author: JUSTICE WILSON

text:
    DELORES QUINONES, Plaintiff-Appellee, v. BOARD OF REVIEW, THE DEPARTMENT OF LABOR, et al., Defendants-Appellants.
    First District (5th Division)
    No. 80-1916
    Opinion filed January 22, 1982.

      Tyrone C. Fahner, Attorney General, of Chicago (Myra Turner, Assistant Attorney General, of counsel), for appellants.
    Steven Saltzman, of Chicago, for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

Defendants appeal from the trial court’s judgment which reversed an administrative decision denying plaintiff’s request to antedate her claim for extended Federal unemployment compensation. The broad issue is whether the defendant agency abused its discretion in denying plaintiff’s claim. Because we find that the agency did not err, we reverse the trial court.

In January of 1977 plaintiff, Delores Quinones, was laid off from her job. She applied for and received unemployment compensation benefits for the maximum of 26 weeks. After exhausting these State benefits she applied for Federal extended benefits pursuant to the Federal-State Extended Unemployment Compensation Act of 1970, Public Law 91-373, title II (August 10, 1970), amended by the Emergency Unemployment Compensation Act of 1974, Public Law 93-572 (December 31, 1974); see notes following 26 U.S.C.A. §3304, at 351-53 (West 1979). The extended benefit program in Illinois provides that claimants who have exhausted their 26 week maximum of State-funded benefits may apply for an additional 13 weeks of unemployment compensation. These extended benefits are available in two situations: (1) when Federal officials determine that the national rate of unemployment for the preceding 12 weeks has equaled or exceeded 4.5 percent, or (2) when the State rate of unemployment equals or exceeds 5 percent during a 13-week period. (See Ill. Rev. Stat. 1977, ch. 48, par. 409(A)(11).) When either of these situations occur, an “indicator” is turned on and must remain on for 13 consecutive weeks.

When plaintiff applied for extended Federal benefits the indicator was on, but in January 1978, the indicator turned off. Concerned that she had stopped receiving checks, plaintiff returned to her local Division of Unemployment Insurance office (DUI). There, she was told that she would not receive any further benefits. At the time, she had not received the full 13 weeks of extended benefits.

On April 30, 1978, the indicator switched on again. At that time the DUI sent notices to persons it believed were eligible for extended benefits. The DUI determined, however, that claimants who had received some benefits before the indicator went off in January 1978 were ineligible to receive further extended benefits. (DUI Benefit Section Bulletin 1258, Supp. 9 (April 26, 1978).) Consequently, plaintiff and other claimants similarly situated did not receive a letter of notification.

Thereafter, a lawsuit was filed against officials of the Illinois Department of Labor. (SeeLackeyv. Bowling (N.D. Ill. 1979), 476 F. Supp. 1111.) The plaintiff class included persons who, like Delores Quinones, did not receive notification in June of their potential eligibility for further benefits. Before a trial was held, however, the parties settled because the United States Department of Labor’s Associate Regional Administrator for Unemployment Insurance informed the Illinois defendants that they had interpreted Federal law incorrectly. The Illinois Department of Labor agreed to change its policy, and the parties entered a stipulation to dismiss the lawsuit. In pertinent part, the stipulation provided:

“Defendants agree that all members of the putative plaintiff class who report to their local office and are determined eligible for extended unemployment insurance benefits and who would have received extended benefits after April 30,1978, but for the policy and practice challenged in the present case, will receive such extended benefits.” Lackey v. Bowling (N.D. Ill. 1979), 476 F. Supp. 1111, 1114-15.

Pursuant to this agreement, the DUI sent letters to plaintiff and other members of the Lackey class..At the top of the letter, indented and set off from the text, was the caption “Important Notice About Your Unemployment Benefits.” The first paragraph of the letter explained that “due to a new federal interpretation of the eligibility criteria for the extended benefits program,” the party named therein might be eligible to receive benefits for the weeks following April 30,1978. It further told claimants to report to their local office on a certain day. Plaintiff’s letter, dated June 30, 1978, told her to report on Wednesday, July 12, at 1 p.m. The letter was properly addressed to 2835 W. 23rd Street but was delivered to 2835 W. 23rd Place. Plaintiff did not actually receive the letter until late July or August, after the July 12, 1978, appointment had passed. Moreover, plaintiff did not understand the letter because she is Spanish-speaking and cannot read English. Consequently, plaintiff did not act upon the notice until October 3, 1978, after she had spoken to persons from the Legal Assistance Foundation office on Blue Island Avenue in Chicago. At the DUI office, a claims adjudicator denied her request to antedate her benefits claim to April 30, 1978, the time when the program resumed in Illinois. The denial was based on plaintiff’s failure to bring her antedation claim within the scope of DUI Regulation 17F. Plaintiff appealed this decision to a referee and finally to the Board of Review, both of whom affirmed the claims adjudicator’s decision. Subsequently, plaintiff appealed to the Circuit Court of Cook County, pursuant to the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, pars. 264 through 279). After considering briefs and argument, the trial court reversed the Board’s decision. Defendants then brought this appeal from the trial court’s judgment.

Opinion

Regulation 17F, which was adopted by the Illinois Department of Labor pursuant to section 700 of the Unemployment Insurance Act (Ill. Rev. Stat. 1977, ch. 48, par. 450), allows a claimant, in certain circumstances, to file a late claim and have it antedated to the proper week. It provides as follows:

“Regulation 17
F. Extended Antedation
When an individual files a claim or reports with respect to a week not later than one year after the first day of the week, such claim may be antedated to the first day of the week, or the individual may be deemed to have reported on his report day for the week, as the case may be, in any instance in which failure to file or report at an earlier time is established by the individual to be due to
1. The individual’s unawareness of his rights under the Act, or
2. Failure either of the employing unit or of the Division of Unemployment Insurance to discharge its responsibilities or obligations under the Act or the Regulations, or
3. Any act of an employing unit in coercing, warning, or instructing the individual not to pursue his benefit rights, or
4. Circumstances beyond the individual’s control, provided that the individual files his claim or reports, as the case may be, either at his first available opportunity after the reason for failure to file or report no longer exists, or not more than fourteen days after the date of such first available opportunity.” Rules and Regulations, Illinois Unemployment Insurance Act, Department of Labor, Bureau of Employment Security, effective September 22, 1977.

Defendants argue that plaintiff was properly denied antedation of her claim because her failure to file the claim did not fall within any of the four categories of Regulation 17F. Further, they contend that she failed to file her claim within the 14-day time period after the date of her “first available opportunity” to file. Plaintiff responds that her claim for extended benefits should have been antedated because the DUI did not properly discharge its obligations to her and because the Lackey stipulation mandates that the DUI grant benefits to claimants in plaintiff’s position. Moreover, she maintains that defendants are estopped from denying plaintiff’s claim as being untimely filed because of defendant’s initial erroneous application of the law and their resultant stipulation with the Lackey plaintiffs.

I

Initially, we can dispose of the estoppel argument by noting that plaintiff never raised it during th$ proceedings below. Consequently, plaintiff cannot raise the argument for the first time on appeal. (Cornell v. County of Du Page (1977), 58 Ill. App. 3d 230, 374 N.E.2d 1.) Nor do we believe that the estoppel doctrine should be applied to the circumstances of this case. There is nothing to indicate that defendants acted in bad faith or negligently gave plaintiff erroneous information. At the time the indicator turned off and her extended benefits ceased (in January 1978) plaintiff went to the DUI office and was informed that she would receive no further benefits. When the program resumed in April, she did not receive notice because at that time the DUI’s interpretation of the law was that she and others like her were ineligible for more benefits. That the Lackey stipulation changed this policy, moreover, does not establish that she was misled in January. Furthermore, we believe that the agency acted reasonably and fulfilled its obligation to potential benefit recipients by sending notice letters to the Lackey plaintiffs. Accordingly, defendants are not estopped from challenging her right to antedate her claim.

II

Although defendants initially maintain that plaintiff’s failure to timely file her claim does not fit within one of the four “excuse” or “good cause” categories of Regulation 17F, we need not discuss the merits of this argument at length. We are assuming, for the purposes of this appeal, that the circumstances leading to the Lackey stipulation constitute plaintiff’s initial reason for failing to apply for extended benefits after the indicator turned on again in April of 1978; she had not been notified at that time of her potential eligibility for more benefits because of the prevailing DUI policy at the time. Therefore, the dispositive question of this appeal is whether, having met the threshold “good cause” requirement of the regulation, plaintiff acted within the time period prescribed therein. Simply stated, when did she receive the notice that triggered her duty to file? This issue centers on the application of the 14-day period included in Regulation 17F, which allows antedation “provided that the individual files his claim or reports 0 * ° either at his first available opportunity, or not more than fourteen days after the date of such first available opportunity.” Plaintiff’s right to antedate her claim thus depends on the determination of when her first available opportunity to file arose. As the facts indicate, in June, plaintiff was sent a letter pursuant to the Lackey stipulation which contained notice of her potential eligibility for further extended benefits. She testified, however, that since it was misdelivered, she did not actually receive it until the end of July or early August. At that time, of course, her July 12,1978, appointment had expired. Furthermore, when she did receive it, she did nothing for awhile because she did not understand English. Finally, in early October, she went to the local DUI office, after the letter had been explained to her by persons from the Legal Assistance Foundation in Chicago. If her actual receipt of the letter in August constitutes plaintiff’s “first available opportunity after the reason for failure to file ° 6 6 no longer exists,” she does not meet the requirements of the regulation because she did not file until October 3, 1978. If, however, the date of her actual comprehension or interpretation of the letter marks the running of the 14-day period, she presumably would satisfy the regulation because the record indicates that she learned of the letter’s contents on about September 30, 1978. The trial judge reversed the agency’s denial of plaintiff’s claim because although he expressly noted his agreement with the Board’s decision, he believed that on the basis of the case law, plaintiff was “entitled to more [benefits] than she received, assuming, as she says, she can only communicate in the Spanish language.” It is evident that the basis of the court’s reversal was the language barrier.' Without doubt, had plaintiff understood English, the efficacy of the notice letter would not now be in question; she would have been under a duty to file her claim after receiving the letter, within the two week provision of Regulation 17F. The narrow legal question before us, therefore, is whether her inability to understand English excused her late filing. We believe that the Illinois Supreme Court has answered this question in the negative.

In Hernandez v. Department of Labor (1981), 83 Ill. 2d 512, 416 N.E.2d 263, the Spanish-speaking plaintiff filed for unemployment compensation benefits. The claim was denied, and plaintiff was sent a letter notifying him of the decision and of his attendant right to appeal within nine days. Because he did not speak English, he took the letter to a friend, who mistranslated it. Subsequently, plaintiff went to the local office, had the letter translated correctly, and filed an appeal that day. The appeal was denied, however, because plaintiff had missed the nine-day time period for filing. On a subsequent appeal to the circuit court, pursuant to the Administrative Review Act, the agency’s determination was affirmed. The appellate court reversed, however, on the basis that plaintiff had not received actual notice of the administrative decision. (Hernandez v. Board of Review (1979), 79 Ill. App. 3d 635, 639, 398 N.E.2d 879, 882-83.) Finally, the supreme court reversed the appellate court, holding that receipt of the letter constituted effective notice to plaintiff, notwithstanding the language problem. The court first held that the statutorily prescribed nine-day period for filing an appeal operated as a mandatory limitation on the right of appeal. Relying on a Massachusetts decision, the supreme court reasoned that to hold in favor of plaintiff would be to allow all non-English speaking persons or illiterates to assert that notices written in English were legally insufficient. Moreover, the court refused to engraft a good cause exception to the nine-day period, noting that even if the statutory provision contained a good cause exception, “[i]t is by no means certain 000 that one who receives an erroneous notice translation would be allowed to file late under [such a] provision.” 83 Ill. 2d 512, 519, 216 N.E.2d 263, 266.

In the pending case, the 14-day period of Regulation 17F also appears to operate as a mandatory limitation on the ability to antedate a claim for benefits. The regulation is itself a good-cause exception to the general requirement that claimants must file for benefits on time. (See Ill. Rev. Stat. 1977, ch. 48, par. 420(B).) Within the one-year “grace” period of Regulation 17F, as long as the claimant’s reason for late filing fits one of the four “good cause” categories, he has as much as 14 days following his “first available opportunity” to file for antedation of his claim. If the regulation is to function with any degree of certainty, this time period must be construed as a mandatory limitation on a party’s entitlement to have a claim antedated.

We also reject plaintiff’s argument that the Lackey stipulation supersedes Regulation 17F because the stipulation contains no time restraints but simply provides that all members of the plaintiff class may report to their local offices for a determination of their eligibility for benefits under the corrected policy guidelines. We do not agree that the stipulation obviates the terms of Regulation 17F. Indeed, it seems more logical to reconcile the stipulation with the regulation in the following manner. (1) The circumstances that led to the Lackey litigation constitute the reason for plaintiff’s failure to file her claim initially (because she had no clear right to receive further benefits until the Lackey settlement established that right). (2) The letter notifying plaintiff of her possible eligibility for further benefits, sent pursuant to the Lackey stipulation, constitutes effective notice, under the reasoning of Hernandez. (3) Because she admittedly received the letter in late July or early August, her first opportunity to file for antedation benefits would be sometime in August. Even considering the 14-day extension, she did not file on time because it was not until October 3, 1978, that she went to the DUI office. Accordingly, she failed to meet the requirements of Regulation 17F.

We are aware that the result in this case, as in Hernandez, appears harsh; however, an effective unemployment compensation system requires a measure of certainty in the application of its rules and regulations. We conclude that the Board of Review of the Department of Labor did not err in denying plaintiff’s antedation request. Accordingly, we must reverse the judgment of the trial court.

Reversed.

SULLIVAN, P. J., and MEJDA, J., concur.


source: Caselaw Access Project

author: JUSTICE GOLDBERG

license: Public Domain

text:
    THOMAS LANE MORICOLI, Plaintiff-Appellant, v. P & S MANAGEMENT CO., INC., Defendant-Appellee.—(BARBARA T. HARRISON, a/k/a Barbara T. Reid, Counterplaintiff-Appellee, v. P & S MANAGEMENT CO., INC., Counterdefendant-Appellant.)
    First District (1st Division)
    Nos. 81-091, 81-507 cons.
    Opinion filed January 25, 1982.
    Rehearing denied March 8, 1982.
    Kanter & Mattenson, Ltd., of Chicago (David M. Mattenson, of counsel), for appellant Thomas Lane Moricoli.
    James W. Collins and Angelika Kuehn, both of Chicago (Boodell, Sears, Sugrue, Giambalvo & Crowley, of counsel), for appellee Barbara T. Harrison.
    Gerald B. Lurie and Kiesler & Berman, both of Chicago (Rudnick & Wolfe, John R. Garofalo, and Peter T. Capps, of counsel), for appellant and appellee P & S Management Co., Inc.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Although the two appeals herein involved are properly consolidated, dictates of clarity require separate handling.

General No. 81-091

Thomas Lane Moricoli (plaintiff) brought an action for slander against James L. Schwartz, Barbara T. Reid, now known as Barbara T. Harrison (Harrison), and P & S Management Co., Inc. (P & S). The allegations of plaintiff’s complaint and the alleged defamation are stated in the opinion of this court in Moricoli v. Schwartz (1977), 46 Ill. App. 3d 481, 482, 361 N.E.2d 74. This court reversed dismissal of the suit and held use of the word “fag” with reference to plaintiff by defendant Schwartz and by Harrison as agents for P & S was a defamation not susceptible of innocent construction. However, we also held that the alleged defamation did not constitute slander per se so that it was not actionable without proof of special damages.

Pursuant to this reversal, trial by jury was had. The jury returned the following verdicts and judgments were accordingly entered on November 20, 1980:

(1) A verdict in favor of plaintiff and against P & S on slander which assessed plaintiff’s damages in accordance with these designations:

“Special damages:” Some illegible numbers immediately following a typewritten dollar sign are stricken out in ink and the number “0” is inserted with the handwritten initials of the jury foreman.

“General damages:” $40,133.00.

(2) Another verdict in favor of plaintiff and against P & S with punitive damages of $52,500.

(3) In a breach of contract claim brought by plaintiff against P & S, the verdict was in favor of the defendant and against the plaintiff.

(4) Another verdict finding in favor of Harrison and against plaintiff on the slander issue.

We should also note the trial court directed a verdict in favor of defendant James Schwartz.

P & S filed a motion for judgment n.o.v. Plaintiff filed a motion for judgment on the verdict. P & S filed an alternative motion for new trial on the ground that the verdicts were against the manifest weight of the evidence.

On December 4,1980, the trial court entered judgment n.o.v. in favor of P & S on the ground that the jury found no special damages which thus omitted a necessary part of a general verdict in a case of slander per quod and that this finding of no special damages controlled over the verdicts for plaintiff. On December 9, 1980, plaintiff filed a post-trial motion stating in effect that there was no confusion by the jury except “in the ‘assessment’ or distribution of damages only.” Alternatively, plaintiff moved for a new trial.

Plaintiff’s post-trial motion and defendant’s alternative motion for new trial were denied. Plaintiff filed notice of appeal from these final judgments and prayed judgment for the general and punitive damages assessed by the jury. No cross-appeal was filed.

In this court plaintiff urges the trial court improperly granted judgment n.o.v. since that remedy is available only under the evidence weighed according to the Pedrick standard; the trial court improperly treated the situation as though there had been a special interrogatory tendered and the trial court should have made the verdicts conform and then should have entered judgments thereon. Alternatively, plaintiff claims a new trial.

P & S contends judgment n.o.v. was proper because plaintiff has failed to prove special damages which was an element of his prima facie case; the verdict can be considered by the trial judge in granting judgment notwithstanding the verdict, and since the complete record has not been presented, the reviewing court is compelled to assume that the evidence supported the judgment notwithstanding the verdict. Alternatively, P & S prays for a new trial.

Plaintiff takes the position that the judgment n.o.v. entered December 4, 1980, specifically shows it is based on failure of the jury to assess special damages, whereas judgment n.o.v. is necessarily limited to instances which depend upon the strength of the evidence. (See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) Plaintiff then argues that although the record is not complete, various statements by the trial court are sufficient to show the jury actually intended to find special damages, general damages and punitive damages in accordance with the instructions. On the contrary, P & S urges that various statements by the trial judge indicate his belief the jury actually intended to find no special damages. P & S also urges that since plaintiff, as appellant, did not file a complete record, this reviewing court must assume the evidence supported the verdict of no special damages.

We cannot agree with plaintiff’s argument. The entire record before us, which it was the duty of plaintiff as appellant to bring before this court, contains only fragments of the evidence in three small portions of the report of proceedings. As has been stated by this court, a litigant who fails to file a complete report of proceedings has waived all points which “we can review only if we know what happened at those proceedings.” (Francisco v. Francisco (1980), 83 Ill. App. 3d 594, 596, 404 N.E.2d 537, and cases there cited.) Many other decisions of this court hold that review of a decision by a trial court on a motion for judgment n.o.v. requires a complete transcript and in the absence thereof “the reviewing court must presume that the evidence supported the court’s judgment.” Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1981), 98 Ill. App. 3d 518, 520, 424 N.E.2d 758, and cases there cited.

In our opinion, this reasoning'requires us to deny plaintiff’s post-trial motion insofar as it seeks to set aside the judgment n.o.v. This is a factual issue which we cannot decide in the absence of a proper report of proceedings. On the contrary, the record before us is sufficient to enable us to pass upon the legal issues presented by alternative motions made by plaintiff and by P & S for a new trial even though the evidence is not before us. See Flannery v. Marathon Oil Co. (1979), 75 Ill. App. 3d 690, 691-92, 394 N.E.2d 706, and cases there cited.

With these matters in mind we turn to the jury instructions which are part of the trial record. Plaintiff’s Instruction No. 1 told the jury they could determine plaintiff’s monetary losses:

“[I]f you decide for the plaintiff on the question of liability and the plaintiff has proved some amount of special damages 0 *

The instruction then proceeds to set out aspects of “additional damages”:

“1. Injury to fame or reputation.
2. Humiliation.
3. Embarrassment.
4. Ridicule.
5. Disgrace and public hatred.
6. Contempt.
7. Loss of earnings.”

There is no definition of so-called “general damages” in the instructions.

Instruction No. 15 tendered by P & S told the jury:

“Special damage means the loss of identifiable income from entertainment sources which plaintiff lost as the proximate result of the defendants’ publication.”

Instruction No. 12 tendered by P & S told the jury:

“If you find that the plaintiff is entitled to special damages and if you also find, on the basis of clear and convincing evidence that the defendant P & S MANAGEMENT, INC., acted with actual malice in making the slanderous statements in question, and if you believe that justice and the public good require it, you may in addition to any damages which you find the plaintiff entitled award plaintiff an amount which will serve to punish the defendant, P & S MANAGEMENT, INC. and to deter others from the commission of like offense.”

To make certain of the definition of “special damages” we must consider, as shown in Prosser, Torts §93, at 593 (2d ed. 1955), that all slanderous words, except for the four categories of slander per se:

“° e ° are actionable only upon proof of ‘special’ damage — special in the sense that it must be supported by specific proof, as distinct from the damage assumed to follow in the case of libel or the kinds of slander already considered.”

Additional definitions are found in 53 C.J.S. Libel and Slander §240 (1948) as follows:

“General damages are those which the law presumes must actually, proximately, and necessarily result from the publication of the defamatory matter, * ° *. If the words are not actionable per se, there can be no recovery of general damages. Special damages are such as have actually occurred, computable in money, which are the natural, but not the necessary, result of the alleged wrong, and do not follow by implication of law on proof of the defamatory words.”

The need for proof of special damages as an indispensable prerequisite for recovery by plaintiff herein is also expressed in Valentine v. North American Co. (1974), 60 Ill. 2d 168, 170, 328 N.E.2d 265, Richardson v. Dunbar (1981), 95 Ill. App. 3d 254, 259, 419 N.E.2d 1205, and cases there cited; Kirk v. Village of Hillcrest (1975), 31 Ill. App. 3d 1063, 1065, 335 N.E.2d 535, and Whitby v. Associates Discount Corp. (1965), 59 Ill. App. 2d 337, 340-41, 207 N.E.2d 482. In addition, the previous opinion by this court expressly held that the statements alleged in the instant case did not constitute slander per se so that allegation and proof of special damages was a condition precedent to recovery by plaintiff. (Moricoli v. Schwartz (1977), 46 Ill. App. 3d 481, 484.) That holding is the law of this case and this court can proceed only in accordance therewith. See PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 312, 427 N.E.2d 563.

In our opinion, the proper result to be reached in this case lies in the principles expressed in Manders v. Pulice (1970), 44 Ill. 2d 511, 517-18, 256 N.E.2d 330. The court there held the verdicts should be examined and an attempt made to mold them into logical form. But, as in the instant case, where there is grave doubt as to the meaning of the verdicts, a new trial should be directed.

The legal problem here is one of ascertaining the intention of the jury. The verdict can be amended or molded when the defect is one of form not of substance. “[A]n amendment must reflect only what the jury clearly intended the verdict to be.” Anderson v. Smith (1980), 91 Ill. App. 3d 938, 941, 415 N.E.2d 643. See also Hagopian v. First Venture, Ltd. (1980), 90 Ill. App. 3d 951, 956, 414 N.E.2d 85.

In the case before us the verdict is thoroughly and completely inconsistent. It is legally impermissible in the type of defamation case before us to find no special damages have been proved and also find the plaintiff is entitled to general damages and punitive damages. It is impossible to attempt to reconcile these conflicting verdicts. Consequently, the only possible solution to this situation is to set aside all of the slander verdicts as regards the rights of plaintiff and P & S and to remand the case for a new trial on the defamation issues between these parties, in accordance with the alternative prayers of plaintiff and P & S.

The only exceptions to this course are:

(1) The jury found clearly in favor of defendant P & S and against plaintiff on the claim of breach of contract. No relief from this verdict and judgment was sought by plaintiff in his post-trial motion. Judgment on that verdict is accordingly affirmed.

(2) The jury also found in favor of defendant Harrison and against the plaintiff on the claim for slander. No point is raised regarding this verdict in plaintiff’s post-trial, motion. Accordingly, judgment on this verdict is affirmed.

(3) At the close of plaintiff’s case, the trial judge directed a verdict for defendant Schwartz. No point is raised on this order, and the judgment on this verdict is accordingly affirmed.

Therefore the judgments entered on the slander verdicts in favor of plaintiff and against P & S and the judgment n.o.v. in favor of P & S are reversed and the cause remanded for a new trial. The remaining judgments on the three verdicts first above described are affirmed.

General No. 81-507

Defendant Harrison filed a counterclaim against counter-defendant P & S. She sought indemnity against any judgment which might be entered against her in the slander suit and also reimbursement of her attorney fees and expenses incurred in defending herself. The issues raised in this counterclaim were tried together with the issues raised in plaintiff’s complaint. However, by stipulation of the parties, the counterclaim issues were in effect severed from and not disclosed to the jury. These issues were submitted to the trial court together with written briefs filed by the parties and on oral argument after the filing of the verdicts in the main litigation.

The issue regarding indemnity sought by Harrison in event of a judgment against her was resolved by the verdict of the jury in favor of Harrison. On the question of reimbursement for attorney fees and expenses, the parties agreed that the requests of Harrison for attorney fees in the amount of $24,442.50 and for costs incurred in the amount of $665.13 were reasonable. On January 20,1981, the trial judge entered judgment in favor of Harrison and against P & S for this total amount of $25,107.63. P & S appeals.

In our opinion, under the common law, an agent acting within the scope of his authority, such as Harrison in the case before us, is entitled to defend against the claim and to recover attorney fees and other expenses thus incurred. (Johnston v. Suckow (1977), 55 Ill. App. 3d 277, 280-81, 370 N.E.2d 650.) In addition, the matter is made clear and definite by the pertinent statute.

The statute authorizes a corporation to indemnify its officers and agents who are made parties to a suit by virtue of their connection with the corporation. This indemnification includes payment of attorney fees and expenses. In addition, the statute provides that where a director, officer or agent has successfully defended an action or suit brought against him concerning corporate affairs “he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.” See Ill. Rev. Stat. 1979, ch. 32, par. 157.42 — 12(a), (b), and (c).

This statutory language must be given its plain and ordinary meaning. (Town of the City of Peoria v. O’Connor (1981), 85 Ill. 2d 195, 203, 421 N.E.2d 912, quoting from Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 194, 381 N.E.2d 222.) In the situation before us the language of the statute is clear and definite and we are obliged to follow it and apply it as written. Accordingly, we have no alternative but to affirm the judgment entered in favor of Harrison on her counterclaim against P & S, counter-defendant, in the amount of $25,107.63.

General No. 81-091 is affirmed in part and reversed and remanded for new trial in part. In General No. 81-507 the judgment is affirmed.

CAMPBELL, P. J„ and McGLOON, J„ concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JULIA M. HAGERTY, Defendant-Appellant.
    First District (1st Division)
    No. 81-102
    Opinion filed January 25, 1982.
    Rehearing denied March 8, 1982.

      Bernard Allen Fried, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Thomas J. McNulty, and Steven Pearlman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GOLDBERG

delivered the opinion of the court:

The State’s Attorney of Cook County brought this action on behalf of the People of the State of Illinois to recover unpaid real estate taxes for 1974 through 1977 from Julia M. Hagerty (defendant). Upon plaintiff’s motion, the trial court granted summary judgment in favor of plaintiff in the amount of $48,217.80. Defendant appeals.

It is first necessary to review the pertinent provisions of the Revenue Act of 1939 with respect to unpaid real estate taxes. An excellent summary was set forth by this court in People ex rel. Larson v. Rosewell (1980), 88 Ill. App. 3d 272, 273-74, 410 N.E.2d 404, appeal denied (1980), 81 Ill. 2d 605:

“The Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 482 et seq.) provides two basic methods to enforce the payment of taxes levied upon real property: an in rem proceeding against the property; and an in personam proceeding against the owner. The in rem proceeding encompasses two different and distinct statutory actions. The first type of in rem proceeding commonly referred to as the annual tax sale, is authorized by section 225 of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 706). Such a sale for the full amount of delinquent taxes may occur ‘[a]t any time after the first day of September next after all of such delinquent taxes on lands and lots shall become due in any year, “ ” V The second type of in rem proceeding is an action instituted pursuant to section 235a of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 716a) which is commonly referred to as the Scavenger Act. Section 235a, unlike section 225, requires that tax delinquency continue for a period of five years or more. Property subject to the Scavenger Act is sold to the highest bidder, even though the bid may be less than the full amount of the unpaid taxes. Section 275 of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 756) authorizes an action by the county board to recover from the owner of tax delinquent property which has been forfeited to the State the full amount of taxes due.
Normally the entire tax liability for real estate would be met through a judgment and sale of the property pursuant to section 225. [Citations.] * * *.
o o o
The Revenue [A]ct apparently anticipates that some property will not be purchased at the annual tax sale and therefore will be forfeited to the State. As a result supplementary statutory procedures such as the action for unpaid taxes and the scavenger sale were enacted to serve as a ‘backstop’ for property which was not purchased at the annual tax sale.
Section 275 which authorizes the action for unpaid taxes provides in pertinent part:
‘The county board may, at any time, institute suit in a civil action in the name of the People of the State of Illinois in the circuit court for the whole amount due for taxes and special assessments on forfeited property; e ° °.’ (Emphasis supplied.)”

I

Defendant first contends an issue of material fact remains as to the validity of the alleged forfeiture of the subject property. Defendant argues the motion for summary judgment did not contain either the required prerequisites as to process (Ill. Rev. Stat. 1979, ch. 120, par. 720) or the applications for judgment and sale (Ill. Rev. Stat. 1979, ch. 120, par. 706), without which there could be no valid forfeiture.

We disagree. Attached to the motion for summary judgment are the judgment orders for sale granted by the circuit court on the motion of the county collector for each of the tax years in question. Because defendant did not object to the applications, the judgments and orders for sale act as a default judgment against the property for each of the years in question. See People ex rel. Thompson v. Clark (1975), 34 Ill. App. 3d 228, 232, 338 N.E.2d 408, appeal denied (1976), 62 Ill. 2d 591.

It is undisputed following these judgments the property was offered for sale for each of the years in question. Section 246 of the Revenue Act of 1939 expressly states (Ill. Rev. Stat. 1979, ch. 120, par. 727):

“Every tract or lot so offered at public sale, and not sold for want of bidders * * * shall be forfeited to the State of Illinois: e # # ”

Copies of official Cook County records indicating the forfeiture of the subject property and an affidavit attesting to the accuracy of such records were also attached to the plaintiff’s motion for summary judgment. Such records are competent evidence. (See People ex rel. Thompson v. Clark (1975), 34 Ill. App. 3d 228, 232.) The Revenue Act of 1939 expressly provides (Ill. Rev. Stat. 1979, ch. 120, par. 723):

“All tracts or lots forfeited to the State at such sale * * * shall be noted on the record.”

Defendant does not contest the authenticity of the documents submitted to the court. Therefore, valid forfeitures were properly established. We accordingly reject this contention.

II

Defendant next contends the granting of the motion for summary judgment improperly denied her the opportunity to raise her objections concerning the legality and sufficiency of the tax. Defendant contends she should have been given the opportunity to prove the taxes levied against her property were excessive and improperly assessed.

We disagree. In this situation, defendant has failed to follow the necessary steps required by the Revenue Act in order to object to the assessment of the taxes. Section 194 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 675) specifically provides a person who wishes to object to the assessment of real estate taxes, for any reason other than that the property is not subject to taxation, must first pay all of the tax installments under protest. This procedure is further endorsed by section 235 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 716) with respect to a taxpayer’s ability to raise defenses to the application for judgment and order of sale against the subject property:

“Provided, that no person shall be permitted to offer any such defense unless such writing specifying the particular cause of objection shall be accompanied by an official original or duplicate tax collector’s receipt, showing that all taxes to which objection is made have been paid under protest pursuant to the provisions of section 194 of this Act 6 * e.”

Our courts have specifically held these procedures must be followed by a taxpayer wishing to object to the assessment except where the tax in question is unauthorized by law or levied on exempt property. (See Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 106-08, 306 N.E.2d 299; Chicago Title & Trust Co. v. Tully (1979), 76 Ill. App. 3d 336, 340-41, 395 N.E.2d 42, cert, denied (1980), 445 U.S. 964, 64 L. Ed. 2d 240, 100 S. Ct. 1653; see also Chicago Sheraton Corp. v. Zaban (1978), 71 Ill. 2d 85, 92-93, 373 N.E.2d 1318, appeal dismissed (1978), 439 U.S. 888, 58 L. Ed. 2d 233, 99 S. Ct. 242.) It is undisputed defendant did not pay the real estate taxes assessed against the subject property nor did she file objections of any kind to the motions for judgment and orders of sale. In People v. Chicago Title & Trust Co. (1977), 50 Ill. App. 3d 387, 389, 365 N.E.2d 706, this court stated:

“Where taxpayers have failed to utilize their statutory or equitable remedy prior to judgment for taxes being entered, it would be
contrary to public policy to give them another opportunity to contest the taxes. [Citations.]”

It follows necessarily the instant defendant was properly precluded from objecting to the taxation.

In addition, we note the following statutory provision as further evidence that the legislature intended taxpayers to raise all objections to the tax assessments prior to the entry of judgment (Ill. Rev. Stat. 1979, ch. 120, par. 751):

“Any order for the sale of real estate for delinquent taxes, except as otherwise provided in this Section, shall estop all parties from raising any objections thereto 999 which existed at or before the rendition of such order, and could have been presented as a defense to the application for such order in the court wherein the same was rendered, and as to all such questions, the order itself is conclusive evidence of its regularity and validity in all collateral proceedings 9 9 *.”

Defendant cites Barnett v. County of Cook (1944), 388 Ill. 251, 259, 57 N.E.2d 873, and Griffin v. County of Cook (1938), 369 Ill. 380, 386, 16 N.E.2d 906, in support of her contention. However, the language of these cases refers to the particular provisions of the Revenue Act of 1939 there challenged and found unconstitutional by the supreme court in each case. Thus, these cases are inapplicable. We also find City of Chicago v. McCausland (1942), 379 Ill. 602, 41 N.E.2d 745, inapplicable to the situation at bar. Although the McCausland court did say “certain” defenses to an in personam suit to collect real estate taxes may be raised by a defendant (379 Ill. 602, 606), the only defense noted to be thus available was that the defendant did not own the subject property (379 Rl. 602, 606-07). As the defendant in the instant case has admitted ownership of the subject property throughout the years in question, McCausland does not apply.

The numerous other cases cited by defendant are also inapplicable to the instant case. All of those cases were decided prior to the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 482 et seq.), which established a forum in which real estate taxes may be challenged through payment under protest. As noted above, it has been subsequently held by our courts that a taxpayer must follow these statutory guidelines. We therefore reject this contention.

Ill

Defendant also alleged in her answer to the motion for summary judgment that the Cook County collector failed to offer the subject property for sale under the scavenger sale provisions of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 716a). Defendant alleged that the property was advertised for sale by the collector, but subsequently deleted. Defendant argues this failure to follow the mandatory duty of the collector should have precluded the instant judgment.

In our opinion in In re Application of County Collector (1981), 101 Ill. App. 3d 498, 428 N.E.2d 755, this court held the actions of the collector in deleting certain parcels from the scavenger sale where the taxes were overdue five years or more was a violation of a mandatory duty. However, the collector is not a party to the instant suit. Furthermore, we do not see where the failure to offer the subject property for sale creates any issue of fact with respect to defendant’s liability under section 275 (Ill. Rev. Stat. 1979, ch. 120, par. 756). Defendant’s argument is speculative and based on the assumption that the property would have been sold had it been offered for sale, and that the sale would extinguish defendant’s personal liability as well as the in rem lien. The effect of such a sale is clearly not before us on the facts of this case. We can only point out that defendant should exercise the remedies open to her to require the collector to proceed. The legal results of such sale may not be established until the sale becomes an accomplished fact.

IV

Defendant next contends summary judgment was inappropriate because the plaintiff has improperly split its cause of action. Defendant points out the language of section 275 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 756) states the plaintiff may bring suit for “the whole amount due for taxes and special assessments on forfeited property • * Defendant argues that failure of plaintiff to include an action for taxes due and unpaid for 1978 improperly subjects defendant to a multiplicity of suits.

We do not agree. The procedures which the Cook County collector must follow in seeking judgment against a parcel of real estate for unpaid taxes and subsequent forfeiture of the property, as above described, must necessarily be repeated each year. Thus, we see no reason to conclude these unpaid taxes are anything but separate judgments, each standing on its own. Therefore, the failure to include taxes due for 1978 does not affect defendant’s liability for unpaid taxes for the years 1974 through 1977.

We have examined the numerous cases cited by defendant in support of her contention. While these cases support the general legal proposition regarding multiplicity of lawsuits, they have no relation to the Revenue Act of 1939. We therefore reject this contention.

V

Defendant next contends the summary judgment was improper because it included each separate judgment and the various tax amounts owed for each of the years in question. Defendant does not, however, present arguments or cite cases in support of this contention. The argument must therefore be rejected. See Collins v. Westlake Community Hospital (1974), 57 Ill. 2d 388, 392, 312 N.E.2d 614.

VI

Defendant argues section 275 (Ill. Rev. Stat. 1979, ch. 120, par. 756) is unconstitutional. Defendant initially relies on City of East St. Louis v. Illinois State Trust Co. (1939), 372 Ill. 120, 22 N.E.2d 944. In that case, the supreme court held section 230 of the Revenue Act (Ill. Rev. Stat. 1937, ch. 120, par. 215), which authorized in personam judgments for unpaid special assessments, was in violation of article 9 of the Illinois Constitution (Ill. Const. 1870, art. IX). 372 Ill. 120, 124.

We find this case inapplicable to the statute before us. First, article 9 of the former Illinois Constitution is not found in the Illinois Constitution of 1970. Second, City of East St. Louis dealt with a delinquent special assessment and not general real estate taxes. The court in City of East St. Louis specifically differentiated between taxation for revenue and special assessments (372 Ill. 120, 122, quoting Craw v. Village of Tolono (1880), 96 Ill. 255, 261-62):

‘It is entirely competent to declare [taxation for revenue] a personal liability of the person so taxed. To pay it is a duty he owes to the government. Not so with special taxation, for local improvements, on property contiguous to the improvement.’ ”

VII

Defendant next argues section 275 of the Revenue Act of 1939 is unconstitutional in that it denies her due process of law. We cannot agree. In Little Sister Coal Corp. v. Dawson (1970), 45 Ill. 2d 342, 348, 259 N.E.2d 35, the supreme court stated the requirements of due process in taxation cases were notice to the taxpayer and opportunity to be heard at some point in the process before the tax liability is determined. As noted above, defendant has not argued she did not receive notice of the taxes assessed against her property, and she did not avail herself of the procedures with which to dispute the assessments. This argument is therefore rejected. See also Catoor v. Blair (N.D. Ill. 1973), 358 F. Supp. 815, 816-17, affd (1973), 414 U.S. 990, 38 L. Ed. 2d 231, 94 S. Ct. 345.

VIII

Defendant argues she is denied equal protection under the law because the Revenue Act of 1939 gives plaintiff the sole discretion in determining which property owners to sue for unpaid taxes under section 275 (Ill. Rev. Stat. 1979, ch. 120, par. 756). We do not agree. We see no discretionary authority with respect to this section. It is undisputed the Cook County collector, not a party to this action, had previously secured orders for judgment and sale of the property and those unpaid taxes remained outstanding. Thus, there was no discretion on the part of plaintiff in determining defendant to be liable personally for the unpaid taxes (Ill. Rev. Stat. 1979, ch. 120, par. 508(a)), and thus subject to suit for such taxes under section 275 (Ill. Rev. Stat. 1979, ch. 120, par. 756). Furthermore, in proceeding in a suit under section 275 plaintiff is merely following the provision in Illinois law which requires the State’s Attorney to appear in those proceedings to collect delinquent taxes and to see that the judgments are “legal and binding.” Ill. Rev. Stat. 1979, ch. 14, par. 5(12).

IX

Defendant finally argues the State’s Attorney of Cook County should have been disqualified from participation in this case because of a conflict of interest. Defendant argues a violation of legal duties by the county board with respect to the scavenger sale has placed the board in a conflict, and that the State’s Attorney should not be permitted to represent both the People of Illinois and the county board and to pursue this action against her.

We cannot accept this argument. The State’s Attorney of Cook County is required by law to represent both parties. (Ill. Rev. Stat. 1979, ch. 14, par. 5(3).) Furthermore, no alleged conflict between governmental bodies should have any bearing on this cause, as neither the county board nor the county collector are parties to this suit. This argument is therefore rejected.

For these reasons, the judgment appealed from is affirmed.

Judgment affirmed.

CAMPBELL, P. J„ and McGLOON, J„ concur.


author: JUSTICE PERLIN

text:
    MICHIGAN-CHESTNUT LIMITED PARTNERSHIP et al., Plaintiffs-Appellants, v. EDWARD J. ROSEWELL, Cook County Collector, Defendant-Appellee.
    First District (2nd Division)
    No. 81-104
    Opinion filed January 26, 1982.
    McCracken & Walsh, of Chicago (Thomas J. McCracken, Jr., of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Thomas J. McNulty, and Randye A. Kogan, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiffs, Michigan-Chestnut Limited Partnership and Federated Department Stores, Inc., appeal from the trial court’s order granting summary judgment to defendant, the county collector of Cook County, and denying summary judgment to plaintiffs on their complaint which sought a refund of $2,490.98 in interest assessed by the collector to the unpaid portion of the first installment of plaintiffs’ real estate tax bill for 1974. The question presented for our review is whether there was a genuine and material issue of fact regarding the constitutionality, as applied to plaintiffs, of certain provisions of sections 224 and 224.1 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, pars. 705, 705.1). For the reasons which follow we affirm the judgment of the trial court.

Under the terms of a lease with plaintiff Michigan-Chestnut Limited Partnership, plaintiff Federated Department Stores, Inc. (taxpayer), was liable for the 1974 real estate taxes on the property located at the northwest corner of Pearson and Michigan, Chicago, and identified by permanent index No. 17-03-225-024. The 1973 assessed valuation of this parcel was $2,104,586 and the total tax was $265,332.38. In conformity with section 224.1 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 705.1), the collector sent taxpayer a bill for the first installment of 1974 real estate taxes in the amount of $132,666.19 or one-half of the 1973 taxes. In its complaint taxpayer represented that on January 6, 1975, before receiving the first installment, it received a 1974 “Real Estate Assessed Valuation Revision” lowering the 1974 assessed value to $1,540,075. Taxpayer offered no documentary evidence establishing when it was notified of this revision. Taxpayer recomputed its 1974 real estate taxes on the basis of the reduced assessment and, on March 3, 1975, the extended due date, paid $97,080.64, or approximately 51% of the total tax for 1974. The collector billed taxpayer $59,804.70 for the second installment of 1974 taxes. When taxpayer attempted to remit the balance of the total taxes due, $95,390.25, the collector insisted upon payment of an additional $2,490.98 as statutory interest (Ill. Rev. Stat. 1973, ch. 120, par. 705) on the unpaid balance of the first installment of $35,585.55.

Taxpayer paid the interest under protest and filed suit against the collector praying for a “refund of the penalty imposed for alleged underpayment of the first installment of the 1974 real estate tax for parcel #17-03-225-024 in the amount of $2,490.98.” Cross motions for summary judgment were filed. Subsequently the trial court granted summary judgment for defendant, denied summary judgment for plaintiffs and entered judgment in defendant’s favor.

On appeal the taxpayer argues that the trial court erred in denying its motion for summary judgment because the interaction of sections 224 and 224.1 of the Revenue Act of 1939, as applied to taxpayer, results in a denial of equal protection. Taxpayer argues in the alternative that the trial court erred in granting the collector’s motion for summary judgment because there was a “genuine issue of material fact: i.e. whether there was a rational basis for the different treatment of classes of taxpayers.” The collector responds that the constitutionality of sections 224 and 224.1 was neither raised by the parties below nor was it addressed by the trial court. According to the collector, the only question before the trial court was whether in assessing an interest penalty against taxpayer the collector properly followed the requirements of the Revenue Act of 1939. Since there is no dispute that he did, the collector concludes that he was entitled to summary judgment. Even assuming that a constitutional issue was raised, the collector maintains that the trial court appropriately entered summary judgment in his favor.

Section 224.1 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 705.1) provides in pertinent part that the first installment of real estate taxes on estimated bills shall be computed at 50% of the total of each real estate tax bill for the preceding year. Under section 224 (Ill. Rev. Stat. 1973, ch. 120, par. 705), “* e ° the estimated first installment of unpaid taxes on real estate e * * shall be deemed delinquent and shall bear interest after the first day of March annually at the rate of 1% per month until paid or forfeited * *

Taxpayer asserts that these provisions of the Revenue Act of 1939 have the effect of discriminating against those taxpayers, including plaintiff, whose assessments are lowered since the last regular tax billing period by requiring them to pay 50% of “an irrelevant, outdated assessment figure” and subjecting those taxpayers who fail to pay 50% to interest penalties. Taxpayer asserts further that the provisions as applied, also discriminate against the class of taxpayers who pay 50% of the current year’s actual tax liability in favor of the class of taxpayers who pay 50% of the previous year’s actual tax liability. The collector disputes whether any such constitutional issue was actually raised.

Taxpayer’s amended motion for summary judgment was addressed only to the issue of whether taxpayer had properly and legally calculated the amount it would pay as its first installment on the real estate bill. The motion did not challenge the constitutionality of any statute. The propriety of the trial court’s order denying taxpayer’s motion for summary judgment cannot be attacked on grounds not presented to the trial court. Stando v. Grossinger Motor Sales, Inc. (1980), 89 Ill. App. 3d 898, 900, 412 N.E.2d 600.

We turn, therefore, to a consideration of the trial court’s granting of the collector’s motion for summary judgment. A motion for summary judgment does not try an issue of fact but tests whether one exists. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 272 N.E.2d 497.) Taxpayer contends that there were genuine issues of fact and specifically cites the issue of whether there is a rational basis for the classification in the statute.

In paragraph 6(b) of the amended complaint, taxpayer claims that “[t]he statutory provision [which is not identified] is unconstitutional because it prescribes different and unequal treatment for some owners of real estate without any rational basis therefore.” The fact that an issue is vaguely stated in the pleadings does not preclude the entry of summary judgment where there is no really disputed material fact, or only conclusions and not disputed facts, are asserted by a party. (Anderson v. Panozzo (1979), 71 Ill. App. 3d 19, 20, 389 N.E.2d 12; Lesnik v. Estate of Lesnik (1980), 82 Ill. App. 3d 1102, 1106, 403 N.E.2d 683.) In its amended complaint taxpayer did not ask for a declaration that a statute was unconstitutional on its face or as applied, the trial court made no specific finding as to the constitutionality of any statute, and taxpayer requested none. Taxpayer cannot now argue constitutional questions which it did not give the trial court an opportunity to consider. Steven v. Falese Land Co. (1977), 50 Ill. App. 3d 231, 246, 365 N.E.2d 967.

The taxpayer, however, claims that the rational basis for the classification is discussed and argued in various memoranda and motions filed by the parties. Plaintiffs’ memorandum in opposition to defendant’s motion for summary judgment does not specifically attack the constitutionality of any statute but merely questions the proper application of the interest penalty provisions of the Revenue Act. The collector’s motion for summary judgment does not argue the constitutionality of section 224.1 of the Revenue Act of 1939. The motion asserts only that the collector complied with the statute. In the collector’s memorandum in support of his motion for summary judgment and in opposition to plaintiffs’ motion for summary judgment the rational basis for the classification is not argued. In his memorandum the collector simply questions the taxpayer’s interpretation of the Revenue Act of 1939. At page 4 of the memo the collector asserts that all owners of property are treated the same under the statute.

Eased on the record before us we conclude that the taxpayer failed to raise in the trial court an actual issue regarding the constitutionality of sections 224 and 224.1 of the Revenue Act. The real thrust of plaintiff’s complaint was that the collector had misapplied the interest penalty provisions of section 224 to the taxpayer. Since there is no question that the collector did comply with the statutory requirements, we hold that the trial court properly entered summary judgment for the collector and denied summary judgment for the taxpayer.

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

Affirmed.

DOWNING and HARTMAN, JJ., concur.

       The facial validity of section 224.1 was upheld in Fox v. Rosewell (1977), 55 Ill. App. 3d 860, 371 N.E.2d 287.


author: PRESIDING JUSTICE WHITE

text:
    PATRICIA KLESSEN et al., Plaintiffs-Appellants, v. COMET INSURANCE COMPANY et al., Defendants-Appellees.
    First District (3rd Division)
    No. 80-2030
    Opinion filed January 27, 1982.
    Jacobs, Williams and Montgomery, Ltd., of Chicago (Barry L. Kroll and Thomas H. Neuckranz, of counsel), for appellants.
    Orner, Wasserman and Moore, Ltd., of Chicago (Norton Wasserman and H. Elisabeth Huber, of counsel), for appellees.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

Northern Dlinois Farmers Mutual Insurance Company (Northern) and its insured, Patricia Klessen (Klessen), brought this declaratory judgment action seeking a declaration that under its policy issued to Klessen it did not provide coverage to James C. Davis (Davis), driver of Klessen’s automobile'at the time of an accident on July 8,1978, because he was then and there not driving the automobile with her permission. Named as defendants are Davis, his own automobile insurance carrier, Comet Casualty Company (Comet), and the plaintiffs in an automobile negligence action against Davis.

Both plaintiffs and defendants moved for summary judgment. The affidavit of Klessen, wherein she stated that she had refused Davis permission, and excerpts from Davis’ deposition testimony in which he acknowledged that permission had been refused, were submitted in support of plaintiffs’ motion. Defendants submitted in opposition to plaintiff’s motion and in support of their countermotion for summary judgment, excerpts from Klessen’s deposition. The trial court denied plaintiffs’ motion and granted defendants’ motion for summary judgment finding that Davis was operating the Klessen automobile with the permission of Klessen. From the judgment for defendants, plaintiff appeals.

It is contended that it was error for the trial court to hold as a matter of law that a driver’s use of an automobile was with permission, where both the owner and the driver state under oath that the owner had refused permission on the occasion in question.

These are the undisputed facts: on July 8,1978, Davis had an accident while driving Klessen’s car. He collided with a vehicle owned and driven by defendants Patrick D. Persaud; Alice Persaud and Harriet Campbell were his passengers. The latter two allegedly sustained injuries. They thereafter filed a negligence action against Davis. At the time of the accident, Davis was insured under an automobile liability insurance policy issued by Comet. Klessen’s insurance policy issued by Northern in addition to affording coverage to Klessen also provided coverage to “any other person [such as Davis] using such [her] automobile with the permission of the named insured [Klessen], provided his actual operation * * * thereof is within the scope of such permission.” On the other hand the Comet insurance policy issued to Davis provides coverage to him while driving a nonowned automobile (such as Klessen’s) in the event Davis is not entitled to coverage under the provisions of the policy of insurance applicable,to the nonowned vehicle. If at the time of his accident Davis was driving Klessen’s automobile with her permission, then he would be covered as an additional insured under Klessen’s policy with Northern, and his policy with Comet would apply as to excess insurance. If, however, at the time of the accident he was driving Klessen’s automobile without her permission, Davis would not be insured under Klessen’s policy with Northern, but insured solely under his own policy from Comet. This, then, is essentially a dispute between two insurance companies.

The affidavit and depositions submitted in support of the motions for summary judgment establish that Davis did painting and general maintenance work for Klessen, his friend of 2 or 3 years. When he began working for her she provided him with a set of keys to her automobile which he kept with her permission. He was allowed to use the car when he was doing something for Klessen. Klessen testified that he was permitted to keep the keys so that he would not have to come to her place of employment and get them every time. Before using the car he would call Klessen for permission which she would either grant or refuse. Davis testified that there were times when he would use the automobile without spécifically asking Klessen’s permission, but there is nothing in the record to indicate she was aware of such use.

On the day of the accident, Davis drove his own car to Klessen’s house where he was to paint that day. He picked her up and in her car drove her to the beauty shop. From there he went to the home of a friend where he drank three cans of beer. About 11 o’clock he returned to the beauty shop to get Klessen and took her home. Previously, Klessen had warned Davis about driving when he had been drinking. On the way home she did not mention this, although he had beer on his breath. That afternoon Klessen told Davis she did not want him to use her car because he was drinking beer. Nevertheless, according to Davis’ testimony, about 2 o’clock he put four cans of beer in Klessen’s car and drove it to find Klessen to get some money to buy paint to complete his painting of Klessen’s house. She did not tell him to get the paint. Ordinarily he would buy paint or supplies as needed and she would pay him back. This time, the reason Davis did not get the paint first was that he did not have enough money.

Clearly Davis’ driving in the morning on the date of the accident was with Klessen’s permission. Appellees contend, and the trial court held, that this permission was not effectively terminated as a matter of law, and that at the time of the accident Davis was driving Klessen’s automobile with her permission. Appellants contend that the trial court erred in not making a finding as a matter of law that Davis was driving without permission based on the unrefuted testimony of both Davis and Klessen that Klessen had forbidden his use that afternoon. We disagree with both contentions.

The sworn testimony of Davis and Klessen cannot be rejected out of hand. The initial permission rule advanced in Maryland Casualty Co. v. Iowa National Mutual Co. (1973), 54 Ill. 2d 333, 297 N.E.2d 163, and other cases cited by appellee are inappropriate. In that case a father had instructed his son not to permit nonfamily members to drive the family car. There the court held that once initial permission to use a vehicle is granted, limitations on that use are ineffective. Applying this rule here would beg the question, was Davis’ permission to drive that morning effectively revoked before his afternoon trip which resulted in the accident.

On the other hand no rule of law on this motion for summary judgment requires the acceptance as true of the testimony by Davis and Klessen relating to revocation of permission to drive when it is contrary to the course of conduct between the parties. (Murphy v. Urso (1980), 83 Ill. App. 3d 779,404 N.E.2d 287, affd in part (1981), 88 Ill. 2d 444, 430 N.E.2d 1079; Goff v. New Amsterdam Casualty Co. (1943), 318 Ill. App. 586, 48 N.E.2d 584.) When Davis drove Klessen home he clearly had her permission to drive. The question is, did he have permission later that afternoon. In Konrad v. Hartford Accident & Indemnity Co. (1956), 11 Ill. App. 2d 503, 524, 137 N.E.2d 855, the court said:

“There may well be circumstances under which, upon a return by the user or putting of the vehicle away and a surrender of possession, particularly to the employer or someone else, after the accomplishment of the certain particular purpose for which the user employee originally had it and the end of the original bailment, the user’s responsibility, possession, and permission could be considered as effectively terminated, and, if so, then a later distinct retaking or reacquiring of possession again by the user, particularly from the employer or someone else, and an additional, distinct, separate use thereafter, without a renewed permission of the named insured, may well be said to be without permission.”

Determining whether such circumstances are found here involves questions of fact. Appellee asserts that there is ample evidence in the case to support the summary judgment. However, that is not the test to be applied. A motion for summary judgment will be granted only if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Murphy v. Urso (1981), 88 Ill. 2d 444, 464; Ill. Rev. Stat. 1979, ch. 110, par. 57(3).

Here there was a genuine issue of fact as to permission. The summary judgment for the defendants must be reversed, and the cause is remanded.

Reversed and remanded.

McGILLICUDDY and RIZZI, JJ., concur.


author: JUSTICE McNAMARA

text:
    PETROS CHRISTOU, Plaintiff-Appellee, v. ARLINGTON PARK-WASHINGTON PARK RACE TRACKS CORP., Defendant-Appellant.
    First District (3rd Division)
    No. 80-2955
    Opinion filed January 27, 1982.

      Baker & McKenzie, of Chicago (Francis D. Morrissey, Edward J. Zulkey, Norman J. Barry, Jr., Paul B. O’Flaherty, Jr., and Gerald L. Maatman, Jr., of counsel), for appellant.
    William D. Maddux & Associates, of Chicago (William D. Maddux and Bruce M. Lane, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Petros Christou, brought this action to recover damages sustained when he went through a plate glass door on the premises of a race track owned and operated by defendant Arlington Park-Washington Park Race Tracks Corp. The trial court denied defendant’s motions for a directed verdict at the close of plaintiff’s case and at the conclusion of all the evidence. The jury returned a verdict for plaintiff in the amount of $86,700, and the trial court entered judgment on the verdict. Defendant appeals.

Plaintiff spent the afternoon of July 15, 1974, at the race track. After learning that he had won a bet he left the outdoor second floor observation area and started toward the clubhouse to collect his bet. The area around the clubhouse door was very crowded. As plaintiff attempted to open the door he was pushed into it and his left arm and right knee contacted and broke through the glass door.

Plaintiff’s theory of liability is that defendant was negligent in failing to equip the door in question with safety glass rather than plate glass. Plaintiff’s expert witness, Terrance Willis, expressed the opinion that safety glass was essential due to the traffic and hazardous location of the door. Defendant’s expert witness, Eugene Holland, while stating that safety glass is safer than plate glass, opined that safety glass was not necessary here since defendant had installed both a safety bar and push-pull handles on the door.

We initially and briefly consider defendant’s contention that the trial court erred in refusing to direct a verdict in its favor.

A verdict should be directed only where all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) In the present case plaintiff presented sufficient evidence from which a jury could have concluded that defendant should have known the use of plate glass on the door created an unreasonable risk of harm. The trial court did not err in refusing to direct a verdict for defendant.

We next turn to defendant’s contention that the damages awarded were excessive and could only have been the result of trial error. Specifically, defendant argues that it was error to allow testimony as to plaintiff’s future earnings as a bartender and as a restaurant owner since such earnings were merely speculative and not reasonably certain to occur. Consequently defendant maintains that the trial court erred further in instructing the jury that it could award damages for lost earnings and earning capacity in the absence of competent evidence showing such losses.

Plaintiff was initially hospitalized for 10 days and wore a full leg cast for seven weeks. In December 1974 he underwent surgery to repair a damaged tendon in his right knee. After 10 days he was released and wore a cast for another seven to eight weeks. Plaintiff was still seeing the doctor in 1980. Plaintiff testified that he still had pain when required to be on his feet for extended periods of time and that the discomfort in his leg sometimes interferes with his sleep. He also testified that his injury limited his employment options.

Plaintiff was unemployed at the time of the injury but had previously worked as a busboy. Plaintiff testified that he was in training for a job as a bartender which was to begin on July 18, 1974. He stated that, due to his injuries, he was unable to become a bartender and remained unemployed for about 18 months. According to plaintiff his salary as a bartender would have been $200 to $250 per week. He also testified that, based on his conversations with bartenders, he would have been making $400 to $450 per week at the time of the trial. In January 1976, plaintiff began employment in a lounge setting up glasses. He quit in August to accept employment at an electric company where he was not required to be on his feet. He worked at the electric company for four years at a salary ranging from $210 to $250 per week and then was laid off for reasons unrelated to his injuries. Plaintiff testified further that prior to the injury he had an ambition to own a restaurant some day. Over defense objection, a restaurant owner was permitted to testify for plaintiff that the average profitability of an average restaurant was approximately $500 to $700 per week.

We do not believe that a verdict of $86,700 in the present case was excessive as a matter of law. Nevertheless, we find that the introduction of certain evidence regarding damages was improper and prejudicial to defendant.

Impairment of earning capacity is a proper element of damages to be considered by the trier of fact. (Buckler v. Sinclair Refining Co. (1966), 68 Ill. App. 2d 283, 216 N.E.2d 14.) Recovery, however, must be limited to such loss as is reasonably certain to occur. (Pinkstaff v. Pennsylvania R.R. Co. (1959), 23 Ill. App. 2d 507, 163 N.E.2d 728.) Testimony as to loss of earnings which is merely speculative, remote or uncertain is improper. (Freehill v. De Witt County Service Co. (1970), 125 Ill. App. 2d 306, 261 N.E.2d 52.) Permitting plaintiff’s witness to testify about the average earnings of an average restaurant owner constituted serious error since it was too remote and speculative under the present facts and circumstances to be competent evidence of reduced earnings. Owning a restaurant was merely an ambition of plaintiff’s which had never materialized, and the jury should not have been permitted to consider such income as an item of decreased earning capacity on the part of plaintiff. Similarly, although plaintiff’s testimony that but for the accident he would have earned up to $250 a week as a bartender was proper, his testimony as to future earnings of up to $450 a week was inadmissible speculation. Since there was no competent evidence as to any decrease in earning capacity the court’s instruction in that regard was also improper. In view of the fact that the case is close and since other trial errors occurred, we hold that the cumulative effect of those errors along with the introduction of improper evidence regarding damages amounts to prejudicial error requiring a new trial on all issues. (Prater v. Luhr Brothers, Inc. (1977), 51 Ill. App. 3d 685, 366 N.E.2d 399; Anderson v. Universal Delta (1967), 90 Ill. App. 2d 105, 234 N.E.2d 21.) We shall comment on those trial errors and on other issues which may arise at the new trial.

The trial court refused to admit into evidence statutes and administrative regulations with which defendant was in compliance and refused to instruct the jury regarding that compliance. Compliance with statutes and safety regulations is not conclusive evidence on the question of negligence. (Belvidere National Bank & Trust Co. v. Leisher (1980), 83 Ill. App. 3d 179, 403 N.E.2d 1054; Clinton v. Commonwealth Edison Co. (1976), 36 Ill. App. 3d 1064, 344 N.E.2d 509.) It is, however, relevant to that issue. (Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534; Hubbard v. McDonough Power Equipment, Inc. (1980), 83 Ill. App. 3d 272, 404 N.E.2d 311.) In the present case, since plaintiff was aUowed to show that safety glass was safer than plate glass, defendant was entitled to show that the use of safety glass by existing structures was not required by law. While defendant did introduce this testimony through its expert witness, it should also have been permitted to introduce the statutes and receive appropriate jury instructions.

Plaintiffs counsel was permitted to cross-examine defendant’s expert witness as to whether he was aware of the constitutional prohibition against the enactment of ex post facto laws and of its possible influence on the legislature’s failure to make the required use of safety glass retroactive so as to include defendant’s structure. Although the witness answered that he had no knowledge of the matter, plaintiff’s counsel through his questions inferred to the jury that this constitutional provision had prohibited the legislature from making the statute retroactive. This in effect was a rebuttal of defendant’s theory that the legislature had chosen not to make the statute retroactive because it did not believe there was a hazard.

Statutory interpretation is not a matter to which an expert witness is competent to testify. (People ex rel. Anderson v. City of Chicago (1942), 316 Ill. App. 447, 45 N.E.2d 80.) This is true even where the witness is an attorney. (Loeb v. Hammond (7th Cir. 1969), 407 F.2d 779.) In the present case, the expert witness, an engineer, was indeed unable to answer the questions due to his unfamiliarity with the law. Nevertheless, plaintiff’s counsel was able to convey to the jury by innuendo information which was both prejudicial to defendant and an incorrect statement of law. The permitted cross-examination was improper.

The trial court correctly refused to allow defendant’s expert witness to testify as to the state of the law at the time of trial. Defendant contends that in fact six years after the accident the legislature stiU exempted existing structures from the mandatory use of safety glass is a further indication that its use of plate glass was reasonable at the time of the accident. The state of the law at the time of trial may be relevant in a personal injury case where it can be shown that the purpose of a statute enacted after the injury was at least partially to eliminate hazards existing at the time of the accident. (Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93.) In the present case there was no evidence that the legislature’s failure six years after the accident to amend the safety glass statutes so as to include existing structures was due to the absence of accidents in those structures. Therefore, testimony regarding such statutes was irrelevant and the trial court did not err in refusing to admit it.

Defendant also attempted to present to the jury the provisions of a statute (Ill. Rev. Stat. 1969, ch. 51, par. 58) which provide that when a product incorporated into real property does not cause injury or damage within six years of installation reasonable care in the incorporation of the product is presumed. This statute, however, applies only to claims in relation to work done on real property or the manufacture of any product incorporated thereon. It has no application in the present case, where plaintiff neither claims that the glass was improperly installed nor that it was defectively manufactured but rather that defendant was negligent in having chosen that type of glass. The trial court properly rejected defendant’s attempt to introduce the statute. Nor do we find any error in allowing plaintiff’s expert witness to exhibit to the jury samples of broken plate glass and safety glass.

We finally consider defendant’s contention in which, relying on Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 62 L. Ed. 2d 689,100 S. Ct. 755, it urges that the trial court erred in refusing to instruct the jury that any verdict for plaintiff would not be subject to income tax. Although the court in that case held that failure to give a similar instruction was reversible error, it specifically stated that the issue was a matter of Federal law. The holding in Liepelt does not apply to actions predicated on State statutes. (Croce v. Bromley Corp. (5th Cir. 1980), 623 F.2d 1084.) In such cases we must look to State law. In Illinois the income tax instruction is not required. Raines v. New York Central R.R. Co. (1972), 51 Ill. 2d 428, 283 N.E.2d 230.

We need not consider defendant’s other assignments of error since they are unlikely to recur at a new trial.

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

Reversed and remanded.

WHITE, P. J., and RIZZI, J., concur.


author:
PRESIDING JUSTICE JOHNSON
      JUSTICE JIGANTI,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY WOJTASIK, Defendant-Appellant.
    First District (4th Division)
    No. 80-1124
    Opinion filed January 28, 1982.
    James J. Doherty, Public Defender, of Chicago (Timothy K. McMorrow, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and Sandra M. Stavropoulos, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial on February 22, 1980, Jerry Wojtasik, defendant, was found guilty of attempted deviate sexual assault (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 4). In a separate jury trial on a second indictment, defendant was charged with aggravated kidnapping, unlawful restraint, deviate sexual assault and indecent liberties with a child (Ill. Rev. Stat. 1977, ch. 38, pars. 10 — 2,10—3,11—3,11—4(a) (2)). On February 26,1980, defendant was found guilty of those charges. On March 20,1980, defendant was sentenced for convictions in both trials, receiving concurrent sentences of 30 years for deviate sexual assault, 15 years for attempted deviate sexual assault, 15 years for indecent liberties with a child, and 3 years for unlawful restraint. Defendant appeals from these convictions.

On appeal, the following issues are presented for review: (1) whether it was error to admit evidence of both sexual assaults in each of defendant’s trials when the two assaults for which defendant was tried were dissimilar and not probative of any issues at the trial of the other assault; (2) whether defendant’s conviction for indecent liberties with a child can stand when based on the same incident as his conviction for deviate sexual assault; and (3) whether defendant’s sentence is excessive.

We affirm.

Defendant was charged by indictment No. 79-5028 with deviate sexual assault, indecent liberties with a child, aggravated kidnapping and unlawful restraint of a 9-year-old girl. Indictment No. 79-5029 charged defendant with attempted deviate sexual assault and aggravated battery of a 16-year-old girl. The cases were tried separately before separate juries. Prior to each trial, defendant filed a motion in limine to exclude evidence of any sexual assault other than the specific one for which he was being tried. The trial court denied both motions.

In the first case to be tried, the victim testified that on August 4,1979, she was 16 years old. On her way home from work, she stopped at a 7-Eleven store. After leaving the store, she walked through an alley where she noticed defendant approaching her. As she passed him, he grabbed her from behind, around the neck, and turned her so that she was facing him. He ordered her to perform an act "of fellatio. Defendant held her head and kept pushing his lower body into her as he asked her to perform the act. After struggling with him for some time, she was able to escape. She walked to 61st and Kolmar where she met her friends, told them what had occurred, and gave them a description of her assailant. The victim went home, told her father about the attack, and called the police.

The victim stated that later that evening she went to the police station where she identified defendant as her assailant in a lineup. At trial, the victim was shown a picture of the lineup and identified defendant in the photo. She also positively identified defendant in court.

The State presented other witnesses who testified that they had detained defendant near the scene of the attack. The police officers who arrested defendant also testified.

Another victim, aged 9, testifying for the State, stated that on August 2,1979, she was coming from the Post Office, walking down Central Park Avenue, when defendant grabbed her by her waist, picked her up, and carried her into a garage. She testified that defendant performed cunnilingus on her and forced her to perform an act of fellatio on him. She stated that whenever she began to cry, defendant would hit her across her face; when she attempted to talk, he would choke her.

The jury returned a verdict of guilty for attempted deviate sexual assault of the 16-year-old victim. Defendant was acquitted of aggravated battery. Following a hearing in aggravation and mitigation, defendant was sentenced.

In the other trial, the 9-year-old victim repeated her testimony concerning defendant’s sexual assault upon her. She also stated that when she returned home she told her mother of the attack, gave her mother a description of her assailant, and the police were called. Two days later, the victim identified defendant in a lineup. She also identified defendant at trial. The victim in the first trial testified in this trial and repeated her earlier statements concerning defendant’s sexual assault upon her.

The jury verdict in the trial involving the 9-year-old victim found defendant guilty of deviate sexual assault, indecent liberties with a child, aggravated kidnapping, and unlawful restraint. Following a hearing in aggravation and mitigation, defendant was sentenced. No sentence was imposed for the aggravated kidnapping conviction.

Defendant first contends the trial court committed reversible error when it allowed evidence of both sexual assaults to be introduced in each of defendant’s trials, claiming the two assaults were dissimilar and, thus, not probative of any issues at the trial for the other offense.

Defendant correctly states the general rule that evidence of other crimes for which defendant is not on trial is inadmissible. (People v. Lehman (1955), 5 Ill. 2d 337, 342, 125 N.E.2d 506, 509.) However, there are exceptions to this rule. Thus, such evidence is admissible where it goes to show common scheme or modus operandi. (People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489, 492-93; People v. Martin (1979), 80 Ill. App. 3d 281, 293, 399 N.E.2d 265, 275.) In fact, it has been broadly held that evidence of other offenses is admissible if relevant for any purpose other than to show propensity to commit a crime. People v. McDonald (1975), 62 Ill. 2d 448, 455.

The issue of admissibility turns on whether, in light of the applicable exception, the trial court abused its discretion in allowing that testimony. (People v. Martin (1979), 80 Ill. App. 3d 281, 294.) In the instant case, the trial judge allowed the victim in the second case to testify in the first case because the circumstances surrounding the second criminal act were probative. The trial judge stated:

“[W]e have a girl in a similar area under similar circumstances where she is unable to fight off the defendant because she is younger * * and the State will introduce evidence of what, basically, your defendant did to this young girl, since she was unable to fight him off.
On that basis, since it is very probative * * *, it’s not just an incident of somebody fooling around with somebody in an alley or a girl getting a mistaken impression; the fellow grabs her in an alley for a specified purpose, namely an attempt on oral copulation whereby the State will produce evidence that he did make this younger girl orally copulate him. It is very probative.”

Subsequently, the trial judge denied, defendant’s motion to exclude the testimony of the other victim in the other case. The trial court found acutely similar acts and circumstances involved in both cases.

Although there are some differences in the two cases — the ages of the victims; the fact that one assault was an attempt while the other was a completed offense — those differences do not outweigh the similarities of the two crimes. A review of the record indicates that the character of the attacks upon the victims and the modus operandi in each were substantially similar. Under the circumstances, there was no error in admitting the testimony of the other crime.

Defendant contends his conviction in the case involving the 9-year-old for indecent liberties with a child must be vacated, since it was based on the same act as his conviction of deviate sexual assault. Defendant alleges that his conviction for both indecent liberties with a minor and deviate sexual assault arose out of a single assault on the 9-year-old victim. Defendant contends he may not be convicted of more than one offense arising out of the same physical act.

Defendant accurately states the general rule that it is legally impermissible to convict defendant on more than one of the charges in those instances where more than one offense is carved from the same physical “act.” (People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45.) However, the King decision clarified the meaning of “act” by stating:

“Multiple convictions and concurrent sentences should be permitted # * where a defendant has committed several acts, despite the interrelationship of those acts. ‘Act,’ when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” 66 Ill. 2d 551, 566.

Applying the King test to the facts before us, we conclude that the offenses of indecent liberties with a child and deviate sexual assault are based on separate acts, each requiring proof of a different element (see Ill. Rev. Stat. 1977, ch. 38, pars. 11 — 3, 11 — 4(a)(2)), and, consequently, the convictions for both offenses were proper.

Finally, defendant contends his sentence was excessive and reflected an abuse of the trial court’s discretion. Given his age, the fact that he served in the United States Marines, and he had no prior felony convictions, defendant asserts that he should not have been given the maximum sentence.

It has been frequently stated that the trial judge is normally in a better position to determine the punishment to be imposed than are the courts of review. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) A judgment as to the proper sentence to be imposed must be based upon the particular circumstances of each individual case. (People v. Perruquet (1978), 68 Ill. 2d 149, 154.) Such a judgment depends upon many factors, including defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age. (People v. Perruquet (1978), 68 Ill. 2d 149, 154.) The trial judge, in the course of the trial and the sentencing hearing, has an opportunity to consider these factors in a manner superior to that afforded to the reviewing court which deals with the “cold record.” The trial court’s decision regarding sentencing is entitled to great deference and weight. (People v. Perruquet (1978), 68 Ill. 2d 149, 154.) While Supreme Court Rule 615(b)(4) allows a reviewing court to reduce the sentence imposed by the trial court, this power should be exercised only when there has been an abuse of discretion and such action is required. People v. Villa (1981), 93 Ill. App. 3d 196, 203, 416 N.E.2d 1226, 1232.

The record in this case reveals that the trial judge was fully aware of defendant’s family situation, his personal traits, and the fact that he had no prior record. During the hearing in aggravation and mitigation, two girls other than the 9-year-old and the 16-year-old testified that they had been assaulted by defendant; one of them had been raped but the other girl was able to escape from defendant. Subsequently, both girls identified defendant in a lineup and in court.

After considering all of the factors in this case, the trial judge determined defendant’s sentence. We cannot say that the trial judge abused his discretion in imposing the sentences.

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

Judgment affirmed.

LINN, J., concurs.

JUSTICE JIGANTI,

dissenting:

I fail to see how the admission of this evidence of a prior crime can be justified upon the basis of the modus operandi exception. Modus operandi has been defined as a like crime by the accused so nearly identical in method as to earmark it as the handiwork of the accused. (McCormick, Evidence §190, at 449 (2d ed. 1972).) For the exception to apply, more is demanded than the mere repeated commission of crimes of the same class. The device used must be so unusual and distinctive as to be like a signature. McCormick, Evidence §190, at 449 (2d ed. 1972).

Illinois case law incorporates a similar definition of modus operandi. Evidence that the accused has committed another crime wholly independent of or disconnected from the one for which he is being tried is not admissible unless there are peculiar and distinctive features common to the crimes committed. (People v. Lehman (1955), 5 Ill. 2d 337, 125 N.E.2d 506; People v. Bond (1968), 99 Ill. App. 2d 45, 241 N.E.2d 218.) There must be substantial connecting links between the crimes which are “strikingly similar.” People v. Tate (1981), 87 Ill. 2d 134.

In this case, the State alleges the following similarities between the prior and instant crimes; both victims were children, both were attacked in broad daylight in an alley, both victims were grabbed from behind, both victims had noticed the defendant in their vicinity before the attack, both attacks occurred on the southwest side of the city two days apart, and in both attacks the defendant tried to force his victims into an act of oral copulation. In my judgment, these are general similarities which do not rise to the level of the peculiar, unusual or distinctive features of a common scheme. (See People v. Middleton (1976), 38 Ill. App. 3d 984, 350 N.E.2d 223 (doctor injected a drug into six different victims on six separate occasions and then sexually assaulted each victim); People v. Shorter (1978), 59 Ill. App. 3d 468, 375 N.E.2d 513 (two separate occasions where the accused, armed with two containers of gasoline, used them as weapons to rob currency exchanges).) Grabbing girls in an alley for the purpose of sexually assaulting them does not constitute a “signature” of the accused, nor are two such crimes “strikingly similar.”

I cannot conclude that the introduction of such evidence here was harmless error. Therefore, I would reverse the judgment of the trial court and remand for a new trial.