author: JUSTICE HOPE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff and Petitioner-Appellee, v. JAMES LEPPERT, Defendant and Respondent-Appellant.
    Second District
    No. 79-634
    Opinion filed March 29, 1982.
    Rehearing denied April 28, 1982.

      Mary Robinson and Marilyn Martin, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Dallas C. Ingemunson, State’s Attorney, of Yorkville (Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPE

delivered the opinion of the court:

Respondent was tried in Kendall County for attempt (murder) and the jury returned a verdict of not guilty by reason of insanity. Thereafter, a hearing was held before another jury to determine whether he should be involuntarily committed, pursuant to section 5 — 2—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—4). The jury found him to be a person subject to involuntary admission to a mental health facility. The court committed him to a mental health facility for an indefinite period of time not to exceed 10 years.

Respondent has a history of psychotic behavior. He suffered brain damage in an automobile accident on March 5, 1977. His condition required occasional hospitalization and medication, including valium. In the summer of 1978 he was a patient at Mercyville Hospital where he was diagnosed as psychotic, or out of touch with reality. He had signs of schizophrenia and depression. Upon his release from the hospital in August 1978 his prognosis for improvement was good, but this worsened due to respondent’s nonadherence to suggested therapy.

The attack which prompted the charge occurred in the early morning hours of February 3, 1979. Respondent’s father, Oliver Leppert, was awakened by a thump on his chest. By the light of the street lamp Oliver could see an arm with a knife. He could not see who his assailant was. He grabbed the individual and pushed him into the kitchen. He then realized his assailant was his son. Respondent informed his father that he had taken his entire supply of valium. He had refilled a prescription that day, obtaining 100 5-milligram tablets. Respondent was brought to the hospital where he was treated for a valium overdose.

Oliver suffered a large bruise and a very slight scratch on his chest. The knife used in the attack was a kitchen knife, 10 to 12 inches long. Its blade was bent, although before the attack it had been straight.

The day after the attack Oliver visited respondent at the hospital. In his only reference during the visit to the incident respondent said to Oliver, “Well, did I not use the longest knife, and did I not aim for your heart?”

When interviewed by a psychiatrist on March 14, 1979, respondent related that at the time of the attack he knew what he was doing but he believed the knife would bend and not kill his father.

Respondent first argues that because he was found to be insane at the time of the attack, that is, that “as a result of mental disease or mental defect, he lack[ed] substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law” (Ill. Rev. Stat. 1977, ch. 38, par. 6 — 2(a)), he lacked the requisite intent to attempt a murder and cannot have been found not guilty of attempt (murder) by reason of insanity. He contends that he should have been found not guilty of aggravated battery, a crime of general, not specific, intent, by reason of insanity. Respondent raises this issue, although the judgment was an acquittal, because when one is found not guilty of an offense by reason of insanity the maximum possible length of commitment to a mental health facility is based upon the maximum possible length of imprisonment that could have been imposed had defendant been found guilty of an offense. Section 5 — 2—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—4(b)) provides that “the initial order for admission of a defendant acquitted of a felony by reason of insanity shall be for an indefinite period of time; provided, however, that such period of commitment shall not exceed the maximum length of time that the defendant would have been required to serve, less credit for good behavior, before becoming eligible for parole had he been convicted of and received the maximum sentence for the most serious crime for which he has been acquitted by reason of insanity.” Aggravated battery is a Class 3 felony (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4(d)) and therefore the maximum time for involuntary commitment could be only 2/í¡ years. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 8—1(a)(6).) For attempt (murder) the maximum commitment is 15 years. Ill. Rev. Stat. 1977, ch. 38, par. 8 — 4(c), and Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 8—1(a)(3).

Respondent had moved for a directed verdict at the close of the State’s evidence arguing that the State failed to prove the element of a specific intent to kill. We agree with the State, however, that the evidence of respondent’s comment to his father, “Well, did I not use the longest knife, and did I not aim for your heart?” was sufficient evidence of intent to kill to put the question whether respondent held the specific intent to kill to the jury. The trial court properly refused to direct the verdict for defendant.

Respondent apparently believes, however, that the evidence adduced at the trial can only support a finding that aggravated battery was the offense committed and that we can and must reduce the degree of the offense from attempt (murder) to aggravated battery.

After reviewing the evidence we are not convinced that the offense committed was unquestionably aggravated battery and that respondent had not intended to kill his father. This is a close case factually, and it would have been possible to find either that the offense committed was attempt (murder) or that the offense was aggravated battery. Therefore, this is not a case in which we feel empowered to reduce the severity of the offense.

The jury was never instructed regarding aggravated battery. Respondent never tendered such an instruction to the court.

It is a general rule that when a defendant fails to tender an instruction a reviewing court cannot reverse for the failure to so instruct the jury. The defendant has waived the issue. (People v. Goodman (1981), 98 Ill. App. 3d 743, 424 N.E.2d 663.) It is true that in criminal cases the waiver rule will not prevent a review of “substantial defects” in jury instructions “if the interests of justice require.” (Ill. Rev. Stat. 1979, ch. 110A, par. 451(c); People v. Underwood (1978), 72 Ill. 2d 124, 378 N.E.2d 513.) It has been recognized that in homicide cases if there is evidence in the record which, if believed by the jury, would reduce the crime to manslaughter an instruction defining that offense should be given, sua sponte by the court if need be. People v. Joyner (1972), 50 Ill. 2d 302, 278 N.E.2d 756.

We have found no authority which holds that in a nonhomicide case it is required for the court to sua sponte give jury instructions of a lesser included offense. We will not hold so here. In a homicide case it is clear that if there is evidence to support it the lesser included offense to instruct the jury upon would be manslaughter. For other offenses the lesser included offense would not always be so obvious. People v. Cramer (1981), 85 Ill. 2d 92, 421 N.E.2d 189, held that a lesser included offense is to be determined by referring to the offense as it is charged in the information or indictment. We cannot require a trial court in every jury case to search the Criminal Code to determine what offenses could be considered lesser included offenses of the offense charged as it was described in the indictment or information. We therefore hold that the trial court did not err in instructing the jury on attempt (murder) only. Further, there is evidence in the record to support the jury’s verdict. We do not consider the verdict unreasonable, improbable or unsatisfactory and will therefore not disturb it. People v. Reese (1973), 54 Ill. 2d 51, 294 N.E.2d 288.

Respondent next contends that he was denied a fair commitment hearing because the trial court denied his motion for a continuance which he requested in order that his attorney could study psychiatric reports and other evidence against him. Section 3 — 803 of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat., 1978 Supp., ch. 91%, par. 3 — 803) provides that “[t]he court may appoint one or more physicians, qualified examiners, clinical psychologists or other experts to examine the respondent and make a detailed written report of his findings regarding the respondent’s condition. The report shall be filed with the court and copies shall be made available to the attorneys for the parties.” Section 3 — 805 of the Code provides that “[cjounsel shall be allowed time for adequate preparation # e (Ill. Rev. Stat., 1978 Supp., ch. 91%, par. 3 — 805.) The State petitioned for involuntary commitment immediately following the acquittal. The hearing was scheduled for July 16,1979, but the matter was apparently continued until July 18. Two doctors ordered by the court to examine respondent did so on July 16. Their reports were not filed with the court nor made available to the parties by the day set for the hearing. Respondent’s attorney requested a continuance in order that the reports could be made available to him. The court refused to continue the case, noting that the parties had earlier agreed in court that the hearing Would commence on this date. The court added that either respondent’s attorney would have the reports before the doctors testified or that the attorney would have a chance to examine them (meaning the doctors, apparently) before they testified. The doctors testified on July 19. Respondent’s attorney had received one of the reports on the evening of July 18. The attorney did not receive the other doctor’s report until a few minutes before the doctor testified. The attorney had an opportunity to speak with him before his testimony.

Respondent argues that, not having the reports earlier, he was not able to anticipate some of the matters about which the doctors testified. The State argues that it was respondent’s failure to request the reports through the normal discovery procedures (see Supreme Court Rule 201 et seq. (Ill. Rev. Stat. 1977, ch. 110A, par. 201 et seq.)), not the refusal to continue the matter which caused respondent to be at a disadvantage at the hearing. This argument is specious, for there were no reports to discover prior to the evening before the scheduled hearing.

Whether to grant a continuance is within the discretion of the trial court. This discretion is not be exercised arbitrarily, however. (See Reecy v. Reecy (1971), 132 Ill. App. 2d 1024, 271 N.E.2d 91.) We think the proceedings were unduly rushed. Respondent’s counsel expected to receive the reports on July 17,1979. When he did not receive them by the morning scheduled for the hearing he requested and was denied a continuance. That evening he received one report, and the next day he received the other shortly before its author testified. The attorney protested to the court he did not have enough time after seeing the reports to decide whether to obtain independent examination of his client, to which he is entitled under section 3 — 804 of the Mental Health and Developmental Disabilities Code. (Ill. Rev. Stat., 1978 Supp., ch. 9Bá, par. 3 — 804.) We think respondent was placed at an unfair disadvantage by being required to proceed with the hearing when he had so little time to study the physicians’ reports which were required to be made available to him, and we remand for a new commitment hearing.

We will address other issues respondent raises that are likely to be raised in the hearing on remand.

Respondent argues that it was improper to allow the State to examine a psychiatrist regarding his mental state over his assertion of the therapist-patient privilege. The court ruled that respondent waived this privilege when he had the psychiatrist testify on his behalf at his criminal trial. We agree with the trial court. Respondent had the psychiatrist assist him in his attempt to prove himself insane for the purpose of excusing his responsibility for the act leading to the criminal charge. Respondent elicited the doctor’s testimony relating to his insanity in order to gain acquittal. He must acquiesce to the State’s use of the same doctor’s testimony to prove his present insanity and so obtain a verdict that he should be committed,

Should respondent be found to be in need of commitment the court must order admission to a mental health facility in accordance with section 5 — 2—4(b) of the Unified Code of Corrections. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—4(b).) That section provides that “the initial order for admission of a defendant acquitted of a felony by reason of insanity shall be for an indefinite period of time; provided, however, that such period of commitment shall not exceed the maximum length of time that the defendant would have been required to serve, less credit for good behavior, before becoming eligible for parole had he been convicted of and received the maximum sentence for the most serious crime for which he has been acquitted by reason of insanity.” The statute provides a clear formula for commitment: the time shall be indefinite, and the maximum is set by operation of law. The maximum sentence for attempt (murder) is 30 years. (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 4(c), and Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 8—1(a)(3).) With credit for good behavior, the term would be reduced to 15 years. The maximum length of time respondent may be involuntarily committed is thus 15 years. The court may not state a maximum length of commitment any different than that provided by statute.

Finally, respondent argues he should be given credit for time spent in custody. There is no provision in the Mental Health and Developmental Disabilities Code for giving credit for time served to one who is ultimately committed to a mental health facility. Respondent argues we should consider the matter as analogous to section 5 — 8—7(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—7(b)), which gives credit for time served to persons convicted of a crime and sentenced to imprisonment.

We do not think the matters are entirely analogous. A person convicted of a crime who receives credit for time served received credit for a period of confinement of the same nature as the confinement to which he is sentenced. Respondent was found in need of confinement and treatment in a mental health facility; from February 23,1979, to July 20,1979, respondent was not confined in a mental health facility but was in jail. Any consideration of credit time served would not apply to the time spent in jail. We think that should respondent be found in need of confinement in a mental health facility the length of his commitment should be computed from July 20,1979.

We affirm the judgment of acquittal of attempt (murder) by reason of insanity, and remand for a rehearing on the issue of his involuntary commitment.

Affirmed in part, reversed in part, and remanded.

LINDBERG and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    JACK W. STRINGER, Plaintiff-Appellant, v. GALE ZACHEIS, Defendant-Appellee.
    Fourth District
    No. 17363
    Opinion filed March 31, 1982.

      Robert D. Owen, of Owen, Roberts, Susler & Murphy, P. C., of Decatur, for appellant.
    . Heyl, Royster, Voelker & Allen, of Peoria, and Hull, Campbell, Robinson & Gibson, of Decatur, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

Medical malpractice.

Dr. Zacheis was sued on negligence and res ipsa loquitur.

Summary judgment for defendant on both counts.

We affirm.

Plaintiff appealed from the granting of a summary judgment for defendant on both counts of his complaint of medical malpractice. Count I was grounded in negligence, count II asserted a res ipsa loquitur theory.

We affirm.

In medical malpractice cases, as in other cases, summary judgment is properly granted where there is no genuine issue as to any material fact. The court is to determine the existence or absence of a genuine issue as to any material facts from the affidavits, depositions, admissions, exhibits, and pleadings in the case. The court has the duty to construe evidence strictly against the moving party and liberally in favor of the opponent. It is well settled that the right to summary judgment must be free from doubt and determinable solely as a question of law. (Hill v. Lutheran Hospital (1978), 58 Ill. App. 3d 1003, 374 N.E.2d 1147.) And in medical malpractice cases, the trial court should be extremely cautious in entering summary judgment because of the reluctance of a member of the medical profession to testify against another member. Sanders v. Frost (1969), 112 Ill. App. 2d 234, 251 N.E.2d 105.

The depositions and affidavits in this case reveal that Dr. Zacheis performed a Nissen repair of a hiatal or diaphragmatic hernia on plaintiff on January 22,1976. The hiatus is the opening in the diaphragm through which the esophagus normally passes into the stomach. The sphincter at the end of the esophagus was not closing because of the dilatation at the lower end of the esophagus. This caused a reflux from the stomach into the esophagus causing pressure and gas pains. The Nissen repair attempted to solve this problem through sewing the upper part of the stomach around the esophagus so the esophagus stops the contents of the stomach from coming back up. In making this repair, a bougie, which is a dilator, is pushed down like a tube through the esophagus, so the repair will not be made too tight and the surgeon will have something to stabilize the esophagus enabling him to wrap the stomach around it. After the repair, the stomach apparently slipped from the esophagus, causing a recurrence of the pressure and gas pains. Plaintiff eventually went to Carle Clinic in Champaign where Dr. Cooley repaired the diaphragmatic hernia on January 24,1978, again using the Nissen procedure.

Negligence

To reverse summary judgment on count I, plaintiff argues that defendant was negligent (1) in not utilizing enough stitches to maintain the repair; (2) in using a bougie which was too small causing the repair to be too tight; and/or (3) in failing to administer proper post-operative care.

In a medical malpractice action, the plaintiff generally must establish the standard of care through expert testimony. (Expert testimony is not required in cases involving gross negligence or common treatment which could be appraised by jurors without expert aid. However, these exceptions are not applicable here.) Once the standard of care is established, plaintiff must prove that, judged in the light of that standard, the doctor was unskillful or negligent and that his want of skill or care caused the injury to the plaintiff. Walski v. Tiesenga (1978), 72 Ill. 2d 249, 381 N.E.2d 279.

Dr. Cooley testified that the minimum sized bougie he used in Nissen repairs was larger than the bougie defendant used on plaintiff. He also testified that he added additional sutures to the fold around the esophagus. However, mere testimony that another physician would have acted differently is not sufficient to establish a prima facie case. Differences in the exercise of individual judgment are consistent with the exercise of due care in the inexact science of medicine. (Walski.) Dr. Cooley was asked and said nothing about the accepted standard of the community regarding the additional stitches or the size of bougie used. Therefore, it appears no standard of care was established; only differences in the procedures of two surgeons. Since no standard of care was shown, plaintiff could not make out a prima facie case of negligence by showing a deviation from an established standard.

Regarding the post-operative care, Dr. Cooley stated that if a patient — with the type of symptoms plaintiff had when plaintiff came to Cooley — had come to Cooley a month after the operation, Dr. Cooley would re-X-ray and esophagoscope the patient, depending on the severity of the symptoms. This was not done by Dr. Zacheis. However, nowhere does plaintiff state that he complained of such symptoms to Dr. Zacheis a month after the initial operation. Therefore, there is no prima facie case of negligence in the post-operative care.

Defendant, on the other hand, did sufficently negate the prospect of negligence for summary judgment purposes. In his affidavit, Dr. Zacheis stated that he applied more than the normal skill in operating on plaintiff and that he applied appropriate post-operative care. In Prather v. Decatur Memorial Hospital (1981), 95 Ill. App. 3d 470, 420 N.E.2d 810, the court stated there was nothing wrong with basing summary judgment on the uncontradicted affidavit of the defendant doctor. Where facts contained in an affidavit in support of a motion for summary judgment are not contradicted by counteraffidavits, such facts are admitted and must be taken as true.

Plaintiff challenges this proposition, citing Practical Offset, Inc. v. Davis (1980), 83 Ill. App. 3d 566, 404 N.E.2d 516. But that legal malpractice case is not on point since the defendant attorney’s bald assertion that he acted with reasonable skill was contradicted by plaintiff’s expert’s affidavit setting out facts upon which the expert’s opinion was based and giving the opinion that defendant was under a duty to do more than he did. The trial court granted summary judgment for plaintiff, and the appellate court agreed that defendant’s bald assertion was insufficient to raise a question of fact in those circumstances.

The Prather rule has been recently applied in Goldstein v. Kantor (1981), 101 Ill. App. 3d 264, 427 N.E.2d 1322. Furthermore, in the present case, Dr. Cooley testified that he could find no deviation in defendant’s actions from the appropriate standard of care. Therefore, we conclude the statements in defendant’s affidavits and Dr. Cooley’s statement are sufficient to establish facts which plaintiff has been unable to controvert. Therefore, summary judgment on the negligence count was proper.

Res Ipsa Loquitur

To succeed in his res ipsa loquitur count, plaintiff must initially show the injury:

(1) is of the kind which ordinarily does not occur in the absence of negligence;
(2) was caused by an agency or instrumentality within the exclusive control of the defendant; and
(3) was not due to any voluntary act or neglect on the part of the plaintiff.

(Spidle v. Steward (1980), 79 Ill. 2d 1, 402 N.E.2d 216.) The only point in dispute is the first element, whether the injury is of the kind which ordinarily does not occur in the absence of negligence. No genuine issue of material fact exists as to this element.

In Spidle, the plaintiff developed a vaginal infection following a hysterectomy performed by the defendant. In the subsequent medical malpractice suit, the plaintiff based two complaint counts on res ipsa loquitur and alleged two counts of negligence. At the close of the plaintiff’s case, the trial judge directed a verdict for the defendant on the two res ipsa loquitur counts. The jury found for the defendant on the two counts alleging negligence. The supreme court upheld the jury verdict but determined that the res ipsa loquitur counts should have gone to the jury.

The issue in Spidle was the amount of evidence necessary for the trial judge to present a res ipsa loquitur theory to the jury. As in this case, the only disputed element was whether the plaintiff’s injury was one which ordinarily would not have occurred without negligence. The plaintiff had presented no direct evidence that her injury was one that ordinarily occurs as a result of negligence. There was, however, expert testimony that plaintiff’s injury — vaginal fecal fistula — was “a rare and unusual complication of hysterectomies” and one that was not normally expected. Of this testimony, the Spidle court said, “We cannot conclude with equanimity ° ° 6 whether he meant fistula formation after hysterectomies is usually a result of negligence or whether there is an equal probability that they occur despite the exercise of due care.” (79 Ill. 2d 1, 9.) In Spidle, however, the expert also testified about the inadvisability of operating on the plaintiff if her pelvic inflammatory disease was in an acute, or an acute flareup, stage. Evidence was introduced that the plaintiff was in an acute stage and that the defendant, after the operation, admitted he “operated a little too soon.” The court held that a reasonable person could conclude that the expert believed that the plaintiff’s injury was, more probably than not, a result of the defendant’s negligence — that the plaintiff’s injury was more than a mere unusual occurrence. Thus, plaintiff’s res ipsa loquitur count should have been presented to the jury.

The court stated in Spidle that the trial judge must determine whether plaintiff’s pleaded facts would ever establish the improbability of injury without negligence. We interpret Spidle as requiring a thorough search of the summary judgment documents for all evidence tending to show that plaintiff’s injury had negligent antecedents. Such a search in this case reveals to us that there is no triable issue of fact. The only testimony which tends to establish that the plaintiff’s injury ordinarily does not occur in the absence of negligence is the statement by Dr. Cooley that it is “very unusual if done properly for it not to hold, but in some cases, it doesn’t.” However, when examined in conjunction with other statements made by Dr. Cooley, it becomes clear that the doctor did not believe that plaintiff’s injury more probably than not resulted from defendant’s negligence and no genuine issue of material fact is raised. Dr. Cooley never opined that he considered defendant’s conduct “inadvisable,” as was the case with the expert testimony in Spidle.

Dr. Cooley attributed the frequency of the failure of this type of repair to the fact that the esophagus has no outer layer, or serosa, with substance. Rather, the stitches must be put into a smooth muscle of the esophagus — which does not have a great deal of tensor strength. Because of this inherent property of the esophagus, Dr. Cooley stated the “greatest experts in the world have experienced this complication. * * e[A]ll people that do the Nissen repair, if they do enough of them, they’re going to have instances where this very thing happens.”

Plaintiff’s evidence simply fails to establish the first of the three elements of res ipsa loquitur and summary judgment was proper.

Moreover, even under the most liberal reading of Spidle, plaintiff failed to establish this element of res ipsa loquitur. There is language in Spidle suggesting that a low incidence of the injury plus specific acts of negligence will send res ipsa to the jury:

“The California Supreme Court reached similar conclusions in Clark v. Gibbons (1967), 66 Cal. 2d 399, 412, 426 P.2d 525, 534, 58 Cal. Rptr. 125, 134. In that case, an expert testified to a low incidence of injuries when due care was used. Other evidence tended to establish specific acts of negligence. The court reasoned that this evidence, combined, presented a jury question under res ipsa loquitur. Subsequent cases have struck res ipsa loquitur counts where expert testimony of a rare and unusual result was not accompanied by further evidence of negligent acts that would have caused the injury at issue. (See, e.g., Contreras v. St. Luke’s Hospital (1978), 78 Cal. App. 3d 919, 933, 144 Cal. Rptr. 647, 656.) When the trial judge in the instant case permitted the ordinary negligence counts to go to the jury, he ruled that a verdict finding the defendant liable could stand.” Spidle v. Steward (1980), 79 Ill. 2d 1,11-12, 403 N.E.2d 216, 220-21.

Even if the complication which the plaintiff in this case suffered was “rare and unusual,” there were no specific acts of negligence here — merely differences in the exercise of individual judgment. As we have already stated, summary judgment in the negligence count was proper in this case. In contrast, the trial judge in Spidle did send the negligence issue to the jury. Therefore, even under this interpretation of Spidle, plaintiff failed to meet his burden in the case before us to establish the first of the three elements of res ipsa loquitur.

We affirm summary judgments on both counts.

Affirmed.

GREEN, P. J„ and LONDRIGAN, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    CHARLES L. HERRINGTON et al., Plaintiffs-Appellants, v. JOSEPH W. McCOY, Defendant-Appellee.
    Fourth District
    No. 17478
    Opinion filed April 8, 1982.

      Sharon A. Buckler, of Areola, for appellants.
    Perry S. Albin, of Tuscola, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On April 3, 1981, plaintiffs, Charles L. Herrington and Martha J. Herrington, brought suit in the circuit court of Douglas County against defendant, Joseph W. McCoy, seeking damages for defendant’s breach of a contract whereby plaintiffs sold real estate to defendant. The trial court allowed defendant’s motion under section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45) and dismissed plaintiffs’ complaint in bar of action. Plaintiffs appeal. We affirm.

Attached to the amended complaint and referred to therein was a copy of the contract dated December 27,1979. It provided for a purchase price of $26,500, acknowledged receipt of a down payment of $3,500 and provided for full payment to be made on or before January 31,1982. The agreement also provided for interest of 12>% per annum on the balance outstanding to be paid on each anniversary date of the contract, for a deed to be placed in escrow, and for defendant to go into possession. The amended complaint alleged defendant had failed to make the first two interest payments required, in the sums of $2,990 and $3,378.70, respectively. It also alleged plaintiffs had exercised their option, pursuant to paragraph 11 of the contract, “to terminate the contract.” Incorporated by reference was a notice served on defendant by plaintiffs’ agent stating plaintiffs had “terminated” the contract for defendant’s breach and demanding immediate possession. The first count of the amended complaint sought damages in the sum of $4,748.30 for back interest and tax payments advanced by plaintiffs. The second count sought $656.42 for damages arising from defendant’s failure to maintain the property.

Defendant’s successful motion to dismiss was based on the theory that by terminating the contract and demanding repossession, plaintiffs had elected a remedy inconsistent with their claim for damages arising under the terms of the contract. The trial court agreed.

Paragraph 11 of the contract between the parties is at the heart of the dispute. It states:

“11. DEFAULT — FORFEITURE—REPOSSESSION.
In case of failure of Buyer to pay the sum of $23,000 as herein-before provided, or if Buyer shall permit such sum to remain due for a period of 30 days or more, or if Buyer shall fail to perform any other covenant of this agreement by Buyer to be performed, then Seller shall have the immediate right to treat this agreement as at an end and to re-enter and regain possession of said premises as if this agreement had never been made; and, in such event, Seller shall have the right to treat all payments theretofore made by Buyer as rent and as agreed and liquidated damages, and a written notice served upon Buyer or his heirs, devisees, legatees or personal representatives of such termination, forfeiture and election to re-enter and regain possession of the premises, or filed in the office of the Recorder of the county in which the premises lie, shall be sufficient evidence of such termination, forfeiture and election to re-enter and regain possession. Upon receipt of proof of such default or breach of this agreement, and upon receipt of proof of such notice given by Seller to Buyer, the escrow agent shall be and is hereby, authorized to surrender all instruments, including the deed *' * *. Declaration of forfeiture and the other remedies hereinabove provided shall not be the exclusive remedy upon default. Seller may, upon default, elect to continue this contract in full force and effect and hold Buyer for all damages arising from a breach of the provisions hereof.”

Plaintiffs argue that the words “termination” and “forfeiture” as used in the contract are ambiguous. They maintain that if the complaint were allowed to stand and the case to be heard on its merits, they could show the parties intended for them to have a right to rescind “the contract as of the date of possession, preserving their contract rights up to that point.” They contend with that meaning given to the contract, the statement that “a declaration of forfeiture and the other remedies hereinabove provided” are not the exclusive remedies under the contract, permits them to both sue for damages occurring before termination and upon termination to demand and regain possession of the premises. Finally, they maintain their theory is not negated by the provision for their right to re-enter and gain possession “as if [the] agreement had never been made.” They deem this to refer merely to the “quality” of their right of possession which they would obtain on re-entry and not to indicate a rescission of the contract.

We hold the meaning of the contract to be subject to determination without the presentation of evidence. Plaintiffs make no explanations to why they claim the word forfeiture was used ambiguously. The word “terminated” as used in a contract for sale of real estate was construed in Tucker v. Beam (1951), 343 Ill. App. 290, 98 N.E.2d 871. The contract there contained a provision that upon default in payment, the vendor had the option to terminate the contract and payments previously made would be forfeited and retained as liquidated damages. The purchaser in the case had defaulted. The court distinguished “termination” from “rescission,” stating that termination merely implied an ending of dealings under a contract with the law leaving the parties as it then finds them. It stated a rescission implied the complete abrogation of a contract requiring both parties to then be restored to the status quo ante.

We hold that the use of the words “termination” and “forfeiture” as used in paragraph 11 cannot give rise to a meaning that plaintiffs might both sue for damages occurring prior to the termination and also regain possession of the premises. The precedent of the decisions of the courts of this State and of this court in particular is to the contrary. In Morey v. Huston (1967), 85 Ill. App. 2d 195, 228 N.E.2d 544, this court passed upon the remedial provision of a very similar real estate sales contract. There, a vendor under a contract for sale of a motel brought suit against the purchasers to recover unpaid installments and taxes due under the terms of the contract. The vendor then took possession of the property. The trial court, hearing the case at bench, held that the vendor could not receive the damages sought. We affirmed. The contract provided that upon failure of the purchaser to make the required payments, the vendor could re-enter and take possession “ ‘as if this agreement had never been made’ ” and “ ‘in such event sellers shall have the right to treat all payments made by purchaser to date as rent and as agreed and liquidated damages.’ ” (85 Ill. App. 2d 195, 198, 228 N.E.2d 544, 546-47.) We noted that there, as here, the contract did not say that the vendor was limited to liquidated damages but held that the vendor could not declare the contract at an end, retake possession, and, at the same time, sue for actual damages.

The Morey court quoted from Wollenberger v. Hoover (1931), 346 Ill. 511, 179 N.E. 42, where it was stated:

“ ‘ “If the vendor exercises his option to declare the contract at an end he cannot change his position and thereafter hold the purchaser liable to complete the purchase or pay any part of the unpaid purchase money. The remedy of the vendor by way of cancellation of the contract and the continued liability of the purchaser for the purchase money are totally inconsistent, and the exercise of the former terminates any further liability of the purchaser for the purchase money.” ’ ” (85 Ill. App. 2d 195, 199, 228 N.E.2d 544, 547, quoting from 346 Ill. 511, 545,179 N.E. 42, 57.)

Other Illinois decisions have also held that a vendor under an installment sale real estate contract cannot both forfeit and terminate the contract regaining the real estate and also sue under the contract for actual damages, but must elect which remedy he wishes to pursue. Curtin v. Ogborn (1979), 75 Ill. App. 3d 549, 394 N.E.2d 593; Hooven v. Woodiel (1975), 27 Ill. App. 3d 467, 327 N.E.2d 276.

In all of these cases the court applied the doctrine that a party may not invoke inconsistent remedies at the same time. In Fleming v. Dillon (1938), 370 Ill. 325, 18 N.E.2d 910, the court stated that for one proceeding to be a bar to another, the remedies must proceed from opposite and irreconcilable claims of right and must be so inconsistent that a party could not logically assume to follow one without renouncing the other. In Faber, Coe & Gregg, Inc. v. First National Bank (1969), 107 Ill. App. 2d 204, 246 N.E.2d 96, the court stated that the doctrine of election of remedies has been confined to its true remedial purpose as a doctrine of substance and should be confined to cases where (1) double compensation of the plaintiff is threatened, (2) the defendant has actually been misled by the plaintiffs conduct, or (3) res judicata can be applied.

Plaintiffs claim their present suit does not fit any of the above categories. Analyzing the case on the basis of those categories, obviously the question of double compensation is the only one which could be present here. In regard to that question, plaintiffs cite (1) Altom v. Hawes (1978), 63 Ill. App. 3d 659, 380 N.E.2d 7 (unsatisfied judgment for damages against person who had converted chattel, no bar to replevin against possessor); (2) Rotogravure Service, Inc. v. R. W. Borrowdale Co. (1979), 77 Ill. App. 3d 518, 395 N.E.2d 1143 (where decree for specific performance of a contract was found to be unenforceable, subsequent judgment for monetary damages for breach permissible); and (3) Roberts v. Sears, Roebuck & Co. (7th Cir. 1978), 573 F.2d 976.

In Roberts a Sears sales clerk had invented and patented a socket wrench with a quick release feature. Through several misrepresentations, Sears was able to buy the patent from the clerk at an extraordinarily low price. The clerk filed suit against Sears seeking alternatively the return of the patent and restitution or damages for fraud, breach of a confidential relationship, and negligent misrepresentation. The jury found in favor of the clerk on each of his counts and entered judgment for one million dollars on each count, but the award was not cumulative. The clerk’s post-trial motion for rescission and restitution was denied, on the basis that when the clerk permitted the case to go to the jury, he had elected his legal remedy and could not later also seek his equitable relief. On review, the Federal court concluded that it was not bound by the Illinois election of remedies doctrine because the question was one of procedure. The court found no basis for invoking the election of remedies doctrine with regard to an election between the profits awarded by the jury and the return of the patent based on rescission. The court found no double recovery or factual inconsistency in allowing the clerk damages for past profits lost and also the return of the patent so that future benefits from it could be received.

The case on appeal is clearly different from Altom or Rotogravure Service, Inc. in that no question exists of any otherwise inconsistent remedy having resulted in an unsatisfied judgment or unenforceable decree. The case is more analogous to Roberts, but that decision did not purport to be based on Illinois law and it is not binding on us. Moreover, in Roberts the property in question had been converted, and the case was not controlled by the terms of a contract providing for termination and forfeiture.

Plaintiffs’ claim for interest and reimbursement for tax payments arose from the terms of the contract. Their claim for damages for failure to care for the property also arose from a claimed breach of the contract. Under the cited Illinois authority, they cannot make these claims after having elected to retake possession of the property. This precedent requires us to affirm. Less restrictive theories of election of remedies also support this determination. If a vendor under an installment contract for sale of real estate is permitted, upon the purchaser’s default, to both retake the property and get some benefit of the contract price upon default, the seller will be unjustly enriched if there has been a sufficient enhancement in the value of the real estate between the time of sale and that of default.

Plaintiffs argue that they should not be limited to liquidated damages because the amount of the down payment is unconscionably small. They did not so allege in their complaint. Furthermore, they did not have to opt for the termination and forfeiture remedy. They could have chosen to allow the contract to remain in force and sued for their actual damages or they could have sued to rescind. Their theory of recovery is not enhanced because of the small sum provided for as liquidated damages.

For the reasons stated, we affirm.

Affirmed.

MILLS and LONDRIGAN, JJ., concur.


author: PRESIDING JUSTICE SULLIVAN

text:
    THE VILLAGE OF HILLSIDE et al., Plaintiffs-Appellants, v. JOHN SEXTON SAND AND GRAVEL CORPORATION et al., Defendants-Appellees.
    First District (5th Division)
    Nos. 80-2470, 81-289 cons.
    Opinion filed March 26, 1982.

      Richard M. Daley, State’s Attorney, and Schain, Burney and Kenny, both of Chicago (Jane Clark Casey, James F. Henry, and Matthew Klein, Assistant State’s Attorneys, and Jerome S. Schain, Thomas R. Burney, and Daniel H. Brown, of counsel), for appellants.
    Mary E. Drake, of Maywood, for appellee Illinois Environmental Protection Agency.
    Kirkland & Ellis, of Chicago (Daniel W. Vittum, Jr., Frank L. Winter, and Donald W. Rupert, of counsel), for other appellees.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

These consolidated appeals from declaratory judgments and the denial of injunctive and mandamus relief present for review two judgments of the trial court in actions involving the transfer of certain permits and the issuance of a supplemental development permit to defendant John Sexton Sand and Gravel Corporation (Sexton) by the Illinois Environmental Protection Agency (Agency) for a sanitary landfill. Plaintiff Village of Hillside (Village), a non-home-rule municipality, here contends that (1) the Agency was barred from transferring solid waste permits to Sexton without first adopting formal transfer procedures as required by rules of the Illinois Pollution Control Board (Board); (2) the Agency’s transfer of permits, approval of a supplemental development permit and its land-use decision-making process had no rational basis; and (3) the Village has zoning jurisdiction over the sanitary landfill within its corporate limits. In addition, the County contends that (1) the Agency exceeded its authority under the Illinois Environmental Protection Act (Ill. Rev. Stat. 1979, ch. IIP2, par. 1001 et seq.) (Act) by transferring development and operating permits to Sexton without prior adoption of formal procedures as mandated by Board rules; and (2) the Agency’s permit transfer procedure violated its duty to insure a safe environment under the Act.

It is undisputed that the site, which is commonly known as the Hillside Quarry (Quarry) and is the subject of these proceedings, occupies approximately 75 acres within the corporate limits of the Village and was formerly used to quarry limestone. Prior to the events which gave rise to the present case, the Agency granted operating permit No. 1973-53-OP to Hillside Stone Corporation (Hillside Stone) to operate a solid waste disposal facility at the Quarry for broken concrete, natural earth material and a limited amount of putrescible demolition material. The Agency granted Hillside Stone a second permit (No. 1975-57-DE) to use the Quarry for general solid waste disposal, except for hazardous, liquid, sludge, and special wastes. Both permits were issued subject to compliance with the Village zoning ordinance, and the Agency had previously received a letter from the then-mayor of the Village indicating that local zoning permitted a landfill at the Quarry. The Agency also issued two supplemental permits to Hillside Stone. Permit No. 76-46 allowed further development of the Quarry besides as a general solid waste disposal site, and permit No. 76-397 allowed disposal of various combustion byproducts, both permits being subject to certain conditions not relevant here.

Thereafter, Commonwealth Edison Company (Edison) purchased the Quarry from Hillside Stone, intending to use it as a landfill for disposal of combustion byproducts. Per request, the Agency transferred permits Nos. 1973-53-OP, 1975-57-DE and 76-397 to Edison. It also issued supplemental permit No. 1977-39 to Edison permitting the use of clay as a liner material.

On May 7, 1979, Sexton and Browning-F erris Industries, Incorporated (Browning-Ferris) (hereinafter referred to as private defendants), doing business as Congress Development Company, a partnership engaged in the development and operation of sanitary landfills, signed a sales agreement with Edison to purchase the Quarry. On May 9, 1979, Edison and Sexton requested the Agency to transfer to Sexton certain solid waste management permits held by Edison, and on that date Sexton applied for a supplemental development permit and submitted plans prepared by its engineering firm, seeking approval to modify development of the site in accordance with those plans.

Notice of the permit transfer request and of the supplemental permit application was thereafter sent by the Agency to surrounding municipalities, area legislators, the Cook County State’s Attorney, and the Chairman of the Cook County Board, as required by the Act. (Ill. Rev. Stat. 1979, ch. 111M, par. 1039(c).) Although not so required, notice also was sent to adjacent landowners, and at the request of the Village public hearings were held by the Agency regarding the permit transactions. Prior to those hearings, a list of nine issues was circulated to counsel concerning matters which the Agency considered relevant to its decisions in permit hearings. The Village and some of its citizens participated in the hearings which transpired during 8 days and 3 evenings between June 12 and July 10,1979. Thereafter, on August 14,1979, the Agency transferred to Sexton all previously issued permits, and on August 15,1979, the Agency issued to Sexton a supplemental permit (No. 1979-1715), allowing Sexton, subject to certain conditions, to modify the development of the site in accordance with the plans of its engineering firm.

On July 18, 1980, Sexton requested an operating permit from the Agency, which was granted to private defendants on August 28,1980 (No. 1975-57-OP), and restricted operation of the site to the disposal of general municipal solid waste — excluding liquid, special, and hazardous wastes. Private defendants commenced a sanitary landfill operation at the Quarry under permit No. 1975-57-OP on September 15,1980.

Relevant to our consideration is count II of the Village’s fourth amended complaint and the County’s petition to intervene and intervening complaint, all of which generally alleged that the transfer of permits by the Agency violated the Board’s procedures. On September 15, 1980, following hearings on the motions for declaratory judgment, temporary restraining order, and injunction, the trial court found, inter alia, that the Village did not assert environmental harm or damage from the activities of private defendants; it lacked jurisdiction to enter an injunction based on count II or section 42(d) of the Act (Ill. Rev. Stat. 1979, ch. 111M, par. 1042(d)) as alleged by the County; no administrative remedy existed to evaluate the Agency’s issuance of a permit or approval of a transfer permit; private defendants did not violate the Act as alleged and thus could not be enjoined from exercising their rights under the permits; although the Agency did not comply with Rules 211 and 213 in transferring the permits, Rule 211 and Rule 213 insofar as it applied to the Agency’s permit administration authority (Ill. Rev. Stat. 1979, ch. HIM, pars. 1004(g), 1039(a)) are void as exceeding the Board’s statutory authority; the Agency’s standardized form required of applicants in support of requests for transfer of solid waste management permits is an adequate procedure; count II, the County’s complaint and the motions for a temporary restraining order, were in effect petitions for writs of mandamus, since plaintiffs sought to compel the Agency to strike and expunge the operating permits issued on August 28, 1980; and those operating permits were properly issued. Accordingly, the trial court denied the motions for a temporary restraining order and for mandamus, dismissed the Village’s count II and the County’s complaint, and held that Rule 211 and the relevant part of Rule 213 were invalid.

On November 12, 1980, following renewal by the Village of its motions for declaratory judgment, temporary restraining order and injunction based on various counts of its fourth amended complaint, the trial court found, inter alia, that all defendants were entitled to judgment on the issues of the Agency’s procedure in permit decisions; its alleged bias and incompetence; its alleged failure to impose conditions on the relevant permits; the permit transfers; and the rules, regulations and standards regarding the Agency’s administration of the permit system; that the Village, as a non-home-rule municipality, was preempted from applying its zoning ordinance to the site; and that the Agency’s decisions to transfer and issue permits were entitled to a presumption of validity. Accordingly, the trial court dismissed the counts in question with prejudice and denied the motion for a temporary restraining order.

On January 9, 1981, the trial court entered an order — subsequently modified nunc pro tunc — finding, inter alia, that its order of November 12, 1980, was correct except as to one count of the Village’s fourth amended complaint, for which the Village’s motion for rehearing was continued.

The Village and the County appeal from the order of September 15, 1980, requesting that such order be reversed; their motions for a temporary restraining order and preliminary and permanent injunction be granted; the permits in question and the transfer of all such permits to Sexton be declared invalid; Rules 211 and 213 be declared valid; and the petitions for writ of mandamus be granted. The Village also appeals from the order of January 9, 1981, requesting that such order and that of November 12, 1980, be reversed; and that its motion for temporary restraining order and preliminary and permanent injunction be granted.

Opinion

We first consider the effect of Rules 211 and 213 on the Agency’s permit transfer procedures. Plaintiffs contend that Rules 211 and 213 are valid exercises of the Board’s authority over the agency and that since the Agency failed to adopt formal transfer procedures, as purportedly required by those rules, the transfer of permits to Sexton exceeded the Agency’s authority. Rules 211 and 213 of chapter 7 of the Illinois Pollution Control Board Rules and Regulations (effective July 27, 1973) (Rules) provide as follows:

“Rule 211: Transfer of Permits. No permit is transferable from one person to another except as approved by the Agency under procedures it adopts pursuant to Rule 213.”
“Rule 213: Design, Operation, and Maintenance Criteria, (a) The Agency may adopt procedures which set forth criteria for the design, operation, and maintenance of solid waste management site and other procedures the Agency deems reasonably necessary to perform its duties under this Chapter, and as are consistent with Part III thereof. All such procedures shall be revised from time to time to reflect current engineering judgment and advances in the state of the art. Such procedures and revisions thereto shall not become effective until filed with the Index Division of the Office of the Secretary of State pursuant to ‘An Act concerning Administrative Rules,’ approved June 14, 1951, as amended, (b) Before adopting new criteria or making substantive changes to any criteria adopted by the Agency, the Agency shall:
(1) publish a summary of the proposed changes in the Board Newsletter; and
(2) provide a copy of full text of the proposed changes to all persons who hold Agency permits or have active applications pending, and any person who in writing so requests; and
(3) defer adoption of the changes for 60 days from the date of publication to allow submission and consideration of written comments on the proposed changes.”

In our view, Rule 211 requires the Agency to follow Rule 213 in adopting procedures for all permit transfers. Rule 213(a) is permissive and advisory as to the Agency’s initial adoption of procedures incorporating “criteria for the design, operation, and maintenance of solid waste management site” and of procedures “reasonably necessary” to carry out its duties. Such procedures as are adopted also must be consistent with the substantive requirements for sanitary landfills of part III of the Rules. Rule 213(a) also requires the Agency to revise those procedures to keep pace with engineering and technological changes, and it imposes a filing requirement before any procedure or revision can be effective. Thus, while Rule 213(a) recommends the initial adoption of procedures, once adopted the Agency is constrained to update them as conditions demand. To the extent of such constraints, Rule 213(a) requires the formal adoption of procedures for the transfer of permits, and it imposes a procedural duty on the Agency through the filing requirement.

Rule 213(b), by contrast, sets forth prerequisites which the Agency must satisfy before adopting or changing any criteria. Thus, if the Agency proposes to adopt new criteria or to change existing criteria, it must first comply with Rule 213(b); but if it seeks to adopt procedures deemed necessary to perform its duties, it need not comply with Rule 213(b), which by its terms governs only criteria. Thus, since Rule 213(b) does not refer to procedures, it is inapplicable, and we are concerned with Rule 213(a) only. We conclude, however, that the Act grants the Board no authority to enact Rules 211 and 213(a) and, indeed, contemplates that the Agency adopt its own procedures.

It is fundamental that the source of the power or authority claimed by an administrative agency must be found within the statute creating it. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 370 N.E.2d 223.) The Act in question allocates such power between the Board and the Agency for the issuance of permits in the effort to eliminate environmental pollution, and the distribution of those powers was further defined in Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 557, 387 N.E.2d 258, 264:

“The Board’s principal function is to adopt regulations defining the requirements of the permit system (Ill. Rev. Stat. 1975, ch. 111%, pars. 1005(b), 1039). The Agency’s role is to determine whether specific applicants are entitled to permits (Ill. Rev. Stat. 1975, ch. 111%, par. 1039). The need for a technical staff capable of performing independent investigations dictates that the job of administering the permit system be entrusted to the Agency rather than the Board [citation].”

The Board, which was created under section 5(a) of the Act (Ill. Rev. Stat. 1979, ch. 111%, par. 1005(a)), functions in the area of land pollution and refuse disposal primarily to establish statewide environmental control standards (Ill. Rev. Stat. 1979, ch. 111%, par. 1005(b)) to adopt additional regulations requiring the operator of a waste disposal facility to obtain a permit (Ill. Rev. Stat. 1979, ch. 111%, pars. 1021,1039(a)) and to prescribe by regulation the substantive standards under which such permits should be issued (Ill. Rev. Stat. 1979, ch. 111%, pars. 1022(a)(b), 1027(a)). Although the Board must determine, define, and implement environmental control standards and may adopt procedural rules necessary for those purposes (Ill. Rev. Stat. 1979, ch. 111M, pars. 1005(b), 1026, 1027), its power to adopt such rules has not been extended to the issuance or transfer of permits (see Environmental Protection Agency v. Pollution Control Board (1981), 86 Ill. 2d 390, 427 N.E.2d 162).

By contrast, the Agency, which was created under section 4(a) of the Act (Ill. Rev. Stat. 1979, ch. HIM, par. 1004(a)), administers the permit systems established by the Act or by Board regulations (Ill. Rev. Stat. 1979, ch. HIM, par. 1004(g)). Thus, applicants for permits, including the operators of refuse-disposal facilities, must apply to the Agency (see Ill. Rev. Stat. 1979, ch. HIM, par. 1021(d)) which is authorized, for example, to require submission of plans and specifications (Ill. Rev. Stat. 1979, ch. HIM, par. 1004(h)) and to set permit fees (Ill. Rev. Stat. 1979, ch. HIM, par. I004(i)). Moreover, the Agency alone is empowered to issue or deny permits or to issue permits subject to conditions, and it is authorized to adopt procedures necessary to fulfill its permit-granting functions. Ill. Rev. Stat. 1979, ch. HIM, par. 1039(a).

We think it clear, in light of the statutory scheme and case law, that the Act requires the Board to adopt rules requiring permits and to set substantive standards under which the Agency may issue such permits. The purpose of the Agency, on the other hand, is to establish procedures for the administration of the permit system in order to insure that those standards are met. Thus, the Agency is authorized to determine if a permit should issue or be transferred for a particular refuse-disposal facility and to adopt appropriate procedures. The Board may not require the Agency to adopt procedures or impose procedures on it for issuing or transferring permits. As fully discussed below, the Agency would apparently be required to comply with Rules 211 and 213(a) since it has adopted its own procedures for transferring permits and issuing supplemental permits. It would thus be obliged to update them “to reflect Current engineering judgment and advances in the state of the art” and to meet the filing requirement. Therefore, we hold that Rules 211 and 213(a), to the extent they apply to permit transfers, are unauthorized assumptions of the Agency’s functions under sections 4(g) and 39(a) of the Act and are invalid as applied to the Agency’s permit transfer authority.

Our determination is consistent with the reading of the Act in Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 387 N.E.2d 258. In that case, two Board procedural rules, which purported to authorize it to review Agency decisions granting solid waste management permits, were held invalid. Finding no statutory authority for such review, the supreme court stated that the Board’s intrusion into Agency permit activity was “clearly an unauthorized assumption by the Board of authority to grant permits delegated by the Act to the Agency” and would “make the Board the permit-granting authority, a usurpation of the Agency’s function.” (74 Ill. 2d 541, 558, 387 N.E.2d 258, 264.) Similarly, in the present case, the Board cannot assert authority over the Agency through Rules 211 and 213(a) in a manner which usurps function delegated to the Agency under the Act.

We next address the Village’s challenges to the Agency’s transfer and supplemental permit systems and to its general decision-making process. The Village maintains that the Agency’s permit systems and procedure lack rules, regulations, or standards to guide Agency decisions; that Agency decision-makers lacked necessary background, expertise, and accountability in exercising their permit-granting authority; and that, as the permit decisions made in this case were contrary to the facts and the law, they had no rational basis. As explained below, we reject each contention.

First, concerning the permit transfer system, the record indicates that the Agency utilizes a standard form which an applicant for a solid waste management permit transfer is required to complete. The information required in the form consists of a request by the permit transferor with an enumeration of permits to be transferred; identification of the permit transferee,-the landowner, and the site; the type of interest in the land held by the transferee; and the type of business entity responsible for the facility. The accuracy of the information supplied must be ensured by the transferor, transferee, and landowner, and those assurances require attestation. The form also states that any change from the original permit application must be requested in a supplemental permit application. The transferee otherwise adopts the information supplied by the transferor in the original application and all supplemental permits. The form also includes a section for the Agency’s use which identifies the person reviewing the form, the date received, and the action taken.

In our view, the information required on the transfer permit application satisfies the Agency’s duty under section 39(a) of the Act (Ill. Rev. Stat. 1979, ch. HIM, par. 1039(a)), which provides in relevant part:

“When the Board has by regulation required a permit for the construction, installation, or operation of any type of facility, * * * the applicant shall apply to the Agency for such permit and it shall be the duty of the Agency to issue such a permit upon proof by the applicant that the facility, * 0 * will not cause a violation of this Act or of regulations hereunder.”

We believe the information required in the standardized form, when read with the prior permits, affords the Agency sufficient data to determine, as it must, whether operation of a facility could violate the Act or Board regulations. (See Winnetkans Interested In Protecting The Environment (WIPE) v. Pollution Control Board (1977), 55 Ill. App. 3d 475, 370 N.E.2d 1176.) Completion of the form and the guarantees of the accuracy of the information thus provide proof reasonably calculated to guide the Agency in making permit transfer decisions.

We also think it significant that the question of permit transfers was considered by the Agency at the extensive public hearings held in June and July 1979, which included consideration of Sexton’s ability to operate the site in an environmentally safe manner, and the Village does not assert or indicate from the record that the site is not operated safely. Furthermore, the Village does not assert that transfer permits would not have issued had additional or different information been required, nor does it suggest what such information should be. Therefore, any defects that may have existed concerning permit transfer procedures were adequately rectified in the present case.

In this regard, the County contends that the Agency’s standardized transfer application form used here was inadequate because it required only superficial information, unlike the detailed information that an original applicant must file, and it further contends that the Agency’s transfer of permits to Sexton abridged the constitutional right of Illinois citizens to a safe environment. Ill. Const. 1970, art. XI, §2.

In support of its position, the County suggests that Board Rule 316 is preferable because it elicits adequate information. That rule pertains to sanitary landfill development permits and requires an applicant to enumerate factors concerning the physical characteristics of the site, such as land use and population density information of the surrounding area, and the ability of the operator to develop and operate the site in an environmentally safe manner. The County maintains that a change of operators of a sanitary landfill resulting from a permit transfer could have adverse environmental consequences and that information sufficient to avoid such result is not required in a transfer permit application.

While such additional detail may be desirable, it would serve no purpose in the present case, since previously issued development permits were transferred to Sexton, from which the information was incorporated into the permit transfer application. Thus, the Agency restricts the transferee to the terms and conditions of the original permit and, as noted above, considers the environmental impact of the transfer under section 39(a) in its review of the application. The County does not contend that Rule 316 requires any information not previously given in the original permits, although it asserts that the operator’s previous experience in waste management should be assessed. The record does not reveal, however, any adverse environmental effects from the transfer of permits to Sexton or that Sexton has an unsatisfactory record of waste management. Indeed, neither plaintiff challenges the trial court’s finding in the judgment of September 15, 1980, that they were not asserting environmental harm from the activities of private defendants. The plaintiffs’ contentions as to the Agency’s permit transfer system are, therefore, without merit.

Turning to the Village’s challenge to the supplemental permit system, we note that section 39(c) of the Act authorizes the Agency to issue supplemental permits to modify the development, operation, or type of wastes accepted at a site (Ill. Rev. Stat. 1979, ch. 111M, par. 1039(c)), and that, as indicated by the record, in making such permit decisions the Agency relies on Board Rule 210, which provides:

“No person shall cause or allow modification of any solid waste management site, or accept any type of waste except under conditions specified in a permit issued by the Agency. Development, operating and experimental permits may be modified by a supplemental permit issued by the Agency to allow such modifications.”

The Village argues for articulated rules and standards to confine the Agency’s discretion in issuing supplemental permits but does not suggest what those rules or standards should be or how they would have affected the outcome of the present dispute. In our view, however, Rule 210 limits operators seeking to modify solid waste sites to the conditions which the Agency must specify in permits. The rule also makes clear that the specific conditions for modification be articulated by the Agency in the permit. If such conditions were not defined, then, as the rule implies, it would be improper to issue the permit. Our view also is reinforced by the fact that a supplemental permit may not issue unless development and operating permits were previously issued.

The Agency’s discretion is further confined by Rule 206(a), which provides in relevant part that “[t]he Agency may impose such conditions in a permit as may be necessary to accomplish the purposes of the Act,” and by Rule 207, which prohibits the Agency from issuing a supplemental permit unless the applicant submits proof that modification of the site will not violate the Act or Board Rules and conforms to specified criteria. Thus, we believe that those Rules establish adequate criteria for issuance of supplemental permits and properly implement the Agency’s authority under section 39(c). Cf. Carlson v. Village of Worth (1976), 62 Ill. 2d 406, 343 N.E.2d 493, where the court held that Board Rule 316 provides adequate standards under sections 22 and 27 of the Act (Ill. Rev. Stat. 1973, ch. HIM, pars. 1022, 1027) for the Agency to make rational decisions concerning the issuance of development permits for sanitary landfills.

Additionally, we find no support in the record for the Village’s contention that the Agency is uncertain as to the “legal effect” of permit No. 76-397 or of supplemental permits in general. Permit No. 76-397 was originally issued to Hillside Stone and allowed disposal of combustion byproducts. The Village asserts that Agency employees could not agree as to whether No. 76-397 limited the type of materials that could be accepted at the site. No such confusion appears in the record, however, as it is clear the employees in question took the position that the site could have been developed for disposal of general solid waste and combustion byproducts under other permits issued prior to the time private defendants acquired it. Neither does it appear that those employees seriously misunderstood the purpose of supplemental permits. Accordingly, we reject this contention.

Concerning the general assertion of procedural deficiencies in the Agency’s permit systems, the Village initially contends that the Agency should have explained its decisions through written findings of fact. In Citizens to Preserve Overton Park, Inc. v. Volpe (1971), 401 U.S. 402, 28 L. Ed. 2d 136, 91 S. Ct. 814, a decision of the Secretary of Transportation to authorize Federal funds for highway construction through a public park was challenged. The 1968 Federal Highway Act required a determination by the Secretary that no feasible and prudent alternative route existed and that all possible planning to minimize harm to the park had been done. Although remanding the case for judicial review of the administrative record, the court held that formal findings by the Secretary were unnecessary since not required by the controlling statute. Similarly, under the applicable statute and rules of the present case, the Agency’s decision is not invalidated by the absence of formal findings of fact. Cf. Lindburg v. Zoning Board of Appeals (1956), 8 Ill. 2d 254, 133 N.E.2d 266, which involved a statutory requirement that every zoning board variation “ ‘shall be accompanied by a finding of fact specifying the reason for making the variation.’ ” 8 Ill. 2d 254, 255, 133 N.E.2d 266, 267.

Although findings of fact must be express if required by statute (see Maywood Park Trotting Association v. Illinois Harness Racing Com. (1959), 15 Ill. 2d 559, 155 N.E.2d 626) and supported by evidence which appears of record (Cook County Federal Savings & Loan Association v. Griffin (1979), 73 Ill. App. 3d 210, 391 N.E.2d 473), “[t]he principal reason given for requiring written findings by an administrative agency, in the absence of statutory command, is that they are necessary for orderly and efficient judicial review” (Telcser v. Holzman (1964), 31 Ill. 2d 332, 338, 201 N.E.2d 370, 373; also see Reinhardt v. Board of Education (1975), 61 Ill. 2d 101, 329 N.E.2d 218). Our examination of the Act and Rules reveals no requirement that the Agency present written findings for granting a solid waste management permit. It does not appear, however, that the lack of written findings here has significantly disrupted judicial review, as we are able to ascertain whether the record affords a fair and reasonable basis for the Agency’s permit decisions. (See Shallow v. Police Board (1978), 60 Ill. App. 3d 113, 376 N.E.2d 1025; Carrao v. Board of Education (1977), 46 Ill. App. 3d 33, 360 N.E.2d 536.) Moreover, the Agency’s reasons for granting a permit are defined in the applications, since compliance by an applicant with the requirements embodied in those forms ordinarily leads to the granting of a permit. (Cf. Ill. Rev. Stat. 1979, ch. 111M, par. 1039(a), which requires the Agency to state reasons for denying a permit.) Therefore, we believe it was sufficient in the present case that the Agency’s findings were adequate to support its decisions and had a substantial foundation in the evidence (see Ford v. Environmental Protection Agency (1973), 9 Ill. App. 3d 711, 292 N.E.2d 540), and the Agency’s decision is not subject to objection because findings were not specified in the form the Village desires (see Irving’s Pharmacy v. Department of Registration of Education (1979), 75 Ill. App. 3d 652, 394 N.E.2d 627).

Secondly, concerning the Village’s assertion that the Agency adopt substantive rules and regulations for its permit systems, we conclude that formal decision-making standards exist and were utilized in the present case, so that additional regulations need not be adopted. Section 20 of the Act (Ill. Rev. Stat. 1979, ch. HIM, par. 1020), in setting forth legislative declarations and purpose, provides adequate standards. That section takes the historical consequences of land pollution and refuse disposal into account by seeking to eliminate scenic blight, public health and safety hazards, public nuisances, depression of property values, offense to the senses, and interference with community life and development. Furthermore, in Carlson v. Village of Worth (1976), 62 Ill. 2d 406, 343 N.E.2d 493, it was held that Board Rule 316 provides adequate standards for the Agency to make rational decisions regarding sanitary landfill locations, and those criteria are the basis of the Agency’s evaluation of applications under Rule 316. The record further indicates that the “Nine Issues” formulated by the Agency for 1979 permit hearings embodies the objectives of section 20. Those issues, as noted above, were distributed prior to the hearings in question, and we believe they amply informed the parties as to the necessary facts to present and how they would be weighed. (Cf. Mystic Tape v. Pollution Control Board (1975), 60 Ill. 2d 330, 328 N.E.2d 5, where it was held that the Act provides sufficient standards for administrative decision-making in determining air pollution violations without the need to adopt additional standards.) Thus, we believe that the Agency has valid standards and procedures to carry out its land use decision-making functions. We have also examined the record concerning the Village’s other procedural objections and conclude that they are without merit.

The Village also makes several related factual assertions in its challenges to the Agency’s decision-making process. Those assertions, however, are not supported by the record. It contends, first of all, that Agency decision-makers lacked sufficient background and expertise to comprehend the permit system, but the record makes clear that the competence of the relevant Agency employees was fully demonstrated and that their decisions in this case were based on a carefully reasoned assessment of technical and nontechnical evidence. Contrary to the Village’s position, the purported difficulty of an agency’s employee to explain to a layperson the often technical and complex policies and practices of an agency in fulfilling its duties does not, without more, render its action invalid. There is, in any event, nothing in the Act requiring the Agency personnel in this case to possess any particular background as a prerequisite to making the land use and site suitability decisions in question.

Secondly, the Village calls attention to certain letters by Agency personnel and maintains that those letters show advance approval by the Agency of the transfer permits, refusal to “rescind” the alleged approval and false denial of the sale to private defendants. Those letters indicate to us, however, that the Agency would not approve the permit transfer unless certain required conditions were met and that the allegedly false denial was a mistake and not intended to conceal information. Moreover, the Village does not explain what, if any, impact the letters may have had on the Agency’s decisions. We do not believe, therefore, that the letters evidence a lack of accountability or preferential treatment by the Agency.

The Village further contends that the landfill operation is being conducted in violation of an earlier permit. However, the record indicates to the contrary. The original development permit (No. 1975-57-DE) authorized development of the Quarry for the disposal of general solid waste, and private defendants’ authority to operate the facility derives from permit No. 1975-57-OP, which was issued directly to them on August 28, 1980, and allows operation in accordance with development permit No. 1975-57-DE, one of the permits transferred to Sexton, and as supplemented by permit No. 1979-1715. Therefore, we think it clear that those permits authorize a sanitary landfill at the site for disposal of general municipal waste.

We also reject the Village’s assertion that the Agency lacked authority to transfer development permit No. 1973-53-DE and supplemental permit No. 76-46 to private defendants, as those permits had never been transferred from Hillside Stone to Edison. Agency employee Thomas Cavanagh testified at trial that the failure to list those permits in the transfer application from Hillside Stone to Edison was an oversight and that since the operating permit (No. 1973-53-OP) was dependent upon the development permit, it was unreasonable to include an operating permit on the transfer application without also including the development permit. The Village does not dispute that testimony nor contend that the transfer of Nos. 1973-53-DE and 76-46 resulted in adverse environmental impact or led to the depositing of materials not allowed in those permits.

With respect to the Agency’s procedure in the present case, we think it significant that notice of the permit applications was sent to appropriate parties under section 39(c) (Ill. Rev. Stat. 1979, ch. 111/2, par. 1039(c)); that public hearings were scheduled at the Village’s request and presided over by an Agency hearing officer, although such hearings are not required by the Act; that the hearings took place over 8 days and 3 evenings, during which the Village officials and several of its residents testified and otherwise participated; that the daytime hearings were “adversary,” with witnesses under oath and the parties represented by counsel who presented evidence and cross-examined witnesses; that during the evening hearings, many public officials and private citizens made unsworn statements as to their views on the proposed landfill; that the list of nine issues relevant to the Agency’s decisions was distributed to counsel for the Village beforehand; that Agency personnel visited the site and at other times sought to explain the Agency’s actions and reasons to the Village; that the Agency had frequent contact with the Village’s engineering consultant; and that Agency decision-makers considered all such evidence in reaching their decisions. (See Carlson v. Briceland (1978), 61 Ill. App. 3d 247, 377 N.E.2d 1138.) The trier of fact is in a superior position to that of the reviewing court with respect to matters presented at trial, and since we cannot say that on the basis of the record before us the trial court’s decisions were contrary to the manifest weight of the evidence, we will not disturb those findings on review. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65.) We conclude, therefore, that as the Agency’s decisions in this case were warranted by the facts and the law, they had a rational basis, and the trial court did not err.

Finally, the Village contends that it has zoning jurisdiction over a landfill within its corporate limits. We think the law is clear, however, that non-home-rule units such as the Village are preempted by the Act from applying their zoning ordinances to sanitary landfills. (County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 389 N.E.2d 553; Carlson v. Village of Worth (1975), 62 Ill. 2d 406, 343 N.E.2d 493; O’Connor v. City of Rockford (1972), 52 Ill. 2d 360, 288 N.E.2d 432.) As stated in Sexton: “After O’Connor and Carlson, it is clear that the Act operates to exclude non-home-rule units from the regulation of sanitary landfills.” (75 Ill. 2d 494, 507, 389 N.E.2d 553, 556.) It was also held in Carlson that the Agency cannot delegate its responsibility to decide whether a landfill should be permitted at a specific location. (62 Ill. 2d 406, 410, 343 N.E.2d 493, 496.) To make the landfill in question depend upon compliance with the Village’s zoning ordinance would be such an improper delegation. In view of those controlling authorities, the trial court did not err in finding that local zoning in the present case had been preempted.

In this regard, the Village also asserts that amendments to the Act erase the distinction between home-rule and non-home-rule units with respect to the preemption doctrine under the Act. Section 3(t) of the amendments classifies a sanitary landfill such as the one in question as a “regional pollution control facility.” (Act of Nov. 12, 1981, Pub. Act 82-682, to appear at Ill. Rev. Stat. ch. 111M, par. 1003(t).) Section 3(t) further defines a new regional pollution control facility as:

“(1) a regional pollution control facility initially permitted for development or construction after July 1,1981; or
(2) the area of expansion beyond the boundary of a currently permitted regional pollution control facility; or
(3) a permitted regional pollution control facility requesting approval to store, dispose of, transfer or incinerate, for the first time, any special or hazardous waste.”

Permits for such new facilities may not issue without proof to the Agency that the site has been approved, in accordance with statutory requirements, by the relevant county board or municipal governing body in the area where the facility is to be located. Act of Nov. 12, 1981, Pub. Act 82-682, to appear at Ill. Rev. Stat. ch. HIM, par. 1039(c).

In the present case, however, all previously issued permits were transferred to Sexton on August 14,1979, and supplemental permit No. 1979-1715 was issued on August 15, 1979. In addition, operating permit No. 1975-57-OP was issued on August 28, 1980, and the landfill operation commenced under that permit on September 15,1980. Thus, the landfill in question was not permitted for development or construction after July 1,1981. Neither has the Village asserted that the area of the landfill is to be expanded beyond its original 75-acre boundaries, nor that it is designed to accept special or hazardous wastes. To the contrary, permit No. 1975-57-OP restricts operation of the site to disposal of general municipal solid waste and specifically excluded liquid, special, and hazardous wastes. Accordingly, the instant site cannot be regarded as a new regional pollution control facility within the amendments to the Act, and as those amendments do not apply, approval of the county board or municipal governing body is not required. Therefore, the Village’s asserted right of zoning jurisdiction in the present case is without merit.

For the reasons stated, the judgments of the trial court are affirmed.

Affirmed.

LORENZ and WILSON, JJ., concur.

       Sexton is the sole operator of the facility for the partnership.

       On May 23,1979, Edison petitioned the Illinois Commerce Commission for approval of the sale pursuant to section 27 of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 27). The sale was approved on July 16,1980, and Edison conveyed title in fee simple to private defendants on July 24,1980.