author: JUSTICE KARNS

text:
    THE PEOPLE ex rel. CLAUDE RODNEY YODER, Petitioner-Appellee, v. STEPHEN L. HARDY et al., Respondents-Appellants.
    Fifth District
    No. 82—371
    Opinion filed July 7, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (A. L. Zimmer, Assistant Attorney General, of counsel), for appellants.
    Kimball R. Anderson and Mary A. Martin, both of Winston & Strawn, of Chicago, and Richard J. Habiger, law student, for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

Respondents-appellants, Stephen L. Hardy, administrator of Menard Psychiatric Center and Tyrone C. Fahner, Attorney General of Illinois, appeal from an order of the circuit court of Randolph County granting a writ of habeas corpus to Claude Rodney Yoder, a resident of the Menard Psychiatric Center, Illinois Department of Corrections. On appeal, respondents contend the trial court erred in finding that Yoder’s statutory good-time credits were unlawfully revoked and in ordering the Department of Corrections to restore such credits.

Claude Rodney Yoder, petitioner-appellee, was convicted of aggravated battery on May 11, 1979, and sentenced to probation. On August 28, 1979, petitioner’s probation was revoked and he was sentenced to four years’ imprisonment in the Illinois Department of Corrections, a term which expired April 14,1983.

On July 21, 1980, petitioner received a resident disciplinary report which charged him with a violation of section 804(II)(A)(28) of the Administrative Regulations of the Department of Corrections, “Violating the general laws of the State or Federal government.” (AR 804(II)(A)(28).) The report alleged that Yoder sent threatening letters through the United States mail in violation of the Federal postal laws. (18 U.S.C. sec. 876 (1970).) A hearing on the charge was held before the adjustment committee on July 22, 1980, at which petitioner stated that he was unprepared to defend himself. In addition, petitioner requested a short continuance, the opportunity to call witnesses, and the assistance of a staff member in the presentation and preparation of his defense. The adjustment committee denied these requests and found him guilty as charged. The committee then imposed disciplinary action consisting of six months’ segregation, six months’ “C-grade” status and revocation of one year of his good-conduct credits.

The letters which were the subject of the violation came to the attention of respondent, Dr. Stephen Hardy, through William V. Kauffman, Jr., executive director of the Illinois Prisoner Review Board. Some of these allegedly threatening letters were sent to the Illinois Prisoner Review Board and others were sent from their addressees to the Champaign County State’s Attorney, who forwarded them to Kauffman.

On August 8, 1980, petitioner was served with a second disciplinary report. The second report again charged petitioner with violating section 804(II)(A)(28), and alleged that he sent a threatening letter through the mails to then Attorney General of Illinois, William J. Scott, on July 17, 1980. The letter was received by Assistant Attorney General Michael Vujovich, who forwarded it to the Department of Corrections on July 25, 1980. Petitioner declined to waive his right to 24 hours’ notice and was brought before the adjustment committee on August 9,1980.

At the hearing, petitioner noted that he neither knew nor sent any letters to Michael Vujovich. The committee, however, found petitioner guilty and imposed additional disciplinary action consisting of one year of disciplinary segregation, one year “C-grade” status, and the revocation of one year of good-conduct credit.

Petitioner then filed a petition for Federal habeas corpus relief in the United States District Court for the Northern District of Illinois. The cause was transferred to the Southern District of Illinois and assigned to the United States Magistrate, who recommended that the cause be dismissed for failure to exhaust State remedies, specifically, State habeas corpus. Before the recommendation was entered as an order of the court, petitioner filed his State habeas corpus petition. In his eight-count complaint, petitioner alleged various defects in the hearing process under which he was found guilty.

Respondents, Tyrone Fahner and Stephen Hardy, filed a motion to dismiss on January 11, 1982, which alleged that petitioner had insufficiently pleaded and was not entitled to relief. Petitioner filed a motion to strike certain portions of the motion to dismiss and further moved for admission to bail. The court denied the motion to dismiss, the motion to strike and the motion for bail, but required petitioner to amend the petition for habeas corpus. On March 24, 1982, petitioner filed an amended petition for writ of habeas corpus.

On May 6, 1982, Richard J. Habiger of the Prison Legal Aid of Southern Illinois University entered an appearance as additional counsel on behalf of petitioner. Petitioner and respondents entered into a stipulation for evidence, and the court decided the petition based upon the stipulated evidence, pleadings and briefs. On July 23, 1982, the court found that the revocation of defendant’s two years of good-conduct credit was in violation of section 804 of the Department of Corrections’ Administrative Regulations. The court then ordered the Department of Corrections to restore the good time previously revoked and to release petitioner from custody provided such restoration of good time entitled him to release.

On June 29, 1982, respondents filed a notice of appeal along with a motion for emergency stay with an alternative motion for a 10-day stay to apply for a stay in this court. The court denied the emergency application for stay but granted the alternative motion to stay its order for 10 days pending application to this court. The motion for stay was ultimately denied, and petitioner was released from State custody.

At the outset, we note that although petitioner has been released from custody, he is presently serving a mandatory supervised, release. This appeal, therefore, is not rendered moot because a finding that petitioner’s good conduct credit was improperly revoked might entitle him to an earlier termination of such supervision. Taylor v. Franzen (1981), 93 Ill. App. 3d 758, 417 N.E.2d 242.

On appeal, respondents contend that the trial court erred in finding that respondents wrongfully revoked petitioner’s statutory good-conduct credits and in restoring such revoked credits. Petitioner, by contrast, maintains that the trial court properly restored his revoked good-conduct credits because respondents violated his rights as set forth in the United States Constitution, Illinois statutes and the Department of Corrections’ Administrative Regulations.

Initially, we consider petitioner’s argument that he was denied due process of law under the United States Constitution. The Supreme Court has held that where a State statutorily creates a right to good time, the deprivation of which may be a sanction authorized for major misconduct, the prisoner has a liberty interest under the fourteenth amendment which entitles him to certain minimum due process procedures. (Wolff v. McDonnell (1974), 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963.) The court in Wolff stated that in order to satisfy minimum requirements of due process, the prisoner must be afforded certain procedural rights which include: written notice of the claimed violation, at least 24 hours in advance of the inmate’s appearance before the adjustment committee; written statement of fact finders as to evidence relied on and reasons for disciplinary action taken; and the opportunity to call witnesses and present documentary evidence in defense. Although petitioner maintains that he was denied these procedural rights in the present case, we do not believe that we need address his constitutional arguments in light of our discussion below regarding statutory and administrative procedural requirements which incorporate these constitutional safeguards.

Petitioner contends that the adjustment committee failed to provide him with timely written notice of the charges against him as required by section 3—8—7(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1003—8—7(c)). Section 3—8—7(c) provides:

“A written report of the infraction shall be filed with the chief administrative officer within 72 hours of the occurrence of the infraction or the discovery of it and such report shall be placed in the file of the institution or facility. No disciplinary proceeding shall be commenced more than 8 calendar days after the infraction or the discovery of it unless the committed person is unable or unavailable for any reason to participate in the disciplinary proceeding.”

Petitioner maintains that the Department of Corrections was aware of the allegedly threatening letters at least eight months before it held the first disciplinary hearing on July 22, 1980. To support his position, petitioner points to a letter dated November 20, 1979, from Dennis J. Wolff, Warden of Joliet Correctional Center, where petitioner was incarcerated, to William V. Kauffman, Jr., Executive Director of the Prisoner Review Board. In that letter, Wolff stated, “[t]his is in response to your letter of November 8, 1979, concerning correspondence containing threats made by the above-named respondent [Yoder].”

Further evidence of the Department of Corrections’ knowledge of the petitioner’s letters can be found in correspondence between William V. Kauffman and Stephen Hardy. In a July 7, 1980, letter, Kauffman states:

“Finding no assurance that the federal authorities will hang some additional time on Yoder, I contacted the Department’s legal staff in the person of Susan Takata. At one time, I had a similar situation in which I had suggested a good time loss, and was advised that it would not be possible to notify the inmate within 72 hours of the infraction ***.”

This letter suggests that both Kauffman and Dr. Hardy were aware that it would not be possible to institute disciplinary proceedings within 72 hours as required by statute. Notwithstanding this knowledge, Dr. Hardy instructed a Menard correctional officer to prepare a disciplinary report which was filed on July 21, 1980, more than eight days after Dr. Hardy’s receipt of the letter.

Respondents contend that the trial court erred in granting the writ of habeas corpus because petitioner failed to demonstrate that any error in the hearing process was prejudicial. Instead, respondents make the curious argument that any procedural irregularities in the hearing were harmless in that petitioner may have lost two years good time “based on the evidence”; this approach seems to be that denial of procedural due process is meaningless. After reviewing the record, we cannot agree with respondents’ assertion that the adjustment committee’s violation of section 3 — 8—7(c) was harmless.

In United States ex rel. Houston v. Warden (7th Cir. 1980), 635 F.2d 656, the court stated that a prisoner was not deprived of due process of law, even though the warden and prisoner review board failed to comply with the statutory notice and hearing requirement of section 3—8—7(c) because the prisoner had not alleged that he suffered any harm from the violation. In the instant case, petitioner was clearly prejudiced by the adjustment committee’s delay in notifying petitioner of the alleged infraction. If petitioner had been notified and informed of the violation, he would have been able to conform to the rules and may not have written the letter to the Attorney General which resulted in his loss of a second year of good-time credit. Rather than notify petitioner, the adjustment committee permitted him to continue writing incriminating letters while he was accumulating additional good-time credit only to have it revoked at the second hearing. We believe that the adjustment committee’s failure to provide 72-hour notice and a hearing within eight days clearly constituted prejudicial harm which requires the reinstatement of lost good-time credit.

Petitioner next argues that respondents violated his rights as established in section 804 of the Administrative Regulations of the Department of Corrections. Section 3 — 6—3(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1003—6—3(a)(1)) provides in part that “[t]he Department of Corrections shall prescribe rules and regulations for the early release on account of good conduct of persons committed to the Department ***.” The Code goes on to provide for the promulgation of rules and regulations governing the revocation of good-conduct credit. Ill. Rev. Stat. 1981, ch. 38, par. 1003—6—3(c).

Section 804 of the Administrative Regulations establishes procedures which must be followed before an inmate’s good-time credit can be revoked. Among the procedural safeguards which petitioner maintains he was denied is that a “resident may upon request and if good cause is shown, be granted additional time to prepare his/her defense.” (AR 804(II)(G)(6).) Section 804(II)(G)(7) provides that the “resident may request witnesses in writing prior to the hearing or seek a continuance if he/she failed to make this request in a timely manner before the hearing.” Section 804(II)(G)(11) requires the committee to prepare a written record summarizing the evidence and referring to evidence which convinces them that the resident did or did not commit the chargeable offense. That section further states that the committee may not simply adopt and copy the exact wording of the resident disciplinary report.

Petitioner contends that respondents violated each of the aforementioned regulations which denied him procedural due process. Specifically, petitioner maintains that the adjustment committee refused his request for a short continuance despite his statement that he was not prepared to defend himself. Petitioner maintains that a second violation occurred when the adjustment committee refused to permit him to call witnesses at the July hearing or to allow any additional time to make such request. Petitioner’s third assignment of error- is that the adjustment committee’s reports of the July 22, 1980, and August 9, 1980, hearing do not state the basis for the committee’s decision and the evidence it relied upon, but merely adopt the language of the resident disciplinary reports. Finally, petitioner claims that the adjustment committee revoked his good-time credit because of his attitude during the hearing and did not base its decision on adequate evidence.

In response to petitioner’s allegations, respondents contend that the trial court either erred in failing to require a showing of prejudicial error at the hearing, or in holding by implication that prejudicial error had occurred. Although the order granting petitioner’s relief does not specifically address the question of prejudice, we believe that a finding of prejudice is implicit in the court’s decision. Furthermore, our review of the record reveals that such a finding was not against the manifest weight of the evidence.

We have previously stated that the Department of Corrections is bound to follow its own regulations. (Taylor v. Franzen (1981), 93 Ill. App. 3d 758, 417 N.E.2d 242.) In the instant case, the petitioner’s good time was wrongfully revoked because the adjustment committee’s failure to adhere to the standards set forth in section 804 deprived petitioner of an adequate hearing process. We believe the trial court acted properly in restoring petitioner’s good-conduct credits.

Respondents argue that even if such errors occurred, the appropriate remedy is a new disciplinary hearing and not the restoration of revoked good-time credits which entitled petitioner to be released. We believe that it is clear that a court may grant a writ of habeas corpus where such credit was improperly revoked pursuant to section 804. (South v. Franzen (1980), 90 Ill. App. 3d 595, 413 N.E.2d 523.) Furthermore, we do not believe that a new hearing would serve any meaningful purpose because petitioner’s mandatory release date has passed.

Petitioner further argues that the Department of Corrections exceeded its rule-making authority in promulgating section 804(II)(A)(28), the regulation pursuant to which petitioner’s good-time credit was revoked. In addition, petitioner maintains that section 804(II)(A)(28) is both vague and facially overbroad. We do not believe, however, that we need resolve these additional issues because our decision rests upon the statutory and administrative violations which we have previously addressed.

For the foregoing reasons, the order of the circuit court of Randolph County granting petitioner’s writ of habeas corpus and restoring his revoked good-conduct credit is affirmed.

Affirmed.

JONES and KASSERMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JONES

license: Public Domain

text:
    PATRICK GENT, Plaintiff-Appellee, v. COLLINSVILLE VOLKSWAGEN, INC., Defendant-Appellant.
    Fifth District
    No. 82—129
    Opinion filed July 21, 1983.

      Dane W. Garrett, of Collinsville, for appellant.
    Thomas O. Falb, of Edwardsville, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

This appeal challenges awards for both compensatory and punitive damages as well as an award of attorney fees made pursuant to section 10a(c) of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121½, par. 270a(c)). Appellant contends it was reversible error for the trial court to have heard evidence pertaining to the amount of attorney fees at a post-trial hearing after the discharge of the jury because the jury should have heard such evidence during the trial.

The jury found in favor of the plaintiff, Patrick Gent, and against the defendant, Collinsville Volkswagen, Inc., awarding compensatory damages in the amount of $6,000 and punitive damages in the amount of $12,000. The case went to the jury on two counts of the plaintiff’s second amended complaint, alleging in one count damages resulting from defendant’s violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121½, par. 261 et seq.) and in the other count damages resulting from defendant’s wilful and wanton misrepresentations. Post trial the trial court denied defendant’s motion for a new trial or, in the alternative, remittitur and, after hearing evidence on plaintiff’s motion for attorney fees, ordered the defendant to pay attorney fees in the amount of $3,075. On appeal the defendant raises three issues: (1) whether the award of $6,000 in compensatory damages was against the manifest weight of the evidence; (2) whether the award of $12,000 in punitive damages was against the manifest weight of the evidence; and (3) whether the trial court erred in awarding attorney fees “in a post-trial hearing when no evidence in regard to attorney’s fees incurred by appellee was introduced during the jury trial.”

In lieu of a transcript of proceedings, a stipulated bystander’s report of proceedings has been submitted as part of the record for review. According to the bystander’s report, the plaintiff testified at the two-day trial held on October 26 and 27, 1981, that in May of 1978, when he was 19 years of age, he purchased a white 1968 Mercedes Benz automobile from the defendant. While he was looking at the vehicle, he said, a salesman named Dennis approached him and told him that the car might have a problem with the transmission and might have a “few” rust spots. Plaintiff testified, “To me, the car looked as though it was in excellent shape and had no rust spots.” Dennis told plaintiff that it was his first day on the job as a salesman and that these particular problems with the car could be remedied. At that time the sales manager, named Smitty, approached Dennis and the plaintiff. According to plaintiff,

“He identified himself by name and said that he was the sales manager. He told Dennis that he would be able to take care of me. When Dennis left, Smitty said that he (Dennis) must have had his cars mixed up; that the car was in ‘fine shape’; that there was nothing wrong with the body or transmission; that the car was in excellent condition. I did not ask Smitty about the condition of the engine or the drive train. I believed him because he was the sales manager and because I thought that this was a reputable dealership.
I drove the car. I noticed that the transmission did not shift when it should. I thought there might be something wrong with it. I asked Smitty about this, and he stated that there was nothing wrong, but in any event, he could have the transmission checked out and it would be fixed prior to my purchase of the vehicle.”

Prior to agreeing, apparently a few days later, to purchase the automobile, plaintiff asked Smitty “if I could put the car up on a rack so that I could look underneath the car. Smitty stated that it was not the policy of the dealership to allow customers to do this.”

When plaintiff inquired about a warranty, “Smitty replied,” according to plaintiff’s testimony, “that there would be a ‘full 30 day warranty’ that covered all moving parts and labor if I were to purchase the Mercedes Benz. Smitty did not tell me that the warranty was only limited to a 10% discount on parts and labor for 30 days.” Plaintiff stated that when he signed the “Vehicle Buyer’s Order,” admitted into evidence as defendant’s exhibit No. 2, “it did not contain any notation regarding a ‘10% discount on parts and labor for work done at Collinsville Volkswagen for 30 days.’ I gave it to Smitty. He went into his office, and when he returned, it had that notation on it.” On defendant’s exhibit No. 2, on which is printed at the top “Vehicle Buyer’s Order,” appear the words, handwritten in the same color of ink and same size of bail-point pen as the other handwritten notations appearing thereon: “10% Discount Parts and Labor Work done at Coll VW for 30 Days.” The order is dated May 31, 1978. Before plaintiff took the car home Smitty told him that the car had been “completely checked out, and that there was nothing wrong with the transmission.”

On the second day plaintiff had the car he found that the electric window on the front door of the driver’s side of the automobile would not go up and that the automatic transmission did not shift properly. On his way to defendant’s place of business to have these problems attended to, the engine began to sputter. Once there, plaintiff told Smitty about these problems, whereupon Smitty provided plaintiff with a tool kit, telling him to fix the window himself. Plaintiff fixed the window after working on it “for several hours.” Despite several attempts to speak to Smitty over the course of apparently the next few days, plaintiff was unable to do so. Over the course of the next few weeks plaintiff drove the car 2,600 miles without incident. However, on or about June 27, 1978, the automobile stopped, smoke coming from the engine. Plaintiff and his father examined the car, determined that the oil and water levels were full, and called a tow truck. When the operator of the tow truck arrived and attempted to lift the car by the front bumper, plaintiff and the others present discovered that he could not do so, according to plaintiff’s testimony, because

“the front bumper and body in that area were so rusted that the front bumper would have come off if the tow truck had attached to the front end. We looked underneath the car and observed rust throughout the underside of the car. I also observed a two inch square hole in the driver’s floor board. The Mercedes was towed from the rear to the defendant’s place of business.”

A repair estimate from the defendant, defendant’s exhibit No. 1, stated that the engine “[n]eeds overhaul.” At that time defendant’s employee informed plaintiff, he testified, that they “do not do any work on Mercedes Benz cars at their dealership. They refused to repair my car.”

Upon receiving this information plaintiff had the car towed to Isom’s Import Service (hereafter referred to as Isom’s) where a minimum of the repairs needed to be made on the car was made at a cost of $753.21, which plaintiff paid in addition to $25 for the cost of towing. Isom’s provided plaintiff with an estimate for further repairs to the vehicle totaling $1,925.35, an amount plaintiff could not afford to pay. While the car was at Isom’s plaintiff looked underneath the car and found that “the entire underside of the car was rusted and there had been paint sprayed over it to camouflage the rust.” The car was unusable for three months while the minimum repairs were made. When plaintiff got the car at the end of the three-month period, he noticed holes in the radiator, which he had repaired at a cost of $43. From the time of that repair through the time of trial three years later plaintiff was unable to drive the automobile, which had been in storage. The attorneys for both parties stipulated that “$10 per day is a usual and reasonable charge for a rental car.” Plaintiff said that he had borrowed money to purchase the car and had “incurred interest in the amount of $855.87 in this purchase.” Plaintiff testified that he would not have purchased the automobile had it not been for Smitty’s statements about the excellent condition of it and the “full warranty” Smitty had given “for all parts and labor for 30 days.”

George Gent, plaintiff’s father, testified that prior to his son’s purchase of the automobile he had examined it and found it in apparently good condition. Smitty told him there would be “a full 30 day warranty on all parts and labor.” The witness had driven the car after his son’s purchase of it and had experienced difficulty with the transmission. He was aware as well of his son’s problems with the car, such as those with the window and engine and for those reasons “asked Smitty if he would be willing to take the Mercedes Benz back and cancel the deal,” a proposition which Smitty refused and at which he “laughed.” Like plaintiff, the witness had observed smoke coming from the engine. His account of the events thereafter is like that of plaintiff. He said that “[t]he tow truck operator could not tow the vehicle from the front because we found that the body of the car in the area of the bumper and the bumper itself were rusted.” The witness was told apparently by defendant’s service manager that the engine needed to be overhauled but that defendant “did not do any work on Mercedes Benz cars.” While the automobile was at Isom’s the witness looked under it and “observed a large amount of rust on the undercarriage. The rust spots appeared to have been camouflaged by spray paint. I observed that the mounting above the carriage had been rusted through. I observed a hole in the floorboard.”

Plaintiff called as a witness Dave Isom, proprietor of Isom’s, who testified that the repair bill for the work already done was “reasonable and necessary” and that the estimate was for “necessary and reasonable repairs” to be made on the car.

Defendant called two witnesses, the first of whom was Jim Smith, nicknamed “Smitty,” who testified that he was defendant’s former sales manager and had sold the automobile to plaintiff. He recalled that “we had a new salesman by the name of Dennis, who had initially talked to the plaintiff, I told Dennis I would finish up on the sale.” He said that plaintiff and his father had inquired about a warranty and that he had “told them that there would only be a 10% discount on parts and labor for 30 days from the date of the sale,” this being the “standard warranty” offered by defendant on the sale of all used vehicles. He testified that “[a]t no time” had he promised either plaintiff or his father that the warranty would be more extensive than the 10% discount on parts and labor for 30 days and that he had written the terms of the warranty on the vehicle buyer’s order prior to plaintiff’s signing of it. He stated, “I told them there would be no full warranty, but I did tell them that I would do what I could do to help him out.”

The witness testified that he had told plaintiff that the car was in good running condition. He said he had been driving the car for his own personal use for several days prior to the sale without any problems. During that time he had noticed no rust spots on the car and had told plaintiff he knew of no rust problems with it. He testified further that he “had no knowledge of any paint applied to the Mercedes by any employee of defendant or any other person, [sic] designed to hide any rust spots on the Mercedes.”

The witness recalled that plaintiff had returned “within a few days after the sale” complaining of a problem with the “right front passenger window.” He said that he had gotten a tool set and had “assisted the plaintiff for several hours in fixing the window.” He did not recall plaintiff’s wanting to see him afterward. Plaintiff’s father, he said, had complained to him about the problems plaintiff was having with the car and had asked if the witness would be willing “to cancel the deal and accept the return of the Mercedes Benz.” The witness indicated that he had said he could not do so but would “honor our 10% warranty.” However, plaintiff’s father had refused to accept any repairs done on the car “on that basis.” The witness recalled that “several weeks after the sale” the car had been brought in because of an engine problem. He testified that he

“did not know if Collinsville Volkswagen, Inc. was capable of doing any repairs on a Mercedes Benz. The 10% discount warranty that I gave was for work only to be done at Collinsville Volkswagen. I don’t know if Collinsville Volkswagen, Inc. ever did any repair work on Mercedes Benzes.”

Defendant called as its other witness its general manager, Merle Cochran, who testified that he had learned that plaintiff’s automobile needed an engine overhaul, that he had approved the work, and that he had directed the service department to perform the repairs “in accord with the 30 day, 10% discount on parts and labor warranty.” After approving the work, the witness learned that the plaintiff had removed the car from the defendant’s premises.

On appeal defendant does not contend that the jury improperly found plaintiff entitled to compensatory damages in any amount; rather, defendant contends that the amount awarded as compensatory damages was against the manifest weight of the evidence. The jury was instructed concerning compensatory damages as follows:

“If you decide for the plaintiff on the question of liability you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the evidence to have resulted from the wrongful conduct of the defendant:
The purchase price and out of pocket expenses; or, alternatively, the reasonable expense of necessary repairs to the automobile to make it in the condition it was represented to be by the defendant at or before the time of sale.
Damages incidental or as a consequence of the actions of the defendant incurred by the plaintiff, including the expenses of transportation, inspection, or any other reasonable expenses due to the defendant’s wrongful conduct.
The reasonable rental of similar property during the time reasonably required for the repair of the property damage.
Whether any of these elements of damage has been proved by the evidence is for you to determine.”

Defendant argues that under the first alternative, that is, the sum of the purchase price of the car and out-of-pocket expenses, recovery must be limited to $3,904.75 because “[t]he only out of pocket expenses proved by the appellee was a $25.00 towing bill.” However, the record does not support the statement. Plaintiff testified that he had paid $753.21 to Isom’s for a minimum of necessary repairs. The order for repairs in that amount which is marked “Paid,” is included in the record as plaintiff’s exhibit No. 1. Plaintiff testified further that he had paid $43 to repair the holes in the radiator that he had discovered after the “minimum” repairs had been made.

Defendant points out that the note and security agreement, entered into evidence as plaintiff’s exhibit No. 19, indicate an interest charge of $855.87 on a loan of $3,868.41, which is about three times more than the amount plaintiff actually borrowed to buy the Mercedes. The record indicates that plaintiff paid $3,879.75 for the Mercedes and borrowed only $1,379.75 of the entire amount of $3,868.41 in order to purchase that particular car, after receiving $2,500 from defendant as a trade-in allowance. We agree with defendant that the full amount of the interest charge cannot be considered a consequence of defendant’s conduct and that, as a result, interest on the amount of the loan used by plaintiff for purposes other than the acquisition of the Mercedes may not be deemed an element of plaintiff’s damages. Since $1,379.75 is approximately 35% of $3,868.41, the amount of interest properly includable as an element of plaintiff’s damages is 35% of $855.87, or approximately $300.

Defendant objects to any recovery by plaintiff in damages for the “reasonable rental of similar property” for the reason that plaintiff introduced no evidence that he did, in fact, rent any similar property or that he even needed to do so. Plaintiff relies on McCabe v. Chicago & Northwestern R.R. Co. (1919), 215 Ill. App. 99, and the recent case of Fairchild v. Keene (1981), 93 Ill. App. 3d 23, 416 N.E.2d 748, which followed McCabe, for the proposition that the reasonable cost of renting a substitute vehicle may be considered as damages for the loss of the use of a vehicle although the plaintiff did not, in fact, rent a substitute vehicle and the vehicle was not to be used commercially. In McCabe a plaintiff whose pleasure car had been unreasonably delayed in shipping by the defendant was permitted to recover for the delay upon the basis of the reasonable rental value of a similar vehicle although none was actually rented. In Fairchild the court noted the paucity of precedent on the question of whether a substitute chattel needs actually to have been rented but “[saw] no reason to reject Mc-Cabe,” concluding that “[t]o require the actual rental of a vehicle in order for the measure to apply would merely assure that most injured owners would do so,” that “[t]hose who could not afford to advance the money would be unfairly prejudiced,” and that “[n]o substantial reduction in the economic costs of automobile collisions would result.” (93 Ill. App. 3d 23, 24, 416 N.E.2d 748, 749.) We adopt the reasoning of Fairchild and consequently conclude that the reasonable rental expense of a substitute vehicle was properly considered by the jury as an element of plaintiff’s damages although plaintiff did not show that he had, in fact, rented such a vehicle.

The attorneys for the parties stipulated to $10 a day as a reasonable charge for a rental vehicle, and the record shows that the plaintiff was unable to use the Mercedes for a total of approximately 3x/4 years between the time of purchase and the time of trial, that is, for the three months during which the “minimum” repairs were being made and the approximately three years the car was in storage, following the repair of the radiator, because plaintiff could not afford to pay the $1,925.35 required to make further necessary repairs. At $10 per day for 3x/4 years, the rental expense of a substitute vehicle would be about $11,860, a figure almost twice the amount awarded by the jury to compensate plaintiff for all his damages. If the jury awarded in damages $3,879.75 for the purchase price of the vehicle, $25 for towing, $753.21 for the “minimum” repairs, $43 for the repair of the radiator and $300 for interest on the loan, which comes to a total of $5,000.96, it allowed only about $1,000 as the reasonable rental expense of a substitute vehicle. Even if the paid-for repairs of $753.21 and $43 were not included by the jury under the first alternative because they were deemed by the jury to be includable under the second alternative of “the reasonable expense of necessary repairs to the automobile to make it in the condition it was represented to be by the defendant at or before the time of sale,” the jury would have awarded about $1,800, or only about 15% of the amount it could have awarded for the reasonable rental value of a substitute vehicle. For these reasons we must disagree with defendant in his contention that the award of $6,000 as compensatory damages was against the manifest weight of the evidence.

As to the issue defendant raises concerning punitive damages, he questions not the amount of such damages but the propriety of any award at all for them. Defendant maintains that Jim Smith’s representations concerning the condition of the car may be seen “at worst” only as negligent and that “although this obvious controversy between the parties [concerning the terms of the warranty] was apparently resolved by the jury in favor of appellee there is no indication of malice or reckless conduct by appellant sufficient to justify punitive damages.” It has long been established in Illinois that punitive or exemplary damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression or when the defendant acts wilfully or with such gross negligence as to indicate a wanton disregard of the rights of others. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) When such damages maybe assessed, they are allowed in the nature of punishment and example to deter the wrongdoer and others from committing like offenses in the future. (Kelsay.) Because of the penal nature of such damages, however, the law disfavors them and requires courts to exercise caution that they not impose punitive damages improperly or unwisely. (Kelsay.) Each case must be considered in its own context in determining entitlement to and amount of punitive damages. Stambaugh v. International Harvester Co. (1982), 106 Ill. App. 3d 1, 435 N.E.2d 729.

There is no need to reiterate the facts stated above that are relevant to this issue. The record is replete with evidence by which the jury could, and plainly did, conclude that the defendant, through one or more of its agents or employees, acted with fraud, or wilfully, or with such gross negligence as to indicate a wanton disregard of the rights of others. Therefore, an award of punitive damages in some amount was not against the manifest weight of the evidence. However, we think the amount assessed by the jury is excessive. Although the acts that the jury believed defendant had committed justify the imposition of punitive damages, we think, given the amount of the award of compensatory damages, that an award of punitive damages in the amount of $3,000 is sufficient to deter the defendant as well as others from committing like offenses in the future. Therefore, the judgment for punitive damages is reduced from $12,000 to $3,000.

With respect to the third and final issue presented for review, defendant contends that attorney fees are in the nature of damages and, as such, “are a matter for the jury to decide, as in the case of all damages claimed in a jury trial.” Our review of the record on appeal, however, discloses that defendant has raised the issue for the first time on appeal, no objection of record having been made prior to the notice of appeal. An issue not raised in the trial court is waived for review, a rule so familiar that it requires no citation.

Judgment for compensatory damages and attorney fees affirmed; judgment for punitive damages reduced to $3,000.

EARNS and EASSERMAN, JJ., concur.


author: PRESIDING JUSTICE HARRISON

text:
    THE PEOPLE ex rel. LARRY COKER et al., Plaintiffs, v. EDWARD OWEN et al., Defendants (Larry Coker, Plaintiff-Appellee; Hillard Shasteen, Plaintiff-Appellant; Edward Owen, Defendant-Appellant; Inus Mullins, Defendant-Appellee).
    Fifth District
    No. 82—282
    Opinion filed July 21, 1983.
    James L. Van Winkle, of Van Winkle and Van Winkle, of McLeansboro, for appellant Edward Owen and for appellee Inus Mullins.
    C. Mart Watson, of Law Offices of Watson and Murphy, of Eldorado, for appellant Hillard Shasteen and for appellee Larry Coker.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

This appeal arose out of quo warranto proceedings brought by plaintiffs Larry Coker and Hillard Shasteen, challenging the authority of defendants Edward Owen and Inus Mullins to hold certain offices in the village of Broughton, Illinois. Plaintiffs were granted leave to file the quo warranto action in their capacities as elected president and elected trustee, respectively, and as rival claimants to those offices. In Mr. Coker’s suit against Edward Owen for the office of president of the village, both the plaintiff and the defendant moved for summary judgment. The trial court granted plaintiff’s motion and reinstated him in his position as village president. In Mr. Shasteen’s suit against Inus Mullins for the trustee’s position, plaintiff’s motion for summary judgment was denied. Consequently, Mr. Mullins was declared to be the duly appointed trustee for the village.

Defendant Edward Owen and plaintiff Hillard Shasteen appeal the denial of their motions for summary judgment. For the following reasons, we reverse the trial court’s decision with respect to Mr. Owen and affirm the denial of summary judgment with respect to Mr. Shasteen.

The events leading up to the filing of the quo warranto proceedings must be set forth briefly. As of November 9, 1981, plaintiff Larry Coker was the elected president of the village of Broughton and plaintiff Hillard Shasteen was an elected trustee of the village. At a regular meeting conducted on that date, a dispute arose over the issuance of a liquor license to a Broughton citizen. As a result of the dispute, Mr. Coker obtained a piece of paper from the village clerk and drafted his resignation. He wrote that he was resigning due to his work schedule and employment. He handed it to the village clerk, instructed her to read it aloud, and thereafter took a seat in the audience where he remained for the duration of the evening. A motion was made and a second received not to accept the resignation. The board, however, did not vote on the motion. Also at that time, Hillard Shasteen drafted his resignation on the same paper as Coker’s and left it lying on the meeting table. Due to the confusion caused by the resignations, the meeting was not formally adjourned. The written resignations remained in the possession of the village clerk for nearly one month. On December 3, upon Coker’s request, the clerk returned his resignation to him. Mr. Shasteen received his on December 4.

A special meeting of the village board was held on December 9 for the sole purpose of adjourning the November meeting. The clerk read a letter from the plaintiffs dated December 3, 1981, in which they attempted to withdraw their resignations.

A regularly scheduled meeting then took place on December 14. Coker presided at the meeting but, before roll call could be taken, three board members walked out in protest. One week later a special meeting was called to pay village bills. All the members attended. The board voted to pay the bond for village president Larry Coker. At the next regularly scheduled meeting, January 11, 1982, a question immediately arose concerning the authority of Coker to preside. Coker attempted to take charge, but Edward Owen challenged him on the grounds that Coker had effectively resigned. Coker tried unsuccessfully to cancel and adjourn the meeting; however, Owen was appointed acting village president by vote of the remaining members. Coker, Shasteen and a third board member refused to participate. At a special meeting on the 18th, Edward Owen filed his oath of office, bond and certificate of election. These were approved by the board. On the 25th, Inus Mullins was appointed village trustee to fill the vacancy created by Shasteen’s resignation. Shasteen and Coker thereafter filed suit challenging the authority of Owen and Mullins to hold office.

The issue on appeal is whether the trial court erred in granting plaintiff Larry Coker’s summary judgment motion and defendant Inus Mullins’ summary judgment motion, and denying those of Edward Owen and Hillard Shasteen.

Initially we will address what appears to be an inconsistent result reached by the trial court, i.e., a finding in favor of one plaintiff but against the other, in nearly identical situations. The record shows that, when it granted Coker’s motion for summary judgment, the trial court relied on two factors. It found that Mr. Coker’s resignation was not truly voluntary because the pressure from the dispute over the issuance of a liquor license precipitated his resignation. Second, the court stated that the board’s subsequent approval of Coker’s bond for president confirmed the finding that Coker’s resignation was involuntary. The court found no similar circumstances in the case of Mr. Shasteen. Thus, it treated Coker’s resignation as either never effectively made or as having been effectively withdrawn. In contrast, it viewed Mr. Shasteen’s resignation as final upon its submission to the clerk.

We have examined the record carefully and find no basis to distinguish between the two situations. First of all, neither the deposition testimony of the board members nor the minutes of the November 9 meeting indicate that Mr. Coker’s resignation was involuntary or the result of undue pressure put upon him by uncooperative board members. The evidence attached to the motions for summary judgment simply does not support such a finding. Likewise, we believe it unpersuasive that Mr. Coker’s bond for village president was approved at a specially called meeting. We note that the bond of his rival, Mr. Owen, was approved only one month later. If anything, the evidence shows that a state of confusion existed. It does not reflect the board’s endorsement of Coker as village president.

Since we have decided that the plaintiffs in this case are similarly situated, we must next address the merits of their situation. The law in Illinois governing the resignation of public officials is well settled. The leading case, People ex rel. Adamowski v. Kerner (1960), 19 Ill. 2d 506, 167 N.E.2d 555, and the line of cases following Kerner, suggest that Coker’s and Shasteen’s resignations must both be deemed effective upon receipt by the village clerk.

In Kerner, the defendant sent the Governor a letter resigning as county judge, effective midnight January 31, 1960. The supreme court declared that the defendant’s resignation was effective as soon as he delivered it to the Governor, even though defendant attempted to withdraw it on January 29. The court relied on the public policy requirement that there be certainty as to “who are and who are not public officers,” noting that “[i]n the event the rights of creditors or public convenience require that there should be no vacancy in the office from which the incumbent seeks to resign, then affirmative action is required of the officer receiving the resignation in order to preclude it from becoming effective.” (People ex rel. Adamowski v. Kerner (1960), 19 Ill. 2d 506, 512.) The court then held that, in the absence of some affirmative action by the Governor, the county judge’s office did become vacant upon the Governor’s receipt of the letter and thus an immediate replacement could be sought. It further held that defendant’s subsequent attempt to withdraw the resignation was of no effect.

The principles set forth in Kerner have been followed in several recent cases. (City of Chicago ex rel. Martin-Trigona v. O'Malley (1978), 69 Ill. 2d 474, 480-82, 372 N.E.2d 671; Allen v. Powell (1969), 42 Ill. 2d 66, 68-69, 244 N.E.2d 596; Stearns v. Board of Fire & Police Commissioners (1978), 59 Ill. App. 3d 569, 572, 375 N.E.2d 877; Cole v. McGillicuddy (1974), 21 Ill. App. 3d 645, 646-47, 316 N.E.2d 109.) Most recently, in Chicago ex rel. Martin-Trigona v. OMalley, the issue arose in the context of a declaratory judgment suit to determine the validity of a vote on fuel tax ordinances taken at a Regional Transportation Authority board meeting. The defendant, who had already tendered his letter of resignation, voted on the fuel taxes. The opponents of the tax argued that the vote was invalid because defendant was no longer a member of the board at the time of the vote.

The court cited Kerner for the general rule that “acceptance of a resignation is not necessary for its validity; once it is received, it is effective immediately (if unqualified) or upon the date specified (if a future date is named) and may not be withdrawn.” (City of Chicago ex rel. Martin-Trigona v. O’Malley (1978), 69 Ill. 2d 474, 481.) It found, however, that the defendant’s resignation did not fall within the general rule because it was not effective immediately, nor was it set to occur on a date specified. The letter read:

“I today tender my resignation as a director of the Regional Transportation Authority, effective at your convenience.” (69 Ill. 2d 474, 477.)

The court concluded that the letter amounted to an offer of resignation, effective only upon acceptance. It treated the letter as a “conditional resignation” which required the mayor’s acceptance. The mayor refused to accept O’Malley’s resignation. Consequently, O’Malley was a member of the board when the vote on the fuel tax ordinances was taken.

Thus, even though in O’Malley the court found the defendant’s resignation was not effective, it upheld the general rule that a resignation is effective upon receipt and may not be withdrawn. That rule governs the outcome of the present case. Under the circumstances before us, we find that both Coker’s and Shasteen’s resignations were “unqualified” and were thus effective immediately. (City of Chicago ex rel. Martin-Trigona v. O’Malley (1978), 69 Ill. 2d 474, 481.) The resignations were received and filed with the “officer authorized by law to fill such vacancy or to call an election for such purpose.” (People ex rel. Adamowski v. Kerner (1960), 19 Ill. 2d 506, 512.) In this case, the authorized officer was the village clerk. (See Swain v. County of Winnebago (1969), 111 Ill. App. 2d 458, 470-72, 250 N.E.2d 439.) Neither “the rights of creditors nor public convenience were involved in any way to require that there should be no vacancy in the office” of village president or trustee. (Swain v. County of Winnebago (1969), 111 Ill. App. 2d 458, 472.) Consequently, no affirmative action was required to keep the resignations from becoming effective. They were effective upon receipt and could not thereafter be withdrawn. People ex rel. Adamowski v. Kerner (1960), 19 Ill. 2d 506, 512.

The plaintiffs have pointed out that the meeting at which the plaintiffs tendered their resignations was not formally adjourned until after the plaintiffs’ attempted withdrawal of their resignations. Although such a factor would figure prominently in the determination of the validity of any ordinances voted on at the meeting, it has no bearing on whether resignations tendered during the meeting are deemed effective. The resignation of an official is an act which can occur at any time by a filing with the proper authority. Thus, it is insignificant that Coker and Shasteen filed their resignations with the clerk during a meeting which was not adjourned for one month. The resignations were effective upon receipt by the village clerk. The plaintiffs also cite Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129, 302 N.E.2d 313, for the proposition that if a public body treats a resignation as having been successfully withdrawn, it cannot later contend that the officer resigned. In Bovinette, the issue of the effect of a police chief’s resignation arose in the context of a suit for wrongful discharge. The defendant city contended that the plaintiff was not entitled to a hearing on his discharge because he had effectively resigned prior to the time of the discharge. The record, however, showed that although plaintiff did send a letter of resignation, he later withdrew it, contending that it had been submitted under “extreme political pressure, intimidation, and harassment.” The record further showed that the city council and the city manager treated the resignation as successfully withdrawn. In fact, they informed plaintiff that if a second resignation was not forthcoming by a certain date he would be discharged. He did not comply and the council discharged him. The court held that the city had permitted the "withdrawal of the resignation and could not thereafter rely on it to avoid their obligation of providing him a hearing on his discharge.

Bovinette is distinguishable from the case before us now. The present case does not involve a wrongful discharge; it is a voluntary resignation. There was no “political pressure, intimidation, and harassment” exerted upon Coker or Shasteen to resign. In fact, the record shows that their resignations greatly upset their colleagues and caused disorder and confusion at several board meetings.

Most importantly, the public policy considerations in Bovinette differ from those in the present case. The policy underlying the Bovinette decision is the protection of a public employee’s due process rights. Thus, a decision that the council could not avoid its obligation to provide the plaintiff a hearing was entirely proper. The public policy consideration which we must focus on in this case was set forth in Kerner. It is the need for certainty as to which individuals are actually holding office. (People ex rel. Adamowski v. Kerner (1960), 19 Ill. 2d 506, 512.) More specifically, it is the need to discourage resignations tendered to influence the vote of fellow board members or resignations tendered in haste and anger. Although it didn’t occur in this case, such conduct can impair the efficiency of public bodies and jeopardize the welfare of the citizens.

Consequently, we hold that the pleadings, depositions and affidavits submitted to the trial court establish that on November 9, 1981, Larry Coker resigned as village president and Hillard Shasteen resigned as trustee. Thus, the defendants Edward Owen and Inus Mullins are entitled to judgment as a matter of law. The trial court’s grant of summary judgment in favor of Larry Coker is hereby reversed, and summary judgment is entered in favor of Edward Owen. The trial court’s grant of summary judgment in favor of Inus Mullins is affirmed.

Reversed in part. Affirmed in part.

KASSERMAN and WELCH, JJ., concur.


author: JUSTICE BARRY

text:
      In re MARRIAGE OF DAVID H. McCARTNEY, Petitioner-Appellant, and NANCY A. McCARTNEY, Respondent-Appellee.
    Third District
    Nos. 82—354, 82—178 cons.
    Opinion filed July 14, 1983.

      Edward C. Moehle, of Moehle, Smith & Day, Ltd., of Pekin, for appellant.
    Joseph R. Napoli and Arthur J. Inman, both of Peoria, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

David McCartney appeals from a property settlement order entered in the circuit court of Tazewell County following the dissolution of David’s marriage to Nancy A. McCartney. David’s main contentions upon appeal are that the property settlement was unreasonable, that his pension rights were not adequately valued, and that the attorney fees awarded to Nancy to defend this appeal are unreasonable.

At the time of the dissolution of their 10-year marriage, David was 32 years of age and Nancy was 39 years old. There were no children born of the marriage, and both parties were employed. David was in management at Caterpillar Tractor Company where he earned $32,000 per year in addition to fringe benefits, while Nancy was employed as a grade school secretary earning about $8,000 per year. Nancy had been a licensed beautician at one time but would need additional training to return to that profession. Nancy has two children by a previous marriage, both of whom lived with her throughout her marriage to David. When her first marriage terminated, Nancy received the marital home which she sold shortly before she married David. She received about $12,000 cash as her equity in that home. According to David’s testimony, she deposited that $12,000 in their joint checking account after they were married, and $6,000 of the money was used as a down payment on a new home which Nancy and David owned jointly. Nancy testified that she also purchased carpeting and paid some of David’s bills with her money. During the marriage, Nancy inherited $1,000 from her grandmother which was also used for marital expenses. In addition, Nancy brought to the marriage several rooms of furniture and some appliances.

During the marriage, Nancy and David have purchased a boat, a jeep, a motorcycle, and several other vehicles. At the time of the dissolution several items of personal property were security for loans from Caterpillar Credit Union. At the hearing, there was evidence that the marital home had an appraised value of $63,000 to $67,000 and a mortgage balance of $27,000. David also owned 253 shares of Caterpillar stock under an employee’s stock purchase plan, and he had vested pension rights which would entitle him to a pension of $440 per month at age 65. The only evidence of the value of the pension rights was introduced by Nancy and consisted of a letter from the pension system advising of his monthly pension upon retirement at age 65 and some life expectancy tables. David had been employed at Caterpillar for 13 years, 10 of which he was married to Nancy.

The trial court determined that Nancy’s contribution to the down-payment of the marital home had been transmuted into marital property and that she was not entitled to a set-off for the $6,000 which she paid at the time the home was purchased. The court also found that David had made a substantial contribution to the value of the home in the form of his labor. The court found the equity of the home to be $39,000, awarded the home to Nancy, and provided that she shall be responsible for the mortgage payments. The court ruled that rights under the pension plan were marital property and that Nancy is entitled to 10/13 of the vested rights. Using the mortality tables, the court found that one-half of 10/13 would be worth about $20,000. The court then awarded all rights in the Caterpillar pension plan to David.

The furniture in the home was awarded to Nancy, along with a 1978 Mustang automobile. Nancy’s daughter was awarded a 1969 Pontiac Firebird. The jeep, motorcycle, Odyssey, boat and parachute were all awarded to David. David was also awarded all the stock, and was required to pay the marital debts incurred by the parties other than the mortgage. In addition, David must pay Nancy $200 per month maintenance for 12 months.

After David filed his notice of appeal from the order of dissolution, Nancy filed a petition with the trial court requesting that David pay $5,000 as her attorney fees and costs to defend the appeal. After hearing evidence and arguments, the trial court ordered David to pay Nancy’s counsel $3,500 for responding to the appeal. David’s motion to modify or vacate the award of attorney fee was denied, and David filed a notice of appeal from that order as well as from the dissolution order.

David first contends that the trial court erred in calculating the value of Nancy’s portion of his pension plan. Since the court awarded all rights in the pension plan to David, he argues that his award was over-valued and that the trial court did not accomplish a fair division of property in awarding Nancy David’s one-half interest in the marital home and awarding David Nancy’s interest in his pension plan. David has furnished this court with several compound interest and annuity tables which were not in evidence before the trial court. He urges us to use those tables or others which he says “are readily available” to us for the purpose of ascertaining that the trial court erred in its calculation of the present value of Nancy’s rights in the pension plan.

According to the record, the only evidence relating to the value of David’s vested pension rights was introduced by Nancy. Thus, it is clear that David is attempting to benefit from his own failure to offer any evidence of value. Although there are several appellate decisions which have found that the evidence before the trial court was insufficient to support the value assigned by the court (e.g., In re Marriage of Fairchild (1982), 110 Ill. App. 3d 470, 442 N.E.2d 557), we believe that the instant case is not such a case and should not be remanded. David had ample opportunity to present to the trial court other evidence including the tables and other actuarial data which he asks this court to consider. For us to rule that the trial court erred would be to place the responsibility for gathering evidence in effect upon the trial judge, rather than the parties. In a similar case, In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 54, 448 N.E.2d 545, 550, where the husband argued that the trial court lacked information about the present value of his pension, the reviewing court stated, “This argument is untenable, however, because it is not the trial court’s obligation to obtain the value of the pension rights. Rather, the trial court must value the pension rights based upon the evidence presented by the parties.” The reviewing court noted that the husband was not asking that the decision be postponed until the pension rights were vested, as has been suggested in some cases involving nonvested pension rights. (E.g., In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 437 N.E.2d 1300.) The court in Smith discussed the frequency with which marriage dissolution appeals seek additional hearings as to value, and made the following statement with which we wholeheartedly agree:

“We here opine that this case presents a situation which this court sees all too often in dissolution cases. Despite the fact that numerous hearings regarding the division of property were held and that only a limited amount of property was involved, neither party presented the trial court with solid evidence of the properties’ value so that the court could make the fairest possible division of the parties’ assets. We again emphasize that it is the parties’ obligation to present the court with sufficient evidence of the value of the property. Reviewing courts cannot continue to reverse and remand dissolution cases where the parties have had an adequate opportunity to introduce evidence but have failed to do so. Parties should not be allowed to benefit on review from their failure to introduce evidence at trial. (In re Marriage of Miller (1983), 112 Ill. App. 3d 203, 208, 445 N.E.2d 811, 816; see In re Marriage of Melton (1981), 93 Ill. App. 3d 338, 341, 417 N.E.2d 220, 223.) Remanding cases such as the one before us would only protract the litigation and clog the trial courts with issues which should have been disposed of at the initial hearing.” 114 Ill. App. 3d 47, 54-55, 448 N.E.2d 545, 550.

David argues that under the decision of the Illinois Supreme Court in Evans v. Evans (1981), 85 Ill. 2d 523, 426 N.E.2d 854, we should reverse the award of the trial court and declare the pension plan not to be marital property. In Evans, the court affirmed the decisions of the circuit court not to include the unvested pension rights as marital property in the absence of any evidence of value. Unlike Evans, the pension rights in this case are vested, and the trial court received explicit evidence of value of those rights. The result in Evans would not be appropriate here, where the trial court has placed a value upon the pension rights.

Finally, as to the pension issue, after reviewing the record, we cannot say that the trial court abused its discretion in its valuation of the pension plan or in its division of the property between the two parties based upon that valuation.

David next disputes the division of the personal property, claiming that the value of the property as awarded is less than the debts of $15,800 he is required to pay. In the first place, we are aware of no requirement that the value of the property must exceed the debt assigned to any one party.

Secondly, the testimony as to the value of the vehicles was contradictory. David calculates the total value of the vehicles awarded to him as being $7,600, but there was testimony which indicated that their value was closer to $12,000. David buttresses his assertion of a grossly disproportionate division of property by reducing the value of Nancy’s share of the pension plan to $2,000 and by assigning values to debts that do not appear in the record. In his original brief, David summarized the awards to indicate that he received an award of negative value, but in his reply brief David admits that he improperly included attorney fees and the maintenance award in his list of assets awarded to Nancy.

We have carefully reviewed the record, and we cannot say that the trial court abused its discretion in apportioning the marital property between the two parties. We believe the awards are equitable, if not precisely equal, and that the trial court considered all the relevant statutory factors, including the amounts and sources of income of each spouse, vocational skills and employability, and the reasonable opportunity for each spouse for future acquisition of assets and income. (See In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 412 N.E.2d 1336.) We therefore affirm the distribution of property.

The final contention by David is that the award of $3,500 to Nancy for attorney fees to defend this appeal was excessive, unreasonable, arbitrary and capricious. David cites another case decided by this court, In re Marriage of McBride (1982), 102 Ill. App. 3d 84, 429 N.E.2d 867, where an award of $1,000 prospective attorney fees was affirmed, and argues that the award in the present case was unreasonable by comparison.

Although some courts have held to the contrary (e.g., In re Marriage of Pease (1982), 106 Ill. App. 3d 617, 435 N.E.2d 1361), this court has held that in marriage dissolution proceedings, the trial court has jurisdiction to grant prospective attorney fees to defend a pending appeal. (In re Marriage of Allcock (1983), 113 Ill. App. 3d 121, 446 N.E.2d 871.) As was indicated in In re Marriage of McBride (1981), 102 Ill. App. 3d 84, 87, 429 N.E.2d 867, 870, “It can be envisioned that the denial of award of attorney fees could be tantamount to the foreclosure of a party’s right to defend an appeal.” In the interest of justice, we believe both parties should have access to the appellate court and that an appellee should be awarded reasonable attorney fees when the trial court does not abuse its discretion in deeming it necessary to assure a defense. As to whether the particular award in this case is reasonable and supported by the evidence, we note that the record on appeal does not include the hearing at which evidence on the question of attorney fees was presented. It has long been the rule that where all the evidence is not preserved in the record, it will be presumed that the evidence was sufficient. (Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237; Aetna Life Insurance Co. v. Strickland (1975), 33 Ill. App. 3d 52, 337 N.E.2d 285.) Here none of the evidence has been preserved for appellate review, and we therefore find that David has not demonstrated that the award of $3,500 in attorney fees to Nancy was error.

For the reasons stated, we affirm the judgment of the trial court.

Affirmed.

HEIPLE and SCOTT, JJ., concur.


author: JUSTICE SCOTT

text:
    GEORGE H. BAKER, SR., et al., Plaintiffs-Appellees, v. THE COUNTY OF PEORIA et al., Defendants-Appellants.
    Third District
    No. 82—694
    Opinion filed July 18, 1983.
    Jack Vieley, of Peoria, for appellants Don L. Monari and Marilyn J. Monari.
    John A. Barra, State’s Attorney, of Peoria (Louise Natonek, Assistant State’s Attorney, of counsel), for other appellants.
    Mishael O. Card, of Swain, Johnson & Card, of Peoria, for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

Since January 1981, the plaintiff, George H. Baker, has been raising 15 different species of cranes on his property in rural Peoria County. Some of the cranes which Mr. Baker raises are on the International Endangered Species list. Mr. Baker has State and Federal permits to engage in the breeding, raising and transfer of these large birds. In order to provide for suitable winter shelter for these tropical species to survive in Illinois, Mr. Baker began construction of four structures along the eastern boundary of his property. The shelter structures are of a prefabricated quonset style built on skids and located on concrete pads. The pads are located within four feet of Mr. Baker’s property line.

In September 1981, a Peoria County zoning inspector discovered the crane shelters and advised Mr. Baker that the shelters were built too close to the property line and thus did not comply with the county’s setback ordinance. Mr. Baker was advised that in order to bring the shelters in compliance with the county zoning ordinance, specifically the setback ordinance, it would be necessary to move the shelters at least 15 feet from his property line or to have a variance issued.

Mr. Baker then applied to the Peoria County Zoning Board of Appeals for a variance from the 15-foot setback requirement. The request for a variance was denied after a public hearing held November 19, 1981. In January 1982, the plaintiff filed a complaint for administrative review in the circuit court of Peoria County. The circuit court remanded the matter to the zoning board of appeals for the taking of additional evidence. After the additional evidence was taken, the circuit court heard the arguments of plaintiff and the defendant county, and issued a decision permitting the crane shelters to remain as constructed on Mr. Baker’s property. In doing so, the circuit court made two findings. First, the circuit court determined that the setback ordinance applied only to permanent structures, not temporary or movable structures built on skids as were the crane shelters. Second, the circuit court determined that even if the setback ordinance applied to the temporary structures, the denial of the request for a variance was arbitrary and capricious. The county of Peoria has appealed this decision.

In the first point raised on review, the county urges that the setback ordinance, properly construed, regulates both temporary as well as permanent structures. The county points out that the setback ordinance applies to “buildings” and buildings are defined as “any structure designed or intended for the support, enclosure, shelter or protection of persons, animals or property.” The Peoria County zoning administrator, Lou Sidell, testified in the record of this proceeding that the definition of “building” represents a revision which occurred in 1978. At that time, the Peoria County Board voted to strike the word “permanent,” to eliminate problems in distinguishing between temporary and permanent structures caused by the prior definition. We agree with the county that the general presumption of statutory construction is that phrases or provisions omitted in an amendment of an act results in their repeal. (People v. Delay (1979), 70 Ill. App. 3d 712, 388 N.E.2d 1316.) Thus, under the instant facts, where distinctions between temporary and permanent structures were eliminated from the definition set forth in the ordinance, it must be concluded that the county board intended to change the law to treat all buildings in a like manner. We believe the circuit court’s conclusion to the contrary was in error.

The county of Peoria also contends that the circuit court erred when it determined that the denial of the variance was arbitrary and capricious. In order to evaluate this alleged error, it is necessary to set forth more fully the purposes which the zoning ordinance is intended to serve and the unique facts underlying this request for variance. Side-yard setback requirements are generally designed to assure adequate light, air and privacy. (1954 U. Ill. L. F. 213, 228.) Our supreme court has determined that such ordinances have a reasonable relationship to the purposes of the police power. It cannot be denied that the observance of a reasonable setback minimum tends to prevent the overcrowding of land, to promote safety from fire and other dangers, and to secure adequate light, air and sunshine. (Stemwedel v. Village of Kenilworth (1958), 14 Ill. 2d 470, 153 N.E.2d 79.) In determining whether the setback requirements of the Peoria County Zoning Ordinance should be varied according to Mr. Baker’s petition, the zoning board of appeals is mandated to consider whether such variation would be “in harmony with the general purpose and intent of such regulations.” Peoria County Zoning Ordinance sec. 17.

The evidence in the record before the zoning board of appeals demonstrates that Mr. Baker considered three different locations on his property as sites for the crane shelters. The first location was on the flat area along the front line of his property. The second location was on high ground under a grove of large oak trees. The third location, and the location Mr. Baker, to his legal detriment, ultimately chose as the site for the crane shelters, was in a gully to the north side of his property. There, the shelters were well buffered from the view of his neighbors by trees and shrubs. Because of the topography of Mr. Baker’s property, locating the shelters in the gully caused their rooftops to be lower than the property of his adjacent neighbors. In contrast, locating the shelters along the front line of his property or under the large oak trees would have caused them to be far more visible, more aesthetically offensive, and a greater burden to light, air and sunshine for his neighbors. Nevertheless, the location of the shelters along the front line of his property or under the large oak trees would have been in compliance with the Peoria County Zoning Ordinance.

Most of Mr. Baker’s neighbors offered no objection, indeed they consented, to the location of the bird shelters at the site in the gully. Two neighbors appeared at the hearing before the zoning board of appeals and objected to the variance which Mr. Baker sought. A review of the objections posed by these neighbors reveals that their disagreement was not with the location of the crane shelters in the gully, but rather with the zoning ordinance classifying the raising of cranes as a legal and permitted use in the rural Peoria County area in question.

The type of variance which Mr. Baker has applied for is commonly labeled an “area” variance.

“An ‘area’ variance does not involve a change of use but, rather, involves relief from restriction such as those pertaining to setback lines, height restrictions, lot-size restrictions, and the like. In other words, an ‘area’ variance is a shorthand description of a variance from structural or lot-area restrictions.
Broadly speaking, the requirements as to the showing necessary to obtain an area variance are less stringent than those applicable to a use variance, for the reasons that an area variance does not affect the use of the land, is less drastic in effect, and does not pose the threat of an incompatible use in the neighborhood. Thus, it is the rule in some states that the requirement of ‘unnecessary hardship’ applies to use variances, but that an area variance may be granted upon a showing that a literal application of the zoning regulation would result in ‘practical difficulties.’ It is generally agreed that proof of practical difficulties is a less stringent requirement than proof of unnecessary hardship.” 82 Am. Jur. 2d Zoning and Planning sec. 278 (1976).

The Peoria County Zoning Ordinance provides that where

“*** because of certain exceptional conditions peculiar to the applicant’s property, the strict application of the regulations of this chapter would result in practical difficulties or particular hardship in carrying out the strict letter of any regulation relating to *** setbacks, *** the Zoning Board shall have the power to determine and vary their application in harmony with the general purpose and intent of such regulations.”

The ordinance then continues to set forth a series of stringent tests to be applied where the zoning board is asked to “grant a variance to allow a use not permissible under the terms of this chapter in the district involved ***.” Such stringent tests are not applied where an area variance is sought. The only requirements which must be met where the zoning board is asked to grant an area variance are (1) exceptional conditions peculiar to the applicant’s property, (2) practical difficulties or particular hardships in carrying out the strict letter of the regulation, and (3) harmony with the general purpose and intent of the zoning regulations.

This case appears to present an issue unique to zoning law. While it is not unique to grant a variance by showing that the topographical features of property are such that it cannot be used for its permitted purpose (Marlowe v. Zoning Hearing Board (1980), 52 Pa. Commw. 224, 415 A.2d 946), the facts of the instant case are different. Here, Mr. Baker freely admits that the topography of his property presents no barrier to the use permitted under the Peoria County Zoning Ordinance, that is, the raising of cranes. In fact, Mr. Baker concedes there are two locations on his property where the permitted use could be undertaken in compliance with the ordinance. Indeed, as the county points out in their brief filed before this court, “the Zoning Board of Appeals, with all the evidence and testimony before it, determined that Baker’s hardship is self imposed, and there are other permissible sites on the property.”

The unique circumstances of this case are that the purposes of the setback ordinance are thwarted if the ordinance is enforced, while the purposes of the setback ordinance are promoted if the ordinance is not enforced and a variance is granted. If Mr. Baker is forced to locate the crane shelters under the grove of oak trees or along the front line of his property, his neighbors’ interest in adequate light, air and sunshine will be defeated. The shelters will be more conspicuous to his neighbors and more aesthetically offensive. Yet, a strict application of the zoning ordinance would require this result.

We believe these exceptional conditions are indeed peculiar to Mr. Baker’s property. We believe this unique circumstance presents a practical difficulty in carrying out the strict letter of the setback ordinance. And it is clear that a variance from the strict application of the setback ordinance would be in harmony with the general purpose and intent underlying the ordinance. To otherwise conclude, to find that a variance should be denied under these facts, would countenance the absurd result of frustrating the public policy with the very ordinance that codifies that policy.

In conclusion, we agree with the circuit court that under these unique circumstances, a practical difficulty does exist, and to deny the variance requested was arbitrary and capricious. This is a particularly appropriate case for granting < a variance. In reliance on the authorities hereinbefore set forth, we affirm the decision reached by the circuit court of Peoria County.

Affirmed.

STOUDER, P.J., and HEIPLE, J., concur.