279, 283-85, 443 N.E.2d 566, 568-69.

When an information is attacked for the first time on appeal, the charging instrument will be sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to a future prosecution arising out of the same conduct. (People v. Gilmore (1976), 63 Ill. 2d 23, 29, 344 N.E.2d 456, 460.) The information described the document in question as “a check numbered 160 of Starlita Grant, drawn on the citizens Bank of University City dated June 14, 1989, payable to Jeff Whitey [sic], in the amount of $439.00 and signed as maker Starlita Grant.” Defendant was clearly apprised of the nature of the offense charged, with sufficient specificity as to prevent any future prosecution arising out of the same conduct. Gilmore, 63 Ill. 2d 23, 344 N.E.2d 456; Hockaday, 93 Ill. 2d 279, 443 N.E.2d 566.

Appellant also argues that he was not proven guilty of forgery beyond a reasonable doubt because there was no evidence that he knew the check had been fraudulently made or that he intended to defraud Merritts. In a statement given by the defendant at the time of arrest and admitted into evidence, defendant stated that he saw a person known to him only as Jerome sign the bottom of the check using the name Starlita C. Grant. Starlita Grant testified that she did not know Jeffrey Whitley or a Jerome engaged in the security business, nor had she ever authorized anyone to sign her name to the checks. Defendant avoided contact with Merritts until Merritts refused to cash the check unless he came in himself with adequate identification. Appellant’s claim that he offered to repay the losses on the check is meaningless in light of Merritts’ testimony that because Whitley never did pay him he called the police, after which the defendant never contacted him again. There were other inconsistencies in the defendant’s statement and testimony as well.

The intent to defraud may be inferred from the facts and circumstances surrounding the transaction. (People v. Varellas (1985), 138 Ill. App. 3d 820, 486 N.E.2d 388, 393.) A criminal conviction will not be set aside unless the evidence, when viewed in a light most favorable to the prosecution, is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276-77.) The facts and circumstances here do not merit such an action.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

HARRISON and HOWERTON, JJ., concur.


text:
      In re MARRIAGE OF RUTH ANN HAZEL, Petitioner-Appellant, and CHARLES ROBERT HAZEL, Respondent-Appellee.
    Fifth District
    No. 5—90—0186
    Opinion filed October 8, 1991.
    Theodore Van Winkle and James L. Van Winkle, both of Van Winkle & Van Winkle, of McLeansboro, for appellant.
    Morris Lane Harvey, of Fairfield, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Petitioner, Ruth Ann Hazel, filed a petition for dissolution of marriage against Charles Robert Hazel on June 1, 1988. After the first stage of the hearing, the trial court entered a judgment dissolving the marriage. Following the second stage of the hearing, the court entered an order holding that the marriage was not undergoing irreconcilable breakdown prior to 1988, thereby precluding a finding of dissipation occurring before that point. The issue before this court is whether the trial court’s finding that the marriage was not undergoing irreconcilable breakdown before 1988 was an abuse of discretion. For the reasons which follow, we hold the circuit court did not abuse its discretion. We, therefore, affirm.

Ruth Ann Hazel and Charles Robert Hazel were married on April 23, 1961. Three children were born to the marriage with one still living at home at the time of the final hearing. The marriage, like many, had problems. Petitioner alleged acts of gambling, drinking, loafing, and wasting of marital assets on the part of her spouse. Mrs. Hazel testified that her husband began gambling in 1980 and trapshooting in 1984. Respondent estimated his trapshooting expenses at $2,000 per year. In 1984 the couple’s farming operation suffered a loss in excess of $34,000. The farm had shown yearly net profits prior to and subsequent to the 1984 loss. Mrs. Hazel testified that in 1985 she consulted an attorney concerning a divorce, but no action was taken. She also claimed that at this time Mr. Hazel told her he did not love her, that he intended to enjoy himself, and for her to find another man. In 1986 the couple went to a marriage counselor. Mr. Hazel periodically maintained a separate post office box and handled the bank account and books in the two years preceding dissolution. Counsel for respondent acknowledged that the marriage began undergoing an irreconcilable breakdown by January 1, 1988. The parties had never physically separated and lived together continuously until June of 1988 when the instant petition for dissolution was filed. The parties engaged in a sexual relationship on an average of four to five times a month up until the June 1988 filing. Mrs. Hazel alleged dissipation of marital assets on the part of Mr. Hazel which dated back to at least 1984.

Section 503 of the Illinois Marriage and Dissolution of Marriage Act sets forth the factors to be considered when distributing marital property, including:

“(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit.” Ill. Rev. Stat. 1989, ch. 40, par. 503(d)(1).

Dissipation refers to the use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing irreconcilable breakdown. In re Marriage of O’Neill (1990), 138 Ill. 2d 487, 497, 563 N.E.2d 494, 498; In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881, 886, 507 N.E.2d 207, 210.

Petitioner argues that use of the term “undergoing” suggests that an irreconcilable breakdown may be viewed as a prolonged gradual process extending from the initial signs of trouble in a marriage until the actual breakdown itself. To adopt the meaning proposed by the petitioner would require courts to examine every argument or conflict in the marriage from the moment vows are exchanged to the date of dissolution to determine if such an event was in fact the moment at which the marriage began undergoing irreconcilable breakdown. Such a finding would defeat the holding of the Illinois Supreme Court in O’Neill.

A person charged with dissipation has the burden of establishing by clear and specific evidence how the funds in question were spent. (Petrovich, 154 Ill. App. 3d at 886, 507 N.E.2d at 210.) To require every expense and economic decision of a 27-year marriage to be explained by clear and specific evidence, without requiring some demonstration that a threshold has been crossed, adds an unnecessary and wasteful burden of time and expense. (In re Marriage of Getautas (1989), 189 Ill. App. 3d 148, 154-55, 544 N.E.2d 1284, 1288.) The legislature did not intend to make the courts auditors for every marriage that fails. Getautas, 189 Ill. App. 3d at 154, 544 N.E.2d at 1288.

The trial court established the date of January 1, 1988, as the point at which the marriage began undergoing irreconcilable breakdown and found no dissipation on the part of the respondent. The trial court’s findings concerning the allocation of marital property, including findings for and against dissipation, will not be reversed absent an abuse of discretion. (Petrovich, 154 Ill. App. 3d at 886, 507 N.E.2d at 210.) The question, in determining whether the trial court abused its discretion, is whether the trial court acted arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceeded the bounds of reason and ignored recognized principles of law so that substantial prejudice resulted. (In re Marriage of Aud (1986), 142 Ill. App. 3d 320, 326, 491 N.E.2d 894, 898.) Respondent conceded that by January 1, 1988, the marriage was undergoing irreconcilable breakdown. Petitioner claims, however, that the process began much earlier. While petitioner lists incidents and conflicts which in retrospect may appear to mark the beginning of a gradual process culminating in marital breakdown, they cannot be said to display a marriage inevitably headed for breakdown. Thus, they cannot be said to signal the start of the process “undergoing irreconcilable breakdown.” Prior to June 1988, petitioner had never filed for dissolution nor had the parties ever physically separated. Mrs. Hazel testified that the couple would always reach a point when things would go back the way they had been prior to the altercation. The parties continued to engage in a sexual relationship until the filing for dissolution in June of 1988. While such a marriage may not have been a happy one, the trial court’s finding that the marriage of the parties was not undergoing irreconcilable breakdown prior to 1988 was not an abuse of discretion.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

HARRISON and HOWERTON, JJ., concur.


author: PRESIDING JUSTICE RARICK

text:
    GALEN SONS et al., Plaintiffs-Appellants, v. LEO F. TAYLOR et al., Defendants-Appellees (Dennis Taylor et al., Defendants).
    Fifth District
    No. 5—90—0617
    Opinion filed October 9, 1991.

      Steven F. Hanagan, of Hanagan & Dousman, of Mt. Vernon, for appellants.
    Carl L. Favrau, of Campbell, Black, Camine & Hedin, P.C., of Mt. Vernon, for appellees.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Galen Sons, appeals from the entry by the circuit court of Wayne County of an order granting summary judgment in favor of defendants, Leo E and Lauraine Taylor. We reverse and remand.

On June 3, 1987, plaintiff, an appliance service technician for Sears, Roebuck and Company, was called to service a freezer at a house owned by defendants Leo and Lauraine Taylor and occupied by defendants Dennis and Nancie Taylor. Dennis and Nancie are the son and daughter-in-law of Leo and Lauraine. As plaintiff descended the basement stairs to service the freezer, the second step down split lengthwise causing plaintiff to fall through the stairs. Both of plaintiff’s knees were injured requiring bilateral knee replacements. The step which caused plaintiff’s fall had been partially carpeted down the center of the stair. It was further revealed that because of the steepness of the stairway, plaintiff had descended the steps one at a time placing both feet on the same step before going to the next one.

Defendants Leo and Lauraine previously lived in the house themselves until the early 1960’s. Upon moving out, they rented the residence several times. In the mid 1970’s when Dennis and Nancie got married, however, Leo and Lauraine offered the premises to them for as long as they wished to stay. Dennis and Nancie have lived in the house ever since. They pay no rent and have no agreement with Leo and Lauraine as to the use, control, repairs, or maintenance of the house. While Dennis and Nancie have made a few improvements to the house and have done some maintenance, Leo also has paid for or assisted with some of these items. Dennis repaired the stairs after plaintiff’s fall.

Leo and Lauraine filed a motion for summary judgment claiming they were immune from liability on the basis of being landlords not in possession of the property. The trial court agreed, finding the relationship between the two sets of defendants to be a tenancy at will with exclusive possession and control of the premises in Dennis and Nancie. And, because a tenant in possession is liable for injuries sustained by third persons resulting from the failure to keep property in repair, the trial court ruled Leo and Lauraine were entitled to summary judgment.

It is true that, in general, a tenant who is in possession of the premises, and not the owner-landlord, with certain limited exceptions, is liable for injuries sustained by third persons because of a failure to keep the property in repair. (See Wright v. Mr. Quick, Inc. (1985), 109 Ill. 2d 236, 238, 486 N.E.2d 908, 909; Cerniglia v. Farris (1987), 160 Ill. App. 3d 568, 573-76, 514 N.E.2d 792, 794-96; Gilbreath v. Greenwalt (1980), 88 Ill. App. 3d 308, 309-10, 410 N.E.2d 539, 541-42.) The question here then becomes whether Dennis and Nancie were tenants at the time of plaintiff’s fall. The trial court thought so. We, on the other hand, believe a genuine issue of material fact exists as to the nature of the relationship between the two sets of defendants. While Dennis and Nancie had verbal permission to use the residence, they had no agreement with Leo and Lauraine as to payments, possession, use, control, repairs, maintenance, or length of use of the house. There simply was no clear evidence that Leo and Lauraine and Dennis and Nancie intended to create a landlord/tenant relationship with the offering and use of the premises. Summary judgment is particularly inappropriate where the intent of the parties is at issue. (See In re Estate of Jessman (1990), 197 Ill. App. 3d 414, 419, 554 N.E.2d 718, 720-21; Beauvoir v. Rush-Presbyterian-St. Luke’s Medical Center (1985), 137 Ill. App. 3d 294, 304, 484 N.E.2d 841, 847; State Farm Mutual Automobile Insurance Co. v. Short (1970), 125 Ill. App. 2d 97, 106, 260 N.E.2d 415, 419.) A motion for summary judgment should be granted only when the pleadings, depositions, admissions, and affidavits establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (See Breeze v. Payne (1989), 181 Ill. App. 3d 720, 726-27, 537 N.E.2d 453, 458; Cerniglia, 160 Ill. App. 3d at 572, 514 N.E.2d at 794.) If the facts admit of more than one conclusion or inference, including one unfavorable to the moving party, the motion should be denied. (Cerniglia, 160 Ill. App. 3d at 573-74, 514 N.E.2d at 794.) While use of summary judgment is to be encouraged as an aid in the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and should be allowed only when the right of the moving party is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) Here that right is not clear and free from doubt. The facts pertaining to the use of the premises admit of more than one conclusion or inference. Additionally, another genuine issue of material fact exists as to the extent and nature of repairs and maintenance made by both Dennis and Nancie or Leo and Lauraine so as to render either set of parties liable for failure to keep the stairway safe. (See O’Rourke v. Oehler (1989), 187 Ill. App. 3d 572, 580, 543 N.E.2d 546, 552; Seago v. Roy (1981), 97 Ill. App. 3d 6, 8-9, 424 N.E.2d 640, 642; see also Wright, 109 Ill. 2d at 239, 486 N.E.2d at 909.) Under such circumstances, given the record before us, we find that reasonable minds could draw differing inferences and arrive at different conclusions from the facts presented. The existence of such genuine issues of material fact necessarily precludes the granting of summary judgment in this instance. The trial court therefore erred in so doing.

For the aforementioned reasons, we reverse the judgment of the circuit court of Wayne County and remand this cause for further proceedings consistent with this opinion.

Reversed and remanded.

HARRISON and HOWERTON, JJ., concur.