author: JUSTICE CLARK JUSTICE SIMON,

text:
    (No. 55050.
    (No. 55365.
    THE PEOPLE ex rel. MICHAEL DAVIS et al., Petitioners, v. JOSE R. VAZQUEZ, Judge, et al., Respondents.-THE PEOPLE ex rel. RICHARD M. DALEY, State’s Attorney, Petitioner, v. JOSE R. VAZQUEZ, Judge, et al., Respondents.

      Opinion filed April 16, 1982.
    Rehearing denied May 27, 1982.

      SIMON, J., dissenting.
    Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael B. Weinstein, Assistant Attorney General, of Chicago, and Michael E. Shabat, Kevin Sweeney, Adrienne Noble Nacev, Richard F. Burke, Catherine M. Ryan, Joan S. Cherry, and Dean P. Karlos, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, and John Thomas Moran, Assistant Public Defender, of Chicago (Timothy P. O’Neill, Aaron L. Meyers, and Timothy Chambers, of counsel, and Mary A. Lambert, law student), for Michael Davis.
    Annette A. Eckert and William P. Murphy, of Chicago (Diane E. Greanias, of counsel, and Kimberly Gladding, law student), for Lorna Ortiz.
    Maurice M. Dore and Edward M. Rothschild, of Chicago, for respondent Jose R. Vazquez.
   JUSTICE CLARK

delivered the opinion of the court:

These consolidated cases present the issue of the right to release from custody of minors charged with delinquency, pending the State’s appeal of an order of the juvenile court denying the State’s motion to allow prosecution as an adult.

In cause No. 55050, a petition for adjudication of wardship was filed in the interest of Michael Davis in the juvenile division of the circuit court of Cook County on January 28, 1981. The petition charged Michael, then 15V2 years old, with two counts of murder in the shooting deaths of Vincent and Gregory Jackson on January 26,1981.

At a hearing on January 28, 1981, the juvenile court determined that there was probable cause to believe that Michael was a delinquent minor. It further found that immediate and urgent necessity existed for Michael to be detained pending further proceedings, and ordered that he be held in the custody of the Cook County Juvenile Detention Center (Audy Home). (Section 3 — 5 of the Juvenile Court Act provides that a detention hearing must be held within 36 hours for any minor taken into custody for alleged delinquent acts. (Ill. Rev. Stat. 1979, ch. 37, par. 703—5.) If, at the detention hearing, the court determines that probable cause exists to believe the minor is delinquent, then the court must make a further determination whether “it is a matter of immediate and urgent necessity for the protection of the minor or *** of another” (Ill. Rev. Stat. 1979, ch. 37, par. 703—6(2)) that the minor be detained in a suitable place designated by the court. If the court finds the existence of probable cause and immediate and urgent necessity, it may order detention (secure custody in physically restricting facilities (Ill. Rev. Stat. 1979, ch. 37, par. 701—9)) or shelter care (care in physically unrestricting facilities (Ill. Rev. Stat. 1979, ch. 37, par. 701—17)). If probable cause exists but there is no finding of immediate and urgent necessity for detention, the minor must be released. Ill. Rev. Stat. 1979, ch. 37, par. 703-6(2).)

Also at the January 28 hearing, the State’s Attorney filed a motion pursuant to section 2 — 7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 702—7(3)) to prosecute Michael as an adult. The court continued the hearing on this motion until February 18, and ordered a social investigation and psychological and psychiatric evaluations of Michael to be conducted to assist it in determining whether to allow the motion to transfer. These reports were not completed until February 28, 1981.

On March 3 and April 14-15, the juvenile court again held hearings at which additional evidence was presented as to the factors listed in section 2 — 7(3)(a). At the conclusion of the April 14-15 hearing, the court denied the State’s motion to prosecute Michael as an adult, and set the case for adjudicatory hearing on April 29, 1981.

On April 29, Michael answered ready to proceed to adjudication. However, the State filed a notice of appeal from the juvenile court’s order denying the motion to transfer. Michael then moved for release to his mother’s custody pending decision of the appeal. The juvenile court denied this motion, but on its own motion set bail at $100,000. Michael was unable to post bail.

On May 4 and 13, Michael moved the juvenile court to reconsider its order denying release, asserting that bail was not contemplated in proceedings under the Juvenile Court Act, and that under section 4 — 2 of the Act Michael was entitled to be released without bail. Section 4 — 2 provides, in pertinent part:

“Date for adjudicatory hearing. When a petition has been filed alleging that the minor is a person described in Section 2 — 2 or 2 — 3 [delinquent minor or minor in need of supervision], it shall be set for an adjudicatory hearing within 30 days. In the case of a minor ordered held in detention or shelter care, however, the petition must be set for hearing within 10 judicial days from the date of the order of the court directing detention or shelter care or the earliest possible date in compliance with Sections 4— 3 and 4 — 4 [concerning summons and notice]. Whenever a minor is held in detention or shelter care and the petition alleges that he or she committed a crime of violence, the State’s Attorney may by motion before the date set for the adjudicatory hearing, request that the adjudicatory hearing be postponed. *** For good cause in support of such a motion, which may include, but is not limited to, delay in obtaining medical or other scientific evidentiary reports or similar evidence or the unavailability of witnesses, the court may postpone the adjudicatory hearing up to 20 judicial days from the date of the order of the court directing detention or shelter care. ***” Ill. Rev. Stat. 1979, ch. 37, par. 704—2.

On May 22, the juvenile court reduced bail to $50,000 and on June 12 the court vacated its previous bail order and ordered Michael released without bond to the custody of his mother.

Prior to his release, Michael had filed in this court, on June 5, 1981, a motion for leave to file a petition for writs of mandamus and habeas corpus. The petition challenged the authority of the juvenile court to hold Michael to bail pending the State’s pre-adjudication appeal, and asked for his immediate release. The State, on June 19, filed its answer to Michael’s June 5 petition and also cross-petitioned for leave to file for a writ of mandamus to compel the juvenile court to vacate its order of June 12 releasing Michael. The State also moved to stay the June 12 order. Leave to file the petition, answer, and cross-petition was granted by this court in an order of July 2,1981.

On July 20, this court denied the State’s motion to stay the juvenile court’s June 12 order releasing Michael without bond, and also denied the State’s alternative motion to set bail in the amount of $100,000. However, this court, on its own motion, vacated the juvenile court’s June 12 order and reinstated the order of April 29 that set $100,000 bail, pending the disposition of the mandamus proceedings.

Pursuant to this court’s July 20 order, Michael was returned to the custody of the Juvenile Detention Center on July 21,1981. He has remained there since that time.

On July 21, 1981, the State moved pursuant to Supreme Court Rule 302(b) (73 Ill. 2d R. 302(b)) to transfer to this court the appeal of the juvenile court’s denial of the State’s motion to prosecute Michael as an adult. The Rule 302(b) motion was denied on July 24, 1981.

In cause No. 55365, Loma Ortiz was charged with the armed robbery and murder on December 13, 1980, of Anthony Hopfner in a delinquency petition filed in the juvenile division of the circuit court of Cook County on December 16, 1980. At a hearing on the same date, the juvenile court found probable cause to believe that Loma was a delinquent minor and also found that her detention was a matter of immediate and urgent necessity. Loma was ordered detained in the Cook County Juvenile Detention Center.

The State filed a motion under section 2 — 7(3) to prosecute Loma, then 15, as an adult. After a hearing held on January 28 and 29, 1981, the juvenile court denied the State’s motion. On January 30, the State filed a notice of appeal from the juvenile court’s ruling. Loma remained in the custody of the Juvenile Detention Center.

On April 29, 1981, the juvenile court, apparently on its own motion, entered an order setting bail at $100,000. After a subsequent motion by Loma for her release from the Juvenile Detention Center, the juvenile court on May 11 reduced bail to $50,000. Loma was unable to post bail.

On June 18, 1981, Lorna again moved the juvenile court for release from the Juvenile Detention Center or for placement in a residential treatment facility, pursuant to section 7—3(3) of the Act. (Ill. Rev. Stat. 1979, ch. 37, par. 707—3(3).) The ground for the motion was the asserted statutory and Federal constitutional right of minors subject to the Juvenile Court Act to receive necessary care and treatment. After a hearing on the same date, the juvenile court ordered the State’s Attorney to file a neglect petition in Lorna’s interest, and also ordered the Department of Children and Family Services to find an appropriate placement for her, both within one week.

On June 25, the State filed a motion in this court for a stay of proceedings in the juvenile court, pending the disposition of the State’s motion to file a petition for a writ of mandamus and exercise of supervisory authority, filed the same day. This court granted the motion to stay further proceedings in the juvenile court, and on August 14, 1981, granted the State’s motion for leave to file for a writ of mandamus and exercise of supervisory authority. By order of August 18, 1981, we consolidated Loma’s case with that of Michael Davis for argument.

The State’s interlocutory appeal in Michael Davis’ case is currently in the briefing stage in the appellate court. In the appeal in Loma Ortiz’ case, the appellate court affirmed the denial of transfer in a Rule 23 order dated November 24, 1981 (1st Dist. No. 81 — 256). The State filed a petition for rehearing on December 4, 1981.

The Juvenile Court Act makes no provision either for interlocutory appeals or for bail. The issue presented by these cases is a consequence of this court’s holding, in People v. Martin (1977), 67 Ill. 2d 462, that the State may take an interlocutory, pre-adjudication appeal from a juvenile court’s order denying a motion to prosecute a minor as an adult. Prior to People v. Martin it had been held that rulings on transfer motions, not being final orders, were not appealable. (People v. Jiles (1969), 43 Ill. 2d 145; People v. Boclaire (1975), 33 Ill. App. 3d 534.) In People v. Taylor (1979), 76 Ill. 2d 289, this court reaffirmed the holding in Jiles that the minor has no right to an immediate appeal of an order permitting transfer to adult court. (76 Ill. 2d 289, 308.) Taylor also held that the appellate court’s role in reviewing transfer orders is to determine whether the juvenile judge has abused his discretion in evaluating the evidence in the’ light of the criteria set forth in section 2 — 7(3). (76 Ill. 2d 289, 301-02.) This standard had previously been applied by the appellate court in several cases, in view of this court’s holding in People v. Rahn (1974), 59 Ill. 2d 302, that the ultimate decision on transfer is a judicial one. See, e.g., In re Burns (1978), 67 Ill. App. 3d 361 (affirming denial of transfer).

In Martin this court recognized that delay of the adjudication — the fundamental purpose of the proceedings— would be the inevitable consequence of allowing such appeals. (67 Ill. 2d 462, 466.) In the cases before us, the juvenile court attempted to ameliorate one of the problems of delay by setting bail, so that the minors could obtain their release from custody during the foreseeably lengthy pendency of the interlocutory appeals, The issue for this court, therefore, is the propriety of the orders setting bail for Michael Davis and Loma Ortiz. We note that questions concerning the amount or conditions of bail are not before us; rather, the issue is whether the juvenile court had the authority to require the minors in these cases to post bail as a condition of their release from custody pending the decision of the State’s appeals.

The specific policy of the Juvenile Court Act favors leaving minors subject to the Act in the custody of their parents or in a family-like setting wherever possible, even after an adjudication of delinquency. (Sections 1—2(1) and 5-2 (Ill. Rev. Stat. 1979, ch. 37, pars. 701-2(1), 705-2).) Section 1—2(1) provides:

“(1) The purpose of this Act is to secure for each minor subject hereto such care and guidance, preferably in his own home, as will serve the moral, emotional, mental, and physical welfare of the minor and the best interest of the community; to preserve and strengthen the minor’s family ties whenever possible, removing him from the custody of his parents only when his welfare or safety or the protection of the public cannot be adequately safeguarded without removal; and, when the minor is removed from his own family, to secure for him custody, care and discipline as nearly as possible equivalent to that which should be given by his parents ***.” Ill. Rev. Stat. 1979, ch. 37, par. 701—2(1).

The Act as a whole evidences a legislative policy that detention of minors be limited. “Detention” is specifically defined as “the temporary care of a minor alleged or adjudicated as a person described in Section 2 — 2 [delinquent minor] who requires secure custody for his own or the community’s protection in physically restricting facilities pending disposition by the court ***.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 37, par. 701—9.) Several sections of the Act place definite time limits on the period for which a minor may be held in detention, both prior to and after an adjudication of delinquency.

Section 3 — 5(4) provides that a minor taken into custody for allegedly committing a delinquent act may be detained for no more than 36 hours before being brought before a judicial officer for a detention hearing. Ill. Rev. Stat. 1979, ch. 37, par. 703-5(4).

Section 4 — 2 provides that when a petition has been filed alleging a minor to be delinquent or a minor in need of supervision, the juvenile court shall set the petition for hearing within 30 days of the date the petition was filed. If, however, the minor is being held in detention or “shelter care” (care in a physically nonrestricting setting, such as a foster family home or other facility (Ill. Rev. Stat. 1979, ch. 37, par. 701—17)), the petition must be set for adjudicatory hearing within 10 days of the date the minor was ordered held in detention or shelter care. The section provides that the State may move for postponement of the adjudicatory hearing, in cases where the minor is charged with a “crime of violence.” The court may grant the postponement “for good cause shown,” principally the unavailability of evidence or witnesses, but the postponement may be for no more than 20 days from the date of the court’s order directing detention or shelter care. Ill. Rev. Stat. 1979, ch. 37, par. 704-2.

Section 5 — 1(4) provides that if after the adjudicatory hearing the juvenile court continues the dispositional hearing, it may order either detention or release of a minor adjudicated delinquent, pending the decision on a suitable disposition; but “[i]n the event the court shall order detention hereunder, the period of the continuance shall not exceed 15 court days. At the end of such time, the court shall release the minor from detention.” The State is permitted under the section to move for a further continuance of the dispositional hearing and for continued detention, but the extension can be for no more than 15 additional court days, and at the end of the extended period “the court shall release the minor from detention if a further continuance is granted.” Ill. Rev. Stat. 1979, ch. 37, par. 705—1(4).

Under section 5 — 3(4), a minor on probation or conditional discharge after adjudication may be detained on a charge of violating the conditions of his release, but detention pending a hearing on the alleged violation is limited to 15 days. Ill. Rev. Stat. 1979, ch. 37, par. 705—3(4).

It is plain that detention is the exception, and release to a custodian who will provide appropriate care, guidance, discipline and protection is the rule under the Act. Accord, Doe v. State (Alaska 1971), 487 P.2d 47, 52-53; In re M. (1970), 3 Cal. 3d 16, 26, 473 P.2d 737, 743-44, 89 Cal. Rptr. 33, 39-40; Fulwood v. Stone (D.C. Cir. 1967), 394 F.2d 939, 943-44.

This court considered the meaning of section 4—2 in In re Armour (1974), 59 Ill. 2d 102. In that case a 17-year-old had been charged in a delinquency petition with attempted robbery and murder. The juvenile court ordered the minor released to his parents’ custody and set the adjudicatory hearing for a date 32 days from the date the delinquency petition was filed. There were numerous continuances of the hearing on motions by both sides and on the court’s own motion, and the hearing was not actually concluded until some six months later. (Since the minor had been released pending the hearing, the issue of detention did not arise.) The court found the minor delinquent and committed him to the Department of Corrections, Juvenile Division.

Armour appealed the adjudication of delinquency on the ground that the juvenile court lost jurisdiction over him by its failure to set the petition for hearing within 30 days, as required by section 4 — 2, and that he was therefore entitled to be discharged. The appellate court held that the juvenile court’s jurisdiction was not affected by its failure to comply exactly with the 30-day requirement. In re Armour (1973), 15 Ill. App. 3d 529.

This court affirmed, agreeing with the appellate court that the statutory requirement that the juvenile court “shall” set the petition for hearing within 30 days was directory, not jurisdictional. The court referred to the remedial aims of the Juvenile Court Act and concluded that the legislature did not intend that a minor not receiving an adjudicatory hearing within precisely 30 days “should be discharged or be abandoned, as it were, and that society’s effort to correct, to rehabilitate and to guide should come to a halt.” In re Armour (1974), 59 Ill. 2d 102, 105.

We conclude that section 4 — 2 establishes a maximum period of time that a minor can be detained pending judicial action on the merits of his case. Section 4 — 2 mandates not discharge, but release when the statutory period has been exceeded. This construction comports with the manifest legislative purpose to expedite proceedings in which minors are held in detention, and to prevent minors from being held in custody and separated from their families for lengthy and indefinite periods, pending action by the court. Sections 5—1(4) and 5 — 3(4) require the release from detention of minors who have been adjudicated delinquent if the court has not acted within a specified brief period. It would be incongruous to hold that minors who are merely alleged to be delinquent could be detained indefinitely.

We note that the appellate court has given this interpretation to section 4 — 2 and to parallel sections of the Act. (In re Armour (1973), 15 Ill. App. 3d 529; People v. Dean (1977), 52 Ill. App. 3d 383; In re Daniels (1976), 37 Ill. App. 3d 975.) Our conclusion is further supported by consideration of the commentary to section 4 — 2 by the Council on the Diagnosis and Evaluation of Criminal Defendants, which drafted section 4 — 2 in connection with the 1973 revision of the Juvenile Court Act and the enactment of the Unified Code of Corrections. It states:

“Former law was unclear whether the minor was to be released from custody or discharged if the hearing [sic] was not set for hearing within 10 days. This amendment clearly states that he will only be released from custody and not discharged.” Ill. Ann. Stat., ch. 37, par. 704—2, Council Commentary at 140 (Smith-Hurd Supp. 1981).

Michael Davis contends that under section 4 — 2 of the Juvenile Court Act, quoted above, a minor is entitled to be released from custody without bail if no adjudicatory hearing is held within the time prescribed by that section. We believe that this construction of the statute is the correct one.

Our conclusion that minors detained on a charge of delinquency must be released if no adjudicatory hearing has been held within the period prescribed in section 4 — 2 does not, however, dispose of the cases before us, as we do not believe section 4 — 2 was intended to apply in the circumstances of these cases. Section 4 — 2 was enacted in 1973, prior to People v. Martin (1977), 67 Ill. 2d 462, at a time when interlocutory appeals of transfer orders were not permitted. It is unreasonable to suppose that, had the General Assembly contemplated the possibility of such appeals, it would have required that they be completed within the maximum 30-day period provided in section 4 — 2. When the State is appealing the juvenile court’s denial of a motion to prosecute a minor as an adult, therefore, we hold that section 4 — 2 does not require the minor’s release without bail.

Where the State appeals the denial of a motion to transfer, there arises the possibility that the minor may be subjected to the consequences of prosecution and conviction as an adult offender. Had the juvenile court granted the motion to transfer, no one would doubt that the minors would be entitled to release upon the giving of security for their appearance at trial. We believe that under the circumstances of these cases, a minor should have at least the same rights as an adult accused of crime. Ill. Rev. Stat. 1979, ch. 37, par. 701—2(3)(a); In re Beasley (1977), 66 Ill. 2d 385, 391.

Article I, section 9, states: “All persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident or the presumption great.” (Emphasis added.) (Ill. Const. 1970, art. I, sec. 9.) The Constitution does not draw a distinction based on the age of the accused. (Trimble v. Stone (D.D.C. 1960), 187 F. Supp. 483, 486.) Since both juveniles here were under 18 years of age at the time the offenses were committed, neither can be sentenced to death, so the exception above relating to capital offenses is not applicable here (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(b)). Moreover, the Juvenile Court Act, whose basic purpose is to provide juvenile offenders greater protection and solicitude than afforded by the adult criminal justice system, should not be interpreted as depriving minors of their constitutional rights. (State v. Franklin (1943), 202 La. 439, 443, 12 So. 2d 211, 213.) This court has held that juveniles have the same right to be released on bail pending an appeal of an adjudication of delinquency as adults have to release on bail pending appeal of a criminal conviction. In re Pulido (1978), 69 Ill. 2d 393.

The function of the trial court is to determine the amount of bail to be required and to accept the bond or recognizance of the person being admitted to bail. (People ex rel. Gendron v. Ingram (1966), 34 Ill. 2d 623, 625-26; Lewis v. People (1885), 18 Ill. App. 76, 77.) The court may take into account, in fixing the amount of bail, the character and criminal record, if any, of the accused, as well as the existence of a doubt as to his guilt and the probability of his appearing for trial. (In re McGarry (1942), 380 Ill. 359, 365; People ex rel. Sammons v. Snow (1930), 340 Ill. 464, 467.) But, “excessive bail is not to be required for the purpose of preventing the prisoner from being admitted to bail.” (People ex rel. Sammons v. Snow (1930), 340 Ill. 464, 467; People ex rel. Hemingway v. Elrod (1975), 60 Ill. 2d 74, 81.) Although preventive detention of an accused for the purpose of protecting the public is not contemplated by the Constitution, this court has approved the imposing of restrictive conditions on release as a means of “balanc[ing] the right of an accused to be free on bail against the right of the general public to receive reasonable, protective consideration by the courts.” People ex rel. Hemingway v. Elrod (1975), 60 Ill. 2d 74, 81.

We hold that the minors in these cases were entitled to be admitted to bail, and that the juvenile court therefore had authority to set bail in an appropriate amount, to release on recognizance, and/or to impose conditions on their release, as discussed in People ex rel. Hemingway v. Elrod (1975), 60 Ill. 2d 74. Our Rule 604 is applicable to interlocutory appeals by the State of orders denying transfer of minors to adult court. (People v. Martin (1977), 67 Ill. 2d 462.) We draw attention to subdivision (aX3) of that rule, which provides: “Release of Defendant Pending Appeal. A defendant shall not be held *** to bail during the pendency of an appeal by the State *** unless there are compelling reasons for his *** being held to bail.” (73 Ill. 2d R. 604(a)(3).) When the State is appealing a transfer order, therefore, it is incumbent on the State to show the “compelling reasons” that necessitate holding the minor to bail before bail can be required.

The case of Loma Ortiz presents a further issue. In May 1981, when Loma had been in the custody of the Juvenile Detention Center for approximately iVz months, she filed a motion in the juvenile court requesting placement in a facility where she could receive necessary educational services. Loma has a learning disability, dyslexia, that requires special training not available at the Juvenile Detention Center. The motion also averred, on the basis of the sworn testimony of a psychiatrist who examined Loma, that her extended stay in the Detention Center had become detrimental to her mental and emotional well-being, and that in Loma’s best interest she should be transferred to a residential treatment facility.

As grounds for the motion, Loma asserted a statutory right, as a minor subject to the Juvenile Court Act, to receive necessary care and services. (Ill. Rev. Stat. 1979, ch. 37, par. 701—2(3)(b).) She also asserted a right to treatment based on the eighth and fourteenth amendments to the Federal Constitution. Nelson v. Heyne (7th Cir. 1974), 491 F.2d 352; Collins v. Bensinger (N.D. Ill. 1974), 374 F. Supp. 273, affd (1974), 506 F.2d 1405.

In response to Loma’s motion, the juvenile court — apparently in the belief that it could not act to secure necessary educational services for Loma until she had been adjudicated a ward of the court — on June 18, 1981, ordered the State’s Attorney to file a neglect petition in Loma’s behalf, and ordered the Department of Children and Family Sevices to locate an appropriate placement for her. The statutory basis for the order directed to the State’s Attorney is section 4 — 1 of the Juvenile Court Act, which provides:

“(1) Any adult person, any agency or association by its representative may file, or the court on its own motion may direct the filing through the State’s Attorney of a petition in respect of a minor under this Act.” Ill. Rev. Stat. 1979, ch. 37, par. 704-1(1).

The State’s Attorney, in his petition for mandamus, contends that the juvenile court’s order was void, as the statutory section purporting to authorize the court to direct the State's Attorney to file a petition is an unconstitutional attempt to vest a court with power belonging exclusively to the executive branch, in violation of the constitutional principle of separation of powers. Ill. Const. 1970, art. II, sec. 1.

We find the State’s contention unpersuasive. The filing of a petition in respect of a minor under the Juvenile Court Act is not a matter within the exclusive executive discretion of the State’s Attorney. Any responsible adult having knowledge of the circumstances may file a petition under section 4 — 1 alleging a minor to be delinquent, dependent, neglected, or a minor in need of supervision. In addition, the Act authorizes probation officers to investigate and evaluate an allegation that a minor is delinquent, and to see to the filing of a petition where this is indicated. (Ill. Rev. Stat. 1979, ch. 37, par. 706—1(2)(a).) The aim of section 4 — 1 is to provide a number of avenues of access to the juvenile court for minors in need of its services. The petition is simply the means by which the juvenile court acquires official cognizance of the situation of the minor. (People v. Piccolo (1916), 275 Ill. 453, 455.) A person filing a petition is merely an “agent of the court in bringing the facts of the case to the attention of the court.” In re Brown (1904), 117 Ill. App. 332, 336.

The decision to file a petition, therefore, is not like the decision whether to initiate a criminal prosecution or what offense to charge, which are functions within the exclusive discretion of the State’s Attorney; and the cases to this effect, cited by the State, are inapposite. (People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531; People v. Ruiz (1979), 78 Ill. App. 3d 326; People v. Rotramel (1972), 5 Ill. App. 3d 196.) A petition under section 4 — 1 need not specify any proposed disposition of the minor; moreover, specific provision is made for two or more petitions being filed in respect of the same minor at the same time. (Ill. Rev. Stat. 1979, ch. 37, pars. 704—1(3), 704—1(6).) We hold that section 4—1’s authorization of the juvenile court to direct the filing of a petition in respect of a minor through the State’s Attorney does not authorize an impermissible exercise by the judicial branch of powers belonging exclusively to the executive, and does not violate article II, section 1, of the Illinois Constitution.

Since this case will be remanded, it is appropriate to note that it is not necessary that a petition be filed before the juvenile court can act to secure necessary care, treatment and services for a minor held in custody under the Act. Section 3 — 6(2) authorizes the court at the detention hearing to “enter such *** orders related to the temporary custody as it deems fit and proper,” and generally to order appropriate placement of a minor who has been taken into custody on a charge of delinquency. (Ill. Rev. Stat. 1979, ch. 37, par. 703—6(2).) The placement chosen by the juvenile court should, of course, be that which, in the court's judgment, will “serve the moral, emotional, mental, and physical welfare of the minor” and secure the minor’s “right to services necessary to his proper development, including health, education and social services.” Ill. Rev. Stat. 1979, ch. 37, pars. 701-2(1), 701-2(3)(b).

Under section 7 — 3(3), the juvenile court can order a minor subject to the Act placed in a hospital, institution or agency for treatment or special care “when the health or condition of [the minor] requires it.” (Ill. Rev. Stat. 1979, ch. 37, par. 707—(3).) The section extends to minors who are in the custody of juvenile authorities and is not limited to minors who have been adjudicated wards of the court, or in respect to whom a petition has been filed, and section 3 — 7 (authorizing the court to consent to medical and dental treatment of the minor “[a]t all times during temporary custody, detention or shelter care” (Ill. Rev. Stat. 1979, ch. 37, par. 703—7)) indicates that it was not intended to be so limited. The question of what care, services and treatment are necessary and appropriate is for the juvenile court to determine in the first instance. However, we agree that a different and higher standard of care is required for juveniles held in custody than for adult detainees, both by the Juvenile Court Act and by the Federal Constitution. Swansey v. Elrod (N.D. Ill. 1975), 386 F. Supp. 1138, 1143; Nelson v. Heyne (7th Cir. 1974), 491 F.2d 352, 358-60.

Summarizing our disposition of these cases, we hold that minors detained on a charge of delinquency have the right to bail when the State appeals an order of the juvenile court denying a motion to prosecute them as adults. The juvenile court therefore had authority to set bail for the minors in these cases. Michael Davis’ petition requesting the issuance of a writ of mandamus to compel the juvenile court to vacate its bail order of April 29, 1981, and for habeas corpus, must therefore be denied. The juvenile court’s order of June 12 releasing Michael without bail was vacated by this court’s order of July 20, 1981; consequently the State’s petition that mandamus issue to vacate that order is denied. Cause No. 55050 is remanded to the juvenile court for further proceedings consistent with this opinion.

Since we hold that the juvenile court had authority to order the State’s Attorney to file a petition under section 4 — 1 in behalf of Loma Ortiz, the petition of the State’s Attorney for a writ of mandamus is denied. Cause No. 55365 is remanded for further proceedings consistent with this opinion.

55050 — Writs denied; cause remanded.

55365 — Writ denied; cause remanded.

JUSTICE SIMON,

dissenting:

I do not find any authority to hold a minor in detention pending appeal of the juvenile court’s denial of the State’s motion to try him as an adult, and I therefore dissent.

Section 4 — 2 of the Juvenile Court Act provides:

“Date for adjudicatory hearing. When a petition has been filed alleging that the minor is a [delinquent] ***, it shall be set for an adjudicatory hearing within 30 days. In the case of a minor ordered held in detention or shelter care, however, the petition must be set for hearing within 10 judicial days from the date of the order of the court directing detention or shelter care ***. Whenever a minor is held in detention or shelter care and the petition alleges that he or she committed a crime of violence, the State’s Attorney may by motion *** request that the adjudicatory hearing be postponed. *** For good cause in support of such motion, *** the court may postpone the adjudicatory hearing up to 20 judicial days from the date of the order of the court directing detention or shelter care.” Ill. Rev. Stat. 1979, ch. 37, par. 704—2.

The statute has been interpreted to be directory in nature and not a statement of jurisdiction, mandatory on the court. Thus a juvenile in the custody of his parents is not entitled to a discharge from responsibility for his crimes just because his adjudicatory hearing was not held within 30 days. (In re Armour (1974), 59 Ill. 2d 102.) To interpret it otherwise would conflict with the ultimate policy behind the Juvenile Court Act: to give care, guidance and a chance for rehabilitation to wayward youths. (In re Armour (1974), 59 Ill. 2d 102.) Despite this, however, a juvenile who is being confined is entitled to release pending his adjudicatory hearing, if the hearing is not held within the specified period. (People v. Dean (1977), 52 Ill. App. 3d 383; In re Daniels (1976), 37 Ill. App. 3d 975.) The majority concedes that under normal circumstances this is true, but finds an exception in this case.

No exception is made in the statute for appeals of denials of the State’s Attorney’s motion to transfer a juvenile to adult jurisdiction. I believe that none was intended. The fact that the legislature may not have anticipated that such orders would be appealable does not lessen the applicability of the statute. Instead, the State’s Attorney appears to have a choice when his motion is denied. He can drop the issue and move directly to an adjudicatory hearing in the juvenile court, keeping the minor in custody, or he can appeal the matter, during which time the minor cannot be held in custody.

The absence of exceptions to section 4 — 2 is in direct contrast to the statutory right to speedy trial guaranteed to adults in section 103 — 5 of the Code of Criminal Procedure of 1963, which is the adult counterpart of section 4— 2. That section provides:

“Speedy trial.
(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by an examination for competency ordered pursuant to Section 104 — 2 of this Act, by a competency hearing, by an adjudication of incompetency for trial, by a continuance allowed pursuant to Section 114 — 4 of this Act after a court’s determination of the defendant’s physical incapacity for trial, or by an interlocutory appeal.” Ill. Rev. Stat. 1979, ch. 38, par. 103—5.

The statute expressly states that interlocutory appeals toll the adult time period. Thus, if the legislature had wished to make exceptions to its guarantee of a speedy trial for detained youths, it knew how and could have done so.

The difference between the two statutes is no accident of draftsmanship. It is evident that the policy against holding youths in detention is very strong, far stronger than for adult suspected offenders. While an incarcerated adult may be held up to 120 days, a juvenile, even a dangerous one, can be held a maximum of 20 days. The Juvenile Court Act expressly states, “The purpose of this Act is to secure for each minor subject hereto such care and guidance, preferably in his own home, as will serve the moral, emotional, mental, and physical welfare of the minor and the best interest of the community; to preserve and strengthen the minor’s family ties whenever possible, removing him from the custody of his parents only when his welfare or safety or the protection of the public cannot be adequately safeguarded without removal.” (Ill. Rev. Stat. 1979, ch. 37, par. 701—2.) Detention of any kind is meant to be a last resort; its use is intended to be strictly limited. The majority opinion recognizes, for example, that adjudicated delinquents must be released if a dispositional hearing has not been held within 30 days. It is anomalous to hold that a minor who is merely alleged to have committed a delinquent act can be held in custody indefinitely, while a minor found to have committed such an act cannot.

The majority overlooks the more reasonable interpretation of section 4 — 2 that even though the denial of such transfer motions may be appealable, the State’s Attorney may be required to release the juvenile in order to take the appeal. It reasons that because such appeals always take more than 30 days, the legislature must have intended them to stop the clock on section 4 — 2. I am not at all sure why these appeals have to take that long; and certainly this court, by rule, could establish a procedure for disposing of all appeals of this type within the time frame of section 4 — 2. In any event, in view of the legislature’s expressed policy against the detention of minors for extended periods of time, I find it difficult to believe that it had any intention of allowing State’s Attorneys to hold juveniles pending such appeals just because they might take a long time. The fact that such appeals have been permitted to drag on for a year or more is evidence that the legislature would not have allowed detention of minors pending the final outcome.

Moreover, such appeals are all but hopeless. The standard for review set forth in People v. Taylor (1979), 76 Ill. 2d 289, is one of abuse of discretion, and I know of no case that overturns a juvenile judge’s determination that a juvenile should be tried as a juvenile. Several cases have refused to. (In re Burns (1978), 67 Ill. App. 3d 361; In re Williams (1979), 67 Ill. App. 3d 1109 (Rule 23 order); In re Johnson (1981), 91 Ill. App. 3d 1191 (Rule 23 order).) In this very matter, on November 24, 1981, the appellate court summarily affirmed the juvenile court’s order in regard to Loma Ortiz after she had been held in detention for almost a year. She continues to be in custody while the State’s petition for rehearing awaits decision. Given that the statute allowing for transfer appears to contemplate that transfer to adult jurisdiction would be the exception rather than the rule, it is difficult to imagine that reversals will occur in the future with any frequency. (See Ill. Rev. Stat. 1979, ch. 37, par. 702—7.) Allowing the State’s Attorney to detain juveniles pending such appeals encourages him to make the appeal just for the sake of holding the juvenile. The period of time a juvenile must spend in detention would be subject to the whim of the State’s Attorney.

The majority opinion finds a need to ameliorate its own harsh consequences by allowing for bail. Such a concession is illusory. The juvenile who can make bail is a rarity. He must rely entirely on parents who, in some cases, may be just as happy to have him spend his time in detention and in most cases have no money to provide bail. As a minor, he cannot even enter into a binding contract to borrow bail money.

Interpreting this statute, which measures the time a youth may be held in detention before adjudication in days, to include an exception that could keep the youth in detention for a year or more is incongruous. If it is a desirable exception, the proper way to provide for it is by legislative amendment rather than by judicial creation.


source: Caselaw Access Project

author: JUSTICE CLARK JUSTICE UNDERWOOD,

license: Public Domain

text:
    (No. 54806.
    RONALD GALOWICH, Ex’r., et al., Appellants, v. BEECH AIRCRAFT CORPORATION et al., Appellees.

      Opinion filed June 18, 1982.
    Rehearing denied October 1, 1982.

      UNDERWOOD, J., RYAN, C.J., and WARD, J., dissenting.
    Susan E. Loggans, of Chicago (William J. Harte, of counsel), for appellants.
    Conklin & Adler, Ltd., of Chicago (Thomas W. Conklin, John W. Adler, and Franklin A. Nachman, of counsel), for appellees.
   JUSTICE CLARK

delivered the opinion of the court:

The sole issue presented by this appeal is whether the trial court properly refused to tax, as costs to the plaintiffs, the expenses of depositions taken by the defendants where plaintiffs voluntarily dismissed their case before trial pursuant to section 52 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 52).

This case arose from the death of Jerald Galowich on February 15, 1975, in the crash of an aircraft manufactured by Beech Aircraft Corporation. Suits were filed by Deena Galowich, the widow, for whom Ronald Galowich, executor of decedent’s estate, was later substituted as plaintiff, and by Ronald H. Galowich Associates against Beech and several manufacturers of components of the airplane. The cases were consolidated and after extensive discovery were assigned for trial on January 29, 1980. On February 11, 1980, the plaintiffs moved to continue the case for six months in order to investigate a recent plane crash in Canada, which they believed would provide important extrinsic evidence. The circuit court denied the motion. Plaintiffs then moved for a voluntary dismissal pursuant to Civil Practice Act section 52, indicating an intention to refile pursuant to section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a).

The defendants objected to the motion for dismissal and urged that the court dismiss the case with prejudice. In the alternative, the defendants argued that the court had discretion to impose costs beyond the usual items contained in the clerk’s bill, and requested that the court “condition” the dismissal upon plaintiffs’ payment to them of “their filing fees, jury demand fees, witness fees, costs of depositions, costs of transcripts, experts costs and related expenses,” which defendants characterized as an “unjustified burden” that plaintiffs had imposed upon them.

The circuit court entered an order dismissing the case and taxing as costs to plaintiffs the defendants’ appearance and jury demand fees, in the amount of $219. The defendants appealed from the order, insofar as it denied recovery of any of defendants’ deposition expenses, estimated by defendants at some $200,000.

The appellate court reversed, holding that Supreme Court Rule 208(d) (73 Ill. 2d R. 208(d)) authorizes the trial court, in its discretion, to tax as costs expenses incurred in taking depositions, when a plaintiff moves for a voluntary dismissal pursuant to section 52. (93 Ill. App. 3d 690.) We granted plaintiffs’ petition for leave to appeal.

The plaintiffs argue that an order dismissing a case on motion of the plaintiff pursuant to section 52 is not an appealable order, and that the appellate court therefore should not have entertained the defendants’ appeal. While this court has never directly addressed the issue, “[tjhere are numerous rulings to the effect that a dismissal may be final for the purpose of appeal although it is without prejudice to the bringing of another action.” (4 Am. Jur. 2d Appeal & Error sec. 108 (1962); see Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569, 575-76; Mutual Reserve Fund Life Association v. Smith (1897), 169 Ill. 264, 265; Restatement of Judgments sec. 41, comment b (1942).) In Williams v. Breitung (1905), 216 Ill. 299, the court held that the defendant could not appeal from an order dismissing the plaintiff’s bill for an injunction on plaintiff’s motion and at his costs, because the decree was entirely in the defendant’s favor. The court noted, however, that the defendant would have a right of appeal “where the court, entering the judgment, has committed some error prejudicial to him, or where by the judgment he has not obtained all that he is entitled to.” 216 Ill. 299, 303.

We need not decide this issue, however, since the appeal here is solely from that part of the order taxing costs against the plaintiff. A judgment for costs is a money judgment enforceable by execution (Ill. Rev. Stat. 1979, ch. 33, pars. 7, 16, 18), and is clearly appealable. (Adams v. Silfen (1951), 342 Ill. App. 415; GilbertHodgman, Inc. v. Chicago Thoroughbred Enterprises, Inc. (1974), 17 Ill. App. 3d 460; see City of Alton v. County Court (1959), 16 Ill. 2d 23, 29 (orders allowing attorney fees).) For this reason our recent decision in Flores v. Dugan (1982), 91 Ill. 2d 108, that an order dismissing a case for want of prosecution is not final and appealable, is not controlling here.

At common law, a successful litigant was not entitled to recover from his opponent the costs and expenses of the litigation. The allowance and recovery of costs is therefore entirely dependent on statutory authorization. (Ritter v. Ritter (1943), 381 Ill. 549, 552; Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95, 108.) Only those items designated by statute to be allowable can be taxed as costs. (Ryerson v. Apland (1941), 378 Ill. 472, 477.) While the power to impose costs must ultimately be found in some statute, the legislature may grant the power in general terms to the courts, which in turn may make rules or orders under which costs may be taxed and imposed. Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95, 108.

Upon voluntary dismissal by a plaintiff before trial, the statutes provide that the defendant shall recover his costs. (Ill. Rev. Stat. 1979, ch. 33, par. 16; Ill Rev. Stat. 1979, ch. 110, par. 52.) The Illinois costs statute (Ill. Rev. Stat. 1979, ch. 33, par. 1 et seq.) does not itself provide a definition of “costs” or state what items of costs are allowable. By Civil Practice Act section 3 (Ill. Rev. Stat. 1979, ch. 110, par. 3), the supreme court is authorized to provide by rule for the orderly and expeditious administration of the Act, including the assessment of costs. In Supreme Court Rule 208(d) the court provided that certain expenses specified in the rule, incurred in taking, transcribing and filing depositions, may, in the discretion of the trial court, be taxed as costs. 73 Ill. 2d R. 208(d).

Neither this court nor the appellate court has previously construed Rule 208(d). However, statutory provisions or rules authorizing the taxation of deposition expenses are not unique to Illinois, and an examination of decisions from other jurisdictions is helpful in determining when deposition expenses are properly regarded as part of taxable costs.

The decisions surveyed adopt one of two basic positions. In a number of States the rule is that deposition expenses may be taxed to the losing litigant as a part of costs only when the deposition was necessary for use and actually used at trial. (Barrett v. Singer Co. (1979), 60 Ohio St. 2d 7, 396 N.E.2d 218; Casey v. Williams (1971), 87 Nev. 137, 482 P.2d 824; Kendall v. Curl (1960), 222 Or. 329, 353 P.2d 227; Platts v. Arney (1955), 46 Wash. 2d 122, 278 P.2d 657; Morrison-Maierle, Inc. v. Selsco (1980), _ Mont. _, 606 P.2d 1085; Morris v. Redak (1951), 124 Colo. 27, 234 P.2d 908; Wood v. Gautier (1968), 201 Kan. 74, 439 P.2d 73.) Another group of States allows the taxation of deposition expenses, even though the deposition was not used at trial, if the deposition was taken in good faith and was actually or reasonably necessary for preparation of the case or for the protection of the prevailing party’s rights. Stocker v. Wells (1952), 155 Neb. 472, 52 N.W.2d 284; Lawson Supply Co. v. General Plumbing & Heating, Inc. (1972), 27 Utah 2d 84, 493 P.2d 607; Lomita Land & Water Co. v. Robinson (1908), 154 Cal. 36, 97 P.10; Kaps Transport, Inc. v. Henry (Alaska 1977), 572 P.2d 72.

Courts adhering to the first rule (that a deposition must be used or intended for use at trial for its expense to be included in an award of costs) advance two main rationales in support of it. The first is that depositions, particularly discovery depositions, are usually taken for the convenience of the litigant and counsel in preparing for trial; they are an expense of litigation that a party undertakes for his own benefit, and therefore are not properly allowable as costs. (Wood v. Gautier (1968), 201 Kan. 74, 79; 439 P.2d 73, 77; Platts v. Arney (1955), 46 Wash. 2d 122, 128, 278 P.2d 657, 661; Johnson v. Furgeson (1971), 158 Mont. 170, 176, 489 P.2d 1032, 1035.) Some courts even characterize the taking of depositions in preparation for trial as a “luxury,” for which a party must pay himself. (Morris v. Redak (1951), 124 Colo. 27, 41, 234 P.2d 908, 915; Kendall v. Curl (1960), 222 Or. 329, 339-40, 353 P.2d 227, 232.) The second is that to allow taxation of the costs of all depositions, including those not used at trial, might discourage counsel from the exercise of restraint in taking them, multiplying the number of depositions taken and greatly increasing the cost of litigation. Barrett v. Singer Co. (1979), 60 Ohio St. 2d 7, 11, 396 N.E.2d 218, 220; Straube v. Larson (1979), 287 Or. 357, 374, 600 P.2d 371, 381; see Lawson Supply Co. v. General Plumbing & Heat, Inc. (1972), 27 Utah 2d 84, 89, 493 P.2d 607, 610-11 (Henriod, J., concurring and dissenting; Ellett, J., concurring).

These jurisdictions differ somewhat in their view of what constitutes necessary use of a deposition at trial. For example, the Supreme Court of Nevada holds that depositions are necessarily used at trial and thus taxable as costs only when taken to preserve the testimony of a witness who was leaving the State, or when used to refresh the recollection or correct the answer of a witness. (Casey v. Williams (1971), 87 Nev. 137, 142, 482 P.2d 824, 842.) The Supreme Court of Oregon disallows recovery of the expenses of all depositions except those taken to preserve testimony. (Straube v. Larson (1979), 287 Or. 357, 374, 600 P.2d 371, 380-81.) The Supreme Court of Kansas requires that a deposition be used as evidence — a mere offer into evidence is insufficient. (Wood v. Gautier (1968), 201 Kan. 74, 79, 439 P.2d 73, 78.) The States are virtually unanimous in refusing to allow recovery of the expense of depositions taken solely for purposes of discovery. Arnesen v. Rowe (1955), 46 Wash. 2d 718, 723-24, 284 P.2d 329, 332; Morris v. Redak (1951), 124 Colo. 27, 41, 234 P.2d 908, 915; Johnson v. Furgeson (1971), 158 Mont. 170, 176, 489 P.2d 1032, 1035; Kendall v. Curl (1960), 222 Or. 329, 340, 353 P.2d 227, 232.

The rationale for the rule adopted by the second group of States, that deposition expenses are properly taxable as costs if the deposition was taken in good faith and was reasonably necessary for the protection of the prevailing party’s rights, is less clear. The Supreme Court of Alaska felt that to disallow deposition expenses merely because the deposition was not used at trial would be to penalize counsel for taking a precautionary measure to protect the interests of the client. Kaps Transport, Inc. v. Henry (Alaska 1977), 572 P.2d 72, 79.

The Federal courts also follow the test of good faith and reasonable necessity. Costs have been allowed for depositions or parts of depositions read into evidence, used for cross-examination, used in connection with a motion for summary judgment, or used to preserve the testimony of a witness. (6 J. Moore, Federal Practice par. 54.77[4] (2d ed. 1982).) However, the Federal courts disallow the costs of depositions used only for discovery. 4 J. Moore, Federal Practice par. 26.82, at 26—580 to 26-581 (2d ed. 1982).

As noted above, neither the Illinois costs statute nor the supreme court rules provide a specific definition of costs. However, the term has acquired a fixed and technical meaning in the law. Costs are allowances in the nature of incidental damages awarded by law to reimburse the prevailing party, to some extent at least, for the expenses necessarily incurred in the assertion of his rights in court. (Donovan v. Delaware Water & Air Resources Com. (Del. Super. Ct. 1976), 358 A.2d 717, 723; Department of Highways v. Kelley (1963), 151 Colo. 517, 519, 379 P.2d 386, 387; 20 C.J.S. Costs sec. 1 (1940).) We therefore interpret Rule 208(d) as authorizing the trial court to tax as costs, in its discretion, the expenses only of those depositions necessarily used at trial.

This interpretation of the rule accords with this court’s frequent statements that a successful litigant is not entitled to recover the ordinary expenses of litigation. (Kerns v. Engelke (1979), 76 Ill. 2d 154, 166; House of Vision, Inc. v. Hiyane (1969), 42 Ill. 2d 45, 51-52; Ritter v. Ritter (1943), 381 Ill. 549, 553.) The deposition as used in modern litigation is almost entirely a technique of trial preparation, serving primarily the convenience of counsel. Though there may be instances in which a discovery deposition would become a necessity — as when a crucial witness died or disappeared before trial — it is difficult to say that all or even most of the depositions routinely taken in preparation for trial are necessary. Litigants in Illinois must bear their own litigation and trial-preparation expenses, and in our view these include the expenses of discovery depositions.

We note, too, that historically the rule was that a party who took a deposition de bene esse (in anticipation of future need) had to bear the cost himself. Under the old equity practice, from which our discovery procedures derive, the prevailing party could recover the cost of a deposition which was necessary to substantiate the averments of his bill; but if the defendant made the deposition unnecessary, as by admitting the averments in his answer, then the cost of the deposition was not recoverable. See Doyle v. Wiley (1854), 15 Ill. 576, 578.

There has been considerable discussion recently of the tendency of counsel to overuse discovery methods, especially in large cases. (See, e.g., Brazil, Civil Discovery: Lawyers’ Views of Its Effectiveness, Its Principal Problems and Abuses, 1980 Amer. B. Found. Res. J. 787.) We agree with the courts that have found it undesirable to encourage increased deposition taking, and consequent increases in the delay and expense of litigation, with the prospect that the expense may eventually be recouped in an award of costs. Kendall v. Curl (1960), 222 Or. 329, 340, 353 R2d 227, 232; Barrett v. Singer Co. (1979), 60 Ohio St. 2d 7, 9-10, 396 N.E.2d 218, 220.

Since the test for when the expense of a deposition is taxable as costs is its necessary use at trial, it follows that Rule 208(d) cannot be authority for the assessment of a defendant’s deposition expenses against a plaintiff who voluntarily dismisses his case before trial. The judgment of the appellate court in this case must therefore be reversed. There would seem to be serious practical problems as well with a contrary holding, which would require the trial court, upon a plaintiff’s moving to dismiss before trial upon notice and payment of costs to the defendant, to try the case hypothetically in an attempt to determine which depositions would necessarily be used.

We have found no case in which the highest court of a State awarded deposition expenses as costs to a defendant upon plaintiff’s taking a voluntary dismissal. The appellate courts of Florida have done so, but the reason appears to be their strict interpretation of a rule requiring all costs to be taxed in the action in which they are incurred. Keener v. Dunning (Fla. App. 1970), 238 So. 2d 113.

The defendants have contended that refusing to allow the taxation of their deposition costs in this case will encourage “oppressive” use of section 52 dismissals and stimulate vexatious litigation. This argument misses the mark. It assumes a conclusion, viz that plaintiff’s suit is groundless, without merit, and filed solely to harass. If this were so, the defendants would have a remedy under section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41), under which the reasonable expenses actually incurred by a party by reason of a pleading made without reasonable cause and found to be untrue are imposed on the pleader. Further, it cannot be said that a plaintiff’s exercise of a statutory right to dismiss upon the terms specified by the statute is oppressive or unfair to a defendant. “[T]he plaintiff is ordinarily the master of his cause. He may prosecute or dismiss, as he desires, so long as no party is legally prejudiced thereby nor express statutory prohibitions violated.” (People v. American National Bank & Trust Co. (1965), 32 Ill. 2d 115, 120.) Moreover, plaintiffs as well as defendants must bear the expense of depositions which they cause to be taken (with the exception of necessary depositions to which Rule 208(d) applies). Defendants here appear to be attempting to recover as costs a part of their litigation expenses from their opponent. There is no basis for such a result.

The judgment of the appellate court is reversed; the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.

JUSTICE UNDERWOOD,

dissenting:

Section 52 of our Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 52 (now section 2—1009 of our Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, par. 2—1009)), which governs voluntary dismissals of complaints, provides in relevant part:

“The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or his attorney, and upon payment of costs, dismiss his action ***.” (Emphasis added.)

Our Rule 208, after specifically directing which of the parties shall initially pay the various fees and charges involved in taking and transcribing depositions, provides in subsection (d):

“The aforesaid fees and charges may in the discretion of the trial court be taxed as costs.” (73 Ill. 2d R. 208(d).)

That language, in my opinion, plainly vests in the trial judge authority to tax as costs in cases of voluntary dismissal such of those charges as he deems appropriate. But, even if that language were less plain, I would have thought that in interpreting our own rules we would in this case, as we have in others (People ex rel. Scott v. College Hills Corp. (1982), 91 Ill. 2d 138, 150; Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426; People v. Fritz (1981), 84 Ill. 2d 72, 77), looked to the accompanying committee comments and historical and practice notes for guidance. The latter clearly state:

“The rule authorizes the court, in its discretion, to tax deposition fees and charges as costs, although such fees and charges are not usually taxed as costs in Illinois.” (Ill. Ann. Stat., ch. 110A, par. 208, Historical and Practice Notes, at 158 (Smith-Hurd 1968).)

It would have been difficult to express the purpose of the rule more clearly than was done. “The aforesaid fees and charges” can refer only to all deposition fees and charges since there is no hint of an intent to limit the authority to tax such amounts as costs only if the deposition is used at trial, as the majority now holds.

Nor should the fact that deposition expenses are not normally taxable as costs be significant in light of the fact that the notes expressly point out that Rule 208(d) represented a departure from the usual practice theretofore prevailing in this State.

Apparently because these sources would not support the desired result, my colleagues cite as authority cases from other jurisdictions which arise from differing factual situations and involve differing statutory language. By doing so, they have achieved a result which I view as in direct conflict with the unequivocal language of our rule.

Nor does it seem to me logical to attempt to bolster the result by stating that it is necessary to limit reimbursable deposition expense to those depositions used at trial because including those not so used would encourage increasing use of depositions since the expense might be recoverable. Rather, I would think, the prospect that unused deposition expense might be included as costs could serve to eliminate or reduce “fishing expeditions” and limit the deposition activity of both parties to those which offered reasonable promise.

There has been in this case and in others coming before us considerable discussion of alleged discovery abuses by both plaintiffs and defendants. Defendants here allege their litigation expense aggregates some $2 million, of which it is said some $200,000 is allocable to deposition expense. Defendants assert numerous changes in plaintiffs’ theories of liability occurred as earlier theories proved to be unsubstantiated, and that the purpose of the litigation is designed to coerce a settlement. Conversely, plaintiffs assert defendants complied with some discovery requests only after court orders were secured and that expenses increased when defendants insisted upon taking depositions in distant locations. I intend no implication as to the merits of these assertions, since those matters are not before us, although I note that the trial judge was troubled by the fact that the plaintiffs had moved to voluntarily dismiss only after he had denied their motion for a six-month continuance to permit investigation of a Canadian plane crash. Their expressed intention to refile their complaint pursuant to section 24 of the Limitations Act (El. Rev. Stat. 1979, ch. 83, par. 24a), in effect, overruled the court’s denial of the continuance. I note, too, that the judge expressly stated in taxing the costs that “if I thought I had the authority, I would do something more.”

Given the questions regarding abuses of discovery and the possible unfairness of a voluntary dismissal and refiling prompted by a desire to avoid trial, I would implement what seems to me the clear purpose of section 52 of the Civil Practice Act and our Rule 208(d) by holding the trial judge vested with discretion to tax as costs such of the deposition fees and charges as, in the exercise of sound discretion, he deems appropriate, irrespective of whether those depositions were used at trial. Wisely exercised, that authority can be an effective remedy for such problems as may exist in this area.

Accordingly, I would affirm the judgment of the appellate court and remand the cause to the circuit court to permit the trial judge to exercise his sound and informed discretion.

RYAN, C.J., and WARD, J., join in this dissent.


author: JUSTICE CLARK CHIEF JUSTICE RYAN,

text:
    (No. 55100.
    DONALD J. REDAROWICZ, Appellant, v. WILLIAM H. OHLENDORF, Appellee.

      Opinion filed June 18, 1982.

      RYAN, C.J., and UNDERWOOD, J., dissenting.
    Heyl, Royster, Voelker & Allen, of Peoria (Timothy L. Bertschy and Gary S. Schwab, of counsel), for appellant.
    Costigan & Wollrab, of Bloomington (James P. Ginskey, of counsel), for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

Plaintiff, Donald J. Redarowicz, filed a four-count complaint against Ohlendorf Builders, Inc., on December 14, 1978, in the circuit court of McLean County. The complaint asserts that the defendant was responsible for faulty construction of the plaintiff’s residence. The original complaint sought relief on contract, tort, fraud, and implied warranty of habitability theories.

The defendant moved to dismiss the complaint on March 23, 1979, stating that Ohlendorf Builders, Inc., a corporation, was not in the business of home construction, but was in the business of commercial construction. On June 18, 1979, the circuit court issued an order granting defendant’s motion to dismiss and allowing the plaintiff to amend his complaint to substitute William H. Ohlendorf, doing business as Ohlendorf Builders, as the proper party defendant in the case. The complaint was amended on July 31, 1979.

The defendant again moved to dismiss the action on September 18, 1979. The plaintiff filed an amendment to the complaint on December 21, 1979; on February 14, 1980, another amendment to the complaint was filed. Defendant moved to dismiss for failure to state a cause of action on February 14, 1980. On May 9, 1980, the circuit court entered an order dismissing the cause with prejudice. The case was taken on appeal to the appellate court. On April 24, 1981, the appellate court entered judgment affirming the dismissal of counts I through V. The dismissal of count VI was reversed. (95 Ill. App. 3d 444.) On October 19, 1981, we granted leave to appeal.

The complaint alleges that the defendant builder completed the house in early 1976. The plaintiff purchased the premises from the original owners in April of 1977. At the time the plaintiff purchased the house none of the defects complained of were apparent. Soon thereafter the plaintiff discovered that the chimney and adjoining brick wall were beginning to pull away from the rest of the house. Upon further inspection the plaintiff found that the wall and chimney were set in loose soil and that the supporting lintel was set only 24 inches deep. The plaintiff complains that the basement wall was cracked and there was water leakage in the basement as well as leakage in the roof area around the chimney.

Count I asks recovery for damages in tort for faulty construction of the plaintiff’s residence. Count II sounds in contract, asserting the plaintiff to be a third-party beneficiary of the defendant’s alleged agreement with the city of Bloomington to remedy certain defects in the construction in exchange for the city’s forgoing prosecution for violation of city building codes. Count III is based upon an implied warranty of habitability and fitness of the residence. Count IV alleges fraud in the defendant’s promise to remedy the defects in the construction. Count V is based in tort, alleging faulty construction of a patio. No appeal was taken from the appellate court’s judgment reversing the dismissal of count VI; count VI therefore is not at issue.

Counts I and V of the plaintiff’s complaint are based in negligence and seek recovery for the costs of repair or replacement of the defectively constructed chimney, wall and patio. The defendant concedes that privity is not a necessary element of a tort action brought in negligence. (See generally Suvada v. White Motor Co. (1965), 32 Ill. 2d 612.) The measure of liability in a tort action is based rather on the scope of the duty owed to the plaintiff. Rozny v. Marnul (1969), 43 Ill. 2d 54.

While it is foreseeable that a house will be sold more than once, and that substandard construction that results in structural defects could harm a subsequent purchaser, we need not discuss in detail the scope of the duty owed to this plaintiff. For it is now clear in view of our decision in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, that a plaintiff cannot recover solely economic losses in tort. In Moorman the plaintiff had purchased a bolted-steel grain-storage tank from the defendant. The tank had developed a crack in one of its steel plates. The plaintiff brought an action alleging in count I that the tank was not reasonably safe due to defects in its design and manufacturing and in count III that the defendant had negligently designed the tank.

We affirmed the trial court’s dismissal of both the strict liability and negligence counts in Moorman. We concluded that a complaint alleging qualitative defects in a product does not belong in tort. A disappointed consumer of a storage tank or a disgruntled purchaser of a certain house cannot assert that, due to inferior workmanship that led to eventual deterioration, he can recover under a negligence theory in tort. We find no sound reason to treat either of the aforementioned purchasers differently from one another.

We took note in Moorman that “ ‘[economic loss’ has been defined as ‘damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits ***’ (Note, Economic Loss in Products Liability Jurisprudence, 66 Colum. L. Rev. 917, 918 (1966) (Economic Loss)) as well as ‘the diminution in the value of the product because it is inferior in quality ***.’ (Comment, Manufacturers’ Liability to Remote Purchasers for ‘Economic Loss’ Damages — Tort or Contract? 114 U. Pa. L. Rev. 539, 541 (1966).)” 91 Ill. 2d 69, 82.

To recover in negligence there must be a showing of harm above and beyond disappointed expectations. A buyer’s desire to enjoy the benefit of his bargain is not an interest that tort law traditionally protects. (See Prosser, Torts sec. 92, at 613 (4th ed. 1971).) In Crowder v. Vandendeale (Mo. 1978), 564 S.W.2d 879, the front porch and steps of the plaintiff’s home began to settle and proceeded to separate from the foundation of the house. While the Supreme Court of Missouri recognized an implied warranty of habitability in the new house, the court concluded that recovery for deterioration alone, caused by latent structural defects, was not actionable in negligence. We concur in our sister court’s statement:

“A duty to use ordinary care and skill is not imposed in the abstract. It results from a conclusion that an interest entitled to protection will be damaged if such care is not exercised. Traditionally, interests which have been deemed entitled to protection in negligence have been related to safety or freedom from physical harm. Thus, where personal injury is threatened, a duty in negligence has been readily found. Property interests also have generally been found to merit protection from physical harm. However, where mere deterioration or loss of bargain is claimed, the concern is with a failure to meet some standard of quality. This standard of quality must be defined by reference to that which the parties have agreed upon.” (564 S.W. 2d 879, 882.)

This is not a case where defective construction created a hazard that resulted in a member of the plaintiff’s family being struck by a falling brick from the chimney. The adjoining wall has not collapsed on and destroyed the plaintiff’s living room furniture. The plaintiff is seeking damages for the costs of replacement and repair of the defective chimney, adjoining wall and patio. While the commercial expectations of this buyer have not been met by the builder, the only danger to the plaintiff is that he would be forced to incur additional expenses for living conditions that were less than what was bargained for. The complained-of economic losses are not recoverable under a negligence theory. The circuit court was correct in dismissing counts I and V of the plaintiff’s complaint.

In count II of the complaint the plaintiff seeks relief as a third-party beneficiary of an agreement between the city of Bloomington and the defendant. It is alleged that the city agreed to forgo prosecution of the defendant for certain building code violations existing on the premises of the plaintiff in return for defendant’s promise to make certain repairs to plaintiff’s home. The defendant contends that the city cannot validly enter into such an agreement because it is tantamount to a decision not to enforce the building code. The defendant fails to recognize that the agreement sought to bring the construction into conformity with the city’s building codes in specifying the defects to be remedied at the plaintiff’s home. In entering into this agreement with the defendant the city was not attempting to undermine any municipal ordinance; the purpose was to see that the defendant complied with the regulations.

Both the plaintiff and defendant agree that forbearance is recognized in a civil action as valid consideration for a contract. (White v. Walker (1863), 31 Ill. 422; United Factors Division of United Merchants & Manufacturers, Inc. v. Murphy (N.D. Ill. 1971), 345 F. Supp. 768.) Prosecution for a violation of a municipal ordinance, while quasi-criminal in character, has consistently-been classified as a civil action in Illinois. Johnston v. City of Bloomington (1979), 77 Ill. 2d 108, 112; City of Decatur v. Chasteen (1960), 19 Ill. 2d 204, 216; City of Danville v. Hartshorn (1973), 53 Ill. 2d 399, 402; City of Kewanee v. Puskar (1923), 308 Ill. 167, 174.

Recognizing, then, the city’s forbearance as adequate consideration, the question remains as to whether the plaintiff is a direct and intended beneficiary and can therefore bring suit as a third party to the agreement between the defendant and the city of Bloomington. (People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1980), 78 Ill. 2d 381.) The agreement between the city and the defendant specifically enumerates the repairs that are to be undertaken at the plaintiff’s home. As a third party to the agreement it is intended that benefits accrue directly to the plaintiff through performance of the contract. Because the identification of the plaintiff as a direct beneficiary is clear, and the intent of the parties to the agreement is unmistakable in indicating as much, the plaintiff is permitted to maintain an action as a third-party beneficiary. (78 Ill. 2d 381, 387; See J. Calamari & J. Perillo, Contracts 380, 383 (1970); Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 257.) Count II was improperly dismissed.

Count III of the plaintiff’s amended complaint alleges that the home was not fit for its residential purpose when constructed. The plaintiff asserts that the defendant builder breached the implied warranty of habitability and asks that the warranty be extended to the plaintiff as a subsequent purchaser.

Buyers of homes have traditionally assumed the burden of inequitable transactions, as the doctrine of caveat em/ptor dominated sales of real property well into the 20th century. Purchasers of dwellings that proved to be defective looked for a breach of contract based upon the failure of the builder to do the job in a workmanlike manner. The notion that the builder was an artisan who was amenable to constant supervision by the owner of the homesite came under severe attack as mass production of homes came to be a common practice in the post-World War II building boom. Roberts, The Case of the Unwary Home Buyer: The Housing Merchant Did It, 52 Cornell L.Q. 835, 837 (1967).

The implied warranty of habitability was first recognized in the English case of Miller v. Cannon Hill Estates, Ltd. (1931), 2 K.B. 113. The court said that in the purchase of an unfinished house the builder was aware that his buyer intended to live in the house and therefore impliedly warranted that it would be suitable for that purpose. (2 K.B. 113.) In 1957 an Ohio court in Vanderschrier v. Aaron (1957), 103 Ohio App. 340, 140 N.E.2d 819, applied the Miller rule for the first time in the United States. In 1964 the Colorado Supreme Court extended the implied warranty to a completed house. Carpenter v. Donohoe (1964), 154 Colo. 78, 388 P.2d 399.

This court’s initial recognition of the implied warranty of habitability was in the landlord-tenant context. (Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351.) The court in Jack Spring noted the nature of the current urban housing market, rejected the common law rule that the lessor is not obligated to repair unless he covenants to do so in the lease, and held that the implied warranty of habitability is included in leases to occupants of multiple-unit dwellings. 50 Ill. 2d 351, 367.

By the mid-1970’s courts in 24 States had abandoned the doctrine of caveat emptor as applied to the sale of new houses. Cochran v. Keeton (1971), 287 Ala. 439, 252 So. 2d 313; Wawak v. Stewart (1970), 247 Ark. 1093, 449 S.W.2d 922; Pollard v. Saxe & Yolles Development Co. (1974), 12 Cal. 3d 374, 525 P.2d 88, 115 Cal. Rptr. 648; Carpenter v. Donohoe (1961), 154 Colo. 78, 388 P.2d 399; Vernali v. Centrella (Super. Ct. 1970), 28 Conn. Supp. 476, 266 A.2d 200; Gable v. Silver (Fla. App. 1972), 258 So. 2d 11; Bethlahmy v. Bechtel (1966), 91 Idaho 55, 415 P.2d 698; Weck v. A:M Sunrise Construction Co. (1962), 36 Ill. App. 2d 383; Theis v. Heuer (1971) , 149 Ind. App. 52, 270 N.E.2d 764; Crawley v. Terhune (Ky. App. 1969), 437 S.W.2d 743; Weeks v. Slavick Builders, Inc. (1970), 24 Mich. App. 621, 180 N.W.2d 503; Smith v. Old Warson Development Co. (Mo. 1972), 479 S.W.2d 795; Schipper v. Levitt & Sons, Inc. (1965), 44 N.J. 70, 207 A.2d 314; Hartley v. Ballou (1974), 20 N.C. App. 493, 201 S.E.2d 712; Jones v. Gatewood (Okla. 1963), 381 P.2d 158; Yepsen v. Burgess (1974), 269 Or. 635, 525 R2d 1019; Elderkin v. Gaster (1972) , 447 Pa. 118, 288 A.2d 771; Padula v. J.J. Deb-Cin Homes, Inc. (1973), 111 R.I. 29, 298 A.2d 529; Rutledge v. Dodenhoff (1970), 254 S.C. 407, 175 S.E.2d 792; Waggoner v. Midwestern Development Inc. (1967), 83 S.D. 57, 154 N.W.2d 803; Humber v. Morton (Tex. 1968), 426 S.W.2d 554; Rothberg v. Olenik (1970), 128 Vt. 295, 262 A.2d 461; House v. Thornton (1969), 76 Wash. 2d 428, 457 P.2d 199; Tavares v. Horstman (Wyo. 1975), 542 P.2d 1275.

This court addressed the issue of an implied warranty of habitability in the sale of new homes by the builder-vendor in Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31. The court reasoned that the skill and integrity of the builder-vendor is relied upon by the purchaser who is not capable of making a meaningful inspection of the house. The court recognized that the purchaser does not stand on equal footing with the builder-vendor and that the doctrine of caveat emptor was based “on reasons founded in antiquity.” (76 Ill. 2d 31, 38.) To eliminate the effect of the doctrine of merger, whereby all provisions of the contract of sale become merged in the deed, the court held that the implied warranty of habitability “exists as an independent undertaking collateral to the covenant to convey. ***. It is implied as a separate covenant *** and survives the delivery of the deed.” (76 Ill. 2d 31, 41.) In defining the scope of the warranty the court found that the house must be reasonably suited for its intended use and not simply inhabitable.

By 1980 at least 35 State courts had afforded some measure of protection for purchasers of new homes by implying some form of a warranty of habitability. Shedd, The Implied Warranty of Habitability: New Implications, New Applications, 8 Real Estate L.J. 291, 308, 316 (1980).

We have addressed the issue of implied warranty of habitability in new homes most recently in Park v. Sohn (1982), 89 Ill. 2d 453. There the defendant asserted that the warranty of habitability applied only to mass producers of new houses. We found that the defendant need not be a full-time professional builder. He had built one house prior to construction of the one at issue and subsequently built six more.

The defendants in Park v. Sohn completed building the house in the summer of 1975 and lived in the house before it was sold in October of 1976. We determined that the residence in Park v. Sohn was “new” and was encompassed within the warranty of habitability in the sale of new houses. We said that “whether the house is new for the purposes of the issue of a warranty is a question of fact to be determined on a case-to-case basis” (89 Ill. 2d 453, 463), reasoning that “[t]o hold that the warranty was not in effect simply because the defendants had occupied it for a time would provide builders with a simple artifice for avoiding the warranty” (89 Ill. 2d 453, 463).

The warranty of habitability is a creature of public policy. (Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 41, 43.) It is a judicial innovation that has evolved to protect purchasers of new houses upon discovery of latent defects in their homes. While the warranty of habitability has roots in the execution of the contract for sale (76 Ill. 2d 31, 43), we emphasize that it exists independently (76 Ill. 2d 31, 41). Privity of contract is not required. Like the initial purchaser, the subsequent purchaser has little opportunity to inspect the construction methods used in building the home. Like the initial purchaser, the subsequent purchaser is usually not knowledgeable in construction practices and must, to a substantial degree, rely upon the expertise of the person who built the home. If construction of a new house is defective, its repair costs should be borne by the responsible builder-vendor who created the latent defect. The compelling public policies underlying the implied warranty of habitability should not be frustrated because of the short intervening ownership of the first purchaser; in these circumstances the implied warranty of habitability survives a change of hands in the ownership. The defendant’s reliance upon Hunt v. Blasius (1978), 74 Ill. 2d 203, here is misplaced. The decision in Hunt addressed the question of an independent contractor’s liability in tort to a third party for personal injuries. The warranty of habitability was not at issue.

Since 1979, supreme courts in three of our sister States have joined the State of Indiana (Barnes v. Mac Brown & Co. (1976), 264 Ind. 227, 342 N.E.2d 619) in extending the implied warranty of habitability to subsequent purchasers. (Terlinde v. Neely (1980), 275 S.C. 375, 271 S.E.2d 768; Moxly v. Laramie Builders, Inc, (Wyo. 1979), 600 P.2d 733; Elden v. Simmons (Okla. 1981), 631 P.2d 739.) In extending the implied warranty the Supreme Court of South Carolina aptly observed:

“Common experience teaches that latent defects in a house will not manifest themselves for a considerable period of time, likely as alleged in this case, after the original purchaser has sold the property to a subsequent unsuspecting buyer. Furthermore, the character of society has changed such that the ordinary buyer is not in a position to discover hidden defects in a structure ***. The fact that the subsequent purchaser did not know the home builder, as did the original purchaser, does not negate the reality of the ‘holding out’ of the builder’s expertise and reliance which occurs in the market place.” Terlinde v. Neely (1980), 275 S.C. 395, 398, 271 S.E.2d 768, 769.

Extending the implied warranty to subsequent buyers is also consistent with the Uniform Land Transactions Act, which was adopted by the National Conference of Commissioners on Uniform State Laws on August 7, 1975 (13 Unif. Laws Ann. 615 (1980)). Section 2 — 312 of the Act provides that a subsequent purchase carries with it an assignment of the seller’s warranty of quality rights to the buyer. It states in pertinent part:

“Section 2 — 312. (Third Party Beneficiaries and Assignment of Warranty)
(a) A seller’s warranty of title extends to the buyer’s successors in title.
(b) Notwithstanding any agreement that only the immediate buyer has the benefit of warranties of quality with respect to the real estate, or that warranties received from a prior seller do not pass to the buyer, a conveyance of real estate transfers to the buyer all warranties of quality made by prior sellers. However, any rights the seller has against a prior seller for loss incurred before the conveyance may be reserved by the seller expressly or by implication from the circumstances.” 13 Unif. Laws Ann. 615 (1980).

We agree with the Supreme Court of Wyoming that the purpose of the implied warranty is to protect innocent purchasers and “any reasoning which would arbitrarily interpose a first buyer as an obstruction to someone equally as deserving of recovery is incomprehensible.” Moxly v. Laramie Builders, Inc. (Wyo. 1979), 600 P.2d 733, 736.

Our holding today in extending the implied warranty of habitability from builder-vendors to subsequent purchasers is limited to latent defects which manifest themselves within a reasonable time after the purchase of the house. The subsequent purchaser should not be denied the protection of the warranty of habitability because he happened to purchase the home about one year after the original buyer. We are an increasingly mobile people; a builder-vendor should know that a house he builds might be resold within a relatively short period of time and should not expect that the warranty will be limited by the number of days that the original owner chooses to hold onto the property. The purpose of the warranty is to protect purchasers’ expectations by holding builder-vendors accountable; we do not believe it is logical to arbitrarily limit that protection to the first purchaser of a new house. Count III of the plaintiff’s complaint, based upon an implied warranty of habitability, should not have been dismissed.

Count IV of plaintiff’s amended complaint pleads a cause of action based in fraud. It alleges that the defendant’s failure to abide by an agreement made with the city of Bloomington to make certain repairs to the plaintiff’s house constituted an act of fraud upon the plaintiff.

A complaint in fraud must allege that a false statement of material fact was made, that the party making the statement knew or believed it to be untrue, that the party to whom the statement was made had a right to rely on it and did so, that the statement was made for the purpose of inducing the other party to act, and that reliance by the person to whom the statement was made led to his injury. Davis v. Nehf (1973), 14 Ill. App. 3d 318; Lincolnland Properties, Inc. v. Butterworth Apartments, Inc. (1978), 65 Ill. App. 3d 907; 37 C.J.S. Fraud sec. 3 (1943).

The plaintiff fails to allege that the representations concerning repairs to be made by the defendant were made with an intent on the part of the defendant to induce action on the plaintiff’s part. In failing to allege an intent to defraud, count IV is missing an essential element needed to state a cause of action for fraudulent misrepresentation. (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286; Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 332, 333; Roth v. Roth (1970), 45 Ill. 2d 19, 23; Roda v. Berko (1948), 401 Ill. 335, 340.) Since there is no allegation that the defendant made the misrepresentations to induce the plaintiff to act, count IV fails. It was properly dismissed.

In sum, we affirm the appellate court’s judgment that counts I, IV and V of the amended complaint were properly dismissed by the circuit court. We reverse the judgment of the appellate court upholding the circuit court’s dismissal of counts II and III. Counts II and III should not have been dismissed. The judgment of the circuit court of McLean County is affirmed except as to the dismissal of counts II and III. The cause is remanded to the circuit court for further proceedings consistent with this opinion.

Appellate court affirmed in part and reversed in part; circuit court affirmed in part and reversed in part; cause remanded.

CHIEF JUSTICE RYAN,

dissenting:

I cannot support the fiction indulged in by my colleagues in the purported extension of the implied warranty of habitability concept which this court originally announced in Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31. The decision in Petersen was based on a contract theory, implying a contract between the builder-vendor and his vendee. My colleagues, in the case before us, by abolishing the privity requirement, have transferred what was conceived in Petersen as a contract action into an action in tort in the nature of strict liability. Calling this action an implied warranty action is a mere fiction to circumvent our recent decision in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, which held that recovery for economic loss cannot be had under strict liability in tort. If it is the desire to permit the recovery for economic loss in a strict liability tort action, why do we not simply so hold?

Implied warranty without privity is essentially strict liability in tort. Historically, the tort of strict liability evolved from the contract action based on implied warranty. Prior to 1960 such an action included the requirement of privity. In that year, however, the Supreme Court of New Jersey, in Henningsen v. Bloomfield Motors, Inc. (1960), 32 N.J. 358, 161 A.2d 69, indulged in the same fiction the majority of this court now uses, and held that recovery in a products liability case could be had on the theory of implied warranty and privity was no longer required. (See Prosser, The Fall of the Citadel (Strict Liability to the Consumer) 50 Minn. L. Rev. 791 (1966).) However, in 1963 the Supreme Court of California, in Greenman v. Yuba Power Products, Inc. (1963), 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697, wiped away the last vestiges of a contract action in a products liability case. The court in that case in effect stated that it should stop indulging in such fictions and call this action what it really is, an action for strict liability in tort. Being an action in tort, privity was not a prerequisite to recovery. Soon, many States abandoned the fiction of implied warranty without privity and adopted the principle of strict liability in tort. (See Prosser, Torts secs. 81, 96-104 (4th ed. 1971).) In 1965 this State abandoned the fiction in favor of strict liability in tort. Suvada v. White Motor Co. (1965), 32 Ill. 2d 612.

Now, in the case before us, the fiction of implied warranty without privity has been resurrected. A fiction once abandoned has been exhumed and commissioned to provide recovery for economic loss where such recovery cannot otherwise be obtained. Henceforth, this fiction will be called upon to perform that function as a second count sounding in contract in every strict liability in tort action. Henceforth, there will be no restriction on the recovery of economic loss in strict liability in tort actions. If that is the intent of the majority, why indulge in the fiction to achieve it?

JUSTICE UNDERWOOD joins in this dissent.