text:
    JAMES P. REEDY et al., Plaintiffs-Appellees, v. THE CITY OF WHEATON, Defendant-Appellant.
    Second District
    No. 81-110
    Opinion filed December 21, 1981.

      Edward J. Walsh, Jr., of Huck and Walsh, of Wheaton, for appellant.
    Keith E. Roberts, Rodney W. Equi, and Kristine A. Karlin, all of Donovan & Roberts, P. C., of Wheaton, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Plaintiffs sought a declaratory judgment permitting the building of a “Citgo” gasoline service station and a “Quik-Mart” grocery store under a special use provision of the Wheaton zoning ordinance. In count I plaintiffs alleged that the zoning ordinance was unconstitutional as applied to their property; in count II, that it was unconstitutional on its face. The trial court entered judgment for the plaintiffs based on both counts. The City appeals.

We disagree with the trial court’s finding with reference to count II that the City’s classification scheme, which excluded gasoline service stations from a list of permitted uses in the C-l Local Business District, was arbitrary and unreasonable and therefore facially unconstitutional. Municipalities have long restricted the development of gasoline stations by special use permit, having recognized that gas stations pose potentially serious problems which may include traffic congestion, noise, danger of fire from fuel storage and inflammable petroleum products, and depreciation of surrounding property values. (See generally 6 P. J. Rohan, Zoning and Land Use Controls §40-04[4] (1981).) Courts have consistently upheld such regulation as related to public health, safety and welfare. (See, e.g., Vendley v. Village of Berkeley (1961), 21 Ill. 2d 563, 568; Midwest Petroleum Marketers Association v. City of Chicago (1980), 82 Ill. App. 3d 494, 500; Rasmussen v. Village of Bensenville (1965), 56 Ill. App. 2d 119, 123.) Where room exists for a difference of opinion concerning the reasonableness of the zoning classification, the legislative judgment is conclusive. (La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 428.) The City’s regulation of automobile stations, which under the terms of the special use provision may include self-service stations as in the present case by special permit, is a proper means of controlling an infrequent use which is beneficial but potentially inconsistent with normal uses in various zones. Schmeisser v. Village of Niles (1969), 113 Ill. App. 2d 114, 117-18.

Plaintiffs’ reliance on Frost v. Village of Glen Ellyn (1964), 30 Ill. 2d 241, is misplaced in our view. In Frost, the supreme court held that no real difference existed between drive-in restaurants, which were allowed only by special use permits, and many of the more than 62 special business uses which were directly permitted under the ordinance, including restaurants generally. (30 Ill. 2d 241, 245-46.) Here, we perceive substantial differences affecting the public interests between a gasoline service station in combination with a retail outlet for grocery sales and such permitted zoning uses as offices, various retail sales shops and a restaurant. Here, we conclude that the legislative classification is reasonable on its face and therefore constitutionally valid.

We next address the finding of the trial court that the ordinance has been unconstitutionally applied to the subject property. The City contends that the judgment as based upon count I of the complaint is against the manifest weight of the evidence. We briefly review the record.

The property is an unimproved parcel consisting of approximately one-half acre situated on the northeast corner of Butterfield and Bradford Roads at the entrance of Briarbrook Commons Shopping Center within the corporate limits of Wheaton. Butterfield Road is a major east-west collector arterial roadway with a current speed limit of 45 miles per hour. Bradford Drive is a north-south local road which intersects with Butter-field Road at the entrance to the shopping center.

The subject property is zoned in a C-l Local Business District. The properties to the north, east and west are similarly zoned. South of the subject property, across Butterfield Road, there is a residential zone, the homes backing up to that highway.

The land immediately east is vacant; to the immediate west a drive-in bank operates under a special use permit; and to the north is the Briarbrook Commons shopping center which includes a two-story office building, real estate office, bathroom boutique shop, hobby shop, laundry, pipe shop, a large food store, and a now closed pizzeria.

The proposed “Quik-Mart” is a combined self-service gasoline station and retail outlet for limited sales of convenience groceries. The proposed operating hours are 6 a.m. to 11:30 p.m. There are three gas stations approximately three miles east of the subject property, and one station approximately .82 miles east of the property.

Several appraisal experts testified for the plaintiffs that a gasoline service station would be among the highest and best uses for the property; that the fair market value of the property if used as proposed would be $135,000; but if not so developed there would be a significant depreciating effect on the value; and that the proposed development would have no depreciating effect on the surrounding residential properties.

A considerable portion of the testimony was directed to the issue of traffic problems involved in the proposed development. Testimony on behalf of the plaintiffs conceded that the development would create additional traffic. Plaintiffs, however, presented the expert testimony of Joseph Zgonina, a registered professional engineer, who concluded that the development would generate very little additional traffic and that the traffic which it did attract from the street system could be adequately accommodated by existing signals and turning lanes at the intersection. He conducted detailed manual traffic counts at the intersection and made an analysis as to the directional split of traffic, the turning movement volumes, the capacity of the intersection; and consulted with the Illinois Department of Transportation relative to required roadway improvements. His traffic count was taken during a 7 a.m. to 9 a.m. period which he considered to be the peak traffic time in the morning. In addition he made general observations of traffic flow in other time periods of the day as well as the afternoon peak street traffic hour. On cross-examination, he admitted that he performed his study prior to when the stores in the shopping center opened and before the drive-in bank had commenced operation.

In contrast Paul Box, a traffic engineer, testifying for the City concluded that the project would create traffic hazards during peak hours at the intersection and internally on the site. His study was completed two years after the Zgonina study, at a time when both the drive-in bank and the stores in the shopping center were open. On cross-examination Box said that his study had been done on the last day of the month, when traffic volume entering the driveway of the bank was expected to be highest. He acknowledged that he performed no study on possible “gaps” in the traffic stream which Zgonina had said would allow safe ingress onto and egress off of Butterfield Road. He also admitted that he did not know whether certain other permitted uses might or might not generate more traffic than a self-service station.

The court found that the highest and best use of the subject property appears to be that of a drive-in facility as proposed by the plaintiffs. He found no basis for the City’s claim that the location of the facility would create a potential detrimental effect or safety hazard, considering that any such defect would be satisfactorily cured by proper traffic control devices and engineering required by the Illinois Department of Transportation and the City.

The review of a denial of a special use permit is tested by whether the denial bears a real and substantial relation to the public health, safety, morals or general welfare. (Duggan v. County of Cook (1975), 60 Ill. 2d 107, 116.) Essentially, the only significant impact on the public welfare urged by the City is that the proposed use will create a serious traffic hazard.

We have held that a traffic hazard created by a particular use at a particular location is distinguishable from a general increase in traffic and may be a basis for denial of a special use permit. (Haws v. Village of Hinsdale (1979), 68 Ill. App. 3d 226, 232.) The testimony on this issue is conflicting. In Haws, we noted that what will cause undue traffic congestion and hazards is not subject to a precise definition. (68 Ill. App. 3d 226, 235.) It was Zgonina’s opinion that the proposed use would have a very negligible impact on traffic flow premised on his belief that service stations of the type proposed are not separate generators of traffic but attract patrons from traffic volumes already on the street system. In fact, defendant’s expert Box acknowledged that this was generally true. The dispute between the experts particularly was over whether the traffic at the location could be adequately accommodated by the existing signals and other engineering. While the Zgonina study suffers from the fact that it was not done at a time when both the drive-in bank and the stores in the shopping center were open, we conclude that there was a substantial basis for Zgonina’s opinion. The issue of weight and credibility was for the trier of the facts. In zoning cases as in others, the finding of the trial court will not be disturbed unless it is against the manifest weight of the evidence; and a mere conflict in the evidence does not require a finding that the reasonableness of the ordinance is debatable, but goes to the credibility of witnesses and the weight to be afforded their testimony; and in order for a finding to be contrary to the manifest weight of the evidence an opposite conclusion must be clearly apparent. Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 53-54.

In the circumstances we are unable to conclude that the trial court’s findings were against the manifest weight of the evidence and therefore will uphold the resolution of the issues by the trial court. Undoubtedly the proposed use would add to the amount of traffic on or near the subject site. However, this is also true of the special use previously permitted for the drive-in bank. Any retail business or commercial use of the property would similarly result in an increase of traffic. The evidence supports a finding that there was sufficient capacity in the street system to accommodate an increase in traffic. There was additional testimony in the record that the traffic signal and lane widening improvements, together with restricted right turn movements onto Butterfield Road, would not have an adverse impact on the traffic stream. See La Salle National Bank v. City of Park Ridge (1979), 74 Ill. App. 3d 647, 663.

We therefore reverse the judgment insofar as it holds the ordinance unconstitutional on its face and affirm that portion of the judgment which held the ordinance unconstitutional as applied.

Affirmed in part, reversed in part.

NASH and REINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    DONNA ROSE, as Mother and Next Friend of Melissa Moland et al., Plaintiff-Appellant, v. BROZMAN’S TAVERN, INC., Defendant-Appellee.
    Second District
    No. 81-252
    Opinion filed December 21, 1981.
    John M. Lamont, of Thompson & Lamont, of Aurora, for appellant.
    Raymond J. Conklin, of Klockau, McCarthy, Lousberg, Ellison & Rinden, of Rock Island, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

This is an appeal from the judgment of the circuit court of Kendall County directing a verdict for the defendant in a dramshop case.

The plaintiff, Donna Rose (formerly Donna Moland), brought this action under section 14 of the Dramshop Act (Ill. Rev. Stat. 1977, ch. 43, par. 135) on behalf of her three minor children, Melissa, Molly and Lynn Moland, for the death of their father, Rex Moland. Rex Moland was killed when an automobile being driven by Eddy Stumbo in which Moland was a passenger struck a bridge abutment and overturned.

The evidence adduced at trial showed that on September 2, 1978, Eddy Stumbo and his girl friend, together with another couple, had ridden to Rockdale on their motorcycles. A homecoming celebration was going on in Rockdale that day. Stumbo testified that he visited some of the street booths that had been erected for the celebration and played some games, then went into Brozman’s Tavern and had a drink. He testified that during the afternoon on that day he had four or five drinks of vodka and grapefruit in Brozman’s between approximately 1:30 and 4:30 p.m. He did not stay in the tavern all of the time but visited various booths, played some games and ate several corn dogs. Stumbo testified that he and his friends left the tavern between 4 and 4:30 p.m. because the other couple had to be at a wedding reception in Villa Park at 6 p.m. He and his girl friend then rode his motorcycle back to her house, a distance of several miles, and Stumbo remained there until 7:30 or 8 p.m. He testified that while he was at his girl friend’s house he took a nap and had nothing to eat or drink. About 7:30 or 8 p.m. his friend, Rex Moland, came by and they left the girl friend’s house and went to Stumbo’s parents’ house where Stumbo showered and changed clothes. They then left Stumbo’s parents’ house in Stumbo’s car, with Stumbo driving, sometime between 8:30 and 9 o’clock and headed toward Yorkville. While enroute, near Grove Road approaching Au-Sable Creek, Stumbo’s car failed to negotiate an “S” curve. The car left the pavement, collided with the Au-Sable Creek bridge and landed upright in the creek. While the speed limit on the highway at that point was 55 miles per hour there was a sign at the approach to the bridge warning motorists to slow down to 40 miles per hour. Moland was pinned in the wrecked car and was extricated from it only with some difficulty. He was pronounced dead on arrival at the hospital. Stumbo, although dazed, was conscious when helped from the car.

The deputy sheriff, Richard Herron, who responded to the call reporting the accident, testified that he received the call at 9:06 p.m. while on patrol in the Boulder Hill area of Kendall County. He testified the weather was clear and dry but it was dark when he arrived at the scene. When he arrived Moland was pinned in the car and apparently unconscious but Stumbo was conscious. Herron testified that Stumbo was assisted out of the car and up the creek bank and upon getting up the bank he said to Herron “Rex is okay; we were talking just a minute ago; we’ve had too much to drink, he just passed out and he’ll be okay.” At this time, Herron testified, Stumbo had “lacerations or cuts around his head and face area, he had definite injuries you could see.” This was the only testimony as to Stumbo’s physical condition at the scene of the accident.

This remark testified to by Deputy Herron, that is, “we’ve had too much to drink, he just passed out and he’ll be okay” as having been made by Stumbo at the scene of the accident, was objected to by defense counsel when plaintiff attempted to introduce it into the evidence. Defense counsel objected to this as he said it was hearsay but the trial court overruled the objection and allowed it in as a spontaneous utterance immediately following the accident. Stumbo did not recall making this remark in his testimony. These words, plus Stumbo’s own admission that he had had four or five drinks during the afternoon at Brozman’s Tavern, constituted the only evidence as to Stumbo’s intoxication at the time the accident occurred.

We have some reservations as to whether this conversation was admissible as an exception to the hearsay rule on the ground of being a spontaneous utterance (that is, part of the res gestae). We cannot be certain of the time which elapsed between the accident and the alleged utterance, but it may have been as much as 20 or 30 minutes, since it occurred after the deputy sheriff had been called to the scene, had arrived and Stumbo had been helped out of the wrecked car and had gotten back up out of the creek bank and onto the highway. Thus, there was an interval of time between the accident and the remark in question. Moreover, the alleged remark may have been mere wishful thinking as to Moland’s condition, rather than a spontaneous utterance explaining how the accident occurred. As was said in Carroll v. Guffey (1959), 20 Ill. App. 2d 470, 476:

“If a declaration is made after the injury has been received and is merely a narrative of what has taken place, it cannot be considered part of the res gestae.”

In the instant case, the alleged remark of Stumbo tended to explain Moland’s lack of consciousness rather than how the accident occurred. The statement “we’ve had too much to drink” is at a variance with the evidence, which did not indicate that Moland had had anything to drink before the accident, and there is no apparent reason for the use of the pronoun “we.” Stumbo had testified that he had no drinks after about 4 or 4:30 p.m. at the defendant tavern. Any drinks he or Moland may have had elsewhere afterwards before the accident would have no bearing on this case. Moreover, this is contrary to the evidence inasmuch as no alcohol was found in Moland’s body at the hospital. The use of the word “we” would indicate drinking together, and since this would not have been at Brozman’s Tavern it would have had no bearing on the defendant’s liability even if considered as a spontaneous utterance. Thus, we are inclined to regard the trial court’s ruling admitting this remark as part of the res gestae of the occurrence as erroneous but, in any event, we think it did not tend to prove liability on the part of the defendant tavern, since the joint drinking indicated by the pronoun “we” clearly did not occur in that tavern nor did it amount to an opinion that Stumbo was drunk at the time that he and Moland were injured or that he and Moland became drunk in Brozman’s Tavern.

This leaves the question whether the logical inference from the fact of the occurrence itself, that is the fact that Stumbo lost control of his car going around a curve — is in itself sufficient evidence of unusual or erratic behavior to raise the issue of intoxication and bar a directed verdict. We must judge the propriety of a directed verdict by the Pedrick rule (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494), that is, that verdicts should be directed “only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (37 Ill. 2d 494, 510.) Judging by this standard we do not think the trial court abused its discretion in directing a verdict for the defendant, Brozman’s Tavern, in this case.

We recognize that several recent Illinois cases have denied a motion for a directed verdict and allowed the issue of intoxication to go to the jury on the inference of intoxication raised by unusual, erratic or violent behavior of the allegedly intoxicated person, plus evidence that he had been drinking in the particular tavern. Thus, in Hagopian v. First Venture, Ltd. (1980), 90 Ill. App. 3d 951, the reviewing court reversed the trial court’s refusal to give an instruction on the issue of intoxication where there was evidence that the plaintiff had had several drinks on the premises and that he acted in a boisterous and violent manner and that he was fighting, screaming, and kicking on the defendant’s premises during an altercation with the tavern employees. The appellate court said that such behavior was in itself sufficient to raise the issue of intoxication.

In Weeks v. Witek (1975), 33 Ill. App. 3d 916, a patron of the tavern threw a beer bottle at the plaintiff after the patron had consumed six or seven bottles of beer while both were in the tavern. He then kicked and beat the plaintiff. While there was some evidence from which it could be surmised that the aggressor was jealous of the plaintiff because the plaintiff was talking to the aggressor’s wife, the reviewing court held it was error to direct a verdict in the tavern’s favor since the act of drinking alcohol on the premises, together with the aggressor’s violent behavior, raised at least a jury issue as to the question of the aggressor’s intoxication.

In Bohnen v. Wingereid (1979), 80 Ill. App. 3d 232, the appellate court held there was sufficient evidence of intoxication to justify an instruction on that issue; however, in that case there was not only evidence of drinking soon before the accident but there was also evidence of erratic driving testified to by witnesses, the driver having passed over the center line of the highway just before the accident occurred.

Likewise, in Weiner v. Trasatti (1974), 19 Ill. App. 3d 240, and in Felker v. Bartelme (1970), 124 Ill. App. 2d 43, cases where the reviewing court reversed the trial court’s direction of a verdict for the defendant, there was definite evidence of unusual or erratic behavior in addition to the consumption of alcohol not long before the incident resulting in the lawsuit. In Weiner, the driver plowed into the back of a properly parked truck, killing the plaintiff’s wife, and in Felker, the allegedly intoxicated person was observed turning into a driveway instead of the street which he intended to turn into, although the intended intersection was familiar to him as he had driven this way many times.

Thus, in the cases where a directed verdict on the issue of intoxication has been reversed, there has been, in addition to the consumption of alcohol on the defendant’s premises, either competent opinion evidence based on observation that the individual in question was intoxicated, or evidence of some erratic, unusual behavior by such person soon after consuming alcohol on defendant’s premises. In the recent case of Lang v. B.I.T., Inc. (1981), 96 Ill. App. 3d 37, there was an accident involving a three-car collision. The evidence established that the alleged wrongdoer had been drinking in the defendant’s tavern prior to the collision, but the court said that mere drinking, followed by a collision, is not in itself evidence of such erratic behavior as to justify raising the issue of the tavern’s liability due to the patron’s intoxication, since drinking by itself is not sufficient and there was no evidence that the patron acted in such an unusual manner as to cause the collision.

We do not find from the mere fact of the accident that Stumbo was guilty of such erratic or unusual behavior that his acknowledgement of a limited amount of drinking some 4 to 4*2 hours previously entitled the plaintiff to try the issue of his intoxication. Actually, we have no evidence before us of any erratic behavior on Stumbo’s part. A miscalculation with regard to speed or braking could easily result in failure to negotiate an “S” curve by a sober person or by a person not inebriated to the extent of intoxication, even though he had previously consumed some alcohol.

Stumbo’s testimony that he had had four or five drinks of vodka and grapefruit between 1:30 and 4 or 4:30, during which time he had also played games at street booths and eaten several corn dogs; that he had left the vicinity of the tavern at approximately 4:30 and ridden his motorcycle several miles to his girl friend’s house without mishap, that he had then slept two or three hours and thereafter gone to his parents’ home and showered and changed clothes before setting out with Moland, and that he had nothing to eat or drink since leaving Brozman’s Tavern, does not, on the basis of these facts alone, raise an issue as to Stumbo’s intoxication at approximately 9 p.m. the same evening. Nor does the fact of the accident standing by itself amount to an inference of intoxication any more than it did in the Lang case cited above. In Reese v. Roth (1978), 62 Ill. App. 3d 937, a decision of this court, it was clearly established that the driver of one car and his companion had been drinking at the Pastime Inn before the accident, which involved a collision resulting in the death of both drivers. The mother of the nondrinking driver sued Pastime Inn under the Dramshop Act on the theory that evidence of drinking shortly before the accident, plus the fact that one of the cars was apparently in the wrong lane, was evidence that the drinking driver had been intoxicated at the time of the collision. There was, however, no clear evidence as to which car had been in the wrong lane. This court rejected the conclusion that the patron of Pastime Inn had been intoxicated and reversed the judgment against the tavern on the ground that there was insufficient evidence from which the jury could conclude that the collision was due to intoxication by the driver who had patronized the tavern. We think that in the instant case, likewise, the evidence that Stumbo was intoxicated at the time his car left the pavement and skidded into the bridge abutment was not sufficient to create a jury issue. A verdict on the basis of the known facts would necessarily have been based on conjecture rather than actual evidence. We therefore do not agree with the plaintiff’s contention that the trial court abused its discretion in directing a verdict for the defendant tavern. This decision, of course, has no bearing on the judgment against Stumbo.

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

HOPF and VAN DEUSEN, JJ., concur.


author: JUSTICE NASH

text:
    THE DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellee, v. LA SALLE NATIONAL BANK, Trustee, Defendant-Appellant.
    Second District
    No. 81-491
    Opinion filed December 21, 1981.
    Thomas J. Burke and William E. Ryan, both of Burke & Ryan, of Chicago, for appellant.
    Tyrone C. Fahner, Attorney General, of Chicago (Richard A. Redmond, Special Assistant Attorney General, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

In this eminent domain proceeding, we allowed an interlocutory appeal by permission, pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308), from an order of the circuit court of Du Page County denying a motion by the defendant-property owners to set a new valuation date for the subject property. The following question of law is presented for resolution:

“Is the Department of Transportation’s action of filing a petition to condemn on June 11,1979, to acquire 21 acres and all access rights to the remainder of the property, and subsequently on April 20, 1981, amending its petition to condemn deleting the taking of all access rights while retaining its request for the 21 acres, equal to the filing of a new petition to condemn requiring a new valuation date for the 21 acres”?

We answer the question in the negative and accordingly affirm the order of the circuit court.

The Department of Transportation of the State of Illinois (Department) commenced this proceeding on June 11,1979, by filing a petition to condemn certain property interests of defendants for the purpose of constructing a portion of a limited-access Federal highway. Defendants, La Salle National Bank, as trustee; Crow Hamilton #2, a partnership; Trammell Crow Management Company, Chicago, Inc., a corporation; and Itasca Associates #3, a partnership, own a 274-acre tract of land in Itasca in Du Page County which is bounded on the north by Devon Avenue, on the south by Thorndale Avenue, on the east by Arlington Heights Road and on the west by Interstate 290. The Department’s petition sought to take 21 acres from the southeast portion of the 274-acre tract extending from east to west along approximately one-half of the property’s southern boundary on Thorndale Avenue. The petition also would have permitted the Department to acquire defendants’ access rights from Thorndale Avenue to the remainder of the property.

The Department thereafter sought leave to amend its petition to delete the taking of the access rights to the property from Thorndale Avenue. It stated it no longer needed to foreclose access to the new roadway from defendants’ property as the road was not to be a limited-access freeway. On April 20, 1981, over defendants’ objections, the trial court allowed the Department to so amend its petition.

Defendants thereupon moved for a finding of abandonment in which they stated the amendment by the Department constituted a new petition entitling defendants to have their property valued for purposes of just compensation at its prevailing market value as of April 20, 1981. An affidavit by Thomas Collins, an appraiser, was offered in support of defendants’ motion; he had appraised the property as of June 11, 1979, and found the fair cash value of the 21-acre tract to be $1,972,865 with damage to the remaining 253 acres of $12,999,335. He considered that the major cause of the damage to the remainder resulted from the taking of the access rights to the property from Thorndale Avenue. Defendants argued a loss of approximately 13 million dollars arose from the Department’s decision to forego acquisition of the access rights and this evidenced the magnitude of the difference between the initial petition and the petition as amended. They concluded it became essentially a new petition when amended and the valuation date should therefore be advanced.

The trial court granted defendants’ motion insofar as it sought a finding that the condemning body had abandoned its request for the access rights it originally sought. However, the court ordered that the valuation date upon which just compensation would be determined was to remain June 11, 1979, when the Department had filed its original petition. The trial court thereafter found pursuant to Supreme Court Rule 308 that a question of law was presented as to which there was substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation. On application, we allowed defendants’ interlocutory appeal for consideration of the issue presented.

Defendants contend that the amendment of the Department’s original petition by deletion of the taking of defendants’ access rights while still seeking to take the same 21 acres sought in the original petition was tantamount to the filing of a new petition. They assert that they will be deprived of 13 million dollars for damages to the remainder of their property by virtue of the Department having abandoned its request for defendants’ access rights and, further, that in reliance on the Department’s original petition to take their access rights defendants constructed an 80-million-dollar hotel and office project on a portion of the remainder and made formal plans for the balance of their property.

The fair cash market value of property in an eminent domain proceeding is “determined * * ” as of the date of filing the petition to condemn.” (Ill. Rev. Stat. 1979, ch. 47, par. 9.7.) The date-of-valuation rule as now statutorily enacted is consistent with the prior long-standing view in Illinois that the value of land taken pursuant to the power of eminent domain and the value of the remainder which is damaged although not taken is that existing on the date of the filing of the condemnation petition. (Department of Public Works & Buildings v. An Association of Franciscan Fathers (1977), 69 Ill. 2d 308, 314, 371 N.E.2d 616, 618; Chicago & State Line Ry. Co. v. Mines (1906), 221 Ill. 448, 457, 77 N.E. 898, 901; South Park Commissioners v. Dunlevy (1878), 91 Ill. 49, 54.) The general rule will not be altered merely to accommodate fluctuations in the market value of the property or to take improvements to the property into consideration. (See, e.g., City of Chicago v. Farwell (1918), 286 Ill. 415, 121 N.E. 795.) Prevention of unjust enrichment to and unfair penalization of the property owner is the primary reason the time of filing the petition to condemn has been adhered to in this State as the valuation date. Department of Transportation v. Shaw (1976), 36 Ill. App. 3d 972, 982, 345 N.E.2d 153, 161, aff’d in part, rev’d in part on other grounds (1977), 68 Ill. 2d 342, 369 N.E.2d 884.

Defendants contend an exception to these general principles has evolved where the condemning body has amended its original petition in such a manner it can be said a new petition has effectively been filed and that the time of the amendment is then considered to be the new valuation date. Defendants rely upon three cases in support of their argument.

In Lieberman v. Chicago & South Side Rapid Transit R.R. Co. (1892), 141 Ill. 140, 30 N.E. 544, the supreme court considered whether it was error to limit evidence of value of the condemned property offered at trial to the date of the filing of the original petition when nearly two years later the petition had been amended as to the description of the property to be condemned. It was there stated:

“[W]e think it to be sufficiently evident that said amendments were in the direction of giving a fuller and more certain description of said property and not by way of substitution of one parcel of land for another. * * * [A]n amendment in the direction of giving a fuller, or even a more accurate description, so long as there is no attempt to substitute other property for that originally described, can not be held to be tantamount to the filing of a new petition, so as to change the date in respect to which the compensation should be estimated.” (Emphasis added). (141 Ill. 140, 150-51,30 N.E. 544, 548.)

The court adhered to the general rule by affirming the exclusion of evidence directed to a valuation at a time other than the date of filing the original petition.

The supreme court has since considered Lieberman once, and in a somewhat different context, in Department of Public Works & Buildings v. Lanter (1958), 15 Ill. 2d 33, 153 N.E.2d 552, where the issue concerned attorney’s fees. Section 10 of the Eminent Domain Act (Ill. Rev. Stat. 1955, ch. 47, par. 10) provided, as it does now, for an award of attorney’s fees and costs to the property owner incurred in defense of a condemnation action where the condemning body has dismissed its petition before an order setting just compensation has been entered. The original petition in Lanter sought to take the owners’ access rights to their property and allow them access to their property only for residential and agricultural purposes. However, the petition was subsequently amended to permit additional access via a service road, and the amendment also sought to take five acres of land. The trial court awarded the property owners fees and costs, and the supreme court affirmed, relying in substantial part upon the rationale set forth in Lieberman that an amendment substituting other property for that originally described will be deemed tantamount to a new petition. The court considered that the amendment was, in effect, a new petition and that the original petition had been abandoned within the meaning and purpose of section 10 of the Act providing for fees and costs.

Defendants rely most heavily upon another case which is also directed to the separate question of attorney’s fees. People ex rel. Department of Transportation v. Northern Trust Co. (1978), 59 Ill. App. 3d 1053, 376 N.E.2d 286, appeal denied (1978), 71 Ill. 2d 614, considered an appeal by the condemnor from an order awarding fees and costs to the owner under section 10 of the Act; the appellate court affirmed, quoting Lanier’s discussion of the Lieberman opinion that an amendment substituting other property for that originally described would be deemed tantamount to a new petition. In Northern Trust the original petition had sought 312.5 square feet of property, but it was later amended to take only 50 square feet in a corner of the lot where the taking would not substantially interfere with the owner’s use of the remainder of the property. The Department argued Lanter was distinguishable because the amendment reduced the square footage to be taken, reduced from $18,700 to $750 the potential award to be made to the owner and eliminated the question of damage to the remainder. The reviewing court rejected this view, holding that “the filing of the amended petition for less than one-sixth of the area encompassed by the original petition as well as the taking of a portion of the defendant’s property which would result in no damage to the remainder, thus saving the State approximately $14,500 in damages, is tantamount to the filing of a new petition.” 59 Ill. App. 3d 1053, 1055, 376 N.E.2d 286, 287-88.

Defendants here contend the Department’s amendment was tantamount to a new petition because it substituted the property interests to be taken from that sought in the original petition rather than merely describing the same property more accurately. The Department replies that their amendment did not substitute any property for that originally sought but merely deleted a taking of access rights while continuing its effort to condemn the identical 21 acres sought in the original petition. Defendants suggest that the Lieberman and Lanter cases as construed in Northern Trust make the filing of an amendment deleting property originally sought, without adding new or different property, tantamount to the filing of a new petition thus requiring a new valuation date be set.

We do not find a basis in the cases relied upon by defendants to deviate from the long-standing rule for valuing property as of the date of filing the original petition where, as here, no new or additional property is sought in the amended condemnation petition. The Lieberman and Lanter opinions must be read as authority only for that which the court decided under the particular facts there presented. (Nix v. Smith (1965), 32 Ill. 2d 465, 470, 207 N.E.2d 460, 463; Lustfield v. Chicago Transit Authority (1951), 408 Ill. 404, 412, 97 N.E.2d 347, 351.) This is especially true where defendants seek to engraft an exception onto a statute providing for a contrary result (see Ill. Rev. Stat. 1979, ch. 47, par. 9.7), and which statute is consistent with more than 100 years of supreme court precedent. (South Park Commissioners v. Dunlevy (1878), 91 Ill. 49, 54.) Neither of those cases considered a petition amendment which merely deleted a portion of the property originally sought without adding the taking of any new interest or property.

Only the Northern Trust case may be read as holding that an amendment which merely deletes property to be taken should be deemed a new petition. It is arguable, however, from the language of that opinion that all of the 50 square feet sought in the amended petition were not a part of the initial 312.5 square feet sought to be condemned, but may have involved the addition of property. In our view, if the Northern Trust court held that the mere deletion of property from an original petition by amendment constitutes a “substitution” of property so as to permit a new valuation date to be used in valuing the property, that would be an unwarranted extension of Lanter. In Lanter, the amended condemnation petition altered the original taking of the owners’ access rights to their property, but it also added the taking of five acres not sought in the original petition.

The Lanter and Northern Trust cases are also distinguishable in that each was limited to a consideration of an award of attorney’s fees pursuant to another statute. In the present case the trial court found defendants were entitled to fees and costs on grounds the Department abandoned its claim to their access rights. Defendants suggest that as the Department did not cross-appeal from that order it must be considered a dismissal of the original petition and the petition, as amended, as new. However, that order is not before us on this limited interlocutory appeal (see Zettel v. Paschen Contractors, Inc. (1981), 100 Ill. App. 3d 614, 427 N.E.2d 189), and it may yet be the subject of an appeal from the final judgment in this cause.

We have also considered two cases in which the courts declined to follow the general rule of valuation as of the date of filing the original petition. In Sanitary District v. Chapin (1907), 226 Ill. 499, 80 N.E. 1017, the supreme court affirmed the dismissal of a condemnation proceeding where the petition was filed, but the property owner was not served with notice until four years later. During the unexplained delay the property greatly increased in value and, in that circumstance, the court held that when the petitioner refused to agree to a later valuation date dismissal of the petition was proper and the condemning body would have to file a new petition which would fix a new valuation date. In the present case, at most, Chapin is relevant to the order granting the Department leave to amend its petition which is outside the scope of our limited review herein. Nor do we believe defendants are aided on this appeal by Illinois Cities Water Co. v. City of Mt. Vernon (1957), 11 Ill. 2d 547, 144 N.E.2d 729, where the court held that improvements necessarily made to property in good faith after condemnation is sought should be included in the value of the property taken or damaged. This case is distinguishable for the same reason as Lanter: both involved additional property being taken than was sought in the original petition, whereas here the Department is taking a lesser interest in the same property it sought originally.

Defendants have also contended that they will be deprived of 13 million dollars in damages to the remainder of their property because the Department is no longer seeking to take their access rights and that an award of attorney’s fees will not fully compensate them for this “loss.” A property owner is entitled to compensation only for property taken or damaged, and preliminary procedures which do not constitute a taking or cause damage ordinarily do not provide a basis for an award of compensation. (See City of Chicago v. Loitz (1975), 61 Ill. 2d 92, 329 N.E.2d 208; Chicago Housing Authority v. Lamar (1961), 21 Ill. 2d 362, 172 N.E.2d 790.) In any event, it seems apparent that the question of damages to the remainder of defendants’ property caused by the taking is a matter to be determined in trial of the issue of just compensation. See Department of Transportation v. Association of Franciscan Fathers (1981), 93 Ill. App. 3d 1141, 418 N.E.2d 36.

Defendants also note that in the period between the filing of the original petition by the Department and its amendment an 80-million-dollar hotel and office complex was constructed on the 253-acre remainder in reliance upon the original petition. It is well established that a condemning body may abandon or dismiss its proceeding in whole or in part prior to payment of compensation. (E. g., Commissioners of Lincoln Park v. Schmidt (1944), 386 Ill. 550, 54 N.E.2d 525.) Defendants’ arguments appear to be directed to the correctness of the order of the trial court which permitted the Department to amend its petition and are not within the scope of the limited review we have undertaken pursuant to Supreme Court Rule 308.

Accordingly, we resolve the question of law presented in the negative and affirm the order of the trial court which refused to set a new valuation date.

Affirmed.

HOPE and LINDBERG, JJ., concur.

       We note that a “substitution” requires both a taking out of one thing and inserting something else in its place; a deletion is distinct from a substitution, as the latter connotes adding something to replace that which is removed or abolished. See State ex rel. Woolsey v. Morgan (1940), 138 Neb. 635, 294 N.W. 436; Sonken-Galamba v. Atchison, Topeka & Santa Fe Ry. Co. (W.D. Mo. 1941), 36 F. Supp. 909; see also Toledo Edison Co. v. McMaken (6th Cir. 1939), 103 F. 2d 72; Friedle v. First National Bank (Cty. Ct. N.Y. 1927), 129 Misc. 309, 221 N.Y.S. 292.

       The order awarding fees and costs, if in fact entered, is not found in the record.


author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LARRY JAMES CARLOCK, Defendant-Appellee.
    Second District
    No. 80-912
    Opinion filed December 15, 1981.
    Dallas C. Ingemunson, State’s Attorney, of Yorkville (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert L. James, of Aurora, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

In this matter an indictment purportedly charging a felony was returned against the defendant, Larry James Carlock, for allegedly committing the offense of obscenity in violation of section 11 — 20(a) (1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 20(a)(1)) on March 13, 1980, at a described location in Kendall County. According to section 11 — 20(d) of the Criminal Code of 1961 such an offense is a Class A misdemeanor, and a second or subsequent offense is a Class 4 felony. Ill. Rev. Stat. 1979, ch. 38, par. 11 — 20(d).

The indictment in question sought to enhance the penalty for the offense to a Class 4 felony by also alleging that the defendant committed a prior offense of obscenity the preceding day, namely March 12,1980, at the same location.

Defendant moved to dismiss the indictment upon the ground, among others, that the indictment did not set forth a prior conviction for obscenity as a basis for enhancement of the charge, but merely alleged the commission of a prior obscenity offense. In its oral ruling on the motion, the trial court emphasized that the lack of a prior conviction was a key factor in the court’s disposition of the motion. The trial court then found the indictment to be insufficient to charge a felony in that it failed to allege that defendant had been convicted of a prior offense, and the trial court, therefore, dismissed the indictment.

On appeal, the State contends that by the use of the word “offense” as opposed to “conviction” in the penalty provision, the legislature clearly intended that the felony obscenity prosecution need not be predicated on a prior conviction for obscenity. In support of this contention the State points to other enhancement provisions of the Criminal Code where references are specifically made to convictions of the first offense. Ill. Rev. Stat. 1979, ch. 38, pars. 16 — 1(e)(1) (theft); 16 — 5(c) (theft from coin-operated machines); 16A — 10(2) (retail theft); 17 — 1 (deceptive practices); 21.2 — 4 (interference with a public institution of higher education); 28 — 1(c) (gambling) and 33B — 1 (habitual criminals).

An examination of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 1 — 1 et seq.) discloses that there are other sections of the Code providing for enhancement of penalties for subsequent offenses which do not specifically refer to convictions but rather speak, as does the section here in question, in terms of subsequent offenses. We particularly note this to be true regarding some provisions that are subsections of the same offense. For example, section 16 — 1 of the Criminal Code of 1961 deals in subparagraph (e)(1) with the enhancement of the offense of theft of property to a Class 4 felony speaking in terms of a second or subsequent offense after a conviction of any type of theft, while the very next subparagraph (e) (2) provides for the enhancement of theft of a firearm from a Class 4 felony to a Class 3 felony speaking only in terms of offense without any reference to a prior conviction. (Ill. Rev. Stat. 1979, ch. 38, pars. 16 — 1(e)(1) and 16 — 1(e)(2).) It is inconceivable that the legislature could have intended to require two different conditions for penalty enhancement with reference to two categories of theft. A similar example can be found with reference to deceptive practices (see Ill. Rev. Stat. 1979, ch. 38, par. 17 — 1(B), as contrasted with pars. 17 — 1(C)(3) and 17 — 1(C)(4)). From our reading of the statute we discern no intent of the legislature to depart from the requirement that the offense on which the subsequent enhancement is predicated must first be reduced to a conviction.

As with any statute, the court construing a penal statute, as here, must ascertain legislative intent, and where that intent is in any way clouded or uncertain, established rules relating to construction of penal statutes must be followed. (People v. Rogers (1980), 86 Ill. App. 3d 1092, 1093-94.) A penal statute is to be construed in favor of the accused and nothing is to be taken by intendment or implication against him beyond the literal and obvious meaning of the statute. (People v. Kirkrand (1947), 397 Ill. 588, 589; People v. Rogers (1980), 86 Ill. App. 3d 1092, 1094. See People v. Haron (1981), 85 Ill. 2d 261, 277-78.) If a statute increasing a penalty or punishment is capable of two constructions, the one which operates in favor of the accused is to be adopted; such a statute is highly penal and should not be extended in its application to cases which do not, by the strictest construction, fall within its terms. People v. Rogers (1980), 86 Ill. App. 3d 1092, 1094, citing People v. Lund (1943), 382 Ill. 213, 215-16.

To construe the statute in the manner urged by the State would allow the State to charge the defendant with one offense and, at the trial for that offense, introduce evidence of an entirely unrelated offense. This would be a clear violation of defendant’s due process rights. Where a statute is susceptible of two different constructions — one which will render it constitutional and the other which will not — the former construction will be adopted if it can reasonably be done. (In re Tingle (1977), 52 Ill. App. 3d 251, 257.) A court of review has a duty to construe an act of the General Assembly in such a way as to promote its essential purposes and to avoid, if possible, a construction which would raise doubts as to its validity. 52 Ill. App. 3d 251, 256-57.

Review of the purposes of enhancement penalty statutes makes clear that the State’s contentions must be categorically rejected.

“Enhanced penalty statutes are enacted as a warning to a first offender of the consequences of a second conviction, and it cannot legally be known that an offense has been committed until there has been a conviction. [Citation.] Further, an enhanced penalty should not be imposed until the offender has had the opportunity to reform due to the salutary discipline of the punishment which he has received as a consequence of his first conviction. [Citations.]” (People v. Phillips (1978), 56 Ill. App. 3d 689, 695.)

We have examined innumerable cases on this subject matter and find no cases which would support the State’s contention nor has the State cited any cases on point.

We conclude that the provision of the obscenity statute in question, providing that a second or subsequent offense is a Class 4 felony (Ill. Rev. Stat. 1979, ch 38, par. 11 — 20(d)), is not intended to permit the State to arrest a defendant for offenses allegedly committed on succeeding days, to charge him with the commission of the second offense, and then at the trial or at the sentencing hearing for that offense to prove the separate prior offense, for which he has not been charged and convicted, in an attempt to enhance the penalty for the second offense from a misdemeanor to a felony. Rather, we determine that it was the intent of the legislature in this section that the penalty for a second or subsequent offense for obscenity cannot be enhanced unless there has been a prior conviction of the defendant for an obscenity offense.

For the foregoing reasons, we affirm the order of the trial court, which dismissed the indictment that sought to charge the defendant with obscenity as a Class 4 felony.

Affirmed.

REINHARD and UNVERZAGT, JJ., concur.


author: JUSTICE LINDBERG

text:
    MARY LOU JONES, Adm’r of the Estate of Milton B. Jones, Deceased, Plaintiff-Appellant and Respondent-Cross-Appellee, v. MELROE DIVISION, CLARK EQUIPMENT COMPANY, Defendant.—(WALTER MALINOWSKI, d/b/a W. M. Construction, for use of American States Insurance Company, Intervening Petitioner-Appellee and Cross-Appellant.)
    Second District
    No. 80-681
    Opinion filed December 17, 1981.

      Charles M. May, of May, Decker and Associates, Ltd., of Waukegan, for appellant.

      Sidney Z. Karasik, of Chicago, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, administrator of the estate of Milton Jones, appeals from a judgment of the Circuit Court of Lake County distributing the settlement of wrongful death litigation between her and American States Insurance Company (American States), the worker’s compensation carrier of decedent’s employer and denying her damages for her counterclaim of improper claims practices. American States cross-appeals.

Milton Jones, the decedent, was killed in an accident arising out of his employment by Walter Malinowski, d/b/a W. M. Construction Company. Plaintiff, Mary Lou Jones, wife of the decedent, applied for worker’s compensation benefits. Pursuant to an order of the Illinois Industrial Commission, American States was required to pay to Mrs. Jones the sum of $184.27 weekly for life.

Plaintiff brought a wrongful-death action against Melroe Division, Clark Equipment Company (Melroe), seeking damages under a product liability theory. Melroe manufactured the front end loader involved in the accident which killed decedent. On April 24, 1980, the day after trial commenced, the parties settled the action for the sum of $225,000 and the trial court dismissed the suit. But plaintiff moved the court, on May 13, 1980, to retain jurisdiction of the matter because a controversy had arisen between her and American States, the subrogee of the employer, relating to the execution of releases by American States which would allow plaintiff to collect the settlement from Melroe. American States then filed a petition to intervene under section 5(b) of the Worker’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(b)) (the Act) and to impress a lien upon the settlement fund.

Section 5(b) provides, inter alia, that an employer liable to pay compensation under the Act may claim a lien upon any award from a third party. The statute states:

“(b) Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act.
Out of any reimbursement received by the employer pursuant to this Section, the employer shall pay his pro rata share of all costs and reasonably necessary expenses in connection with such third-party claim, action or suit and where the services of an attorney at law of the employee or dependents have resulted in or substantially contributed to the procurement by suit, settlement or otherwise of the proceeds out of which the employer is reimbursed, then, in the absence of other agreement, the employer shall pay such attorney 25% of the gross amount of such reimbursement.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 48, par. 138.5(b).

The petition of American States prayed that the entire settlement fund be impressed with a lien and placed in an interest bearing account; and that it be reimbursed for the $37,720.55 paid by it under the order of the Illinois Industrial Commission at the date of the settlement, less attorney fees and expenses, and that the balance remaining be awarded to it to cover future payment of worker’s compensation benefits. In the alternative, American States asked that the trial court enter an order finding that the proceeds remaining from the settlement fund, after reimbursement of the $37,720.55 paid to plaintiff and deduction of expenses and attorney fees, constituted prepayment of a lump sum to plaintiff under section 9 of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.9). That section provides that, upon petition to the Commission, compensation may be commuted to a lump sum equal to the present value of the probable future payments.

Plaintiff filed, on May 19,1980, a petition to settle the cause of action nunc pro tunc to May 13, 1980. The petition was granted, but the trial court ordered that the disbursement of the $225,000 be subject to the order of the court following hearings to adjudicate the lien interest of American States. On May 20,1980, plaintiff filed a response to American States’ petition to intervene and a counterclaim. The response asked that American States be allowed to intervene and to collect such reimbursement funds which it is entitled to collect, less fees and prorated expenses, but that American States’ other prayers for relief be denied, i.e., that the fund be placed in an escrow account and either that the entire amount be awarded to American States or that the proceeds be found to constitute payment of a lump sum to plaintiff.

Plaintiff’s counterclaim alleged that American States had refused to execute a release of its lien on the settlement. She contended that the following computation, based upon a formula utilized in Vandygriff v. Commonwealth Edison Co. (1979), 68 Ill. App. 3d 396, 386 N.E.2d 318, set forth the proper distribution of the fund:

“Estate of Milton Jones Proposed agreement re: distribution (based on estimated figures*)
Total settlement of $225,000.00
W/C already paid ($37,000-25%) = *27,750.00
[ 25% deduction represents attorney’s fees ]
Costs (16.4% of $7,000) * 1,148.00
Attorney’s fees (25% of $225,000) 56,250.00 85,148.00
[Credit to American States for compensation benefits to be paid in future] $139,852.00
139,852.00 [credit] 184.27 [widow’s benefit] = 759 weeks
759 weeks = 14.6 years or 14 years and 31 weeks
payments resume December 8,1994 at $184.27 per week per [Industrial Commission] 77 WC 28767 order and subject to Sec. 7(a) of the Worker’s Comp. Act.” (Bracketed material supplied.)

The plaintiff further alleged that no just reason existed to delay settlement, inasmuch as the only controversy between the parties related to American States’ proposed obligation to resume payments to her 14 years hence. Plaintiff demanded damages for the loss of interest on the $225,000 settlement due to American States’ refusal to release its lien. By its answer to the counterclaim, American States denied, inter alia, that plaintiff’s proposed formula was correct “as such computations show upon their face a partial duplication in the distribution of attorney’s fees * * *.”

At a hearing on June 3, 1980, the plaintiff proposed a second distributive formula, the “Franges” formula, to the trial court. That method of distribution was based upon the decision of the Supreme Court of Michigan in Franges v. General Motors Corp. (1979), 404 Mich. 590, 274 N.W.2d 392.

By order entered on June 25, 1980, the trial court found that the plaintiff’s distributive formula, based upon Vandy griff, constituted reasonable compliance with the requirements of sections 5 and 9 et seq. of the Act. But the alternatively proposed distribution based upon Franges was found not to be proper. The court also denied plaintiff’s claim for fees, costs and alleged loss of interest predicated upon improper claims practice and vexatious delay.

The court found that American States was entitled to intervene and impress a lien on the $225,000 settlement. It was further found that American States was not entitled to have the funds placed in a bank account; nor to have the balance of the settlement, after reimbursement to it of benefits already paid, awarded to it to cover future payments; nor to have the balance of the funds be found to constitute prepayment to the plaintiff of a lump sum under section 138.9 of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.9). The trial court ordered that American States immediately execute its releases.

On American States’ refusal to comply with the order of June 25, plaintiff filed a supplemental counterclaim and petition for a rule to show cause on July 22,1980. In those pleadings plaintiff realleged her allegations contained in her counterclaim of May 20, 1980 that American States was guilty of improper claims practices. On July 24, 1980, American States presented a post-trial motion asking the court to vacate its order of June 25, 1980. After a hearing on July 24, 1980, the trial court denied American States’ post-trial motion and plaintiff’s counterclaim for fees, costs, and damages. Upon being advised by American States that it would immediately sign and deliver the required releases, the petition for rule to show cause was also denied. Both sides appeal.

Plaintiff proffered to the trial court two approaches for the distribution of the funds initially awarded to plaintiff. We note here that plaintiff has received worker’s compensation benefits actually paid of $37,720.55 based upon an Industrial Commission award of $184.27 per week and a third-party settlement of $225,000, a gross value of $262,720.55.

The first approach suggested by the plaintiff was based upon a formula found in Vandygriff. The formula expressed there was:

“Total settlement of $260,000.00
Less:
Workmen’s compensation already paid $15,447.22
Costs 3,228.94
Attorney’s fees (25% of $260,000.00) 65,000.00 83,676.16
176,323.84.”

The court ordered that the employer be given credit by the employee for any payments the employer may be obligated to pay by way of permanent total disability or future medical payments until paid in full but not exceeding the employer’s “credit” of $176,323.84. (68 Ill. App. 3d 396, 399.) Under, this approach the employee was able to retain the benefit of the $15,447.22 and it was also taken as a reduction in the amount the employer was entitled to be credited for the $260,000 settlement. This is in contravention of section 5(b) wherein it provides “* 0 0 from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid by him to such employee a o » ” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 48, par. 138.5(b).

Further, we disagree with the holding in Vandy griff that attorney fees are computed only upon the value of the third-party settlement. Again, referring to the statute the attorney fees in the absence of an agreement are “25% of the gross amount of such reimbursement.” “Reimbursement,” while not specifically defined, implicitly consists of “compensation paid or to be paid by him [employer] to such employee.” (Ill. Rev. Stat. 1977, ch. 48, par. 138.5(b).) In Vandy griff the court used only the amount “to be paid” or the third-party settlement and did not include the “compensation paid” being the amount already advanced by the employer.

A careful reading of section 5(b) discloses the formula for the distribution of the fund created by advances of worker’s compensation benefits and the third-party settlement: the advance payment of benefits, less attributable attorney fees and costs, is to be repaid to the employer, or its insurance carrier; the phrase “gross amount of such reimbursement” includes the sum of the amounts paid and to be paid by the employer; and the ratio to determine the pro rata share of the costs to be ultimately borne by the employer is that of the “gross amount of such reimbursement” to the third-party settlement for allocation as between the repayment and reimbursement.

With these observations in mind the formula mandated by the statute calls for: (1) repayment of the worker’s compensation benefits to the employer less 25% as attorney fees and the pro rata share of the costs, determined by the ratio that the advance payment bears to the gross reimbursement; and (2) a credit to the employer for the amount of the third-party settlement, (a) which credit is reduced by 25% of the third-party settlement, and (b) which credit is further reduced by the ratio that the sum of the benefits paid and the third-party settlement bear to the third-party settlement.

Thus, applying the values in the case at bar to the formula: (a) the gross reimbursement is $262,720.55, (b) the net cash repayment by Jones to American States is $27,285.39, (c) the net credit due American States against a resumption of weekly benefit payments is $162,755.02 or the equivalent of 17 years based upon $184.27, and (d) American States is to resume weekly benefits on June 25, 1997, pursuant to the following:

(a) Gross reimbursement calculation:
1. Third party settlement to Jones $225,000.00
2. Benefits advanced to Jones by American States 37,720.55
262,720.55
Distribution of Cash
(b) Repayment by Jones to American States calculation:
1. Total benefits advanced by American States to Jones 37,720.55
2. Less: Attorney fees attributable to advance of benefits at 25% (9,430.14)
3. Less: Cost attributable pro rata to advance of benefits $37,720.55 -r-$262,720.55 X $7,000.00 (1,005.02)
4. Net repayment of cash by Jones to American States 27,285.39
Distribution of Credit
(c) Credit to American States against resumption of weekly benefits to Jones calculation:
1. Gross reimbursement 262,720.55
2. Less: Credit to Jones for repayment of advance benefits (37,720.55)
3. Gross credit to American States after deduction of repayment 225,000.00
4. Less: attorney fees attributable to gross credit at 25% X $225,000.00 - (56,250.00)
5. Less: Costs attributable to $225,000.00 as a ratio to $262,720.55 X $7,000.00 . ( 5,994.98)
6. Net credit to American States against resumption of weekly benefits 162,755.02
7. Calculation of years/weeks by $162,755.02 + (52 X 184.27) 17 years
(d) Weekly payments of $184.27 to be resumed by American States June 25,1997.

After repaying American States $27,285.39, representing its weekly payments of worker’s compensation less statutory attorney fees and pro rata costs, Jones will have discharged her obligation to the employer’s insurer. Jones will pay the attorney fees and costs arising from the third-party litigation as she would in any civil litigation except that, pursuant to statute, she will be credited for those expenditures to the extent they resulted in a gross reimbursement to the employer and its insurer. American States will have been reimbursed the cash benefits it paid Jones less attorney fees and costs and is credited with a respite from continued weekly payments for 17 years or until June 25, 1997. This disposition and distribution comports precisely with the statute and produces a very fair result. Ill. Rev. Stat. 1979, ch. 48, par. 138.5(b).

The Franges Formula

The plaintiff argues that the trial court erroneously refused to apply the formula devised in Franges v. General Motors Corp. (1979), 404 Mich. 590, 274 N.W.2d 392, to distribute the cost of recovery of a third-party settlement between the employee or personal representative and the employer. Franges included an extensive analysis of approaches used in several States but focused upon the Michigan version of the distribution statute (Mich. Comp. Laws Ann. §418.827 (Supp. 1981-1982)). The court concluded that its statute required that the costs of recovery paid by the third-party plaintiff should be recovered by the plaintiff from the employer as the benefit to the employer accrues. Under our decision today, by contrast, the reimbursement to the third-party plaintiff, here Jones, occurs as a reduction of the period for which the employer is relieved of the payment of weekly benefits. We conclude the Franges approach is but a variation on the theme we have adopted, is not mandated in Illinois as it is in Michigan, and adds unnecessary complexity to an already complex computation. We affirm the trial court’s rejection of the holding in Franges.

Improper Claims Practice

Plaintiff next asserts that the trial court’s refusal to allow her costs, fees, and interest for American States’ alleged improper claims practice was an abuse of discretion. She makes reference in her brief to sections 154.5 and 154.6 of the Illinois Insurance Code (Ill. Rev. Stat. 1979, ch. 73, pars. 766.5 and 766.6). Section 154.5 states that it is an improper claims practice for any company to commit any of the acts contained in section 154.6 if it is “committed knowingly in violation of this Act” or if it has been frequently committed. Section 154.6 enumerates 16 acts which constitute improper claims practice “if committed without just cause and in violation of Section 154.5.” Plaintiff fails to mention in the argument section of her brief which of the 16 acts proscribed by section 154.6 American States committed, but she quotes from (b) (failure to acknowledge communications re claims with reasonable promptness) and (n) (failing to explain the legal or contractual basis for denial of a settlement offer) in the “Statutes Involved” section of her brief. This argument is rejected. There was no abuse of discretion in view of the lack of evidence that American States committed the acts described in (b) and (n). Moreover, there is no evidence of the requisite mental state. The trial court is affirmed as to its judgment in this regard.

The Cross-Appeal

We now turn to the assertion of American States that the distribution formula applied by the trial court was erroneous. It argues that the trial court’s application of the Vandygriff formula was improper and inadequate to protect the worker’s compensation interest which the carrier had in the fund.

American States’ position is that the distribution of the trial court resulted in a partial duplication of attorney fees. Comparison of the trial court’s distribution to the formula we have adopted shows that American States is incorrect. In light of the distribution reflected in this opinion it is apparent that the trial court was correct in assessing attorney fees and costs against both repayment of benefits paid and the credit to which American States is entitled. The conclusion of the trial court was correct, and its action in that regard is affirmed.

American States also attacks that portion of the judgment which states “that rule 138.7(a) is not involved.” That section of the Act prescribes the amount of compensation in fatal cases where there is a widow and a child. (Ill. Rev. Stat. 1979, ch. 48, par. 138.7(a).) While we do not understand the trial court’s finding that 7(a) is not involved since American State’s liability for benefit payments stemmed from that statute, neither is it clear why, according to American States, 7(a) requires that the credit granted by the trial court for 14 years and 31 weeks should be extended to 19 years and 5 weeks. Decedent left surviving a 17-year-old child, Donna Jo, who has since reached maturity and is not attending college and who signed a waiver of all future compensation benefits.

American States refers us to that portion of 7(a) which states:

“If the employee leaves surviving any child or children under 18 years of age, who at the time of death shall be entitled to compensation under this paragraph (a) of this Section, the weekly compensation payments herein provided for such child or children shall in any event continue for a period of not less than six years.” (Emphasis added). (Ill. Rev. Stat. 1979, ch. 48, par. 138.7(a).)

It reasons that since it was possible that benefits to the widow, where the Industrial Commission’s order stated that payments to the widow were for the benefit of both her and the child, could continue for at least six years, therefore six years must be tacked on to the credit devised. The possible length of time during which benefit payments could be required is irrelevant to the determination of the amounts of the credit and thus the length of the hiatus of payments. The credit determination is strictly a function of dividing the dollar amounts of the gross reimbursement, less the repayment, attorney fees, and costs by the weekly compensation award. Though payments in our case might continue for six years, or longer, they might also be truncated by the deaths of both the widow and the child, but neither event would affect the amount of the credit. The error was harmless, and the trial court is affirmed as the issue is moot.

The circuit court of Lake County is affirmed in part, reversed in part and the cause remanded for further proceedings.

Affirmed in part, reversed in part and remanded.

NASH and HOPE, JJ., concur.