author: JUSTICE LINN

text:
    BOARD OF EDUCATION, NORTH PALOS ELEMENTARY SCHOOL DISTRICT NO. 117, Plaintiff-Appellee, v. CAROLE WILLIAMS et al., Defendants-Appellants.
    First District (4th Division)
    No. 82—1979
    Opinion filed September 22, 1983.

      Wayne Schwartzman and Dale D. Pierson, both of Hirsh & Schwartzman, P.C., of Chicago, for appellants.
    Alan T. Sraga, of Scariano, Kula & Associates, P.C., of Chicago Heights, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, the Board of Education of North Palos Elementary School District No. 117 (Board), filed an action in the circuit court of Cook County seeking a stay of arbitration and a declaratory judgment against defendants, the North Palos Education Association, IEA-NEA (Association) and two of its officers, Carole Williams and Eileen Grimmer. A dispute concerning class substitution and teacher evaluation had resulted in the Association’s filing grievances with' the Board on behalf of two member teachers, William Englemann and Barbara Dahlkemper. After the Board denied both grievances, the Association, following the procedure outlined in the Professional Negotiation Agreement (PNA) between the parties, submitted the grievances to arbitration. The Board’s suit sought a stay of arbitration and a declaratory judgment that the grievances were inarbitrable.

Both the Board and the Association filed cross-motions for summary judgment with supporting affidavits and memoranda; the trial court granted the Board’s motion for summary judgment, denied the motion of the Association, and then denied the Association’s motion to vacate. The Association has appealed, claiming that the trial court erred by (1) deciding the issue of arbitrability instead of leaving that initial question to the arbitrator, and (2) holding that the grievances seeking to enforce two provisions of the PNA were inarbitrable.

We. reverse the trial court’s entry of summary judgment in favor of the Board and remand with directions to enter summary judgment in favor of the Association. We find no disputed issue of material fact pertaining to either grievance.

Facts

William Englemann and Barbara Dahlkemper were teachers at Conrady Junior High School, one of the schools in District No. 117 whose faculty was covered by the PNA, a collective bargaining agreement between the teachers and the Board. The provisions of the PNA pertinent to this appeal are as follows:

“II. PROFESSIONAL QUALIFICATIONS AND ASSIGNMENTS
* * *
2.5 EXTRA-CURRICULAR ASSIGNMENTS Any assignments in addition to the normal school day during the regular school term shall not be obligatory but shall be with the consent of the teacher.
* * *
III. TEACHER EVALUATION
3.1 NOTIFICATION - ASSIGNED AND TRAVELING TEACHERS
Within 20 days after the beginning of each school term the building principal, or immediate supervisor, shall acquaint each teacher under his supervision with the teacher evaluation procedures, standards and instruments, and *** shall attempt to explain the evaluation process in sufficient detail so that a teacher can reasonably know what is expected ***.
* * *
IV. TEACHER RIGHTS - BOARD RIGHTS
* * *
4.12 BOARD AUTHORITY
The Board, on behalf of the electors of the District, retains and reserves the ultimate responsibilities for proper management of the District *** including but not limited to the responsibilities for the right:
1. To maintain executive management and administrative control of the District *** and the professional activities of its employees ***;
* * *
5. To determine class schedules, non-teaching assignments, the hours of instruction, and the duties, responsibilities, and assignments of faculty members.
* * *
VII. TEACHING HOURS AND ASSIGNMENTS
* * *
7.2 VOLUNTARY INTERNAL SUBSTITUTION
Any teacher who accepts a class above the normal assigned load shall be compensated at the rate of five dollars ($5.00) per hour. (Jr. High per period);
* * *
7.3 ADDITIONAL LOAD COMPENSATION
If a teacher shall teach more than the normal teaching load as set forth in this agreement, said teacher shall receive additional compensation on an hourly basis. This amounts to 0.07722 percent of the annual salary per hour.
This section pertains only to Jr. High School teachers who agree to teach each day an additional subject in lieu of the scheduled preparation period.
* * *
VIII. PROFESSIONAL GRIEVANCE PROCEDURES 8.1 DEFINITION
A grievance shall mean a complaint that there has been an alleged violation, misinterpretation, or misapplication of any provision of this Agreement.
* * *
8.3 PROCEDURES
* * *
E. Fifth step. *** [I]f the grievance is not settled in accordance with the foregoing procedure, the Association (but not the teacher) may refer the grievance to arbitration ***.
The Association or the Board may submit the grievance to final and binding arbitration under the Voluntary Labor Arbitration Rules of the American Arbitration Association ***.
The arbitrator shall have no right to amend, modify, nullify, [or] ignore *** the provisions of this Agreement or any applicable Board policy. *** The arbitrator shall be without power to make decisions' contrary to or inconsistent with or modifying or varying in any way the applicable laws and rules and regulations having the force and effect of law.”

In addition, the Board cites the following sections of the School Code as the source of powers beyond those contained in the PNA and thus not subject to arbitration:

“Sec. 10 — 22.10. Control and supervision of school houses and school grounds. To have the control and supervision of all pub-lie school houses in their district ***.” Ill. Rev. Stat. 1979, ch. 122, par. 10 — 20.5.
“Sec. 10 — 20.5. Rules. To adopt and enforce all necessary rules for the management and government of the public schools of their district.” Ill. Rev. Stat. 1979, ch. 122, par. 10 — 20.5.
“Sec. 24 — 24. Maintenance of discipline. Teachers and other certificated educational employees shall maintain discipline in the schools ***.” Ill. Rev. Stat. 1979, ch. 122, par. 24 — 24.

The normal school day for most teachers at Conrady consisted of eight periods: six teaching periods, one preparation period, and one period divided between homeroom and lunch. Englemann, Williams, and Grimmer, all of whom were teachers in the district and past or present officers of the Association, filed affidavits stating that when it was necessary to find a substitute teacher for a single class period, the pattern and practice of the Conrady administration had been, first, to use administrators to fill in for absent teachers. If none was available, teachers in the subject area would be canvassed to find a volunteer to teach during his preparation period. Only if no available teacher volunteered would the administration order a teacher to surrender his preparation period and take the class. The affidavits of Englemann and Grimmer stated that to their knowledge, during their terms as grievance chairpersons and as teachers at Conrady, either administrators or volunteer teachers had covered all internal substitution requirements.

On the other hand, the affidavit filed by the principal at Conrady stated that the only procedures employed to find emergency substitutes were (1) to ask for volunteers and then (2) to assign a qualified teacher according to a “draft rotation system”; both Englemann and Dahlkemper were at the “top of the draft rotation list” on the days they were ordered to substitute after it was ascertained that there was “an insufficient number of volunteers from the Conrady staff.” We note in this regard that on the day he was ordered to substitute during the second period, Englemann was the first mathematics teacher to enter the building; he was first requested to take the extra class upon his arrival at 7 a.m., then twice again during his first period class.

In addition to her grievance that she had been ordered to substitute before any request was made for available administrators or faculty volunteers, Barbara Dahlkemper also protested the notation on her evaluation report that she should “accept internal substitution without hesitation as necessary.” Dahlkemper alleged that, according to the PNA, internal substitution was voluntary; therefore, in violation of section 3.1 of the agreement, she had not been informed in advance that a willingness to waive her contractual rights would be used as a criterion for evaluating her.

As grievance committee chairperson, Eileen Grimmer had the responsibility to process the three grievances. In order to ascertain whether or not Englemann and Dahlkemper had legitimate complaints, Grimmer requested lists of (1) administrators who had been absent on the days in question and therefore were not available to substitute, (2) regular substitutes, and (3) teachers as officially scheduled on the “draft rotation system.” All three requests were denied.

Both parties filed motions for summary judgment on the ground that the case presented no issues of fact, only issues of law. The Board argued that even if it had signed the contract including the voluntary internal substitution provision and had acted accordingly in past emergency substitute situations, it could not legally agree to the provision because, as a matter of law, internal substitution of teachers involved the discretionary, nondelegable power to “maintain discipline” and “enforce all necessary rules for the management and government of the public schools of their district.” Because the School Code reserved such powers to the Board, an arbitrator had no power to modify the applicable law; the grievances concerning substitution therefore were inarbitrable, as was the grievance concerning teacher evaluation and notification of standards.

In response, the Association maintained that a grievance concerning voluntary internal substitution was arbitrable because control over internal substitution was not one of the nondelegable discretionary powers established through judicial interpretation of the School Code. Further, a grievance concerning notification of standards of teacher evaluation was equally arbitrable because no challenge was being made to the Board’s exclusive right to conduct teacher evaluations.

Opinion

I

The first issue presented for review concerns the question whether or not the initial decision on the arbitrability of a given dispute should be made by the arbitrator. In the instant case, the parties to the PNA incorporated a provision into the Agreement that gave an arbitrator authority to decide disputes in accordance with the Agreement, applicable rules, regulations and laws, or Board policy. (See section 8.3E quoted above.) “Generally, the nature and extent of an arbitrator’s power will depend upon what the parties agree to submit to arbitration.” (Board of Trustees v. Cook County College Teachers Union (1979), 74 Ill. 2d 412, 419, 386 N.E.2d 47, 50.)

“If the dispute is clearly within the arbitration clause, the court should order arbitration. However, if the dispute is clearly not within the clause *** then there is no agreement to arbitrate, and the court should deny arbitration.
* * *
Where there is an agreement to arbitrate and its scope is reasonably in doubt, the issue of arbitrability should be initially determined by the arbitrators ***.” (School District No. 46 v. A. J. Del Bianco (1966), 68 Ill. App. 2d 145, 154-55, 215 N.E.2d 25, 30.)

The Association cites Board of Education v. Johnson (1974), 21 Ill. App. 3d 482, 315 N.E.2d 634, and Board of Education v. Illinois Education Association (1981), 100 Ill. App. 3d 1026, 427 N.E.2d 789, as authority for its contention that the initial decision whether or not the instant grievances were arbitrable should have been left to the arbitrator, not the court.

An examination of those cases reveals that the decision on the arbitrability issue in Board of Education v. Illinois Education Association was based solely on Johnson-, the same issue in Johnson was decided on the authority of Board of Education v. Champaign Education Association (1973), 15 Ill. App. 3d 335, 304 N.E.2d 138, which in turn was based on the language in Del Bianco quoted above. Such reliance on Del Bianco is misplaced, for that case concerned interpretation of a contract unfettered by the additional limitations of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 1 — 1 et seq.). “Even if a dispute between the parties involves the application and interpretation of provisions of the collective bargaining agreement, it is not arbitrable if it would constitute an impermissible delegation of discretionary public responsibility specifically reposed by law in [the Board].” Board of Trustees v. Cook County College Teachers Union (1979), 74 Ill. 2d 412, 420, 386 N.E.2d 47, 50.

Section 8.3E of the PNA, quoted above, specifically invokes the authority and procedures of the Rules of the American Arbitration Association and thereby the Uniform Arbitration Act. (Ill. Rev. Stat. 1979, ch. 10, par. 101 et seq.) Section 2 of the Act provides that a party showing an agreement to arbitrate and the opposing party’s refusal to arbitrate may request that the court compel arbitration. “[T]he court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.” Ill. Rev. Stat. 1979, ch. 10, par. 102.

The Board consistently has maintained that the grievances at issue are inarbitrable. Consequently, the trial court followed the procedure specified in Section 2 of the Act and “proceed[ed] summarily to the determination of the issue so raised.”

“[T]he principle that arbitration must first be had in each and every grievance without the right of initial review by the courts is not only contrary to law but would necessarily result in a waste of time and money.
We also note it has been repeatedly held the issue as to whether any contract requires arbitration by its terms should initially be decided by a court and not by an arbitrator. Kaiser-Ducett Corp. v. Housewrights, Inc. (1977), 48 Ill. App. 3d 589, 592, 363 N.E.2d 97, and cases there cited.” (Board of Trustees v. Cook County College Teachers Union (1980), 87 Ill. App. 3d 246, 252, 408 N.E.2d 1026, 1031.)

Accordingly, we affirm the trial court’s holding in the instant case that the issue of arbitrability should be decided by the court, not the arbitrator.

II

The second question presented for review addresses the issue of the arbitrability of the Englemann and Dahlkemper grievances. The Board argued and the trial court agreed that both internal substitution and teacher evaluation are matters within the nondelegable discretion of the Board. After reviewing the pertinent portions of the School Code, the PNA, and the actions of the Board and the two teachers involved, we conclude that, in the instant case, neither dispute challenged the Board’s nondelegable discretion. We therefore find that the trial court erred in entering summary judgment in favor of the Board and should have entered summary judgment in favor of the Association on the issue of the arbitrability of the Englemann and Dahlkemper grievances.

We note initially that the demand for arbitration filed by the Association with the American Arbitration Association characterized the nature of the dispute as follows: “The contract was violated when (1) the grievants were required to substitute internally] (involuntarily), and (2) when such requirement denied the grievants use of their preparation period.” The remedy sought was (1) “Cessation of the practice of ordering teachers to involuntarily substitute internally. (2) Replacement of the preparation period denied each grievant at the time of the contractual violation.” The complaint for a declaratory judgment and stay of arbitration filed by the Board in response asserted the inarbitrability of the grievances , and cited as authority the School Code provisions quoted above as well as section 19.8 of the PNA, which summarized the Board's position that it had not "abdicate[d] or delegate^] the obligations and responsibilities impressed upon it by law ***.” Had the trial court been limited to the above pleadings in its consideration of the cross motions for summary judgment, there is no doubt that the nondelegable duties to assign teachers, to manage and govern the schools in the district, and to maintain discipline as imposed by the School Code would have mandated summary judgment for the Board, the “Voluntary Internal Substitution” provision notwithstanding.

However, it is clear that neither the Board nor the Association viewed the matter in such a narrow fashion. While it is true that the form and wording of the grievances as filed appear to deny the Board any right to order involuntary substitution, the substance of the affidavits filed on behalf of both parties significantly qualifies that wording.

First, several teachers on the contract negotiating team presented evidence of the heated discussions that surrounded the inclusion of the words “Voluntary Internal Substitution” in the PNA. If the Board assumed that it had the unfettered right to order teachers into classrooms without following some agreed-upon procedure, we fail to see the reason why the Board attempted several times to remove the word “voluntary” from the contract.

Second, Albert J. Bialik, principal of Conrady, stated that the past practice established by the Board was to seek a volunteer substitute from among those qualified to teach the subject area before any teacher was ordered to substitute; only if no volunteer was found would the involuntary substitute be chosen according to a “draft rotation list.” His statement, with the exception of the mention of the “draft rotation list,” is consistent with the teachers’ understanding of the voluntary substitution provision in the contract. The affidavit filed by grievance chairperson Grimmer stated, “It was the NPEA goal in processing said grievances to force the administration to honor the contract and most importantly to ask for volunteers first before ordering teachers to substitute.” Contract negotiator Keller’s affidavit stated, “During the negotiations in which I participated it was the NPEA’s position that it was important for teachers to retain their planning period and that they should not be required to surrender it for purposes of internal substitution until the administration showed that it had exhausted its efforts to find volunteer substitutes. This is the meaning that the NPEA gives to [the Voluntary Internal Substitution provision] of the contract.”

Finally, the memorandum filed by the Association in support of its motion for summary judgment stated, “It is the grievant’s contention that there has been, and is a practice and policy of the Board which mandates that ***[i]f no teachers volunteer to internally substitute, then and only then will the administration order teachers to internally substitute.” (Emphasis in original.) Keeping in mind that “[i]n deciding whether to grant summary judgment the trial judge is required by statute to consider the pleadings, depositions, and affidavits filed in support of and in opposition to the motion (Ill. Rev. Stat. 1981, ch. 110, par. 57(3))” (Artis v. Fibre Metal Products (1983), 115 Ill. App. 3d 228, 233, 450 N.E.2d 756, 759-60), we necessarily find that the Conrady administration tacitly agreed that its established policy was to seek volunteers before ordering teachers into classroom, thus acknowledging that teachers had a contractual right to a preparation period in all but extreme circumstances. Similarly, the affidavits filed by the teachers indicate that the faculty tacitly accepted the Board’s absolute right to order teachers into classrooms in emergency situations.

After looking at all the documents filed with the motions for summary judgment and particularly noting that the original response by the grievance chairperson was to request lists of faculty and administration who had refused to substitute as well as a copy of the “draft rotation list,” we conclude that the heart of this disagreement is not whether the Board had the authority to order a teacher to substitute in an otherwise unsupervised class, but rather the procedure to be followed before such involuntary substitution was ordered. Board policy, which was shielded from an arbitrator’s power of amendment or modification by section 8.3 of the PNA quoted above, arguably had established a procedure acceptable to all parties. Consequently, we adhere to the reasoning and result set forth in Classroom Teachers Association v. Board of Education (1973), 15 Ill. App. 3d 224, 304 N.E.2d 516, that because no contractual provision, including Board policy, restricted the power of the Board to comply with its statutory duties, but instead merely provided for certain procedures to be followed consistent with ordinary concepts of fairness, the grievances concerning involuntary internal substitution are arbitrable. Even the Board’s own argument, that the extra work assignments were made according to a “draft rotation system,” was found in Board of Trustees v. Cook County College Teachers Union (1976), 62 Ill. 2d 470, 343 N.E.2d 473, to support that court’s decision that whether or not the rotation system had been followed presented an arbitrable issue.

No provision of the School Code controls the selection of substitute teachers from within the body of already-hired, qualified teachers. Both parties agree that the Board has ultimate authority to ensure that all classrooms are staffed. Therefore, resolution of the issue whether the administration had the authority to order a teacher to substitute internally without complying with provisions of the PNA or with its own policy and past practice is one for an arbitrator to decide: “[T]he Arbitration Act should apply to all grievances *** absent an express exclusion contained in an agreement of the parties. *** [The courts have] clearly determined that the question of interpretation of the collective bargaining agreement is a question for the arbitrator and it is the arbitrator’s interpretation or construction of the contract that has been bargained for by the parties.” (Board of Education v. Illinois Education Association (1981), 100 Ill. App. 3d 1026, 1028, 427 N.E.2d 789, 790.) We therefore hold that the issue of internal substitution should be decided by arbitration.

Ill

The second dispute, that of the administration’s obligation to inform a teacher before evaluation what standards will be applied, we similarly find to be arbitrable. It is clear that, under the authorities cited above, the Board has absolute authority to determine the necessary qualifications of teachers and the standards by which teachers are judged. Section 3.1 of the PNA simply provides that before a teacher is evaluated, the evaluator shall “acquaint each teacher under his supervision with the teacher evaluation procedures, standards, and instruments” and “attempt to explain the evaluation process in sufficient detail so that a teacher can reasonably know what is expected *** 77 It is true that in Illinois Education Association v. Board of Education (1975), 62 Ill. 2d 127, 340 N.E.2d 7, the supreme court held that compliance with statutory requirements for termination of a teacher’s services was sufficient, notwithstanding more elaborate procedures for evaluation outlined in the applicable collective bargaining agreement. We do not find that case to be dispositive of the evaluation dispute at issue here.

“No provision of the agreement restricts, the power of the Board to hire, discharge or transfer nor requires the Board to delegate authority. *** The [evaluation] provisions do no more than establish certain procedures, consistent with ordinary concepts of fairness, which procedures the Board agreed to follow. None of the procedures limit the power of the board to exercise its absolute discretion unfettered by any considerations save fundamental fairness.” Classroom, Teachers Association v. Board of Education (1973), 15 Ill. App. 3d 224, 228, 304 N.E.2d 516, 519.

The actual issue in Illinois Education Association v. Board of Education was the authority of an arbitrator to award an employment contract as a remedy for a violation of the collective bargaining agreement. Clearly, an arbitrator has no such authority, for awarding an employment contract is one of the powers specifically reserved to a school board by the Illinois School Code.

In contrast, the instant case shows no demand by the Association that the Board relinquish any of its statutory powers; all that is requested is that the Board abide by the procedures it agreed to follow while exercising its nondelegable authority. We consequently conclude that the issue of informing a teacher of the applicable standards of evaluation is one properly delegable to an arbitrator, involving as it does no statutory grant of power to the Board.

In light of all the foregoing, we reverse the decision of the trial court on the issues of the arbitrability of the two grievances and remand the case with instructions to order the parties to proceed to arbitration. The arbitrator’s authority to interpret and implement the Agreement shall not extend to any nondelegable rights and duties vested in the Board by statute.

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

ROMITI, P.J., and JIGANTI, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STOUDER

license: Public Domain

text:
    GORDON CUNDIFF, d/b/a Dimensional Services Company, Plaintiff-Appellant, v. LEONARD B. UNSICKER et al., Defendants-Appellees.
    Third District
    No. 3-83-0082
    Opinion filed September 19, 1983.
    Rehearing denied October 20, 1983.

      John A. Slevin and Stephen A. Kouri, both of Vonachen, Cation, Lawless, Trager & Slevin, of Peoria, for appellant.
    Robert W. Bach and James R. Grebe, both of Goldsworthy & Fifield, of Peoria, for appellee American Mutual Insurance Company.
    Ralph Schroeder, of Livingston, Barger, Brandt & Schroeder, of Bloomington, for appellees Leonard B. Unsicker and Unsicker Insurance Agency, Ltd. II.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff, Gordon Cundiff, appeals from an order dismissing his three-count complaint against the defendants, Leonard B. Unsicker, Unsicker Agency, and American Mutual Insurance (American). The trial court dismissed the complaint as being not timely filed under the appropriate statute of limitations.

The plaintiff’s cause of action is based upon an insurance policy issued to him by American through insurance agent Unsicker. The plaintiff owned a company whose business was the sale of burial space. In 1972, the plaintiff applied to American through Unsicker for worker’s compensation insurance. American issued an insurance policy to the plaintiff, but the premium rate charged the plaintiff was for a business whose employees were gravediggers rather than grave salespeople. The plaintiff did not become aware of this error in premium rates until February 1980. The instant suit was filed on January 26,1982, to recover the excess premium.

The plaintiff’s original complaint set forth one count in negligence against the defendant American and one count in negligence against the defendant Unsicker. This complaint was dismissed as being barred by the five-year statute of limitations for actions sounding in tort. The plaintiff’s first amended complaint, which also stated a cause of action sounding in tort, was similarly dismissed. The plaintiff then filed a second amended complaint (hereafter the complaint). This complaint was dismissed on motions by the defendants as being “not timely filed.” It is from this order granting the defendants’ motions to dismiss that the plaintiff now appeals.

Counts I and II of the complaint name only American as the defendant. The plaintiff asserts the counts I and II set forth a cause of action based on a theory of breach of a written contract. If counts I and II are based upon a written contract, then the relevant limitations period is 10 years. The defendant argues, however, that the causes of action are based on a tort theory and therefore are barred under the relevant five-year limitation.

The statute of limitations cannot be raised by a motion to dismiss unless it affirmatively appears from the complaint that the action is barred. {Burnett v. West Madison State Bank (1940), 375 Ill. 402, 31 N.E.2d 776.) Count I alleges a written offer, an acceptance, the issuance of a policy, and a breach of the resulting agreement. Count II alleges an offer, the issuance of a policy, and mutual mistake as to the resulting agreement. Both of these counts on their face set forth a cause of action based upon the written contract between the parties.

The limitation for an action on a written contract is 10 years. (Ill. Rev. Stat. 1981, ch. 83, par. 17, now codified at Ill. Rev. Stat. 1981, ch. 110, par. 13 — 206.) The complaint recites that the application for insurance was submitted to American on November 14, 1972. Therefore, the earliest date on which the limitation period began to run was November 14, 1972. The plaintiff’s original complaint was filed in January of 1982. It was apparent from the face of the second amended complaint that the complaint was filed within the 10-year period. The issue of whether the complaint was filed within the limitation period was therefore not properly raised on a motion to dismiss. The trial court erred in granting American’s motion to dismiss.

American argues that the allegation that the plaintiff “first became aware of the error in 1980” demonstrates that the cause of action set forth in the complaint is based upon a tort theory of recovery. A similar argument was made by the defendant in Board of Education v. Del Biano & Associates, Inc. (1978), 57 Ill. App. 3d 302, 372 N.E.2d 953. The plaintiff Board filed a two-count complaint against an architectural firm, with one count sounding in contract and the other in tort. The count based upon a tort theory was dismissed as not timely filed. The defendant argued that the count based upon breach of contract should have also been dismissed because it contained an allegation appropriate only to a negligence theory. The court reasoned that where both a tort and contract cause of action arise from the same facts, the plaintiff is free to proceed with either theory. The court held that although the plaintiff’s complaint contained “words of negligence,” the use of such terminology did not preclude the plaintiff’s action on the contract.

In the instant case, the plaintiff proceeded with a cause of action based upon the contract rather than the tort. Like the court in Board of Education v. Del Bianco & Associates, Inc. (1978), 57 Ill. App. 3d 302, 372 N.E.2d 953, we find the allegation in the plaintiff’s complaint does not preclude the plaintiff’s action on the contract.

American argues alternatively that count II is an action in equity and is barred under the doctrine of laches. “Laches is also an affirmative defense and before a party can rely on the doctrine of laches, he must plead and prove not only unreasonable delay but prejudice resulting therefrom.” (Conway v. Conners (1981), 101 Ill. App. 3d 121, 129, 427 N.E.2d 1015, 1021.) American did not plead or prove either unreasonable delay or prejudice in the trial court.

We therefore hold that the trial court erred in granting the defendant American’s motion to dismiss counts I and II of the plaintiff’s complaint.

As to count III of the complaint, we find that the trial court properly granted the defendant Unsicker’s motion to' dismiss. The cause of action stated in count III is based upon negligence. The date on which the limitations period began to run was November 14, 1982. The statutory limitation on the commencement of this action is five years. (Ill. Rev. Stat. 1981, ch. 83, par. 16, now codified at Ill. Rev. Stat. 1981, ch. 110, par. 13 — 205.) It is apparent from the complaint that count III of the complaint was not timely filed. Further, this issue was properly raised by the defendant’s motion to dismiss.

The plaintiff argues that the “discovery rule” should be applied in the instant case, so that the limitation runs from the date the error was discovered (February of 1980), rather than the date the error occurred (November of 1972). The plaintiff seeks to invoke the discovery rule in order to avoid the limitations problem which is apparent on the face of the complaint.

When a defendant raises the statute of limitations in a motion to dismiss it becomes incumbent upon a plaintiff to set forth facts sufficient to avoid the statutory limitation. (Cutsinger v. Cullman (1979), 72 Ill. App. 3d 527, 391 N.E.2d 177.) Under the discovery rule, the statutory limitation period is computed from the time at which the plaintiff knew or should have known of the existence of the right to sue. (Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill. 2d 129, 133, 334 N.E.2d 160, 162.) A plaintiff seeking to take advantage of the discovery rule must plead that the cause of action remained unknown to the plaintiff. (Waterford Condominium Association v. Dunbar Corp. (1982), 104 Ill. App. 3d 371, 432 N.E.2d 1009; Pratt v. Sears Roebuck & Co. (1979), 71 Ill. App. 3d 825, 390 N.E.2d 471.) In reaching its decision on a motion to dismiss for untimely filing; the trial court looks to pleadings, affidavits and other proofs presented by the parties. Myers v. Centralia Cartage Co. (1981), 94 Ill. App. 3d 1139, 419 N.E.2d 465.

In the instant case, the court had only the complaint and motion to dismiss before it. The facts of the complaint clearly showed that the five-year limitation period had run. Once the defendant challenged the timeliness of count III in a motion to dismiss, it became incumbent upon the plaintiff to plead facts in avoidance of the statute of limitations. The plaintiff sought to avoid the statutory limit through application of the discovery rule. We conclude that it was incumbent in this situation for the plaintiff to set forth facts in the complaint sufficient to establish a basis for application of the discovery rule.

The plaintiff alleged only that he first learned of the defendant’s negligence in February of 1980 and that it was not reasonable for him to do so earlier. The facts in the complaint demonstrate that the contract between the plaintiff and American was in effect for over seven years before the plaintiff discovered the negligence of the defendant Unsicker. We find that the facts pleaded in the complaint are insufficient to warrant application of the discovery rule.

The judgment of the circuit court of Peoria County is reversed as to counts I and II of the complaint and affirmed as to count III of the complaint. The cause is remanded for further proceedings consistent with this opinion.

Affirmed in part and reversed in part; cause remanded.

BARRY and SCOTT, JJ., concur.


author: JUSTICE EARNS

text:
    APEX OIL COMPANY, Plaintiff-Appellant, v. MICHAEL HENKHAUS, County Treasurer and Ex-Officio Collector for the County of Madison, et al., Defendants-Appellees—(Apex Oil Company, Plaintiff-Appellant, v. ILLINOIS PROPERTY TAX APPEAL BOARD et al., Defendants-Appellees).
    Fifth District
    No. 82—422
    Opinion filed September 2, 1983.
    Rehearing denied September 29, 1983.

      John Dale Stobbs, of Stobbs and Sinclair, of Alton, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Edward M. Kay, Assistant Attorney General, of counsel), for appellees Illinois Property Tax Appeal Board and Members of the Illinois Property Tax Appeal Board.
    Don Weber, State’s Attorney, of Edwardsville (J. Thomas Long, Assistant State’s Attorney, of counsel), for appellees Michael Henkhaus et al.

   JUSTICE EARNS

delivered the opinion of the court:

The appellant, Apex Oil Company, brought these actions, consolidated on appeal, for declaratory judgment and injunctive relief against certain officials of Madison County concerned with the assessment and collection of property taxes and for administrative review of an adverse decision of the Illinois Property Tax Appeal Board, contesting the assessment of its leasehold property located within the Tri-City Regional Port District, Madison County, Illinois. The Circuit Court of Madison County resolved these proceedings adversely to Apex.

Apex is the lessee of approximately three acres of land along the Mississippi River in Madison County within the Port District. The land is owned by the United States of America and is leased to the Port District, which, in turn, subleases the property here involved to Apex. Located on the leasehold estate are two storage tanks owned by the Port District and six storage tanks erected by Apex. The parties state that these tanks are owned by Apex, but the record is silent as to the ownership of the tanks at the termination of the lease, which is not in evidence.

Section 3.1 of the Tri-City Regional Port District Act (Ill. Rev. Stat. 1979, ch. 19, par. 286.1) for the year involved provided:

“All property of every kind belonging to the Port District shall be exempt from taxation, provided that taxes may be assessed and levied upon a lessee of the District by reason of the value of the leasehold estate separate and apart from the fee and upon such improvements as are constructed and owned by others than the District. All property of the District shall be construed as constituting public property owned by a municipal corporation and used exclusively for public purposes within the provisions of Section 19.19 of the ‘Revenue Act of 1939’, filed May 17, 1939, as heretofore or hereafter amended.” (Emphasis added.)

Public Act 81 — 1414, effective January 1, 1981, amended section 3.1 of the Act by substituting the disjunctive “or” in place of “and”; in all other respects the statute remained the same. The parties agree that no legislative history can be found that would indicate the purpose of the amendment.

Section 19.19 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 500.19) exempts from taxation:

“All property of every kind belonging to the Chicago Regional Port District or any other port district created by the legislature of this State, provided that a tax may be levied upon a lessee of such a District by reason of the value of a leasehold estate separate and apart from the fee, or upon such improvements as are constructed and owned by others than the Port District.” (Emphasis added.)

For the year 1979, the tax assessor of Venice Township, where the Port District is located, and the supervisor of assessments of Madison County, assessed both the value of Apex’ leasehold, including the two storage tanks owned by the Port District, by capitalizing the annual rental of the lease, and the improvements, the storage tanks owned by Apex, by computing the replacement cost of the tanks. The leasehold estate was valued at $77,260 and the improvements owned by Apex at $252,200. Apex does not contend that the values thus obtained were excessive or that the method of assessment was improper, as the method used to value the leasehold estate was that approved by the supreme court in People ex rel. Korzen v. American Airlines, Inc. (1968), 39 Ill. 2d 11, 233 N.E.2d 568. In that case American Airlines paid the city of Chicago a monthly rental for ground at O’Hare International Airport and an additional monthly rental for a hangar owned by the city. Section 20 of the Revenue Act of 1939 (Ill. Rev. Stat. 1965, ch. 120, par. 501(2)), dealing with the valuation of real property, provided that “[e]ach taxable leasehold estate shall be valued at its fair cash value, estimated at the price it would bring at a fair, voluntary sale.” The court approved a method of valuation that capitalized the fair cash value of the current market rent over the unexpired term of the lease. In that case, however, there were no improvements owned by the lessee. Here, the storage tanks owned by Apex were assessed in the same manner as other like property in the county.

Apex’ first argument is that the special tax treatment of leasehold estates established by section 3.1 of the Tri-City Regional Port District Act, which authorizes taxation of both the value of the leasehold and the improvements owned by others, violates article IV, section 13, of the Illinois Constitution of 1970. This argument was not raised in the pleadings or in the trial court; we could consider it waived, but because of its importance and the likelihood that it will reoccur, we will address it.

That section provides that “[t]he General Assembly shall pass no special or local law when a general law is or can be made applicable.” The general law relating to port districts, section 19.19 of the Revenue Act of 1939, it is argued, only allows taxation of the value of the leasehold estate or the improvements owned by others.

The general principle of taxation contained in section 20 of the Revenue Act of 1939 is that all property is to be valued for tax purposes at a percentage of its fair cash value. Considering that statutes exempting property from taxation must be strictly construed (Follett’s Illinois Book & Supply Store, Inc., v. Isaacs (1963), 27 Ill. 2d 600, 605, 190 N.E.2d 324, 327), it could hardly be contended that the General Assembly does not have the power to authorize the taxation of both the leasehold estate and improvements erected thereon, as the general rule is that both should be subject to taxation, just as any property owner pays property taxes on the value of his land and the improvements erected thereon. It is clear that the General Assembly has the power to classify a leasehold as real property for purposes of taxation and to base the value of the leasehold on the value of the fee interest. (Dee-El Garage, Inc. v. Korzen (1972), 53 Ill. 2d 1, 289 N.E.2d 431, rev’d on other grounds.) So, our first inquiry must be to determine the manner of taxation of leaseholds provided for in the general law relating to taxation of Port Districts before we need consider any violation of constitutional principles.

Rosewell v. Bulk Terminals Co. (1979), 73 Ill. App. 3d 225, 390 N.E.2d 1294, dealt with the taxation of leasehold property in a port district. Involved there was taxation of lessees of property located in the Chicago Port District under section 19.19 of the Revenue Act of 1939. Notwithstanding the use of the disjunctive “or” in section 19.19, the court approved the assessment of both the leasehold estate, under the American Airlines, Inc. formula and improvements erected on the leasehold property by the lessee, Bulk Terminals, Inc. There the taxpayer contended that the value of the improvements placed on the leasehold by the lessee could not be included in the valuation of the lessee’s leasehold interest. The court found this argument to be without merit, and noting that the improvements were for the benefit of the lessee to enable it to enjoy its leasehold estate, stated that it made no difference whether the lessee owned the improvements or leased them from the Port District, as in either case the market value of the leasehold was enhanced. The court stated:

“Therefore, it is the market rental for the land as improved, rather than the contractual rent or the market rental for unimproved land, that is the appropriate basis for computing the fair cash value of the leasehold. An examination of the cases cited by the court in American Airlines indicates that this result obtains whether the improvements are owned, as in American Airlines, by the lessor (see People v. International Salt Co. (1908), 233 Ill. 223, 84 N.E. 278; Delta Air Lines, Inc. v. Coleman (1963), 219 Ga. 12, 131 S.E.2d 768), by the lessee (see City of Chicago v. University of Chicago (1922), 302 Ill. 455, 134 N.E. 723), or, as here, by the lessee but under agreement that the improvements revert to the lessor on the termination of the lease. See People ex rel. Paschen v. Hendrickson-Pontiac, Inc. (1956), 9 Ill. 2d 250, 137 N.E.2d 381; DeLuz Homes, Inc. v. County of San Diego (1955), 45 Cal. 2d 546, 290 P.2d 544; see also Texas Company v. County of Los Angeles (1959), 52 Cal.2d 55, 338 P.2d 440, Shaia v. City of Richmond (1967), 207 Va. 885, 153 S.E.2d 257; Annot., 54 A.L.R.3d 402, 515-34 (1973).” 73 Ill. App. 3d 225, 237-238, 390 N.E.2d 1294, 1305.

While the court noted the use of the disjunctive “or” in section 19.19 of the Revenue Act of 1939, it apparently attached no significance to this as it found that the taxpayer had failed to establish an overassessment.

Dockside Development Corp. v. Tully (1979), 78 Ill. App. 3d 482, 396 N.E.2d 1155, involved another lease of property from the Chicago Regional Port District. There the assessor valued both the leasehold and improvements located thereon, two gantry cranes. The taxpayer contended that the cranes were personal property and in any event, under the statute, section 19.19 of the Revenue Act of 1939, it was improper to assess both the value of the leasehold and the improvements. Without discussion of the meaning of the statute, in answer to this contention, the court stated that the taxpayer had failed to establish that the valuation of the leasehold according to the American. Airlines, Inc. formula would produce an assessment lower than the one determined by the assessor. Implicit in this statement is a determination that the fair cash value of an improved leasehold requires valuation of the improvement placed on the leasehold in arriving at the value of the current market rental of the property under the American Airlines, Inc. formula. The court further noted that it was permissible under American Airlines, Inc. to use the value of the fee, which would include the value of the improvements, in assessing the value of the leasehold.

We believe the use of the disjunction “or” in section 19.19 is of no significance as it appears to us unlikely that the legislature intended to require local assessing authorities to choose between valuing the leasehold without consideration of the value of improvements erected by others or the improvements erected by others without consideration of the current market rental value of the lease. We believe the proper basis for computing the fair cash value of any leasehold must be market value of the land as improved. Ownership of the improvements undoubtedly is important in determining annual rental, but it should make no difference that the improvements are owned by the lessor, or by the lessee or others as in either case the market value of the leasehold for tax purposes is enhanced.

It may be here the assessing authorities did not value the improvements in accordance with the American Airlines, Inc. formula as they stated that the tanks owned by Apex were assessed by valuing their replacement cost. (See People ex rel. Rosewell v. Dee El Garage, Inc. (1977), 51 Ill. App. 3d 382, 366 N.E.2d 585.) However, as in Bulk Terminal Co. and Dockside Development Corp., the taxpayer here offered no other evidence of value, contested the assessor’s valuation or offered to prove that a lower assessment would result by valuing the improvements according to the American Airlines, Inc. formula.

We think the proper interpretation to be placed on section 19.19 of the Revenue Act of 1939 is that a tax may be levied upon the value of the leasehold which includes improvements erected thereon by the lessor, or upon the leasehold and improvements erected thereon by others, so that regardless of ownership of the improvements, they will not be exempt from taxation. In so construing the statute, we are mindful of the rule of construction that statutes exempting property from taxation must be strictly construed. We are also mindful that the disjunctive “or” and conjunctive “and” are not always employed in statutory drafting to express the true legislative purpose, and when it seems apparent that a literal reading would produce a result not intended, the literal meaning may be altered to express the true legislative purpose. An interesting and learned discussion of the subject appears in People v. McGrenera (1982), 108 Ill. App. 3d 953, 439 N.E.2d 1020; see also Coalition for Political Honesty v. State Board of Elections (1976), 65 Ill. 2d 453, 359 N.E.2d 138.

Apex makes several arguments addressed to what it perceives to be the multiple and unfair taxation of property within the Tri-County Regional Port District. We believe there is no merit to these arguments, but they will be briefly considered.

The property within the Port District is flood control land owned by the Federal Government. It is leased to the Port District for an annual rental; the amount of rent paid by the Port District does not appear in the record. Under 33 U.S.C. sec. 701c — 3 (1976), 75% of the monies received by the Federal Government from the Port District for the lease of this land is remitted each year to the State of Illinois. The State may expend the money in any way it chooses. It does, in fact, remit the sums received to the treasurer of Madison County, and the monies are placed in the general fund of the county. Apex claims, without the citation of any relevant authority, that Madison County is in some way estopped from imposing taxes on the leasehold because it has received these monies. We do not understand how Apex is legitimately concerned with the largess of the Federal Government. The monies that reach the Madison County general fund are not tax revenues, nor could Madison County levy a tax on the Federal Government, and are not distributed to the several taxing bodies in Venice Township and Madison County as funds derived from taxation.

Equally unpersuasive is Apex’ argument that the replacement income tax imposed by sections 201(c) and 201(d) of the Illinois Income Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 2 — 201(c), (d)) and the prohibition of reclassifying personal property as real property contained in section 18.1 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 499.1; see Central Illinois Light Co. v. Johnson (1981), 84 Ill. 2d 275, 418 N.E.2d 696) somehow impose an unreasonable tax burden on Apex. Apex never filed a personal property tax return. The storage tanks were never taxed as personal property. While it is understandable that a taxpayer might well complain about an additional tax burden, his remedy lies with the legislative branch of government. There is nothing illegal or unconstitutional that will afford a judicial remedy.

One further matter requires comment. At one time the trial court enjoined the assessment, levy and extension of taxes on the subject leasehold for the 1980 tax year. The injunction was dissolved in the final judgment. The injunction was clearly improper as the taxpayer had an adequate administrative remedy to contest any tax levied on Ms property by paying the tax under protest and filing appropriate objection to the collector’s application for judgment. See Dockside Development Corp. v. Tully (1979), 78 Ill. App. 3d 482, 396 N.E.2d 1155.

The judgment of the circuit court of Madison County is affirmed.

Affirmed.

KASSERMAN and JONES, JJ., concur.


author: JUSTICE JONES

text:
    BANK OF BENTON, Plaintiff-Appellant, v. DANNY M. COGDILL et al., Defendants-Appellees.
    Fifth District
    No. 82—694
    Opinion filed September 26, 1983.

      Richard O. Hart, of Hart & Hart, P.C., of Benton, for appellant.
    J.C. Mitchell, of Mitchell & Armstrong, Ltd., of Marion, for appellees.
   JUSTICE JONES

delivered the opinion of the court:

The plaintiff, Bank of Benton, Benton, Illinois, appeals from the trial court’s judgment denying it a deficiency judgment and attorney fees following foreclosure of a mortgage and sale of the property subject to the mortgage. The bank asserts on appeal that this judgment was contrary to the law and the evidence and that the bank was entitled to a deficiency judgment and attorney fees where the amount realized from the judicial sale of the mortgaged property was less than the amount of the defendants’ indebtedness. The defendants-mortgagors contend, however, that the court’s judgment can be sustained on the basis of their affirmative defense in the foreclosure action that the bank had waived its right to a deficiency judgment by agreeing to take a deed to the mortgaged property in lieu of foreclosure. We find as a matter of law that no such agreement existed, and we accordingly reverse the judgment of the trial court.

On July 31, 1980, the plaintiff bank filed a two-count complaint for foreclosure of a first and second mortgage on real estate owned by the defendants, Danny and Carla Cogdill. In their answer to this complaint the defendants asserted that the plaintiff was not entitled to a deficiency judgment against them because, in March and April of 1980, the defendants had “tendered and offered to convey” their interest in the real estate to the plaintiff and were refused. At that time, the defendants stated, the real estate was of a fair market value sufficient to pay the amount of indebtedness due the plaintiff under its notes and mortgages. The defendants further alleged that the plaintiff was not entitled to attorney fees in the foreclosure action because this action was unnecessary and was due to the plaintiff’s failure to accept the real estate in satisfaction of the debt.

Upon stipulation of the parties the court entered a partial summary judgment of foreclosure in favor of the plaintiff, reserving for later hearing the issues of the plaintiff’s entitlement to a deficiency judgment and attorney fees. The total amount of indebtedness was stated as $81,673.05, plus attorney fees if found to be includable at a later hearing. The court conducted a sale of the real estate, and the property was sold to the plaintiff as high bidder for $63,000. The court then filed a report of sale and distribution in which it found a deficiency in the amount of $19,416.83.

Following the sale the plaintiff filed a motion for summary judgment on the remaining issues, asking the court to determine that it was entitled to a judgment for the deficiency plus attorney fees. The court made a record sheet entry order denying the motion, in which it stated:

“Consideration has been given to the arguments and facts as thus far presented. There is a shortage of case law and statute law as to the issues involved. The plaintiff contends that it is entitled to a deficiency judgment by reason of the judicial sale of the property for a lesser amount than was sufficient to liquidate the debt plus costs and attorney’s fees. The defendants contend that the plaintiff is not entitled to said benefits by reason of the fact that, at least three (3) months before suit to foreclose was filed, the defendants tendered and offered to convey their interests in the realty to plaintiff who refused the tender and offer. Further, the defendants claim and assert that at the time of the tender, the fair market value of the property exceeded the total of the amounts due by way of principal and interest.
The plaintiff’s position finds support in the pleadings and affidavits and other matters in the file. There seems no law [sic] supporting defendants’ position. This case is concerned with both legal and equitable principles. The rights of the plaintiff must be considered in light of equity and good conscience. If the defendants were able to prove their position, it would shock one's conscience to permit the plaintiff to stiffen its position and procrastinate in the settlement and disposition of the business transaction between plaintiff and defendants, and thereby cause a deficiency of $19,416.83, and expect the defendants to make plaintiff whole. The defendants contend, in substance, that they tried to make the plaintiff ‘whole’ yet plaintiff refused. The judgment of this court leaves the plaintiff to suffer whatever ills result from a situation that plaintiff could have avoided. The defendants yet must establish their position by proof. Motion for Summary Judgment denied.”

A hearing was held on July 28, 1982, on the issues of the plaintiff’s right to a deficiency judgment and attorney fees. At that hearing, defendant Danny Cogdill testified that he became unemployed in December 1979 and was unable to make his mortgage payments. In April 1980 he received a number of telephone calls from David Bauer, vice-president of the Bank of Benton, regarding when he would be able to make some payment on the overdue balance. Sometime shortly after April 25, 1980, defendant Cogdill received a letter from Bauer, which stated:

“If we do not have some assurance of payment on the loan, it may be necessary for us to start foreclosure action or have you deed the property to the Bank of Benton in satisfaction of the debt.”

Mr. Cogdill testified further:

“A. On April 29, I contacted Mr. Bauer by telephone and informed him that we would accept the Bank’s offer to deed the property over to the Bank of Benton in satisfaction of the debt against me.
Q. When you refer to the Bank’s offer, are you referring to what’s set forth or part of what’s set forth in Defendants’ Exhibit 2, the letter of April 25th?
A. Yes.
Q. What, if anything, did Mr. Bauer say to you at that time?
A. He said something to the effect that he would start the paper work pertaining to the conveyance of the deed in satisfaction of the debt and that he would be in touch with me shortly.
Q. What is the next thing that you did or heard?
A. The next thing I heard was I received a telephone conversation [sic] from Mr. Bauer approximately one week later stating that other Bank of Benton officials had declined his previous offer to accept the conveyance of the deed in satisfaction of the debt against it.
Q. What did he say to you about whether or not they were going to go ahead and go through with it?
A. He just said that he could not go through with it at that point.
Q. What, if anything, did you tell him?
A. I told him that’s all that I knew to do because I was still unemployed and I had no money to make the payment and that they would just have to do whatever they saw fit.
Q. What, after that time, took place regarding the matter of the delinqency?
A. I received another telephone call, and I think a letter confirmed this, and they wanted to know if I had any other assets that I could pledge in addition to the property itself for satisfaction of the debt.
Q. What, if anything, did you advise them?
A. I advised them that the only thing I had of any value was an interest in a land trust pertaining to a new office building in Benton, Illinois, and that I would be willing to sign over this land trust interest which we figured had a value of $6,000.00 to $8,000.00 net value in it.
* * *
Q. What happened after that, if anything?
A. He said he would take it back to the Board and see what they had to say abut that.
* * *
A. The next conversation was that the Bank of Benton, through Mr. Bauer — that they had decided they were not interested in acquiring any more property and that they rejected the offer.
Q. They rejected the original proposal?
A. The original proposal plus the conveyance of the land trust interest.
Q. Now, is that when foreclosure followed?
A. Yes.”

David Bauer, called by the defendants as an adverse witness, testified that he recalled having conversations with Mr. Cogdill in April 1980 regarding the matter of his delinquencies. When questioned about a specific conversation occurring between April 25, 1980, and May 9, 1980, he stated that, while he could recall nothing else about the conversation, “the substance of the conversation was that we wanted to be paid.”

Later, on direct examination by the plaintiff, Mr. Bauer testified that “at some point” after the letter of April 25, 1980, was sent, Danny Cogdill came into the bank to discuss the situation with him. The testimony continued:

“Q. Did you ever tell him [Danny Cogdill] that the Bank would accept the property in satisfaction of the debt?
A. No, I did not.
Q. Did you ever tell him that in writing?
A. No, I did not.
Q. Did you ever tell him that orally?
A. No, I did not.
Q. Did Mr. Cogdill ever offer to make a deed to you in satisfaction of the debt?
A. Yes, he did.
Q. Do you recall when he made that offer?
A. It was at some time prior to April 25.
Q. Do you know approximately how long prior—
A. Within a week prior to April 25.
Q. In that conversation did he offer to deed the property to the Bank of Benton?
A. Yes, we discussed this possibility of him deeding the property to the Bank.
* * *
Q. Did you ever tell Mr. Cogdill that you would accept the property in satisfaction of the debt?
A. No.
Q. What did you tell Mr. Cogdill about taking the property in satisfaction of the debt, if anything?
A. Mr. Cogdill and I discussed taking the property in satisfaction of the debt. I said that this might be possible. Certain procedures we would have to go through [sic].
Q. What were those procedures?
A. Number one would be a new appraisal.
Q. What else?
A. Number two would be, if we found everything to be all right would be title work to be certain that there were no other liens against the property other than the two liens to the Bank of Benton.
Q. What would be the purpose of the appraisal?
A. To determine if the value of the property was sufficient to pay off the two loans.
Q. And did you have that appraisal made?
A. We did.
Q. And after that appraisal was made did the Bank make a decision about what to do in this problem area?
A. We made a decision not to accept tender of the property in satisfaction of the debt.
* * *
Q. Was that decision communicated to Mr. Cogdill?
A. Yes, it was.
Q. How was it communicated to him?
A. I discussed it with him over the telephone.
* * *
Q. That would have been after the letter of April 25, I take it?
A. Yes.”

During the course of the hearing, the court allowed the defendants to amend their answer to allege that the plaintiff was not entitled to a deficiency judgment “because on April 25, 1980, plaintiff offered to take a deed from defendants in lieu of foreclosure. Defendants accepted said offer and notified plaintiff, who stated that the paper work would then be commenced. Thereafter, plaintiff refused to perform said agreement and continues to do so to the date of this agreement [sic].” The defendants repeated their assertion “that at the time they offered to deed said real estate to plaintiff, the fair cash market value was sufficient to pay the amount of principal and interest [then due].” The plaintiff filed a reply in which it denied the existence of the alleged agreement and further raised the issue of the statute of frauds (Ill. Rev. Stat. 1981, ch. 59, par. 2) with reference to any such agreement.

The trial court ruled in favor of the defendants and, on October 21, 1982, made the following record sheet entry:

“This court after hearing the evidence and arguments of counsel *** finds that the facts and the principles of law and equity are compelling to the extent that a deficiency judgment against the defendants is denied.”

A written judgment was subsequently filed denying the plaintiff a deficiency judgment and attorney fees.

On appeal from this judgment the plaintiff contends that there was no basis in law or fact for the court’s ruling that the plaintiff was not entitled to a deficiency judgment. The plaintiff asserts initially that the court was without authority to disallow the deficiency judgment on general equity principles. (See Metz v. Dionne (1928), 250 Ill. App. 369; cf. Eiger v. Hunt (1935), 282 Ill. App. 399 (court reversed trial court’s denial of deficiency judgment based on “the equities of the case”).) In addition, the plaintiff notes, there was no showing in the instant case that it had waived its right to a deficiency judgment by means of the statutory procedure for such waiver (Ill. Rev. Stat. 1981, ch. 77, par. 18(c), now ch. 110, par. 12 — 126).

The defendants take no issue with these assertions by the plaintiff but contend, rather, that the trial court’s ruling can be sustained on the basis of the alleged agreement by the bank to take a deed to the mortgaged property in lieu of foreclosure. They assert that although there was no statutory waiver of the deficiency by the bank, the bank effectively waived its right to a deficiency judgment by invoking the common law means of acquiring a mortgagor’s interest in real estate by way of deed. (See 27 Ill. L. & Prac. Mortgages sec. 241 (1956).) The defendants contend, therefore, that since the court could have found from the evidence that such a contract existed, the court’s judgment denying a deficiency judgment and attorney fees should be affirmed.

As evidence of the alleged contract, the defendants cite the letter sent to the defendants on April 25, 1980, in which the bank’s vice-president, David Bauer, stated: “If we do not have some assurance of payment on the loan, it may be necessary for us to start foreclosure action or have you deed the property to the Bank of Benton in satisfaction of the debt.” The defendants contend that this statement constituted an offer by the plaintiff which they accepted by tendering a deed to the bank. Alternatively, the defendants contend that even if this statement could not be construed as an offer to take a deed to the mortgaged property in lieu of foreclosure, the bank subsequently agreed to accept the deed tendered by defendant Cogdill when Mr. Bauer told Cogdill he would start the paper work concerning such a transaction.

The plaintiff does not dispute the facts relied upon by the defendants but contends that, even assuming such facts, the evidence at trial failed to establish the existence of a contract. Where there is no dispute as to facts essential to a purported contract, the question of its existence is solely a matter of law for determination by the court. (12 Ill. L. & Prac. Contracts sec. 46 (1955); Anderson v. City of Northlake (N.D. Ill. 1980), 500 P. Supp. 863; see 3 Corbin on Contracts sec. 595 (I960).) The trial court here made no finding with regard to the contract alleged by the defendants and, indeed, gave no reason for its decision denying the plaintiff a deficiency judgment. This court, then, must consider the facts asserted by the defendants in light of basic principles of contract law to determine the existence of the purported contract.

An offer sufficient to form the basis of a contract has been defined as an act that creates a power of acceptance in the offeree. (1 Corbin on Contracts sec. 11 (1963).) Professor Corbin states that, after an offer is made, “a voluntary expression of assent by the offeree is all that is necessary to create what we call contract.” (1 Corbin on Contracts sec. 11, at 24 (1963).) He continues:

“[An offer] must be an expression of will or intention. It must be an act that leads the offeree reasonably to believe that a power to create a contract is conferred upon him. *** It is on this ground that we must eclude invitations to deal or acts of mere preliminary negotiation ***. *** So long as it is reasonably apparent that some further act of the offeror is necessary, the offeree has no power to create contractual relations by an act of his own, and there is as yet no operative offer.” (Emphasis added.) 1 Corbin on Contracts sec. 11, at 25 (1963).

While, in the instant case, the defendants contend that the bank offered to accept a deed in lieu of foreclosure by its statement of August 25, 1980, we believe this statement was in the nature of preliminary negotiations regarding steps that would have to be taken if the defendants continued to default on their loan payments. The statement contained two possible alternative solutions to the parties’ problem and thus did not constitute an offer that could be accepted by the defendants with no further action by the plaintiff bank. Rather, the bank’s statement left open the possibility that it would elect to pursue statutory foreclosure proceedings, as it in fact did. We therefore find no merit in the defendants’ argument that the bank’s statement constituted an offer which they accepted by tendering their deed to the mortgaged property.

The defendants’ further contention that a contract was formed when they themselves offered and the bank accepted a deed to the mortgaged property is likewise without merit. While there is no question that the defendants offered to deed their property to the bank in lieu of foreclosure, it does not follow that the plaintiff accepted this offer when vice-president Bauer agreed to “start the paper work” involved in such a transaction. In order to create an enforceable contract, the acceptance by the offeree must be unequivocal. (Lee Shell Co. v. Model Food Center, Inc. (1969), 111 Ill. App. 2d 235, 250 N.E.2d 666.) The equivocal nature of Bauer’s statement here is made evident by his testimony that the paper work referred to included getting an appraisal of the property in question and having title work done to see that there were no other liens against the property. The record contains nothing to indicate that Bauer meant anything more by his statement or that the defendants were justified in concluding that the bank had indeed accepted their offer. Since the record fails to disclose a meeting of the minds essential to the formation of a contract, we find no basis for the defendants’ contention that the plaintiff’s right to a deficiency judgment in the instant case was barred by its contract to take a deed in lieu of foreclosure.

In the absence of such a contract waiving its right to a deficiency judgment, the plaintiff in the instant case was entitled to a judgment for the deficiency remaining after the foreclosure and sale of the mortgaged property. The right to secure such a deficiency judgment in any foreclosure proceeding is clear, provided the mortgagee receives only one full satisfaction. (Emerson v. La Salle National Bank (1976), 40 Ill. App. 3d 794, 352 N.E.2d 45; In re Estate of Folksdorf(1940), 304 Ill. App. 463, 26 N.E.2d 660.) Where, as here, a proper showing had been made as to the pleadings and the evidence, the entry of such a decree was mandatory (Clifford v. Levin (1935), 282 Ill. App. 263), and the court lacked discretion to deny the plaintiff relief on equitable grounds. (But cf. Collins v. Baim (1939), 299 Ill. App. 405, 20 N.E.2d 298 (court had jurisdiction to determine any fact occurring after decree of foreclosure which would render deficiency decree inequitable).) The plaintiff was further entitled by the terms of its mortgages and notes to a judgment for reasonable attorney fees incurred in the foreclosure proceedings (27 Ill. L. & Prac. Mortgages sec. 514 (1956)), the amount to be determined by the trial court upon remand for that purpose.

For the reasons stated we reverse the judgment of the circuit court of Williamson County and remand this cause for further proceedings.

Reversed and remanded.

EASSERMAN and EARNS, JJ., concur.


text:
    FLOYD E. GELFIUS et al., Trustees under Trust Agreement dated May 14, 1976, et al., Plaintiffs-Appellants, v. KENNETH CHAPMAN et al., Defendants-Appellees.
    Fifth District
    No. 83—190
    Opinion filed September 12, 1983.
    Howard & Howard, of Mt. Vernon (G. W. Howard III, of counsel), for appellants.
    Eric L. Terlizzi, of Pfaff, Garner & Terlizzi, of Salem, for appellees.
   JUSTICE EARNS

delivered the opinion of the court:

The plaintiffs, Floyd E. Gelfius and Laura M. Gelfius, appeal from the judgment of the circuit court of Hamilton County denying their title to all the coal and coal rights underlying an 80-acre tract. The trial court found that the defendants Kenneth Chapman and Pauline Chapman had effectively reserved a one-fourth interest in all minerals in their conveyance of November 6, 1951, to Mark Ferguson and Edna Ferguson.

On November 6, 1951, Kenneth Chapman and Pauline Chapman conveyed title to the 80-acre tract by warranty deed to Edna Ferguson and Mark Ferguson. The deed excepted an undivided one-half interest in the gas and oil reserved by a prior grantor and reserved to the grantors an undivided one-fourth interest in the gas and oil “together with the right of ingress and egress at all times for the purposes of mining, drilling, exploring, operating and developing said land for oil and gas and other minerals ***.” On March 8, 1963, Edna Ferguson conveyed her entire interest in the land to Floyd and Laura Gelfius.

The issue is whether the phrase “and other minerals” following the Chapman’s reservation of one-fourth interest in the gas and oil enlarged that reservation to include a one-fourth interest in the coal and coal rights.

The Chapmans and those to whom they have attempted to convey mineral rights in the land argue that the phrase “and other minerals” used in describing the rights of access is in effect a reservation of coal rights. The ambiguity arises because the phrase does not directly refer to coal and it follows a specific reservation of gas and oil only.

In Jones v. Johnson (1974), 16 Ill. App. 3d 996, 307 N.E.2d 222, this court dealt with a similar ambiguity caused by language following the grantors’ reservation of gas and oil rights. In Jones the deed reserved “the Undivided One Half Interest in and to all of the Oil, and Gas ***.” It then stated the grantors’ intention “to convey the undivided one-half interest in and to all of the Oil and Gas *** also the Surface of the above described lands.” (16 Ill. App. 3d 996, 998, 307 N.E.2d 222, 224.) The intention clause was read by the grantors as a reservation of the right to all minerals other than gas and oil, thus enlarging their original reservation to include coal.

The court disagreed with the grantors’ analysis of the subsequent language. It resolved the ambiguity by applying the rule that a deed must be construed with the primary purpose of determining the intention of the parties. To determine the intention, it is necessary to consider “the instrument as a whole, giving effect to every word and rejecting none as meaningless or repugnant, if it can be done without violating any positive rule of law.” (16 Ill. App. 3d 996, 998, 307 N.E.2d 222, 224.) The court also followed the rule that a grantor may reserve any and all of the mineral rights when he conveys land, but what is not expressly reserved is conveyed. (Miller v. Ridgley (1954), 2 Ill. 2d 223, 117 N.E.2d 759.) In Jones the granting clause and reservation of one-half interest in the gas and oil preceded the intention clause. The grant and reservation had effectively conveyed all interests except the specifically named gas and oil rights. The intention clause was not permitted to enlarge the prior reservation because “the purported reservation of the mineral estate contradicts the legal operation of the granting and description clause and is, therefore, repugnant to the grant.” Jones v. Johnson (1974), 16 Ill. App. 3d 996, 999, 307 N.E.2d 222, 225.

The analysis in Jones is appropriate to the Chapman deed. Again, ambiguity arises because of language which follows a grant of land subject to the grantors’ specific reservation of a gas and oil interest. The general phrase “and other minerals” appearing only as part of a subsequent description of access rights has no power to modify the precedent grant of land and enlarge the specific reservation of one-fourth interest in the gas and oil rights. The inclusiveness of the subsequent descriptive matter suggests that it may have been copied into the deed without attention to its terms. In this case, as in Jones, the result is supported by the rule that ambiguities in deeds must be construed in favor of the grantee.

For the foregoing reasons the judgment of the circuit court of Hamilton County is reversed.

Reversed.

HARRISON, P.J., and WELCH, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH PERRUQUET, Defendant-Appellant.
    Fifth District
    No. 82—16
    Opinion filed September 14, 1983.

      Randy E. Blue and Daniel M. Kirwan, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Randy Patchett, State’s Attorney, of Marion (Stephen E. Norris and Raymond E Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

The defendant, Joseph Perruquet, was charged by information in Williamson County with the offenses of rape and deviate sexual assault and by information in Jackson County with the offenses of rape and aggravated kidnaping. All offenses were allegedly committed on the same day and involved the same victim. The Jackson County charges were subsequently consolidated with those in Williamson County, and the defendant was found guilty of all four offenses in a jury trial conducted in Williamson County. In sentencing the defendant, the trial court ordered that the sentence for the Jackson County rape be served consecutively to the sentences imposed on the other three charges, which were to be served concurrently. On appeal the defendant contends (1) that the court erred in imposing consecutive sentences because the offenses of which he was convicted were part of a single course of conduct during which there was no substantial change in the nature of his criminal objective; (2) that the court erred in imposing an extended term for the less serious offense of aggravated kidnaping; and (3) that the sentences totalling 120 years for the four offenses were excessive and should be reduced. We affirm.

On August 28, 1980, the defendant, while armed with a knife, abducted the victim from the parking lot at the University Mall in Carbondale, Illinois. He drove her east on Route 13 stopping once to tape her hands behind her back, to a place on Cambria Road in Williamson County. The defendant then removed the victim’s clothes and forced her to submit to acts of fellatio and sexual intercourse. Following this the defendant directed the victim to dress and get into the car. The defendant entered the car himself and went through the victim’s purse, taking all her money.

The defendant drove back toward Carbondale and told the victim he was “going to let [her] out someplace and take [her] car back to the mall.” When they got to the mall, however, the defendant drove past the mall, through Carbondale, and into the country. When the victim asked the defendant where he was taking her, he said, “I just want to drive awhile.” The victim asked the defendant, “You’re not going to hurt me again, are you?” and he replied, “I was thinking about it.”

The defendant subsequently pulled into a cornfield where he again removed the victim’s clothes and raped her. He then drove her back to the mall and left her in the car.

Following the victim’s testimony to this effect at trial, the jury found the defendant guilty of aggravated kidnaping, deviate sexual assault, and two counts of rape. The court sentenced the defendant to an extended term of 30 years for aggravated kidnaping to run concurrently with extended terms of 60 years each for the Williamson County offenses of rape and deviate sexual assault. In addition, the defendant was sentenced to an extended term of 60 years for the Jackson County rape which was to run consecutively to the Williamson County offenses.

On appeal from these sentences, the defendant contends that it was improper to impose a consecutive sentence for the Jackson County rape because it was part of the same course of conduct as the other offenses and was motivated by the same criminal objective. He asserts that the aggravated kidnaping of the victim constituted a single continuous transaction that involved the commission of other acts including the two rapes. Since the second rape in Jackson County was motivated by the same objective of sexual assault as the previous offenses in Williamson County, it is the defendant’s position that a consecutive sentence for this offense was precluded by section 5 — 8—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(a)), governing consecutive terms of imprisonment.

Section 5 — 8—4(a) states in pertinent part:

“The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(a).)

Conduct, as defined in the Criminal Code of 1961 refers to an act or series of acts and the accompanying mental state. (Ill. Rev. Stat. 1981, ch. 38, par. 2 — 4.) Under this provision, then, the imposition of consecutive sentences depends upon both the existence of separate and distinct acts and separate motivation behind those acts. See People v. Rose (1979), 75 Ill. App. 3d 45, 393 N.E.2d 698; see also Note, Criminal Law: Concurrent & Consecutive Sentencing, 1973 U. Ill. L. F. 423.

Courts have applied this test to uphold consecutive sentences where the defendant committed different crimes sequentially against the same victim. (Cf. People v. Brown (1975), 31 Ill. App. 3d 547, 334 N.E.2d 323 (defendant’s criminal objective changed from rape to armed robbery when he took money from the victim’s purse after completing the rape); People v. Walker (1971), 2 Ill. App. 3d 1026, 279 N.E.2d 23 (defendant’s conduct of raping victim, slitting her throat and abdomen, and then taking her money and jewelry constituted three separate acts involving three distinct mental states).) In such instances the defendant’s acts, though closely related, were sufficiently separate and distinct to justify the imposition of multiple punishments.

Similarly, in the case at bar, the evidence showed that the defendant, after completing the first rape against the victim, had her dress and get into the car after which he proceeded to go through her purse and take her money. While the defendant here was not charged with nor convicted of armed robbery as was the defendant in People v. Walker, the victim’s testimony concerning this incident provided evidence of a change in the nature of the defendant’s criminal objective that the court could consider in imposing sentence. Further evidence that the defendant’s objective had changed after the first assault was provided by the defendant’s announced intent to let the victim out of the car and take the car back to the mall. This statement by the defendant indicated that the first incident was completed and that he did not intend at that time to commit an additional rape of the victim. (Cf. People v. Finch (1980), 86 Ill. App. 3d 493, 408 N.E.2d 87 (defendant’s statement that he “didn’t have any intention of killing those two boys” when he went back to the service station to commit robbery supported consecutive sentences for armed robbery and murder); People v. Lott (1978), 57 Ill. App. 3d 706, 373 N.E.2d 466 (consecutive sentences were proper where defendant admitted he did not form the intent to kill the driver of the vehicle involved until after he killed the passenger).) From this evidence the court in the instant case was justified in finding that the second rape in Jackson County was motivated by a separate criminal objective formed sometime after the defendant had completed the first rape of the victim.

The defendant contends, however, that even if he had temporarily abandoned his criminal intent following his acts in Williamson County, this was not a change in “the nature of the criminal objective” contemplated by section 5 — 8—4(a), as there was at most a change from a criminal to a noncriminal objective and the nature of the criminal objective involved in the two rapes was the same. He asserts, therefore, that when he again manifested a criminal intent in approaching the cornfield in Jackson County where the second rape took place, this intent must be considered, for purposes of the statute, as the same criminal objective he had displayed earlier in the abduction.

We find no merit in this argument because it not only discounts the defendant’s change in criminal intent from rape to armed robbery previously noted but also derives from too narrow a reading of the statute. While we are aware of no other case in which consecutive sentences were imposed for the commission of repeated offenses of the same type on the same victim, we do not believe such sentences are precluded by section 5 — 8—4(a) when the evidence shows the existence of separate acts and a change in the defendant’s accompanying mental state. To hold that, under these circumstances, consecutive sentences are precluded would be contrary to the deterrent purpose of multiple sentencing which is to discourage the commission of further offenses once an initial offense has been completed. See Note, Criminal Law: Concurrent & Consecutive Sentencing, 1973 U. Ill. L. F. 423.

The evidence in the case at bar established that the defendant committed two acts of rape against the victim that were separate in time and location. While the second rape involved a renewed criminal objective of sexual assault, the second rape was no more a part of the first rape than would be a robbery (People v. Brown; People v. Rose) or an attempted murder (People v. Walker) committed against the same victim following a rape. Here, unlike People v. Morgan (1976), 44 Ill. App. 3d 459, 358 N.E.2d 280, cited by the defendant, there was sufficient evidence of a change in the defendant’s criminal objective following the first rape of the victim. We find, therefore, that the trial court was warranted, upon considering the totality of facts and circumstances involved (see People v. Lowther (1980), 85 Ill. App. 3d 735, 407 N.E.2d 1038), in imposing consecutive sentences for the separate offenses committed by the defendant.

We note additionally that while the defendant correctly asserts that the sentence for the second rape could not be imposed to run consecutively to the sentence for aggravated kidnaping (People v. Brown), such a sentence was not imposed in the instant case. Rather, the sentence for the second rape was imposed to run consecutively to the sentences for the two Williamson County sex offenses, while the sentence for aggravated kidnaping was to run concurrently with these latter sentences. Here, as in People v. Brown, the continuous nature of the aggravated kidnaping offense did not preclude the imposition of consecutive sentences for separate offenses committed during the course of the kidnaping, and the court properly sentenced the defendant to consecutive terms for these offenses.

The defendant next contends that the trial court erred in imposing an extended-term sentence for aggravated kidnaping where this offense was not the most serious of which he was convicted. In support of his argument the defendant cites appellate court decisions limiting the imposition of extended-term sentences to the most serious offense or offenses of which a defendant was convicted. (See, e.g., People v. Winston (1982), 106 Ill. App. 3d 673, 435 N.E.2d 1327; People v. Freeman (1982), 104 Ill. App. 3d 980, 433 N.E.2d 974.) Other courts have held that this interpretation of the extended-term sentencing statute (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2(a)) is erroneous and results from too broad a reading of the supreme court’s related opinion in People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520. (People v. DeSimone (1982), 108 Ill. App. 3d 1015, 439 N.E.2d 1311; see People v. Mims (1982), 111 Ill. App. 3d 814, 444 N.E.2d 684; People v. Jordan (1983), 114 Ill. App. 3d 16, 448 N.E.2d 237; People v. Way (1983), 115 Ill. App. 3d 198, 450 N.E.2d 43.) While there continues to be a conflict in the appellate court decisions on this issue (see People v. Rowe (1983), 115 Ill. App. 3d 322, 450 N.E.2d 804), we find the reasoning of the Mims, Jordan and Way courts to be persuasive, and we accordingly adopt this view in the instant case.

The statute here at issue governing extended-term sentencing states in pertinent part:

“A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 — 5—3.2 were found to be present.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2(a).)

The court in the instant case imposed extended-term sentences for the offenses of deviate sexual assault and two counts of rape, all Class X felonies, and for aggravated kidnaping, a Class 1 felony. (See Ill. Rev. Stat. 1981, ch. 38, pars. 11 — 1(c), 11 — 3(b).) The extended-term sentences were based upon a prior rape conviction of the defendant’s under section 5 — 5—3.2(b)(1), which provides for an extended-term sentence “[w]hen a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years ***.” Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(1).

The decisions relied upon by the defendant in urging the reduction of his aggravated kidnaping sentence have interpreted the language of section 5 — 8—2(a) as authorizing extended-term sentences only “for the class of the most serious offense” of which an offender stands convicted. (See People v. Rowe.) We, however, do not read the statute as limiting the imposition of extended-term sentences to a defendant’s most serious offenses but rather as limiting the maximum sentence a defendant may receive when no aggravating factor is present. (See People v. Way; People v. Jordan.) Like the court in People v. DeSimone, we find nothing in the statute nor in the supreme court’s holding in People v. Evans to indicate that an extended-term sentence may not be imposed for a lesser offense so long as both it and the more serious offenses are accompanied by an appropriate aggravating factor. Further, as the Mims court noted, the supreme court’s subsequent analysis of the sentencing issue in People v. Williams (Docket No. 51870, April 16, 1983) leads to the “clear implication *** that extended-term sentences may be imposed in appropriate circumstances, for different classes of offenses, even in those situations where the offenses are not the most serious for which an offender is convicted.” (111 Ill. App. 3d 814, 821-22, 444 N.E.2d 684, 689.) We hold, therefore, under the reasoning of these cases that the defendant’s extended-term sentence for aggravated kidnaping was proper and should not be reduced.

The defendant contends finally that his sentences totalling 120 years for the offenses of deviate sexual assault, two rapes and aggravated kidnaping were excessive and should be reduced as constituting an abuse of discretion. It is well settled that a trial judge is accorded wide latitude in sentencing, and his sentencing decision is “entitled to great deference and weight” on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) In sentencing the defendant for the instant offenses, the trial judge properly considered the nature and circumstances of these offenses as well as the defendant’s extensive criminal history both as a juvenile and as an adult, which included a similar abduction and rape in Carbondale approximately two months earlier. In light of the defendant’s record and the need for deterrence and protection of the public, we cannot say the sentence imposed by the trial court constituted an abuse of discretion. See People v. Perruquet.

For the reasons stated herein, we accordingly affirm the judgment of the circuit court of Williamson County.

Affirmed.

KASSERMAN and EARNS, JJ., concur.


text:
    ROBERT L. NICOLAI, Plaintiff-Appellant, v. RICHARD I. MASON et al., Defendants-Appellees.
    Fifth District
    No. 82—482
    Opinion filed September 13, 1983.
    Rehearing denied October 14, 1983.
    Robert L. Nicolai, of St. Louis, Missouri, for appellant, pro se.

    No brief filed for appellees.
   JUSTICE EARNS

delivered the opinion of the court:

Robert Nicolai, plaintiff, appeals from a judgment of the circuit court of Madison County finding in favor of Richard and Bernice Mason, defendants, on plaintiff’s small-claim complaint. While defendants have not filed a brief in this court, we find that the errors claimed are such that we can address them without aid of an appellee’s brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.

Defendants opened a charge account at Schermer’s Men’s Shop in Granite City, Illinois, on October 13, 1975. A collection ledger from the store shows that the balance on the account was $291.10 as of January 30, 1977, and that no further purchases were made on the account after that time. The accumulation of interest charges made the balance due on the account rise to $727.91 as of April 30, 1982. On February 8, 1982, plaintiff purchased the account from Schermer’s. When attempts at collecting on the account proved unsuccessful, plaintiff brought the instant action. Testifying on his own behalf, defendant Richard Mason admitted that he owed $291.10 to Schermer’s as of January 30, 1977, and further testified that all of these purchases had occurred so long ago that he could not understand how he could be sued on them now.

In a written order filed on May 11, 1983, the court entered judgment in favor of defendants, finding that “although the defendant Richard Mason had made a written application for credit, there was no evidence adduced that each of the purchases in question was made pursuant to a written contract.” Accordingly, the court concluded that, since all of defendants’ purchases at Schermer’s were made more than five years prior to the commencement of suit, the instant action was barred by the five-year statute of limitations applicable to oral contracts. Ill. Rev. Stat. 1981, ch. 83, par. 16, current version at Ill. Rev. Stat. 1981, ch. 110, par. 13-205.

On appeal, plaintiff initially contends that defendants did not properly raise the defense of the statute of limitations in the trial court. We disagree. While plaintiff cites Cutsinger v. Cullinan (1979), 72 Ill. App. 3d 527, 391 N.E.2d 177, for the proposition that the statute of limitations must be raised as an affirmative defense in either an answer or motion to dismiss (72 Ill. App. 3d 527, 531-32, 391 N.E.2d 177, 180-81), it has been specifically held that a defendant in a small-claim case may raise an affirmative defense at trial even if that defense has not been raised in the pleadings (Wroclawski v. Waszczyk (1976), 35 Ill. App. 3d 408, 411-12, 342 N.E.2d 261, 264). Such a rule recognizes that the goals of the rules governing small claims are designed to provide an expeditious and inexpensive method for resolving small-claims disputes, and that, under Supreme Court Rule 286 (87 Ill. 2d R. 286), a small-claims defendant is not required to file an answer at all unless ordered to do so by the court. (35 Ill. App. 3d 408, 412, 342 N.E.2d 261, 264.) Moreover, while plaintiff claims that defendants did not clearly raise the issue at trial, the report of proceedings certified by the trial court indicated that Richard Mason testified “that all this happened such a long time ago and he didn’t understand how he could be sued on it now.” We believe that this testimony was sufficient to raise the defense of the statute of limitations. The purpose of statutes of limitations is to discourage the presentation of stale claims and to encourage diligence in the bringing of actions (Dolce v. Gamberdino (1978), 60 Ill. App. 3d 124, 128, 376 N.E.2d 273, 276), and Richard Mason’s testimony sufficiently apprised both the plaintiff and the court that plaintiff had waited too long to sue. Accordingly, we conclude that the statute of limitations defense was properly raised by defendants in the trial court. We also reject plaintiff’s claim that defendants did not establish that plaintiff’s claim was barred by the statute of limitations, as the uncontroverted evidence showed that defendants last purchased clothing from Schermer’s no later than in January of 1977.

Plaintiff next contends that defendant Richard Mason made a judicial admission at trial which served to revive the debt. There is nothing in the report of proceedings, however, from which it can be fairly inferred that plaintiff raised this issue in the trial court, and the issue has therefore been waived. (Kravis v. Smith Marine Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417.) In any event, the issue is without merit, as Richard Mason’s admission that the account was correct as of 1977 did not revive the debt absent an admission that the debt was still due (see Quayle v. Guild (1878), 91 Ill. 378, 386), and no such admission is contained within the record here.

Finally, plaintiff asserts that his equal protection and due process rights were abridged by the trial court’s actions in deciding that plaintiff’s claim was barred by the statute of limitations. As noted earlier, however, the record reflects that defendants adequately raised the issue of the statute of limitations in the trial court. We note additionally that plaintiff raised this issue in a motion to reconsider, and that the trial court, after hearing arguments of the parties, denied that motion. Since defendants’ affirmative defense was adequately presented to the plaintiff and to the trial court, and since nothing in the record shows that plaintiff was denied the opportunity to present evidence tending to overcome that defense, we are compelled to conclude that plaintiff’s due process and equal protection rights were not abridged by the trial court.

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

Affirmed.

JONES and KASSERMAN, JJ., concur.