author: JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURTIS NELSON et al., Defendants-Appellants.
    First District (5th Division)
    No. 80-0063
    Opinion filed May 21,1982.

      Ralph Ruebner and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant Curtis Nelson.
    Tatel, Levy & Howlett, of Chicago, for appellant Gregory Blocker.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Barry A. Gross, Marcia B. Orr, and Richard J. Burke, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial defendants were found guilty of 2 counts of armed robbery and 2 counts of unlawful restraint. (Ill. Rev. Stat. 1979, ch. 38, pars. 18 — 2, 10 — 3(a).) Both were sentenced to concurrent prison terms of 20 years on each armed robbery count and 3 years on each count of unlawful restraint. On appeal, defendants argue that (1) they are entitled to a new trial because of defense counsel’s failure to use available impeaching and alibi evidence and (2) their sentences are excessive and should be reduced, or, alternatively, a new sentencing hearing must be conducted at which the trial court must specify the reasons that led to its sentencing determination. We affirm the convictions but reduce the sentences.

In October of 1977, defendants Nelson and Blocker were arrested and charged with armed robbery and unlawful restraint. A jury trial in September 1978 ended in a mistrial when the jury was unable to reach a verdict. In November 1979, a second jury trial began and the following evidence was adduced.

Joseph Woodward testified that at 11:50 p.m. on the night of October 14, 1977, he and a co-worker from the Illinois Masonic Hospital were in his car at 51st and Halsted. Woodward had pulled over to the curb and his co-worker, O. T. Ford, began to get out of the car. Two black males, later identified as defendants, walked up with a gun and pointed it at Ford, saying “This is a stick-up.” Woodward testified that defendant Nelson was the one who held the gun. He further testified that when he got out of the car Nelson held the gun on Ford. Nelson told Woodward not to run or he would kill him. All four men got into the car and Nelson told Woodward to drive down 51st Street onto the Dan Ryan Expressway. He said he did not intend to rob them but had to get out of the neighborhood. At Nelson’s order, Woodward then exited from the expressway and drove to an alley where defendants searched Woodward and took his money, about $7. Afterward they drove around for a short period of time while Blocker held the gun on Woodward and Ford. Nelson then stopped the car on the shoulder of the expressway and told Ford to “hit the grass.” Ford crawled through the weeds and bushes adjacent to the expressway. Shortly thereafter, defendants released Woodward and drove off in his car. Woodward testified that the entire incident had lasted approximately 45 minutes.

Testifying further, Woodward stated that he and Ford called the police from a service station, after the incident. When the police arrived, Woodward explained what had happened and described his car and the two assailants. The police transmitted the descriptions over their radio at approximately 1:10 a.m.

Officer Vereecken testified that while he was on patrol at about 3:30 a.m. on October 15, 1977, he noticed a vehicle that matched the description of Woodward’s car. He and his partner, Officer Kovac, stopped the car and noticed that there were two males, whom he identified in court as defendants, and three females. He advised the men of their rights and searched them, finding $50 on Nelson. He also discovered a fully loaded .357 revolver under the seat of the passenger’s side of the car.

At 4 a.m. the police telephoned Woodward and asked him to view a lineup at the station. He and Ford separately viewed a six-man lineup. They both identified two men, defendants, as their assailants. In the parking lot at the station, Woodward saw his vehicle.

Next to testify was the police investigator who had conducted the lineup. He described the procedures and circumstances surrounding the lineup.

An assistant State’s Attorney, Brian Collins, then testified as to his presence in an interview room with defendant Blocker in the early morning of October 15, 1977. Collins advised Blocker of his Miranda rights from memory. Blocker indicated that he understood them and then admitted that he had committed a robbery in the vicinity of 51st Street and Halsted. He said he had taken $10. When a police officer came into the interview room with a gun, defendant identified it as the gun he used in the robbery. Collins testified further that he did not ask Blocker to sign a written statement. Collins later used his own notations to write a summary of Blocker’s statement, but it was not read or signed by Blocker. Collins also testified that it is not normal procedure to attempt to procure a written statement except in homicide cases.

Ford then testified. His account of the occurrence was substantially the same as Woodward’s. He stated that defendants took approximately $50-60 from him. In his initial description to the police he reported that Nelson was tall, dark, 160-170 pounds, about 26, and wore a goatee. He identified a photograph of the lineup and testified that he was able to identify defendants because they were still wearing the same clothes.

After the admission of its exhibits the State rested and defendant’s motion for a directed verdict was denied.

Charles Stewart, an unemployed carpenter, then testified for the defense. On October 14, 1977 at 8:30 or 9 p.m. he attended a party at a lounge with defendants and a man named McGowan. He recalled defendants being with him in the lounge from midnight until 1 or 1:30 a.m. He remained in the lounge until closing time, approximately 2:30 or 3 a.m., helping McGowan straighten up while defendants waited outside in the parking lot. Stewart further testified that when he left the lounge he saw them in the parking lot talking to a couple of girls. While they were sitting in the car and talking, a car pulled up to the curb and the driver called out for Blocker. Stewart testified that he did not know what was said then but he saw Blocker, Nelson and the girls get into the car and drive away.

On cross-examination, Stewart testified that he was a friend of defendants. He did not recall Nelson having a goatee on October 14 and 15, 1977, or what type of clothing he wore, except for a black hat and brown jacket. He doubted that Blocker had a mustache and had never known him to have a suede jacket. He admitted that he had never gone to tell the police that he was with defendants on that night.

Following Stewart’s testimony, both sides rested. The jury then heard closing arguments and were instructed on the law, after which they found defendants guilty as charged on 2 counts each of armed robbery and unlawful restraint. Defendants, who each had one prior conviction, were thereafter sentenced to concurrent prison terms of 20 years on each armed robbery count and 3 years on each count of unlawful restraint.

Opinion

I

Initially defendants argue that they were denied effective assistance of counsel in violation of their right to due process of law under the fourteenth amendment to the United States Constitution. They contend that their attorney failed to impeach complainants’ identification testimony with their prior inconsistent descriptions and failed to produce a defense witness for the second trial whose testimony would have “unequivocally” established their alibi defense. Therefore, because of the importance of this evidence to their defense that they were victims of mistaken identity, defendants request that their convictions be reversed and the case remanded for a new trial. We reject these contentions.

Under Illinois law a defendant is entitled to a new trial if he can establish his counsel’s actual incompetence “as reflected by the manner of carrying out his duties as a trial attorney which results in substantial prejudice without which the outcome would probably have been different.” (People v. Carlson (1980), 79 Ill. 2d 564, 584-85, 404 N.E.2d 233; accord, People v. Talley (1981), 97 Ill. App. 3d 439, 422 N.E.2d 1084.) Substantial prejudice is not established by mere conjecture or by second-guessing counsel’s trial tactics. (See People v. Bell (1981), 95 Ill. App. 3d 803, 420 N.E.2d 497.) Furthermore, competency is generally determined from counsel’s overall performance during the course of trial. People v. Bell.

We adhere to these principles as being the established law of Illinois. Although defendants urge us to replace the actual incompetence/substantial prejudice standard with a “minimum standard of professional representation” test espoused in various Federal cases (e.g., United States ex rel. Williams v. Twomey (7th Cir. 1975), 510 F.2d 634), we note that the Illinois Supreme Court has rejected that standard. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677; see also People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.) We therefore decline to adopt the standard and express no opinion as to its relative merits.

On the issue of counsel’s failure to use impeaching evidence at the second trial, defendants enumerate several discrepancies in complainants’ descriptions of their assailants. They contrast the victims’ descriptions given to the investigating police officer with the descriptions given at trial. In the first trial, which ended in a mistrial, the police officer called by the defense had testified as to the following descriptions he received from the victims: one offender (later identified as Nelson) was dark complected, had a goatee, was 5'7", 180 pounds, age 27. No clothing description was indicated. The other assailant (Blocker) was described as light complected with a mustache, 5'6", weighed 165 pounds, age 22, who wore a brown shirt and brown suede jacket. Ford testified at the first trial that he remembered Nelson as wearing a brown turtleneck sweater and that Blocker was wearing light brown pants and a shirt, but admitted to having testified at a prior hearing that Nelson wore a reddish sweater and maroon shirt and had no facial hair. He explained that he was confused at the preliminary hearing and had made a mistake.

Defendant Nelson testified at the first trial that when he was arrested he was wearing a dark green turtleneck sweater and red slacks with a blue pinstripe while Blocker wore rust colored pants and a beige sweater with a ship design on the bottom. There was also a lineup photograph introduced into evidence that showed defendants in the clothes they were wearing at the time of arrest. Nelson further testified that he had a large scar on his forehead, two near his eye and one on his nose.

At the second trial, Woodward identified defendants as his assailants and then testified that he initially described Nelson to the police as being 5'11" tall, 180 pounds, having a goatee, and wearing a brown turtleneck sweater, while Blocker was 5'6", 165 pounds, with a black mustache, wearing a sweater with a design on it and a brown suede jacket. Ford testified that he had described Nelson as tall and dark, 160-170 pounds, 26 years old, wearing a goatee. He further stated that he could identify defendants in the lineup because they were still wearing the same clothes.

In summary, the main discrepancies involve Nelson’s height, the assailants’ clothing, and the victims’ failure to mention scars on Nelson’s face. The officer’s testimony indicated that the taller offender was estimated as being 5'7", while Woodward testified at the second trial that defendant was 5T1". We do not think that this four-inch difference, under all the circumstances, is enough to raise a reasonable doubt as to defendants’ identity. The officer had admitted to being “a little rushed” when filling out his report and it is not inconceivable that he might have incorrectly transcribed complainant Woodward’s estimate of Nelson’s height. Moreover, a crime victim’s failure to accurately guess a person’s height and weight is rarely fatal to that victim’s otherwise positive identification of a defendant. (People v. Byrd (1976), 43 Ill. App. 3d 735, 357 N.E.2d 174.) Here, both victims had the opportunity to view defendants-during their 45 minutes in captivity. See People v. Sanders (1976), 38 Ill. App. 3d 473, 348 N.E.2d 229.

Similarly, we do not believe that the absence of a detailed clothing description in Officer Rydell’s report is a “discrepancy” or raises a reasonable doubt as to the assailants’ identity. Both victims, separately, selected defendants out of the lineup shortly after the arrest and within a few hours of the incident. This positive identification along with the in-court identifications are not seriously undermined by the inability of complainants to remember precisely what they told the officer or whether they remembered the color of Nelson’s turtleneck as being “reddish” or brown when it was actually dark green. Furthermore, the jury was shown the lineup photograph at the second trial and could compare it with the victims’ testimony as to their recollection of the assailants’ clothing.

With respect to the victims’ failure to observe or report any facial scars that defendant Nelson claimed to have, we note that, again, the jury would have been apprised of any scars by viewing Nelson during the trial.

Defendants, however, emphasize that they were prejudiced by defense counsel’s failure to use the above discrepancies to impeach the State’s witnesses at the second trial; they argue that the jury was deprived of Officer Ry dell’s testimony and of Ford’s inconsistent statements made at the preliminary hearing. We do not believe, however, that this failure to use impeaching evidence constitutes incompetency. In People v. Horton (1964), 30 Ill. 2d 293, 196 N.E.2d 649, our supreme court rejected an argument that defense counsel was incompetent because he failed to put before the trial court a witness’ testimony at a preliminary hearing that supposedly contradicted his trial testimony. The court simply noted that it did not find “any necessary inconsistency” between the witness’ testimony at a preliminary hearing and his trial testimony. In the present case, as we have noted, some inconsistencies exist. However, as we have discussed, they are either minor, such as the color of Nelson’s sweater, or were brought to the jury’s attention indirectly, as in the matter of the visibility of Nelson’s facial scars. We do not find that, overall, the identification evidence in the second trial varies substantially from that adduced at the first. While it may have been a preferable strategy to bring out every possible discrepancy to the jury, the law has long been established that a party is not entitled to a perfect trial. (E.g., People v. Greer (1980), 79 Ill. 2d 103, 121, 402 N.E.2d 203.) We do not believe that defense counsel’s failure to pinpoint every inconsistency amounted to “actual incompetence” under the applicable standard.

Moreover, such acts of incompetency must be of the type that probably changed the outcome of the trial. Of course, in particular cases the test may be difficult to apply. In the present case, however, the record reveals that defense counsel vigorously cross-examined the complaints as to each phase of the crime. The defendants were positively identified by Ford and Woodward, who had ample opportunity to observe their assailants during the 45 minutes that they were in the car with them. A conviction may be supported by the credible testimony of a single witness (People v. Stringer (1972), 52 Ill. 2d 564, 289 N.E.2d 631), and we do not agree that, given the evidence in this case, the jury would probably have reached a different verdict had defense counsel used the transcript from the prior trial in an attempt to impeach the State’s witnesses.

As to the second alleged instance of counsel’s incompetency, defendants refer to his failure to call Robert McGowan as an alibi witness at the second trial or at least to offer his prior testimony (from the first trial) into the record at the second trial. Because the decision whether or not to call a witness is generally viewed as a tactical one, it is improper for us to speculate as to counsel’s judgment in not calling McGowan at the second trial. (People v. Elder (1979), 73 Ill. App. 3d 192, 203, 391 N.E.2d 403.) Defendants’ alternative argument, that counsel should have offered McGowan’s prior trial testimony, overlooks the evidentiary question of its admissibility. As an exception to the rule against hearsay, former testimony that is offered for the purpose of proving the facts testified to is admissible only if the witness is unavailable. (McCormick, Evidence sec. 254, at 614-15; sec. 253, at 608-13 (2d ed. 1972); see also Fed. R. Evid. sec. 804(b)(1) (1975).) The record in the present case is silent as to McGowan’s availability to testify at the second trial. Thus, if he were available and counsel chose not to call him for tactical reasons, counsel would be unable to offer the prior testimony instead. We cannot presume that trial counsel used incorrect strategy in this instance and we therefore hold that his failure to present McGowan’s testimony to the second trial’s jury was not necessarily incompetency. Moreover, since defendants presented their alibi defense at trial through the testimony of Charles Stewart, we conclude that they were not substantially prejudiced; McGowan’s testimony would have been only cumulative. Consequently, trial counsel’s alleged failings do not rise to the level of reversible error and we find that defendants were not denied a fair trial.

II

Defendants next argue that their sentences should be reduced, or, in the alternative, the sentences should be vacated and a new sentencing hearing granted in which the trial judge must specify the reasons that led to his sentencing determination. The State responds that defendants’ sentences were within the statutory guidelines; armed robbery, a Class X felony, is punishable by 6 to 30 years (Ill. Rev. Stat. 1979, ch. 38, pars. 18 — 2(b), 1005 — 8—1(a)(3)) and unlawful restraint, a Class 4 felony, is punishable by 1-3 years (Ill. Rev. Stat. 1979, ch. 38, pars. 10 — 3, 1005-8-1 (a) (7)).

The Illinois Supreme Court has recently reaffirmed the standard for reviewing sentences on appeal as whether the trial court abused its discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) Generally we will not disturb a sentence on review unless it greatly diverges from the purpose and spirit of the law or is highly disproportionate to the nature of the offense. (People v. Gibbs (1977), 49 Ill. App. 3d 644, 364 N.E.2d 491.) We noted in People v. Gibbs, however, that there were some “cases which call for this court to reduce the sentence which has been imposed even when such sentences are within the statutory limits.” (49 Ill. App. 3d 644, 648, 364 N.E.2d 491, 494.) Penalties are to be determined according to the “seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, sec. 11; see People v. Gibbs.) Although the trial court’s sentencing determination is not to be lightly set aside we have not hesitated, when appropriate to reduce sentences. See People v. Gibbs (sentences of 50-100 years reduced to 15 to 45 years); People v. Kosanovich (1979), 69 Ill. App. 3d 748, 387 N.E.2d 1061 (armed robbery sentence of 10-15 years held to be excessive and case remanded for resentencing); People v. Huffman (1979), 78 Ill. App. 3d 525, 397 N.E.2d 526 (concurrent sentences of 4 years for 2 counts of burglary, 3 years for criminal damage to property and 1 year for possession of a stolen vehicle reduced to 4 years’ probation with a condition of 3 months’ imprisonment), c.f. People v. Hayes (1979), 70 Ill. App. 3d 811,388 N.E.2d 818 (court affirmed a 75-100 year sentence for murder despite 20-year-old defendant’s argument that the 75-year minimum would crush his incentive to improve himself in prison because there was no evidence or background information to indicate defendant’s rehabilitative potential).

The following facts in mitigation and aggravation were presented at defendant’s sentencing hearings.

Defendant Blocker, who was 20 years old at the time of sentencing, had been placed on 2 years’ probation for the offense of felony theft but had no other convictions. He had attended high school for four years but was arrested before graduation. He had also worked part-time for four years at his father’s business. The probation officer who prepared his presentence investigation report indicated the possibility that he could be referred to a program for ex-offenders where he could receive job counselling and assistance in obtaining his G.E.D.

Curtis Nelson, 26 at the time of sentencing, also had only one prior conviction in 1973 for interference with a police officer. He had received one year probation. Nelson, unmarried, is also the father of three young children by the same mother. Although he dropped out of high school, he had been employed 4 years as a car hiker and 1M years as the manager of a shop owned by his fiancee’s father. He also expressed a desire to enter a job training program in order to upgrade his employment situation.

We note that defendants did not physically harm the victims. (See Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.1(a)(1).) Moreover, both defendants’ single prior convictions, while relevant as to sentencing, were not for violent crimes and resulted in probation. Most important, perhaps, we believe that the defendants in this case have rehabilitative potential that would not be well served by the length of their sentences. In People v. Kosanovich we observed that the defendant’s term of 10-15 years imprisonment for armed robbery was excessive despite the fact that the defendant had robbed an art gallery owner at gunpoint and knifepoint and had twice threatened to kill him during the robbery. She also had tied the victim up and forced him to lie face down in a back room. The court noted that these acts indicated a threat of force but nevertheless concluded that a minimum sentence higher than 10 years would serve no useful purpose in light of defendant’s age (28), rehabilitative potential and need for health care. She had had an unstable home life, was a high school dropout and had been discharged from two jobs. She also had convictions for possession of marijuana and heroin and unlawful use of a weapon.

While defendants’ conduct in this case unquestionably posed a serious threat to the victims, we believe that the particular factors in mitigation enumerated above inveigh against the imposition of 20 year sentences for armed robbery. In light of defendants’ ages, prior scholastic records, work histories, and criminal records, we find that defendants’ sentences are excessive. Therefore, we reduce the armed robbery counts to 10 years but leave undisturbed the 3-year sentences for unlawful restraint, all to run concurrently.

Because of our disposition of the sentencing issue we do not reach defendants’ alternative argument, that the trial court should have given the reasons it considered in arriving at the sentencing determination. (See Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 4—1(c).) Defense counsel failed to object or to request the court to comply with section 1005 — 4—1(c) and we express no opinion as to whether the plain error rule would otherwise permit us to reach the merits of this issue.

For the reasons contained herein we affirm defendants’ convictions but reduce their sentences on the armed robbery counts from 20 years to 10 years.

Affirmed as modified.

SULLIVAN, P. J., and LORENZ, J., concur.

       Defendants apparently assume there could be no sound reason not to call a witness at a second trial whose testimony at the first trial was favorable to defendant; however, a witness could conceivably change his story or otherwise be an unattractive witness at a later trial.


source: Caselaw Access Project

author: PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    GERMAN GONZALEZ, Plaintiff-Appellee, v. CHICAGO STEEL RULE DIE & FABRICATORS CO. et al., Defendants-Appellants.
    First District (5th Division)
    No. 81-2697
    Opinion filed May 14, 1982.
    Rehearing denied June 18,1982.
    Malato & Stein, P. C., of Chicago (Stephen H. Malato and Robert S. Minetz, of counsel), for appellants.
    S. M. Del Principe, of Chicago, for appellee.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

We granted defendants’ application for leave to appeal under Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308) after the court denied their motion to dismiss Count II of plaintiff’s amended complaint purporting to state a cause of action for malicious prosecution predicated upon a criminal proceeding.

Count II alleged in substance that defendants falsely and maliciously filed a complaint with the State’s Attorney that plaintiff had committed the crime of criminal trespass to land, and as a result he was arrested, brought to trial, and eventually found not guilty. As to damages, count II alleged generally that plaintiff was injured in his credit and reputation, was brought into public disgrace, incurred expense in defending himself, and was prevented from attending to his regular affairs and duties.

Defendants moved to dismiss count II on the basis that plaintiff failed to allege the necessary element of “special injury.” The court, in denying the motion, found that special damages need not be alleged, and certified the following question for review: “Whether special damages are a necessary element of a malicious prosecution action predicated upon the institution of criminal proceedings.”

In Illinois, a complaint in an action for malicious prosecution must allege facts showing “ ‘(1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff.’ (Ritchey v. Maksin (1978), 71 Ill. 2d 470,475.)” (Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40,45,411 N.E.2d 229, 232.) However, in malicious prosecution actions based on civil proceedings, Illinois is among the minority following the “English rule” requiring a complainant to additionally allége and prove “special injury” (Annot., 35 A.L.R.3d 651, 653 (1971)), and in recent years the Illinois courts have consistently affirmed the special injury element in civil malicious prosecution actions (Bank of Lyons v. Schultz (1980), 78 Ill. 2d 235, 399 N.E.2d 1286; Davis v. Ruff (1980), 83 Ill. App. 3d 651,404 N.E.2d 405; Stopka v. Lesser (1980), 82 v App. 3d 323,402 N.E.2d 781; Savage v. Seed (1980), 81 Ill. App. 3d 744, 401 N.E.2d 984; Petrick v. Kaminski (1979), 68 Ill. App. 3d 649, 386 N.E.2d 636; Wiemer v. Havana National Bank (1978), 67 Ill. App. 3d 824,382 N.E.2d 1257; Berlin v. Nathan (1978), 64 Ill. App. 3d 940, 381 N.E.2d 1367, cert, denied (1979), 444 U.S. 828, 62 L. Ed. 2d 36,100 S. Ct. 53; Pantone v. Demos (1978), 59 Ill. App. 3d 328, 375 N.E.2d 480; Lyddon v. Shaw (1978), 56 Ill. App. 3d 815, 372 N.E.2d 685).

Defendant, however, has cited no decisions holding that special injury is a necessary element in a criminal malicious prosecution suit, and we have found no Illinois case so holding. We note, however, that in Prosser, Torts sec. 119, at 849 (4th ed. 1971), it was stated that “certain kinds of damage necessarily follow from the wrongful prosecution [of a criminal proceeding] itself, and so will be assumed by the law to exist, and may be recovered without special pleading or proof” and that in Krashes v. White (1975), 275 Md. 549,555,341 A.2d 798,801, the issue raised in the Maryland court of appeals was whether an arrest was an essential element of a criminal malicious prosecution suit. That court, after concluding that an arrest should be considered as “special injury” in a civil malicious prosecution suit, held that “[ujnlike a plaintiff in a malicious use of civil process suit, the plaintiff in a criminal malicious prosecution action need not prove any special damages, such as arrest or seizure of property.” We are in accord with the view, as expressed above, that special injury is not an essential element in a criminal malicious prosecution action and, in light thereof, we find that the trial court did not err in denying defendant’s motion to dismiss Count II on that basis.

Moreover, the discussion as to special injury in the Illinois decisions involving civil malicious prosecution equate it with an arrest or seizure of property. As stated in Bank of Lyons v. Schultz (1980), 78 Ill. 2d 235,239, 399 N.E.2d 1286,1288, plaintiff “must establish evidence of his arrest, the seizure of his property, or some other special injury which exceeds the usual expense and annoyance and inconvenience of defending a lawsuit.” In Smith v. Michigan Buggy Co. (1898), 175 Ill. 619, 627,51 N.E. 569,571, it was stated that a civil malicious prosecution action would not lie unless “accompanied by arrest of the person, or seizure of the property, or other special injury not necessarily resulting in all suits prosecuted to recover for like causes of action.” See also Lasswell v. Ehrlich (1981), 92 Ill. App. 3d 935, 416 N.E.2d 423; Petrick v. Kaminski (1979), 68 Ill. App. 3d 649, 386 N.E.2d 636; Balthazar v. Dowling (1978), 65 Ill. App. 3d 824, 382 N.E.2d 1257; Alswang v. Claybon (1976), 40 Ill. App. 3d 147, 351 N.E.2d 285; Ammons v. Jet Credit Sales, Inc. (1962), 34 Ill. App. 2d 456,181 N.E.2d 601.

Thus, in the instant case, even assuming that special injury is an element in a criminal malicious prosecution suit, the allegation by plaintiff in count II that he was arrested and brought to trial sufficiently alleges special injury.

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

Affirmed.

MEJDA and WILSON, JJ., concur.

       Count I of the 2-count complaint was dismissed, but it appears that no appeal has been taken therefrom.

       As authority, Prosser cites Luby v. Bennett (1901), 111 Wis. 613,87 N.W. 804; Davis v. Seeley (1894), 91 Iowa 583, 60 N.W. 183; Barnes v. Culver (1921), 192 Ky, 10, 232 S.W. 39; Grorud v. Lossl (1913), 48 Mont. 274,136 P. 1069; and Restatement of Torts sec. 670 (1938).


author: PRESIDING JUSTICE STAMOS

text:
    ROBERT LOTT, Plaintiff-Appellant, v. GOVERNORS STATE UNIVERSITY et al., Defendants-Appellees.
    First District (2nd Division)
    No. 81-1677
    Opinion filed April 27,1982.
    Rehearing denied June 15,1982.
    Wayne B. Giampietro, Kathrin A. Koenig, and George Bellas, all of Dejong, Poltrock & Giampietro, and Sidney C. Kleinman, Ltd., both of Chicago, for appellant.

      Jenner & Block, of Chicago, and Dunn, Brady, Goebel, Ulbrich, Morel, Kombrink & Hundman, of Bloomington (Chester T. Kamin, Linda L. Listrom, and Kenneth G. Kombrink, of counsel), for appellees.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff Robert Lott filed suit in the circuit court of Cook County, charging defendants with employment discrimination. Defendants in the suit are the Board of Governors of State Colleges and Universities (BOG), Governors State University (GSU), and William Engbretson, former president of GSU. Plaintiff’s action, brought under section 89 — 102(B) of the Illinois Human Rights Act (IHRA), seeks reinstatement, compensatory and punitive damages and injunctive relief. The trial court dismissed plaintiff’s action on jurisdictional grounds, finding that plaintiff’s lawsuit demands monetary relief from the State and is therefore cognizable only in the Illinois Court of Claims. Plaintiff appeals.

At the time the instant appeal was filed, the principal issue was this: is a suit against the State under section 9 — 102(B) of the IHRA subject to the general rule that monetary claims against the State must be filed in the Court of Claims? We now find that this issue has become moot, in light of a recent decision by the Illinois Supreme Court. In Wilson v. All-Steel, Inc. (1981), 87 Ill. 2d 28, 428 N.E.2d 489, the court found section 9 — 102(B) of the IHRA to be unconstitutional special legislation. Plaintiff’s action is founded solely on section 9 — 102(B). The Wilson decision would appear to sound the death knell of plaintiff’s cause of action, but a more recent decision by the United States Supreme Court makes it clear that plaintiff’s remedy may not be so casually dispatched. That decision is Logan v. Zimmerman Brush Co. (1982),_U.S._, 71 L. Ed. 2d 265, 102 S. Ct. 1148. Before addressing the impact of Wilson and Logan, we will recount the facts.

In 1974, plaintiff was hired by GSU as the university’s Director of Student Services. Plaintiff, who is black, later became active in the Minority Caucus, an organization of GSU employees concerned with minority rights. Plaintiff was not offered a contract for the position of Director of Student Services for the 1976-77 school year. Instead, he was offered a “terminal” contract for that year at a lower salary. Plaintiff charges in his complaint that his demotion and ultimate termination were in retaliation for his activities in the Minority Caucus.

Following his termination at the end of the 1976-77 school year, plaintiff filed a charge of discrimination with the Illinois Fair Employment Practices Commission (the Commission). By the terms of the Fair Employment Practices Act then in force, the Commission was required to issue a complaint or, alternatively, an order that no complaint issue, within 180 days of plaintiff’s charge. (See Ill. Rev. Stat. 1977, ch. 48, par. 858.01(a); see also Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1978), 71 Ill. 2d 61,68,373 N.E.2d 1307 (holding that the language of the statute is mandatory and the Commission must act within 180 days).) The Commission did not act on plaintiff’s complaint within 180 days.

In 1978, the legislature added section 8.01a to the Fair Employment Practices Act (FEPA) (Ill. Rev. Stat. 1979, ch. 48, par. 858.01a). That section provided a remedy for certain individuals whose discrimination charges were not acted upon by the Commission within the 180-day time limit. Section 8.01a states in part:

“In the case of any charge of an unfair employment practice which has been properly filed with the Commission prior to March 30, 1978, which has not been settled or adjusted by conference and conciliation under Section 8, and which within 180 days thereafter has not been the subject of a complaint issued by the Commission or an order that no complaint be issued, the person filing the charge may seek appropriate injunctive or other relief by filing an action in the circuit court of the county where the alleged unfair employment practice occurred.” (Ill. Rev. Stat. 1979, ch. 48, par. 858.01a.)

In 1979, the legislature passed the Illinois Human Rights Act (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1 — 101 et seq.), which replaced the Fair Employment Practices Act. Section 9 — 102(B) of the IHRA is essentially a re-enactment of section 8.01a of the FEPA, providing a remedy for individuals whose FEPA charges were not disposed of within the statutory period.

Plaintiff’s complaint, filed on September 26,1980, purports to state a cause of action under section 9 — 102(B) of the IHRA. On November 13, 1981, our supreme court filed its opinion in Wilson v. All-Steel, Inc., finding section 9 — 102(B) of the IHRA unconstitutional special legislation. 87 Ill. 2d 28, 33.

Defendants did not argue the constitutionality of section 9 — 102(B) in the trial court. There is no doubt, however, that the Wilson case is applicable. We further find that no waiver occurred in defendants’ failure to so argue. The case of Quitman v. Chicago Transit Authority (1952), 348 Ill. App. 481, 109 N.E.2d 373, is on point. There, the defendant won a dismissal of the plaintiff’s complaint by relying on a statutory defense. While the plaintiff’s appeal was pending in this court, the Illinois Supreme Court, in an unrelated case, found the statute unconstitutional. The defendant in Quitman argued that the plaintiff, who had not questioned the constitutionality of the statute in the trial court, was precluded from raising that claim on appeal. The appellate court held:

“Once a statute is declared unconstitutional it is void ab initio. No rights can be predicated upon it, nor can it afford any protection. It is as if it had never been written. It is our duty to recognize and follow the decisions of the Supreme Court.” (348 Ill. App. 481, 483.)

Following the supreme court’s decision in Wilson, we recognize that section 9 — 102(B) is void and that no rights can be predicated upon it.

This finding, however, does not dispose of plaintiff’s claim. In Logan v. Zimmerman Brush Co. (1982),_U.S__, 71L. Ed. 2d 265,102 S. Ct. 1148, the plaintiff (Logan) filed an employment discrimination charge with the Illinois Fair Employment Practices Commission. Section 8(b) of the FEPA required the Commission to convene a fact-finding conference within 120 days of Logan’s charge. (See Ill. Rev. Stat. 1979, ch. 48, par. 858(b).) The Commission did not convene the fact-finding conference within the specified period. The Illinois Supreme Court, acting on Logan’s employer’s petition for a writ of prohibition, held that the 120-day period was mandatory and that the Commission therefore lacked jurisdiction to adjudicate Logan’s complaint. (See Zimmerman Brush Co. v. Fair Employment Practices Com. (1980), 82 Ill. 2d 99, 104, 107, 411 N.E.2d 277.) In so holding, the court perfunctorily dismissed Logan’s contention that his rights to due process and equal protection were violated. See Zimmerman Brush Co. v. Fair Employment Practices Com. (1980), 82 Ill. 2d 99,104.

The United States Supreme Court reversed. The majority found that Logan’s access to the FEPA’s adjudicatory procedures was a property interest protected by the due process clause of the fourteenth amendment. (See Logan v. Zimmerman Brush Co. (1982),_U.S. __,_, 71 L. Ed. 2d 265, 273, 102 S. Ct. 1148, 1154.) Logan was deprived of this property without due process when an administrative delay (for which Logan was not responsible) led to the dismissal of his complaint.

The case at bar presents the same situation. Plaintiff timely filed a charge of employment discrimination with the Commission. The Commission did not act on his charge within the 180 days required by statute (see Ill. Rev. Stat. 1977, ch. 48, par. 858.01(a)), and plaintiff’s claim was thereby defeated. Section 9 — 102(B) of the IHRA would have preserved plaintiff’s property interest (his right to an adjudication of his claim), but that section has been declared unconstitutional by the Illinois Supreme Court. In the present posture of this case, we find that plaintiff has a protected property interest in his employment discrimination claim and he can not constitutionally be deprived of that interest by the inaction of the Commission.

We next consider what process is due plaintiff. Section 9 — 102(B) provided plaintiff with a private cause of action as a means of adjudicating his claim. Section 9 — 102(B) is no longer operative. We are unwilling to create, by judicial fiat, a new cause of action to replace the one that perished with section 9 — 102(B), and we do not believe the due process clause requires such a result. In Logan v. Zimmerman Brush Co., the court found that “Logan is entitled to have the Commission [FEPC] consider the merits of his charge, based on the substantiality of the available evidence, before deciding whether to terminate his claim.” (-U.S--, _, 71 L. Ed. 2d 265, 277, 102 S. Ct. 1148, 1157.) The same minimum process is due the plaintiff here. Lott is entitled to have the Department of Human Rights and the Human Rights Commission (the successors to the FEPC) consider the merits of his discrimination charge in accordance with the procedures set out in articles 7 and 8 of the IHRA. The IHRA provides that the Department of Human Rights must accept and investigate charges of civil rights violations. The Department may, upon determining that there is no substantial evidence of a violation, dismiss the complaint. When a complaint is supported by sufficient evidence and there has been no settlement or adjustment through conciliation, the Department must file a written complaint with the Human Rights Commission, which is empowered to adjudicate the dispute and enforce its findings. See Ill. Rev. Stat., 1980 Supp., ch. 68, pars. 7 — 102, 8 — 102.

It follows that the Department of Human Rights and the Human Rights Commission are necessary parties in this action. Upon remand to the trial court, plaintiff should be permitted to amend his complaint and add these entities as parties defendant. (See Ill. Rev. Stat. 1979, ch. 110, par. 26 (new parties may be added, by order of court, at any stage of the cause, as justice may require).) The trial court should then order the Department to accept and process plaintiffs charge as set out in the IHRA. We foresee no limitations problem here, as plaintiff’s original charge was timely brought before the FEPC.

As noted above, the issue upon which the trial court based its disposition of this cause is no longer relevant. We find that the State and its agencies are “employers” as defined in section 2 — 101(B)(1)(c) of the IHRA (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 2 — 101(B)(1)(c)), and that the State as an employer is capable of committing a civil rights violation, thereby subjecting itself to the procedures set out in the IHRA. The Court of Claims is not the proper forum for plaintiff’s employment discrimination charge. See Ill. Rev. Stat., 1980 Supp., ch. 68, par. 8 — 111(D) (no court has jurisdiction over alleged civil rights violations except as provided by law).

The decision of the trial court is reversed and the cause is remanded for proceedings consistent with this opinion.

Reversed and remanded, with directions.

DOWNING and PERLIN, JJ„ concur.

       We note that plaintiffs original complaint wrongly laid venue in Cook County. Section 9 — 102(B) requires that an action under that section be brought “in the circuit court of the county where the alleged unfair employment practice occurred.” (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 9 — 102(B).) GSU is in Will County. Although defendants raised this defect in venue below, the trial court did not reach the issue. On remand, the venue provision of section 9 — 102(B) will not control, since the cause of action on remand will not be based on that voided statute. Defendants, nevertheless, should be afforded the opportunity to argue venue or other matters not disposed of in this appeal.


author: JUSTICE UNVERZAGT

text:
    LAKE COUNTY FOREST PRESERVE DISTRICT, Plaintiff-Appellee, v. THE BANK & TRUST COMPANY OF ARLINGTON HEIGHTS et al., Defendants-Appellants.
    Second District
    No. 81-674
    Opinion filed May 10,1982.
    Rehearing denied June 28,1982.

      Barclay, Damisch & Sinson, of Chicago (John W. Damisch and Robert A. McNees, of counsel), for appellants.
    Donald T. Morrison & Associates, of Waukegan (Donald T. Morrison and Henry C. Tonigan, III, of counsel), for appellee.

   JUSTICE UNVERZAGT

delivered the opinion of the court:

This is an appeal by the trustee of the beneficial owner of a tract of land condemned by the Lake County Forest Preserve District, from the judgment of the trial court finding the just compensation for the land taken to be $145,000.

The tract in question comprises approximately 9.4 acres of undeveloped land zoned as SE-Suburban Estate, in unincorporated Lake County lying 1329 feet along Lake-Cook Road. On the east side, it fronts on Schaeffer Road for a distance of 289 feet. It then jogs east for 547.8 feet, north for 150 feet, then continues on east about 765 feet, thence south approximately 436 feet to Lake-Cook Road. At the time of the condemnation petition the land was being used for farming. There were no buildings on it.

Generally, the northern boundary of the village of Arlington Heights is along Lake-Cook Road. In 1975, Arlington Heights annexed a parcel of land in Lake County which was a part of a development known as Terramere which lay mostly in Cook County. The western edge of the Terramere Subdivision in Lake county is adjacent to the subject property. Otherwise, the village of Arlington Heights is bounded on the north by the center line of Lake-Cook Road.

Before trial, a preliminary question arose. The Bank & Trust Company of Arlington Heights (hereinafter defendant) made a motion for a preliminary hearing to have the trial court hear and determine whether the owner might present testimony as to value based on the reasonable probability of a future annexation and rezoning of the property. This was objected to by the Lake County Forest Preserve District (hereinafter District) on the ground it was procedurally incorrect and that such a motion should be made at the trial stage after the jury was sworn. The trial court, while acknowledging that usually the question of value based on the probability of rezoning is heard out of the presence of the jury after the trial begins (see Lombard Park District v. Chicago Title & Trust Co. (1968), 103 Ill. App. 2d 1), allowed the motion to consider this question before the start of the trial.

While it is well settled that the landowner in a condemnation case has the right to base his valuation on a use established by evidence showing a reasonable probability of rezoning, the burden of proof is on the landowner to establish by evidence that there is a reasonable probability of rezoning to that use.

The defendant in this case is contending for a valuation based on a commercial use, which would involve not only a rezoning but preliminary to that an annexation by Arlington Heights.

Due to the difference in valuation per acre between the residential and commercial use testified to by the witnesses ($20,000 as against $50,000), it was desirable for the defendant to establish the reasonable probability of a commercial use.

In the separate preliminary hearing, the trial court heard a number of witnesses on the defendant’s behalf. Alan Sander, director of public works for Arlington Heights, testified that in certain areas of Arlington Heights there were wells and septic tanks, also that a subdivision of Arlington Heights known as Woodland Heights, which had a petition for annexation pending before the Arlington Heights council, might obtain sewer connections to a small private utility known as Ferndale Heights Utility Company. This evidence was necessary because there was no water or sewer available at the site in question.

Ayoub Talhami, an engineer in charge of permits for construction of sanitary sewers for the Metropolitan Sanitary District of Chicago (hereinafter MSD), testified regarding the possibility of MSD serving the property in question. From his testimony it appeared that as a general rule MSD does not serve areas outside of Cook County. He referred to this as an “unwritten” policy. From his testimony and a summary of the policy Talhami had previously prepared for MSD regarding past treatment of applications for service outside of Cook County, it appeared that exceptions to this general rule were few in number and had been made very selectively. The service of MSD appears to have been extended outside of Cook County only to territories which were annexed to Cook County municipalities already served by MSD and only after considerable negotiations. Talhami testified that in the instant case there would first have to be an annexation to Arlington Heights and then a decision made by MSD as to the practical possibility and the desirability of MSD extending its sewer lines to the site.

Joseph Kesler, Arlington Heights’ city planner, testified that he was familiar with all petitions for annexation to Arlington Heights which had been granted within recent years. He submitted a map showing a number of annexations to Arlington Heights which had been accomplished within recent years. He testified that the area north of Dundee Road (the area of the subject property) “was not subjected to any changes for a number of years.” He testified that Russell Ray, beneficial owner of the property in question, had approached him in the summer of 1978 indicating an interest in having the property annexed to Arlington Heights, the purpose of this testimony, apparently, being to indicate that Ray’s desire to annex to Arlington Heights had preceded the condemnation, thus was not induced by that possibility.

Norman Toberman, consulting engineer, testified regarding drainage and sewer problems at the site. He testified that a creek runs through the property and it would be necessary to add fill in order to install a septic system. He did not consider disposing of waste only through a septic system but theorized as to the possibility of an on-site disposal system in addition to the septic system. His testimony assumed a commercial use of the site. Toberman conceded he had had no actual experience with the one-site disposal system he testified about and knew of no instance where such a system was being used in Cook or Lake Counties. His testimony as to the theoretical disposal of waste on-site was stricken as being too speculative.

Joel Michalik, a consulting engineer employed by Ferndale Heights Utility Company, testified as to the possibility of that utility furnishing service to the property. This is a small private utility located in Cook County and serving Cook County residents. The purpose of Michalik’s testimony was to indicate the probability that Ferndale Utility would extend service to the site if MSD did not. He was allowed to express his opinion that Ferndale Utility had a reasonable capacity to extend its sewer and water facilities to the subject property if so requested. Being only a consulting engineer for that utility, he was not allowed to express his opinion as to whether the utility would actually so extend its service. He testified that the cost of sewer extension would be $50,000 and the cost of the water connection would be $91,000. If the property was found to be low, it would be necessary to install a lift station at a cost of $50,000. It would also be necessary to obtain a certificate of public convenience and necessity from the Illinois Commerce Commission. After receiving this certificate, the sanitary sewer permit would be sent to MSD for review and approval. The water main extension permit would need to be sent to the Illinois Environmental Pollution Agency for its review and approval. It appears from Michalik’s testimony that Ferndale Heights Utility Company had never extended its services into Lake County. Michalik testified that he did not know of any requests for Ferndale Utility to extend its services into Lake County. He testified that the wells serving Ferndale Utility were decreasing in level and that it was becoming more and more uneconomical to extract water from them, causing the utility to seek alternative sources of water supply.

Russell Ray, the beneficial landowner, testified that he had written to Talhami of MSD and to the Arlington Heights village engineer sometime in the latter part of 1978, before he was aware that the District intended to acquire the property. He asked their help in extending sewer facilities to his property. However, there is nothing to indicate any favorable consideration having been given by Arlington Heights to Ray’s request.

Gerald Estes, land planner, testified that he was familiar with land use patterns in the vicinity of the subject property as of the date of condemnation, that the trend was from south to north in that area, and that there had been considerable development. He gave his opinion that the highest and best use of the property was for commercial development — R-l and B-2, Offices and Stores. He did not make any investigation as to the most economical way to provide water and sewer at the site. His testimony was that there had not been any commercial annexations to Arlington Heights within 2)z miles of the condemned property as of the date of condemnation.

James Curtis, Jr., real estate appraiser, testified that based on the reasonable probability of rezoning the property to a commercial use the property would be worth $50,000 per acre.

After hearing this testimony, the trial court ruled that there was not sufficient evidence of the reasonable probability of annexation and rezoning of the subject property to commercial use to permit testimony as to the property’s value based on such probability. The trial then proceeded.

James Dunn, real estate appraiser, testified that as presently zoned the property was worth $20,000 per acre. James Curtis, who previously testified the commercial value of the site was $50,000 per acre, testified that it was worth $20,000 per acre as residential property.

Richard Thacker, engineer and surveyor, testified for the District that a strip of the property was in a flood plain. Don Clark, real estate appraiser, testified for the District that the highest and best use of the property was as zoned — Suburban Estate — and he placed a value of $15,000 per acre on it. Neil King, real estate broker and appraiser, was of the same opinion as to the highest and best use of the property and he appraised the tract as having a value of $139,000, a little less than $15,000 per acre. King testified that he had considered comparable sales in the vicinity. He based his valuation on the property being served by a well and septic system. William Schwandt, a real estate appraiser, also testified for the District. He valued the property at $15,000 per acre. His testimony as to comparable sales was objected to and the objection overruled.

In his testimony, Don Clark testified that he had considered comparable sales in arriving at his opinion of value. He also gave his background and qualifications and said that he had taken note of the creek running through the property and the lack of sewer and water in arriving at his opinion of value. Clark had previously testified to a value of $50,000 per acre, if rezoned to commercial use.

After consideration, the jury awarded the defendant $145,000, or approximately $15,000 per acre, as the just compensation for the taking of the property. The defendant appeals raising the following points: (1) The trial court erred in ruling that there was not sufficient evidence of the reasonable probability of rezoning to permit an expression of opinion as to the value based on annexation and rezoning to commercial use; (2) the trial court erred in refusing to consider evidence of annexations granted by the village of Arlington Heights after January 1,1980; (3) the trial court erred in excluding evidence of “in process” MSD agreements; (4) the trial court erred in permitting valuation witness Clark to testify regarding specific sales, not in evidence, as comparable sales, which the witness did not actually participate in.

With regard to the ruling that the testimony of valuation witnesses could not be based on the probability of annexation to Arlington Heights and rezoning to a commercial use, we think under the particular facts of this case that the ruling was correct. The purpose of the defendant here was clearly to present the property as a potential site for commercial development in order to enhance its present value. However, such development must be shown to be reasonably probable, rather than merely a desirable possibility. Moreover, it must be reasonably proximate in time and not based merely on the trend of future development. See Lake County Forest Preserve District v. Petersen (1981), 93 Ill. App. 3d 731, 735:

“If the evidence falls short, as a matter of law, of showing any reasonable probability of the favorable action by the body authorized to act within the reasonably near future, the court shall exclude the evidence. Lombard Park District, 103 Ill. App. 2d 1,9.”

In this case, everything depended on annexation of the property by Arlington Heights within the reasonably near future. However, the only piece of land in Lake County which Arlington Heights had previously annexed was a relatively small portion of Terramere Subdivision, which was mostly in Cook County. There was a logical reason for this annexation in not wishing the subdivision to be located in two different counties, but it is not a persuasive reason for supposing land situated only in Lake County would be annexed. Moreover, that land was not changed as to zoning, but retained its original zoning of residential. At the time of the annexation, there was thought to be a possibility of obtaining an extension of MSD sewers to that portion of Terramere lying in Lake County. An exhibit to show that MSD had authorized negotiations with Arlington Heights on this subject was offered into evidence but was excluded by the trial court as being too tenuous since it had been hanging fire for some time and no agreement had been reached.

The valuation based on a commercial use would have to assume that the annexation would be made with commercial zoning, otherwise, the difference in value would not be significant. It appears from the testimony, however, that there were serious drawbacks to the development of the site for commercial purposes. Any worthwhile commercial development would clearly require sewer and water from a regular utility. The only attempt of a witness to hypothecate an on-site sewer system was so tenuous, the testimony was stricken. However, the only two sources of sewage treatment were MSD, which would have to depart from an established policy, and Ferndale Heights, whose territory was chiefly in Cook County and would have had to clear hurdles with MSD and the Illinois Environmental Pollution Agency before being granted permission for the extension of sewer and water lines to the site. Moreover, the cost would have been formidable — about $141,000 as noted above and a possible additional $50,000 for a lift station. Also, the extension of water service to the site was questionable, based on Mr. Michalik’s testimony because of Ferndale Utility’s limited well capacity. It would hardly seem logical for Ferndale Heights, a small Cook County utility, to furnish water to Lake County undeveloped acreage at a time when it was seeking alternate sources of water to properly serve its own Cook County customers. Thus it appears from the testimony at the preliminary hearing that the cost of making the property ready for commercial development would greatly dimmish the profitability of doing so. In addition to that, while the creek running through the subject property did not, in the opinion of several witnesses, materially detract from the value of the property for residential purposes, it did obviously diminish its desirability as a commercial site. In sum, it would appear on the basis of all the testimony and the exhibits that the annexation of this tract of land and its rezoning to commercial use was less than probable at the time of the condemnation.

The defendant contends, however, that the controlling question in the preliminary determination as to whether there is sufficient evidence to allow opinion of value based on the reasonable probability of annexation and rezoning, is the apparent flexibility of the municipality’s zoning ordinance and policies. If, the defendant contends, the policy with regard to zoning is flexible and a great majority of rezoning and annexation petitions have been approved within the recent past by the municipality in question, that should be taken as an indication that the present case will also be given favorable consideration. On this basis, the defendant argues, it should be given the opportunity to present its valuation based on such theory. In support of this theory the defendant invokes the cases of Department of Public Works & Buildings v. Rogers (1968), 39 Ill. 2d 109, and Department of Public Works & Buildings v. An Association of Franciscan Fathers (1977), 69 Ill. 2d 308. These cases, while reflecting the doctrine of flexibility as to the probability of rezoning, are distinguishable from the case before us. In Franciscan Fathers, it was a question of changing a zoning classification because of the explosive growth of a very new community and the dynamic change in the character of Route 83. The petition to condemn was filed in 1970 during a period of burgeoning growth of the community of Oak Brook. During the period from 1967 to 1972, there had been five requests for rezoning and three of these had been approved and the commercial possibilities of the area were rapidly accelerating. Moreover, the existing zoning of the subject property in that case was “Institutional” and the opinion of the supreme court noted that there was “evidence that the ‘Institutional’ zoning classification attached to the Franciscans’ property was provisional.” (Emphasis added.) 69 Ill. 2d 308, 315.

Moreover, in that case there was no complication caused by the preliminary step of annexation from another county, such as in the case before us. Nor was there any question of having to extend sewer and water facilities — it was purely a question of changing a zoning classification which was described by the appellate court as “interim” and by the supreme court as “provisional.” (Department of Public Works & Buildings v. An Association of Franciscan Fathers (1976), 44 Ill. App. 3d 49, 54; 69 Ill. 2d 308, 315.) In Rogers, the probability of the rezoning contended for being granted was supported by evidence of a recent ordinance rezoning a 50-acre tract on the same side of the highway only one-half mile away from the property in question, from residential to commercial. Again, there was no problem of annexation from another county nor any question of extending water and sewer facilities. If a municipality’s zoning problems are shown to be flexible, we agree that it is a matter to be taken into account in considering the probability of annexing and rezoning a particular tract of land, but the proposition must have merit of its own to begin with. Where a mere zoning change is needed to give the property its desired status and value, that is one thing, but in the case before us, unlike Rogers and Franciscan Fathers, much more was required to give the property in question a value as commercial property. “Flexibility” in a municipality’s zoning approach does not alter the economic and geographical facts as to a particular piece of property, and the fact that the legislative body’s policy is flexible rather than rigid does not shift the burden of proof of the landowner to show a probability not a mere possibility of rezoning within the reasonably near future. Almost anything is possible in our dynamic society — good possibilities as well as bad — and it would make a farce of the theory of the probability of rezoning if it rested only on a mere possibility. In the case before us, in order to permit such evidence, it would be necessary to conclude that because Arlington Heights had approved various zoning changes within its own borders or had annexed other property contiguous to it within Cook County, that it would probably annex farm land in Lake County and change it to commercial zoning even though such land was presently unsuited to such use because of lack of water and sewer and the existence of a flood plain thereon. We do not think the evidence adduced at the preliminary hearing was sufficient to turn this into a reasonable probability within the reasonably near future. While opinions of value based on the reasonable probability of rezoning have been allowed in many instances, as we have noticed, the court’s comments in Lombard Park District v. Chicago Title & Trust Co. (1968), 103 Ill. App. 2d 1, 9, are still appropriate here:

“It normally has been held that the burden of proof of the reasonable probability of a change of zoning is on the landowner, at least where such change would enhance the value of the property. 9 ALR3d 291, 323. As to the rest of the expert witnesses’ testimony: it is for the court to make the preliminary determination of whether there is sufficient evidence of a reasonable probability of rezoning to permit them to testify to market value based on such a probability. If so, it is for the jury to determine the weight to be given such expert’s conclusions as to value based upon the reasonable probability of such rezoning. If the court determines that the evidence falls short, as a matter of law, of showing any reasonable probability of rezoning within the reasonably near future, it must then exclude all such evidence and opinions of value based upon a use permitted only by the rezoning.”

In this case, we think the trial court was within its discretion in determining that the evidence fell short of that necessary to base a value on the probability of rezoning.

A second point of appeal is that the court erred in excluding evidence of annexations approved by Arlington Heights after January 1, 1980. It will be noted that the condemnation petition was filed on April 4, 1979. The general rule is that the value of the condemned property is to be determined as of the date of the filing of the petition to condemn, so that the trial court’s refusal to allow into evidence a map showing annexations some eight or nine months subsequent to the date of taking, in order to enhance the probability of annexation or rezoning is in keeping with the general rule. (See City of Chicago v. Riley (1959), 16 Ill. 2d 257; City of Chicago v. Blanton (1958), 15 Ill. 2d 198; City of Chicago v. Albert J. Schorsch Realty Co. (1970), 127 Ill. App. 2d 51.) In Riley, the court said: “It is well settled that the value of the property must be determined as of the time of filing the petition for condemnation.” City of Chicago v. Riley (1959), 16 Ill. 2d 257, 264.

The defendant invokes the recent case of Lake County Forest Preserve District v. Petersen (1981), 93 Ill. App. 3d 731, but that case does not concern the probability of annexation and rezoning but, rather, the probability of the defendant being granted an EPA permit to operate a sanitary landfill on his land. The issues in the case as set out by the court were “whether the doctrine of reasonable probability should be extended to include the issuance of an EPA permit and, if so, whether the court erred in not allowing submission to the jury of valuation testimony based on that doctrine.” (93 Ill. App. 3d 731, 733.) The defendant offered evidence of several sites having been granted EPA permits for the same use, but the opinion does not indicate that any such permits were considered which were granted eight or nine months after the petition to condemn. The only permit actually mentioned in the opinion was one filed a week before the filing of the condemnation petition. In any event, no definite prejudice to the defendant was shown by the trial court’s ruling that annexations approved in 1980 would not be admitted into evidence, although the map introduced by the witness, Estes, was admitted as an exhibit. Since it was conceded by Estes that there had been no 1980 annexations or, in fact, any annexations to Arlington Heights within a mile of the condemned property over a period of several years, we see no prejudice to the defendant in the court’s limited exclusionary ruling. Joseph Kesler, the village planner, also testified that there had been no recent annexations within two miles of the condemned parcel and the only annexation ever granted of Lake County property was that part of Terramere Subdivision which spilled over into Lake County and was principally in Cook County.

The defendant also contends it was prejudiced by the exclusion of evidence of a motion made by MSD Board of Commissioners authorizing its staff to enter into negotiations with Arlington Heights regarding extension of its service to that part of Terramere lying west of Arlington Heights Road in Lake County. This evidence was objected to by the District on the ground that there was no showing that any contract had ever been entered into and the District counsel asserted that no agreement had ever resulted from the motion authorizing MSD to negotiate with Arlington Heights. The trial court ruled that mere authority to negotiate with Arlington Heights some two years previous to the condemnation petition — which had never been consummated by any agreement between the parties — was too speculative as bearing on the subject property’s valuation and could not be considered as evidence. We think this ruling was justified. Defendant’s counsel did not attempt to prove anything more than a mere motion by the MSD board to allow negotiations. The negotiations were never shown to have gone beyond the authority to negotiate and this proved nothing as to extension of MSD service outside of Cook County. Moreover, defendant’s witness, Norman Toberman, a consulting engineer, testified that the property was too far away for it to be practicable for MSD to service it. Therefore, the trial court’s ruling did not prejudice the defendant, as the subject property was not likely to be served by MSD in any event.

Lastly, the defendant contends that error was committed in allowing the District’s witness, Clark, a real estate appraiser and broker, to testify regarding certain sales of property in the vicinity of the condemned land. Clark testified that among the factors he considered in arriving at the value of the property were “comparable sales that were sold on the open market of the most similar properties that I could find.” Objection was made that there had been no evidence to show that these sales were comparable to the site and the trial court ruled that the sales could be identified but no price mentioned. Clark then described in general terms several sales which he considered in arriving at his evaluation of the subject property, without giving any prices. Only one of these sales was offered into evidence as a comparable sale. The defendant cites this court’s opinion in Forest Preserve District v. Harris Trust & Savings Bank (1969), 108 Ill. App. 2d 65, as a basis for the contention that it was prejudiced in that by mentioning five sales by general description without stating the sales price, the witness gave the jury the impression that all five pieces of property were comparable sales and were sold in the price range of his valuation. At trial, the defendant’s objection seemed to be on the basis of the hearsay aspect of Clark’s testimony, since he had not been personally involved in the sales he mentioned. As to this aspect of Clark’s testimony we believe the trial court was correct in overruling the objection so long as the prices of these sales were not stated. In Harris, a similar objection was made and sustained by the trial court and this court, upon review, found that the trial court had been in error in excluding the testimony. Noting that two witnesses whose opinion of value were objected to by the trial court on the basis that it was partly founded on comparable sales of which they had no personal knowledge, this court said:

“Further, the fact that the witnesses were aware of sales in the area in which they did not participate, and that they based their opinions, in part, on this knowledge, does not render their opinions inadmissible. The trial court stated that it is proper for a witness to render an opinion of value if a witness has hearsay knowledge of other sales as a part of his background knowledge, but that it is improper to render an opinion if a witness has hearsay knowledge upon which he bases his opinion. Under this statement of the law, we conclude that the most that can be said with reference to the testimony of Collins and Fitts is that they may have included in their basis for an evaluation opinion, hearsay knowledge of other sales. The evidence certainly does not indicate that hearsay knowledge was the basis of such opinions.” (108 Ill. App. 2d 65, 72.)

This court’s opinion continued, “[t]o say that his opinion, in part, is not based on this knowledge or information because it merely is a part of his general background and experience, is an exercise in pettifoggery.” 108 Ill. App. 2d 65, 72-73.

We conclude, therefore, that the objection to Clark’s testimony, based on hearsay, because it reflected consideration of comparable sales he did not personally participate in, is not a valid objection. His opinion of value was based on several factors in addition to the comparable sales he mentioned and was not arrived at solely on the basis of hearsay knowledge of other sales in the vicinity.

However, we agree with the defendant that the sequence of Clark’s testimony was improper. He first testified as to his qualifications and then as to the factors he considered in arriving at his opinion of value. Among these he said he considered several sales in the vicinity of the property in question. Upon objection, the trial court ruled he could mention these sales but no prices. Clark then described the sales he had in mind in general terms as to location and size or acreage without giving any prices. After that he was asked and expressed his opinion of value of the subject property. This sequence was criticized in Harris, this court saying:

“The sequence of the testimony of Fitts was properly subject to criticism. He first testified with reference to his qualifications, then described the other surrounding properties which he had considered in arriving at his value opinion of the subject property. His opinion of the value of the subject property should logically have followed his testimony concerning his qualifications. Such sequence would have obviated part of the objections raised by the defendants.” 108 Ill. App. 2d 65, 70.

While the same improper sequence was followed here, we do not consider it to amount to reversible error. We note that in Harris, the ground for reversal was not this improper sequence of testimony, which was raised by the defendants, but rather the plaintiff’s objection to the exclusion of the testimony of Fitts and Collins as being hearsay. This court, while its opinion in Harris did observe that the sequence of testimony was subject to criticism, reversed the trial court on the plaintiff’s contention that the testimony of Fitts was excludable as being hearsay.

In the case before us, while the sequence of testimony was no doubt improper, as noted in Harris, we do not consider it to have been of serious impact in the defendant’s case. Besides Clark, two other witnesses testified for the District as to value. Neil King testified as to his qualifications, the various factors he had considered at arriving at a valuation of the subject property, and said that among them were comparable sales in the vicinity. He then gave his opinion as to the value of the property per acre. His valuation was the same as Clark’s and the sequence of his testimony was correct. The witness Schwandt testified generally as to his background, his inspection of the property and the factors he had considered in arriving at an opinion of value. He did not mention comparable sales. He also gave approximately the same valuation as did Clark and King based on residential use. Thus two other witnesses with substantial qualifications and experience, noting other factors affecting the valuation of the property, arrived at approximately the same valuation per acre as did Clark. Moreover, the defendant’s own two witnesses only appraised the property at $20,000 per acre for residential purposes. Thus, the difference in value was not critical as to residential use. It is clear that the main difference of opinion in this case is as to whether the property should be given a commercial value or one based on the residential zoning then existing. Clark was only one of three qualified District witnesses who arrived at the valuation of approximately $15,000 for residential purposes. Under these circumstances the effect of the improper sequence of testimony concerning residential value was not seriously prejudicial.

We are of the opinion that the case was fairly tried and that the trial court properly excluded the defendant’s witnesses from giving an opinion of value based on the reasonable probability of annexation and rezoning of the subject site. There was little foundation for the evaluation based on the land being annexed and rezoned within the reasonably near future. The amount awarded by the jury was well within the range of the testimony.

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

Judgment affirmed.

NASH and REINHARD, JJ., concur.


author: PRESIDING JUSTICE GREEN JUSTICE LONDRIGAN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEO B. LENTZ, Defendant-Appellant.
    Fourth District
    No. 17366
    Opinion filed May 27,1982.
    LONDRIGAN, J., dissenting.
    Walter H. Kasten, of Springfield, for appellant.
    Stephen H. Peters, State’s Attorney, of Clinton (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Defendant, Leo B. Lentz, appeals orders of the circuit court of De Witt County entered on May 14, 1981, after a bench trial finding him guilty of driving an automobile while his driver’s license was revoked, and on June 17, 1981, sentencing him to 120 days’ imprisonment, fining him $200, and placing him on probation for one year. We affirm.

Defendant maintains the trial court had no jurisdiction to try or convict him because no document charging him with the offense was on file with the court until June 17, 1981, when he was sentenced. The only charging instrument in the common law record certified to us by the clerk of the court below is a uniform traffic citation charging defendant with the offense for which he was convicted. No filing stamp of the nature used by the clerk of the trial court on other documents in the file, and used by many other clerks of court, appears on the document. No date in any way purporting to be a filing date appears on the front of the citation. A copy of the back of the citation as it appeared in the record is shown below.

Defendant maintains that the notation “6/17/81” in the upper left-hand corner of the citation shows conclusively that the citation was filed on that date. We disagree. The back of the citation purports to list “Court Action and Other Orders.” The date “6/17/81” is placed alongside a box which contained a statement that: (1) the complaint was examined; (2) a probable cause determination was made; (3) leave was granted to file the complaint; and (4) the complaint was then filed. The printed statement does not purport to be merely an acknowledgment by the clerk that the complaint was filed on a date placed to the left of the statement. Rather, the printed statement purported to show the entry of a series of orders culminating with the filing of the complaint, all on the date shown to the left. For the court to have made its findings and entered those orders after a series of proceedings in the case and after the defendant had been convicted would have been most unlikely.

Supreme Court Rule 552 (73 Ill. 2d R. 552) seems to use the words citation and complaint interchangeably. It states, “A final d[is]position noted on the reverse side of the ‘Complaint’ shall be evidence of the judgment in the case.” The rule does not state that the notation is conclusive evidence of the judgments. No other statement is made in the rule as to the effect of other notations on the reverse side of the document. As the notation directly beside the date “6/17/81” was not of a “final disposition,” the rule does not give it the status of being even “some evidence” of court action. It certainly was not conclusive evidence of the date of filing of the citation.

The docket sheet, on the other hand, under date of “6/17/81”, makes extensive references to the sentencing hearing held on that date and the sentence being imposed. It makes no reference to the court examining the complaint, making a finding of probable cause and permitting the complaint to be filed.

After considering the entire record before us, we conclude the complaint or citation upon which the prosecution was based was on file and before the court from the time the case started. The case was given a docket number and a file was prepared for it upon its inception. This would have been unlikely to have happened without the filing of a complaint. Numerous subsequent notices were made and proceedings had. If no charges were on file, its lack would have been evident at those proceedings or at the subsequent bench trial. The date “6/17/81” was apparently placed at the top left of the back of the complaint by inadvertence. It should have been placed lower on the left side next to the portion of the form which had been filled in by pen to partially reflect the sentence actually imposed on June 17, 1981.

As we find the complaint to have been timely filed, we affirm.

Affirmed.

TRAPP, J., concurs.

JUSTICE LONDRIGAN,

dissenting:

I dissent, for I do not see how a person can be tried and convicted before he has been charged with an offense; I have always thought that filing a charge commences rather than terminates a prosecution. I question the majority’s reasoning, which begins by relying on the circuit court’s docket sheet and ends, when the docket sheet proves insufficient, by presuming the regularity of the circuit court proceedings because those proceedings occurred.

The only indication of when the charge was filed is the date, June 17, 1981, written on the back of the ticket. To show that this date is incorrect, that the charge was filed at some other time, the majority uses the docket entry for that date, which does not mention filing the charge. The majority assumes that the ticket and the docket entry are inconsistent, but perhaps the docket entry is merely incomplete.

The docket sheet is no help, though, for it does not say when the ticket was filed. The majority therefore presumes the regularity of the proceedings, and yet this presumption would in effect explain away all jurisdictional defects. The majority believes that the charge must have been filed before June 17, 1981 — indeed, must have been filed at the outset of the case — because the case was assigned a number, a file was prepared, and the defendant was tried and convicted. This reasoning begs the question, for trial and conviction are valid only if a charge is already on file.

The majority’s presumption of regularity requires that jurisdictional objections be made before trial and conviction, or even before the assignment of a case number and the preparation of a file; an objection made after the occurrence of any of these events may be answered under the precedent created today by the reply that the case has begun and would not have begun without the filing of a charge.


author: JUSTICE WEBBER

text:
    WILLIAM A. DUGUID COMPANY, Plaintiff-Appellant, v. HUNDMAN RENTAL PROPERTIES, Defendant-Appellee.
    Fourth District
    No. 17586
    Opinion filed June 10,1982.
    Luedtke, Hartweg & Turner, of Bloomington (Darrell L. Hartweg, of counsel), for appellant.
    Dunn, Brady, Goebel, Ulbrich, Morel, Kombrink & Hundman, of Blooming-ton (Mark T. Dunn and William T. Hundman, of counsel), for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff, as lessee of certain property in Normal, Illinois, brought suit against defendant, as lessor, for damages for breach of the covenant of quiet enjoyment. The circuit court of McLean County entered summary judgment for defendant and this appeal followed.

From the pleadings and the documents supporting the motion for summary judgment, the facts are ascertained to be as follows. Plaintiff obtained a subcontract from Hundman Commercial Construction Co., Inc. (apparently a company related to defendant), to fabricate and erect exterior wall panels for a building then under construction by Hundman Construction. Because of the nature of the panels, it was necessary that they be. constructed in a controlled environment in order to protect them from moisture, excessive heat or cold, and exposure to excessive sunlight. In order to obtain such an environment, plaintiff and defendant entered into a lease of certain premises in Normal. The term of the lease was 30 days commencing June 1, 1977. There was some evidence that Harold Duguid, a vice-president of plaintiff who executed the lease on its behalf, told officers of defendant that plaintiff would need to occupy the premises for 12 to 14 weeks. However, this is not spelled out in the lease. The rent reserved was $500.

Although the lease expired by its own terms on July 1, 1977, on that date plaintiff paid to defendant another $500 representing rent for the month of July. On July 8, 1977, an officer of defendant was verbally notified by an official of Normal that the building occupied by plaintiff was not approved for such occupancy. A letter from the Normal building commissioner followed on July 11 stating that the premises had been posted “Not Approved for Occupancy” on July 7 and could not be used for any purpose until the requirements of the Normal Municipal Code were fulfilled. Plaintiff was notified of these developments; prior to this time plaintiff had no knowledge of any building violations.

On July 15, 1977, Harold Duguid, plaintiff’s vice-president, was verbally notified by the fire marshal of Normal to vacate the building and on the same day an official of Normal put a red tag on it. The tag signified that the building was unsuitable for occupancy. Following the receipt of the notice of disapproval, an officer of defendant entered into negotiations with officials of Normal in an effort to obtain more time to vacate. These were successful and the vacation date was moved back to August 15,1977. Plaintiff received a copy of the letter of extension. The extension was afterwards moved further back to August 20.

Notwithstanding these developments, plaintiff tendered another $500 as rent for August. Harold Duguid testified that he knew at that time that the vacation date had been extended to and fixed at August 15, but that he hoped for a further extension.

Plaintiff finally vacated the premises on August 19,1977. A tent was erected outside the building, and efforts were made to continue construction of the panels in it, but it proved to be too small and officials of Normal informed plaintiff that the panels could not be constructed at an outside site. The whole operation was then moved to the construction site of the building for which the panels were intended. Defendant never made any effort to remedy the violations in the leased premises.

In its complaint plaintiff alleged that the covenant of quiet enjoyment had been breached and that it had suffered damage in the expense of moving equipment and materials; damage to the panels themselves because of exposure to the weather; and damage in being unable to fulfill its contract with the construction company within the allotted time.

The parties have cited a number of cases but none of them deals directly with the precise issue presented here: whether a tenant, holding over under a lease and knowing that he may be required to vacate as a result of building code violations, may claim damages for a breach of the covenant of quiet enjoyment. We hold that he may not and affirm the trial court.

Three older cases lay down rules which are dispositive. In Thomas v. Wiggers (1866), 41 Ill. 470, the supreme court held that courts are to consider the situation of the parties and the circumstances existing at the time of the execution of a lease in ascertaining the intent of the parties. In that case the tenant had been occupying a room under oral and written leases from the landlord for months prior to the execution of a five-year lease. The landlord occupied the adjacent room under which there was a steam engine. Prior to the execution of the lease and during his prior tenancy, the tenant had the use of the exhaust steam from the engine which he used in his business. This use was not mentioned in the lease. After about one year into the new term the landlord cut off the exhaust steam and the tenant sued for damages. The trial court would not allow the tenant to show his prior uninterrupted use of the steam and the supreme court held this to be error. One of the bases for the new lease was the use of the steam.

Wiggers was followed in Chicago Warehouse & Manufacturing Co. v. Illinois Pneumatic Tool Co. (1889), 35 Ill. App. 144. The circumstances were similar. The tenant leased a portion of the premises under which was located a steam boiler which supplied power to the entire building. A new lease was executed between the parties. Several months later the tenant vacated the premises because the heat from the boiler became too oppressive. He then brought suit for breach of the covenant of quiet enjoyment. The appellate court held that he could not recover and that there was no breach of the covenant because the tenant knew of the location of the boiler by virtue of the prior tenancy and was bound to take notice of the heat.

The rule of pre-existing condition of which the tenant has knowledge was applied in Kiernan v. Bush Temple of Music Co. (1907), 229 Ill. 494, 82 N.E. 410. The tenant leased the premises in 1902 and renewed in 1903. The lease obligated the landlord to furnish an amusement license for the tenant. It was afterwards discovered that the building was in violation of ordinances of the city of Chicago relating to theaters and places of amusement. As a result, the premises were closed in order to allow the landlord sufficient time to make the necessary repairs and alterations to bring them into compliance with the ordinances. The tenant attempted to set off from his rent the damages which he claimed to have sustained as a result of the closing. The supreme court agreed with the appellate court that he could not, holding that both the landlord and the tenant must be presumed to have had knowledge of the ordinances when the lease was executed and that the interference of the city did not constitute a breach of the covenant of quiet enjoyment. The supreme court, quoting the appellate court, said: “ ‘No covenant on the part of the lessor can be implied that the lessee should be permitted to use the demised premises in violation of the building ordinance.’ ” 229 Ill. 494, 506, 82 N.E. 410, 414.

In the case at bar plaintiff alleged no damages for the month of June 1977 but only for July and August 1977. However, notwithstanding the knowledge of the building code violations which is imputed to it under the authorities just cited, plaintiff had actual knowledge of them from and after early July, and notwithstanding paid rent for the month of August and proposed to continue illegal operations. It is thus unlike Kesner v. Consumers Co. (1925), 239 Ill. App. 92, cited by plaintiff. In that case the landlord allowed another tenant in the same building to store large quantities of flammable film in violation of a city ordinance. A fire occurred and made the tenant’s rooms unusable, so it vacated the premises. The landlord sued for rent, and the tenant claimed set-off for breach of quiet enjoyment. A verdict for the landlord was reversed. While much of the opinion is taken up with discussion of errors in jury instructions, an essential holding of the court was that it was the duty of the landlord under the covenant of quiet enjoyment to use all reasonable means to protect the tenant against ordinance violations.

Kesner, then, involved an innocent tenant, so the rule of Kiernan is inapplicable. In the instant case, the tenant has in effect alleged that the landlord covenanted to permit him to use the premises in violation of the ordinance, and Kiernan is fully applicable.

Likewise, we find Eskin v. Freedman (1964), 53 Ill. App. 2d 144, 203 N.E.2d 24, also cited by plaintiff, inapposite. That case is essentially one of pleading. The court cited Kiernan concerning equal knowledge of municipal ordinances as between landlord and tenant and then stated without citation of authority that the rule did not apply to knowledge of ordinance violations. However, the opinion goes on to say that if such violations had been alleged, the counterclaim probably would have been good and the failure to make such allegations was fatal. We read a strong implication in this language to the effect that Kiernan would have applied if it had been properly alleged. Since plaintiff in the instant case had actual knowledge of the violations, Eskin cannot apply.

The parties also argue as to whether covenants in an original lease are applicable to a holdover tenancy. In the case at bar the argument is beside the point. When both parties are charged with knowledge of ordinances and both are in possession of actual knowledge of violations, there is no breach of the covenant of quiet enjoyment. (Kiernan; Eskin.) We also fail to see the pertinence of certain cases cited from other jurisdictions. We have discussed solid authority from our own State and thus no need exists to go beyond the jurisdiction. Wiggers, Chicago Warehouse, and Kiernan have stood the test of time, and to paraphrase Shakespeare, age cannot wither nor custom stale their valid principles: no covenant in a lease can permit a tenant to make an illegal use of the demised premises.

The circuit court of McLean County was correct in entering summary judgment for the defendant, and its action in so doing is affirmed.

Affirmed.

MILLS and LONDRIGAN, JJ., concur.