author: JUSTICE STOUDER JUSTICE HEIPLE,

text:
    GEORGE REITER et al., Plaintiffs-Appellants and Cross-Appellees, v. JAMES NEILIS et al., Defendants-Appellees and Cross-Appellants.
    Third District
    No. 3—83—0658
    Opinion filed July 19, 1984.

      HEIPLE, J., dissenting.
    James T. Bradley, of Joliet, for appellants.
    James S. Wirt, of Wirt & Schlak, of New Lenox, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs appeal from an order of the circuit court of Will County denying their request for a mandatory injunction requiring the defendants to cure building code, health code and zoning ordinance violations. The defendants cross-appeal from portions of that order.

The plaintiffs are the owners of three homes located on either side of and behind the defendants’ residence. In the summer of 1980, the defendants constructed a room addition to the front of their home. The plaintiffs alleged that the addition was built on top of the defendants’ septic field in violation of the Will County Health Code and actually cut off part of the drainage field, which made the defendants’ septic system smaller than required by law.

In the fall of 1980, the defendants constructed a rear yard addition which extended beyond the 40-foot rear setback line and encroached upon plaintiff Johnsons’ property by one foot. The defendants had not obtained a building permit for the second addition.

After the plaintiffs complained, the county building department red-tagged the premises. Since no permit could be issued due to the setback and property line encroachments, the defendant sought a zoning variance. The defendants proposed to eliminate the property line encroachment and requested that the zoning board authorize a 4-foot as opposed to a 40-foot setback line. This would require the defendants to remove a small part of the foundation and five feet of the structure. The remainder of the foundation and concrete floor would be left in place as a patio, which is not subject to the setback requirements. This request was denied.

The defendants filed for administrative review and also filed an amended request for a variance which proposed that the setback line be placed at 10 feet, which in turn required that more of the structure be removed. This request was granted, and the administrative review action was dismissed.

The plaintiffs filed this action for a declaratory judgment and in-junctive relief asking the court to declare the variance void and order the defendants to comply with the original 40-foot setback line.

The trial court found that the amended variance was null and void but that Neilis had acted in good faith by removing the encroachment and 12 feet of the framework of the rear addition and that even though the addition still extended beyond the setback as varied that such violation was unintentional. The trial court also found that the addition as modified was not in compliance with a building permit issued pursuant to the amended variance, which described the addition as a one-story structure with one bedroom, a den and one bath. The rear addition as constructed is a two-story structure with four bedrooms and two baths.

Because the trial court found the violation of the amended variance unintentional, the judge refused not to balance the equities and went on to decide that plaintiffs had not shown substantial injury. Therefore, the trial court refused to grant the injunction.

The first issue is raised by the defendants’ cross-appeal. They argue that the circuit court lacked jurisdiction because the plaintiffs had not sought review of-the zoning board’s decision under the exclusive provisions of the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101 et seq.).

Section 3 — 102 of the Act provides that final decisions of agencies which operate under the Act (as does the Will County Zoning Board of Appeals) can only be reviewed according to the procedures set forth in the Act. Those procedures were not followed here.

If the plaintiffs had been seeking review of the merits of the board’s decision to grant- the variance, then the Administrative Review Act would have been the sole avenue of appeal. The plaintiffs did not do so. Instead, the plaintiffs challenged the jurisdiction of the board to review and change its previous decision and also raised matters having nothing to do with the board’s action. These later issues were clearly within the court’s jurisdiction. As to the question of the board’s subject matter jurisdiction (the extent of which will be discussed later), the general rule is that subject matter jurisdiction can be challenged at any time. (Lawn Savings & Loan Association v. Quinn (1967), 81 Ill. App. 2d 304, 225 N.E.2d 683.) Under the Administrative Review Act, a party is not required to exhaust all administrative remedies before seeking judicial review of an agency’s subject matter jurisdiction. (Head-On Collision Line, Inc. v. Kirk (1976), 36 Ill. App. 3d 263, 343 N.E.2d 534.) Therefore, the plaintiffs did not have to comply with the Administrative Review Act in order to challenge the subject matter jurisdiction of the zoning board of appeals.

The next issue is whether the board had authority to grant a rehearing and reverse its prior ruling. The defendants contend that the second application, as amended, was actually a new request for a variance. The trial court rejected this argument, noting that the amended application was not substantially different from the first application in either form or substance, the sole difference being a reduction of six feet in the requested setback line variance. No new case number was assigned, nor was a new filing fee required. In fact, the “new” application was only a copy of the original with two minor changes. Therefore, the trial court concluded that the second proceeding constituted a rehearing and reversal of the board’s previous decision to deny the variance. We agree.

An agency, being a creation of statute, has only those powers specifically conferred upon it. It has no inherent power to amend or change a decision it has made. (Oliver v. Civil Service Com. (1967), 80 Ill. App. 2d 329, 244 N.E.2d 671.) If a rule of the agency permits a petition for rehearing, the decision will not be final until the rehearing is completed or the petition denied. (Danison v. Paley (1976), 41 Ill. App. 3d 1033, 355 N.E.2d 230.) The Will County zoning ordinance makes no provision for rehearing, nor did the procedural rules of the zoning board of appeals at the time in question. In the absence of a jurisdictional challenge, such as the one raised by the plaintiffs, the only means of appealing the board’s denial of the variance was via administrative review. The board had no authority to reconsider and change its ruling. Therefore the amended variance is void and a nullity.

The next issue we will address is whether the trial court erred in finding that the zoning ordinance violations were unintentional. The trial court found that although Neilis had initially knowingly violated a Will County zoning ordinance, the initial violation was cured by his application and receipt of the amended variance which moved the setback line to 10 feet. Even though the trial court found the amended variance void it found that the fact that Neilis sought and obtained the variance cured the intentional violation. We disagree with these findings. A review of the facts before us has convinced us that Neilis never acted in good faith. Twice Neilis was asked by the contractor for the rear addition whether Neilis had obtained a building permit and whether the addition violated a zoning ordinance. Several neighbors also inquired.

Nor do we think that by obtaining a variance Neilis cured the intentional violation. On June 27, 1981, Neilis received a letter from the attorney for the zoning board of appeals stating that the requested amended variance had been granted. Only 11 days later on July 8, 1981, this action was commenced. At the time of trial the two-story rear addition was substantially completed, with wiring and plumbing set in. The timing alone suggests that Neilis flagrantly proceeded with construction even previous to the grant of the amended variance. Furthermore, the building permit obtained on July 2, 1981, described the rear addition as a one-story addition with one bedroom, a den and one bath. The present structure is two-story with two bedrooms on each floor and two baths. According to statute the variance could be reviewed for 35 days after Neilis was served with notice of its issuance. (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 103) In addition, it is clear from the facts that the rear addition as modified and constructed violated the 10-foot setback line. Under these circumstances, we have no doubt that the subsequent violation as well as the initial violation was intentional.

Because we find that a zoning ordinance was intentionally and knowingly violated, the trial court erroneously considered the degree of injury to the plaintiff in deciding not to grant injunctive relief. In Taubert v. Fluegel (1970), 122 Ill. App. 2d 298, 302, 258 N.E.2d 586, 588, we discussed the proper action to be taken by a court where a violation is intentional. As stated in Taubert,

“Where the owner of property is chargeable with notice of restrictions imposed upon the use of such property or has actual notice of such restrictions, courts of equity will enforce such restrictions. The award of relief by injunction does not depend upon proof of substantial damage resulting from the violation [citing Hartman v. Wells (1912), 257 Ill. 167,100 N.E.2d 500].”

Therefore, the trial court erred in refusing to grant an injunction based upon its finding that plaintiffs had failed to prove substantial damages. Nor do we agree with the trial court that plaintiffs failed to prove substantial injury. Furthermore, we find that the damages were of a continuing nature; for example, the effects of overloading the septic system would not be known until sometime in the future. Therefore, injunctive relief was the proper remedy under these circumstances.

Defendant also argues that the cost of removal of the rear addition would be considerable because the structure is now nearly completed. It is well settled that a court need not balance the equities before granting an injunction if the violation is intentional. Therefore, the cost of compliance is immaterial when the violation is intentional as it was in this case. Nor are we persuaded by defendant’s contention that Neilis had a vested right in the completion of the rear addition. Defendant’s argument is based upon People ex rel. Skokie Farm House Building v. Village of Morton Grove (1959), 16 Ill. 2d 183, 157 N.E.2d 33. In People ex rel. Skokie Farm House Building, the zoning designation affecting the owner’s property was changed from residential to commercial after a row housing project had been commenced. In People ex rel. Skokie Farm House Building, the owner had fully complied with all ordinances in effect at the time the project began. Neilis certainly cannot make that claim.

Defendant also argues that section 7 of “An Act in relation to County Zoning” (Ill. Rev. Stat. 1981, ch. 34, par. 3160) precludes injunctive relief because Neilis’ violation was merely technical and plaintiffs have failed to establish actual and substantial injury. This argument is premised upon County of Cook v. Priester (1974), 22 Ill. App. 3d 964, 318 N.E.2d 327. In Priester, the first district denied equitable relief to the village of Wheeling, because the village failed to prove any injury. In the case before us, however, numerous injuries were alleged and proven. The trial court found that the rear addition interfered with light, air, view and privacy. Numerous other allegations of injury were made, i.e., overloading of the existing septic system, devaluation of property in the area, loss of a potential buyer due to an encroachment, among other things.

Furthermore, Priester is not applicable to this case because it basically pertains to standing to sue under section 7. No standing argument was raised in this case, and the trial court did not base its decision upon section 7. Lastly, section 7 is a penal statute which provides traditional equitable relief for violations of zoning ordinances in addition to a fine of $500. See Ill. Rev. Stat. 1981, ch. 34, par. 3160.

The characterization of these violations as mere technical violations makes a mockery of the legislature’s efforts to protect the health and safety of property owners by regulating property use. If this intentional disregard is a technical violation of the statutory setback requirements, then it is difficult to imagine what an actual violation would entail. If we allow intentional, flagrant violations of our zoning laws, we make it likely that zoning ordinances will be disregarded with greater frequency in the future.

We, therefore, reverse the circuit court of Will County and remand this case with instructions to enter judgment consistent with our holding.

Reversed and remanded with instructions.

SCOTT, J., concurs.

JUSTICE HEIPLE,

dissenting:

The findings of the trial judge in a chancery case such as the one before us are not to be disturbed unless they are contrary to the manifest weight of the evidence. The majority has reversed the trial court based on nothing more than a difference of opinion.

Finding that the defendant’s acts were unintentional and the plaintiff’s injuries insubstantial, the trial judge balanced the equities and denied injunctive relief. These findings are supported by the record. However, relying on the same record, the majority of this court reaches the opposite conclusion. They do not contend that the trial court misapplied the law, made erroneous evidentiary rulings, ignored the facts or otherwise abused its discretion. Not pleased with the result below, the majority has substituted its opinion for that of the trial judge. This practice is contrary to our system of justice which has traditionally vested a chancellor with substantial discretion in factual matters. Therefore, I respectfully dissent.


source: Caselaw Access Project

author: JUSTICE WEBBER JUSTICE MILLER,

license: Public Domain

text:
    CHRISTINE D. PROULX, by her Next Friend, Clovis Proulx, et al., Plaintiffs-Appellees, v. ILLINOIS HIGH SCHOOL ASSOCIATION et al., Defendants-Appellants.
    Fourth District
    No. 4-83-0775
    Opinion filed July 10, 1984.

      MILLER, J., dissenting.
    Wayne E Plaza and Margaret S. Garvey, both of Rooks, Pitts, Fullagar & Poust, of Chicago, and David L. Requa, of Heyl, Royster, Voelker & Allen, of Springfield, for appellants.
    No appearance for appellees.
   JUSTICE WEBBER

delivered the opinion of the court:

This appeal presents another in the relatively small but growing series of cases in which amateur athletes resort to the judicial system when displeased with the rulings and regulations of their associations. On petition of the plaintiffs, the circuit court of Sangamon County enjoined the defendant association from barring or preventing the plaintiffs from participating in a swim meet. The defendants have appealed. No evidence was taken in the trial court and therefore the factual situation must be gleaned from the pleadings. These consist of plaintiffs’ complaint, affidavits verifying the complaint, a petition for temporary injunction, verified by affidavit, counsel’s affidavit concerning notice, and the trial court’s order of injunction.

It appears that the plaintiffs are members of the Springfield High School girls’ swimming team; the defendants are the Illinois State High School Association (IHSA) and certain of its officers and directors. The IHSA is a.voluntary association of public and private high schools in the State whose purpose is to conduct interscholastic activities, including the Illinois State Girls Swim Meet Series. Springfield High School, a unit of School District No. 186, located at Springfield, is a member of the IHSA.

The Illinois State Girls Swim Meet Series for the year 1983-84 consisted of three tiers: (1) participation by the high school’s team in six interscholastic swimming and diving meets during the school year; (2) a sectional meet held on November 12, 1983; and (3) the State Final Meet held on November 18-19, 1983, at New Trier High School in Northfield, Illinois. The plaintiffs had participated through the sectional meet and had qualified for participation in the State Final Meet.

On November 16, 1983, the Springfield Education Association, which represented teachers employed in District No. 186, notified the district that a work stoppage would commence on November 17, 1983. The IHSA had promulgated what is denominated in the complaint as its “strike policy.” It is not clear whether this constitutes a rule or regulation of the IHSA, but in any event the parties have treated it as binding upon Springfield High School. The policy provides that:

“[A] member school which does not have 51 percent of the students in the district in attendance and cannot offer the minimum program required by state law and ISBE Circular Series A160 shall not engage in interscholastic activities.
IHSA By-Laws 3.012 and 3.015, relating to attendance requirements and eligibility requirements of interscholastic participants and By-Laws 2.040, relating to schools with which contests may be held, shall be enforced.”

The bylaws mentioned have to do with school attendance by individual students during the semester.

The work stoppage began on November 17 and a representative of the State Board of Education determined on that date that District No. 186 could not offer the minimum program required by State law. In light of that determination, the executive secretary of the IHSA ruled that the plaintiffs could not participate in the State Final Meet, and this ruling was upheld by the IHSA Board of Directors on November 17,1983.

On November 18, 1983, plaintiffs filed in the circuit court of Sangamon County a “Complaint for Injunctive Relief,” verified by the affidavits of the parents of the plaintiffs as their next friends. There was also filed a “Petition for Temporary Injunction,” verified by one of the parents, and an affidavit of counsel delineating his efforts to notify the defendants by telephone of a hearing on the petition, which was apparently scheduled for a hearing at 1:30 p.m. on November 18.

The complaint alleged facts as recited above and in addition alleged that the plaintiffs’ swimming coach was not involved in the work stoppage and was able to provide supervision of the plaintiffs. The critical allegations for the purpose of this opinion are:

“The plaintiffs will be irrepairably [sic] harmed if they are not permitted to participate in the Girl’s State Swimming Meet Series as said series is a unique event that cannot be delayed or rescheduled from its scheduled November 19,1983 date.
Defendants will not suffer injury by permitting Plaintiffs to participate in the State Swimming Meet Series in that should Defendants prevail in this cause all awards won by Plaintiffs in the Final Meet can be returned to Defendants and distributed to other participants.
Plaintiffs seek merely to maintain the status quo until the ultimate issue in this cause can be decided.”

The “Petition for Temporary Injunction” incorporated all of the allegations of the complaint and further alleged that the preliminaries of the final meet were to commence at 4 p.m. on November 18 at New Trier. It prayed that the defendants be temporarily enjoined from barring or preventing the plaintiffs from participation in the final meet. The trial court’s order, which is dated November 18, 1983, at 1:50 p.m., allowed the prayer of the petition and further ordered a hearing on the petition to be conducted at 1:30 p.m. on November 21, 1983. November 18, 1983, fell on a Friday.

Defendants immediately filed a notice of appeal pursuant to Supreme Court Rule 307(a)(1) (87 Ill. 2d R. 307 (a)(1)) accompanied by a motion for stay of the order under Supreme Court Rule 305 (b)(1) (87 Ill. 2d R. 305 (b)(1)). This court held a special session on November 19, 1983, at 10 a.m. to consider the matter. A divided panel allowed the motion for stay, but unanimously held to retain jurisdiction under the notice of appeal. Thereafter, on December 5, 1983, the plaintiffs filed a motion in this court to dismiss the appeal as moot. A divided panel of this court denied that motion.

The plaintiffs-appellees have not filed a brief in this case. However, the appellants’ brief demonstrates reversible error which finds support in the record, which is short and simple. We therefore elect to consider the merits, and in doing so reverse the trial court. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

We are faced at the outset with a problem which is more than semantic in nature, namely, what sort of an order is the subject of this appeal? Is it a temporary restraining order under section 11 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 11— 101) or is it a preliminary injunction under section 11 — 102 (Ill. Rev. Stat. 1981, ch. 110, par. 11 — 102)? If the former, it is not an appealable order; if the latter, it is appealable. Paddington Corp. v. Foremost Sales Promotion, Inc. (1973), 13 Ill. App. 3d 170, 300 N.E.2d 484.

We find no assistance in an examination of the order itself. It is stated that the matter came before the trial court on the petition for a temporary injunction and that telephonic notice was given to the defendants. The judgment portion “enjoined” the defendants from barring or denying the plaintiffs their participation in the swim met. There is no statement whether the enjoinment is temporary, preliminary, or otherwise. Nevertheless, the final paragraph sets the petition for a hearing some three days later and indicates the date and time of day of issuance. This partakes of the procedure for a temporary restraining order.

On balance, we believe that the order in question more closely resembles a preliminary injunction. We do so after looking to the substance rather than the form of the order. (Paddington Corp v. Foremost Sales Promotion, Inc. (1973), 13 Ill. App. 3d 170, 300 N.E.2d 484; Bullard v. Bullard (1978), 66 Ill. App. 3d 132, 383 N.E.2d 684.) Therefore, this court has jurisdiction, although we deprecate the imprecision and imperfection of the document presented to us.

Section 11 — 102 of the Code of Civil Procedure concerning preliminary injunctions (Ill. Rev. Stat. 1981, ch. 110, par. 11 — 102) states:

“No court or judge shall grant a preliminary injunction without previous notice of the time and place of the application having been given the adverse party unless it clearly appears, from specific facts shown by the verified complaint or by affidavit accompanying the same, that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and a hearing had thereon.”

The statute is substantially similar to Rule 65(a)(l) of the Federal Rules of Civil Procedure. (28 U.S.C.A. R. 65 (1982).) In Medeco Security Locks, Inc. v. Swiderek (7th Cir. 1981), 680 F.2d 37, 38, the court said:

“It is weE estabHshed that, in general, a motion for a preliminary injunction should not be resolved on the basis of affidavits alone. Normally, an evidentiary hearing is required to decide credibility issues.”

We agree with this rationale. “[0]n review, we can only base our judgment of the propriety of the trial court’s determination on a consideration of the sufficiency of the complaint.” Webb v. Rock (1980), 80 Ill. App. 3d 891, 896, 400 N.E.2d 959, 964.

We point out at the outset that the only affidavits in the record are those of the parents simply verifying the complaint and petition and that of counsel setting forth his efforts at notice. Since no testimony was taken, the trial court acted only on a bare-bones complaint and petition, both of which are conclusory in the extreme and fail to allege, even in a conclusory fashion, the necessary predicates for a preliminary injunction.

These predicates are well known. Briefly stated, they are: (1) a clearly ascertained right of the plaintiffs; (2) irreparable injury to that right; (3) no adequate remedy at law; and (4) likelihood of success on the merits. Board of Education v. Eckmann (1982), 103 Ill. App. 3d 1127, 432 N.E.2d 298.

Plaintiffs’ “right,” if it exists, must be that of participation in interscholastic athletics; furthermore, the “right” of participation must be an integral part of the educational process in order to be afforded protection. However, the relationship of education to athletics is far from clear. If the “right” is to find a basis for protection, it must be on due process of law.

The courts of this country have sharply divided on the question of protectable interests in participation. (See J. Weistart & C. Lowell, The Law of Sports sec. 1.11, at 20 (1979), and the cases there collected.) We believe that the better reasoned authorities find no such interests. In our own jurisdiction, Robinson v. Illinois High School Association (1963), 45 Ill. App. 2d 277, 195 N.E.2d 38, cert, denied (1965), 379 U.S. 960, 13 L. Ed. 2d 555, 85 S. Ct. 647, bears striking parallels to the instant case. There the trial court enjoined the same defendant as here from preventing the plaintiff from competing in high school athletic contests. The appellate court reversed and quoted at length from State of Indiana ex rel. High School Athletic Association v. Lawrence Circuit Court (1959), 240 Ind. 114, 162 N.E.2d 250, and stated:

“The court stated that the right of the plaintiffs in the Circuit Court proceeding, to go to the public schools and receive education and training cannot properly be said to include inter-school basketball as may be engaged in between picked teams of the various schools constituting the membership of the Indiana High School Athletic Association.” 45 Ill. App. 2d 277, 286, 195 N.E.2d 38, 43.

In short, plaintiffs failed to allege the existence of any protectable right, and in the circumstances of this case it appears that no such right exists.

As to the question of injury, the complaint is again conclusory and nothing is stated in the record as to how the plaintiffs have been injured. Some courts have held that participation in high school athletics may be a means for students to obtain college scholarships. (See, for example, Regents of the University of Minnesota v. National Collegiate Athletic Association (8th Cir. 1977), 560 F.2d 352.) However, even such a minimal allegation as this is lacking here. All that is said is that the swim meet was “unique,” but without any further explanation as to how that quality affects the plaintiffs. In Board of Education v. Board of Education (1983), 112 Ill. App. 3d 212, 445 N.E.2d 464, the court held that the bare allegation of “illegal” was insufficient to establish harm. In our opinion “unique” is even less pejorative than “illegal.” Plaintiffs failed to allege or establish any irreparable injury.

Since no right nor injury has been alleged, the questions of adequate remedy at law and likelihood of success on the merits become moot.

We regard the action of the trial court as an unwarranted interference in the affairs of the defendant association. There is no allegation that the “strike policy” was invalid, arbitrary or capricious, nor that it was being fraudulently applied to the plaintiffs. The Robinson court, quoting from 4 Am. Jur. Associations & Clubs sec. 17, at 466 (1936) said:

“ ‘It is well established that courts will not interfere with the internal affairs of voluntary associations, except in such cases as fraud or lack of jurisdiction. Accordingly, it is held that mandamus will not lie to regulate the affairs of unincorporated societies or associations, at least not in the absence of a permissive statute. Nor will an injunction be granted where the association is proceeding in accordance with its rules and within the scope of its jurisdiction. The decisions of the tribunals of an association with respect to its internal affairs will, in the absence of mistake, fraud, collusion or arbitrariness, be accepted by the courts as conclusive. Moreover, it is held that the courts will not undertake to inquire into the regularity of the procedure adopted and pursued by such tribunals in reaching their conclusions.’ ” (45 Ill. App. 2d 277, 284, 195 N.E.2d 38, 42.)

Accord, Sanders v. Louisiana High School Athletic Association (La. App. 1970), 242 So. 2d 19.

We are aware of the distress and frustration which must have been visited upon the plaintiffs and their parents, and even upon the other students at Springfield High School, when the actions of others beyond their control caused them to be disqualified. However, this is not a sufficient basis for judicial intervention. Courts are not to be regarded as a sanctuary from all the problems and vicissitudes of modern life. They are ill-equipped, intellectually and otherwise, to override and second-guess the decisions of administrators who live and work with their particular areas on a daily basis. Courts must approach hardships of the type seen in the instant case with great caution and with a decent respect for the integrity of the organization with which they are dealing.

The order of the circuit court of Sangamon County is reversed.

Reversed.

TRAPP, J., concurs.

JUSTICE MILLER,

dissenting:

I agree with the plaintiffs that the issues presented by this appeal are moot.

It does not help the parties, nor does it add definition to a growing body of law, to now decide that the order appealed from is appeal-able and that the trial court erred when, based only upon a “bare-bones complaint and petition” which failed to contain the allegations required, it enjoined the defendant from preventing the plaintiffs from participating in the swim meet.

Because the swim meet was held without the participation of the plaintiffs and the issues are moot, I would dismiss the appeal.


author: PRESIDING JUSTICE SEIDENFELD

text:
    WAYNE K. BOSTON, Appellant and Appellee, v. THE INDUSTRIAL COMMISSION et al. (George R. Mellor, Sr., Appellee and Appellant).
    Fourth District (Industrial Commission Division)
    Nos. 4—84—0095WC, 4—84—0096WC cons.
    Opinion filed July 10, 1984.
    Heyl, Royster, Voelker & Allen, of Springfield (Gary L. Borah, of counsel), for Wayne K. Boston.

      Harry G. Story and Tim E. Moreland, Jr., both of Jacksonville, for George R. Mellor, Sr.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

George R. Mellor, Sr., claimed compensation for accidental injury to his left testicle and consequent loss of the reproductive use of both testicles, resulting from trauma incurred while driving a dump truck over rough roads as an employee of Wayne K. Boston. The arbitrator awarded six weeks’ temporary total disability, medical expenses and compensation for the total loss of use of the left testicle. Both the claimant and the employer appealed to the Industrial Commission. The Commission affirmed the decision of the arbitrator as to temporary total disability and medical expenses but found a 100% permanent loss of the use of both testicles. The circuit court confirmed the award of temporary total disability and medical expenses but reduced the award to compensation for permanent loss of 50% of the use of both testicles.

The claimant appeals, contending that the judgment of the circuit court is against the manifest weight of the evidence. The employer also appeals, contending that the injury is not causally related to the trauma of the accident, that there is no compensable loss under the particular circumstances since only the reproductive function of a testicle is lost, and that, in any event, there is no evidence of injury to the right testicle. The cases have been consolidated.

The claimant, a 48-year-old male with three teenage children, was employed as a truck driver. On June 1, 1978, he was hauling dirt over a rough road when the truck “hit a series of holes.” Claimant bounced on the seat and “mashed” his left testicle. He experienced immediate pain and nausea. He had never had a problem with his testicles before.

Claimant reported the accident to his employer that day and continued to work the next two days, while continuing to experience pain and swelling. He rested Sunday and returned to work Monday, June 5, but was unable to continue working. He went to Passavant Memorial Area Hospital to have the left testicle examined.

At the hospital the examining physician, Dr. Charles Wilson, diagnosed a prostate infection and an infection in the left epididymis. He treated claimant in the hospital until June 8 with intravenous antibiotics, and released him to continue the medication orally at home. He readmitted claimant June 10, because the condition was getting worse, and administered antibiotics intravenously. When claimant failed to respond well to the treatment, Dr. Wilson surgically removed the left epididymis “so the infection did not spread to his left testicle and cause the loss of his testicle,” and performed a right partial vasectomy “to prevent any infection from going into that testicle at a later date.” The operation rendered claimant sterile.

Dr. Wilson described the structure of the affected area. The vas deferens, a tubular structure, leads from the prostate gland to the epididymis, which, in turn, leads to the testicle. The epididymis is a tube which carries sperm between the testicle and the vas deferens. Epididymitis is an infection in the epididymis. A man has one prostate gland, but two separate vasa deferentia, epididymides and testicles.

Dr. Wilson diagnosed epididymitis, a substantial bladder infection, and a prostate infection in claimant. He said that, in most cases, epi-didymitis arises from a prostate infection and, referring to claimant’s epididymitis, said, “I suspect that it arose from his prostate infection.”

Dr. Wilson explained that the cause of prostate infections is unknown, but that an activity like truck driving, which causes pressure or stimulation of the prostate gland area, between the scrotum and the rectum, can aggravate a prostate infection.

When asked his opinion as to what caused the spread of the infection from the prostate to the epididymis, Dr. Wilson answered, “It might have been because of his occupation and it might not have been from his occupation.” He also testified that while the vasectomy might be characterized as “precautionary,” there “is no way to tell when he might have developed another prostate infection and epididy-mitis on the other side. It might have been three days or three years from then.”

The doctor further testified that, following the vasectomy on the right side, the claimant would retain full sexual capability and would not be impotent. He also stated that a vasectomy was a standard part of a surgical procedure for a man of the claimant’s age and in light of the pain and discomfort where there has not been a suitable response to antibiotic treatment.

We first address the contention of the employer that the claimant failed to present sufficient evidence to meet his burden of proving a causal relationship between the claimed loss and his employment. As to the left testicle, the contention is based on the alleged failure of medical testimony to unequivocally state a causal connection between driving over rough roads and the prostate infection resulting in the epidymectomy and vasectomy. We conclude, however, that the chain of events establishes a sufficient circumstantial connection to support the Commission’s finding of causation.

“Where medical knowledge of an ailment is limited, medical testimony as to causation cannot and need not be unqualified and unequivocal.” (United States Steel Corp. v. Industrial Com. (1964), 32 Ill. 2d 68, 74.) While the cause of the prostate infection was unknown medically, Dr. Wilson testified to the view of many urologists that irritation from the vibration of a truck or tractor is sufficient to cause a prostate infection or an aggravation of such infection. The testimony that claimant was in good health prior to the accident, and his subsequent condition of ill-being, created a factual issue as to causation. (See Granite City Steel Co. v. Industrial Com. (1983), 97 Ill. 2d 402, 407.) From the facts, and the legitimate inferences it could draw from the facts, the Commission could find a probable causal relation between the accident and the injury even though the doctor was unable to state his conclusion as to causation within a reasonable degree of medical certainty. (See Certi-Serve, Ine. v. Industrial Com. (1984), 101 Ill. 2d 236.) In Certi-Serve, claimant, a pipefitter, suffered injury following an incident in which dust and debris from a bird nest flew into his eyes. Within two weeks claimant had become legally blind in his left eye due to a disease diagnosed as presumed ocular histoplasmosis syndrome. The doctors testifying were unable to state with any degree of medical certainty that the disease in the eye was causally related to the accident. The Certi-Serve court held that the chain of events, together with the testimony to the effect that the systemic histoplasmosis organism is carried by bird droppings and that systemic histoplasmosis and presumed ocular histoplasmosis may be related, was sufficient to support the Commission’s finding of causation even though there is no definite association, and the exact cause cannot be determined definitely without removal of the entire eye for a visual examination. 101 Ill. 2d 236, 245-46.

As to the right testicle, we conclude that the evidence also sufficiently establishes causation. The medical testimony was that a vasectomy was performed severing the right vas deferens “to prevent any infection from going into that testicle at a later date.” This was stated to be a precautionary measure not required by the immediate infection but within standard medical practice for a man of claimant’s age and in light of his pain and lack of response to antibiotic treatment. The Commission could properly resolve any conflict as to the necessity of the vasectomy and find that the causal connection between the initial injury and the loss of the reproductive function of the right testicle had been established. The evidence supports a finding that the claimant’s occupation of truck driving caused or aggravated the prostate infection which led to the entire sequence of events resulting in the vasectomy. We find that it was within the discretion of the Commission to make the findings of fact and inferences from the facts which supported its conclusion. See, e.g., Granite City Steel Co. v. Industrial Com. (1983), 97 Ill. 2d 402, 406.

On the more difficult question of whether the loss of the reproductive function of the testicle, alone, supports the Commission’s finding of a 100% loss of use, we conclude that it does not.

Section 8(e)(15) of the Workers’ Compensation Act provides that compensation for “the loss of or the permanent and complete loss of the use of” one testicle shall be 50 weeks, and of both testicles shall be 150 weeks. Ill. Rev. Stat. 1983, ch. 48, par. 138.8(e)(15).

Section 8(e)(16) provides compensation for permanent partial loss of the use of a scheduled member. Ill. Rev. Stat. 1983, ch. 48, par. 138.8(e)(16).

There is well-recognized medical authority that the testicles serve three functions: (1) producing hormones affecting the function of the entire body; (2) producing hormones making sexual intercourse possible; and (3) producing sperm. 4B Gray’s Attorney’s Textbook of Medicine sec. 301.13 (1983).

To recover an award for 100% loss of use the claimant must prove that he suffered the loss of the use of both testicles. Illinois has recognized that, to recover for loss of use of a part of the body, the important question is whether its normal function has been impaired. (See A. O. Smith Corp. v. Industrial Com. (1977), 69 Ill. 2d 240, 244-45.) Illinois has considered the complete loss of use of the testicle but has not considered the specific question raised here, that of loss of fertility alone. In Northwestern Barb Wire Co. v. Industrial Com. (1933), 353 Ill. 371, claimant lost the total use of his testicles as the result of an industrial accident. They were reimplanted in the abdomen. The court noted that they “were lost in the more serious sense that they never again could perform their function having to do with sexual intercourse and the propagation of Offspring.” (353 Ill. 371, 374.) In Granite City Steel Co. v. Industrial Com. (1983), 97 Ill. 2d 402, claimant suffered a groin injury which left him impotent. The supreme court upheld the Commission’s award of compensation for the loss of the use of both testicles. In A. O. Smith Corp. v. Industrial Com. (1972), 69 Ill. 2d 240, claimant’s penis was crushed and the resultant injury to the erectile tissue impaired claimant’s ability to have sexual intercourse. The Commission awarded compensation based on the loss of use of both testicles, although the function of the testicles themselves had not been damaged.

The supreme court recognized that the A. O. Smith claimant could no longer engage in sexual intercourse, nor could he propagate offspring, though the testicles, themselves, were normal. It affirmed the Commission’s award of compensation for 100% loss of use of both testicles because both of the main functions were lost. Here claimant suffered the loss of only one of those functions.

Our recognition of the fact that there are multiple functions of the testicles leads us to the conclusion that the loss of a single function, the ability to procreate, is intended to be treated under the Workers’ Compensation Act as a partial loss of use. The language of the Act supports this. Compensation is awarded for “permanent and complete loss of the use” of the testicle. (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 48, par. 38.8(e)(15).) Section 8(e)(16) provides compensation for permanent partial loss of use of a scheduled member. (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(e)(16).) To give effect to both parts of the Act, partial compensation must be awarded for partial loss of use. This analysis is consistent with awards which have been made for permanent partial loss of use of other scheduled members (See, e.g., County of Cook v. Industrial Com. (1979), 78 Ill. 2d 320 (arm); Walker v. Industrial Com. (1978), 72 Ill. 2d 408 (eye); Ford Motor Co. v. Industrial Com. (1973), 55 Ill. 2d 549 (hand).) A similar analysis was used in awarding compensation for partial loss of use of an eye when only the lens was removed and other functioning components remained. See Pridgeon v. Industrial Com. (1982), 89 Ill. 2d 477, 480.

If the potency function had been lost as in the cases cited a different conclusion would have been called for since the ability to use the testicles then would have been totally lost. Thus in Granite City the claimant who lost his potency was awarded 100% for the loss of use of his testicles since the loss of the hormonal function does mean loss of the entire function. In A. O. Smith, the sole unimpaired testicular function was that of production of hormones to the body. In this case, however, the use of the testicles was not completely lost and, in particular, the hormonal function was not impaired. The bodily hormonal function and the hormonal function permitting sexual intercourse remained. Thus, this claimant suffered a partial loss of the use of the member.

In reaching this conclusion we do not accept the employer’s argument that claimant is not entitled to recovery because he has not proved that the reproductive function was of any use to him. While claimant expressed no affirmative desire to have children, neither did he express a desire to have no more children. Testimony that claimant understood that the vasectomy was required “to stop the infection on the other side” demonstrates that he focused his attention on curing the infection, and not on whether he wanted future children. Moreover, we find nothing in the statute or the authorities that supports the position that claimant must prove that the proper function of a scheduled member was of value to him in order to recover for the loss or loss of use.

It is noted that the Act contains no standards for determining the percentage of loss of use of a member. (Pridgeon v. Industrial Com. (1982), 89 Ill. 2d 477, 479.) In Pridgeon, the court noted that the loss of use of an eye is “a question of fact and is not one to be determined by mechanical measurement as to corrected or uncorrected vision.” (89 Ill. 2d 477, 479.) The circuit court determined that the evidence supported compensation for a 50% loss of use in this case. However, the matter should be returned to the Commission to consider all the circumstances, under our guidelines, and then to assess the proper percentage of loss. The determination of permanent partial loss of use of a member is not a matter capable of mathematically precise determination, and the estimation of partial loss is peculiarly the function of the Commission, not the circuit court, under the statutory scheme.

The judgment of the circuit court of Morgan County is therefore reversed and the cause remanded to the Industrial Commission for further proceedings consistent with this opinion.

Reversed and remanded.

BARRY, KASSERMÁN, McNAMARA, and WEBBER, JJ., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GARY MARCHBANKS, Defendant-Appellee.
    Second District
    No. 2—83—0373
    Opinion filed July 19, 1984.
    Fred L. Foreman, State’s Attorney, of Waukegan (Michael J. Fusz, Assistant State’s Attorney, and Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Thomas J. Organ, of Cisco & Organ, of Chicago, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

The State appeals from an order dismissing an information which charged defendant, Gary Marchbanks, with the offenses of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a)) and possession of burglary tools (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 2(a)).

We consider in this case whether the failure of the State to disclose to defendant that a principal prosecution witness had been suspended from his duties as a police officer constitutes “prosecutorial overreaching” which bars defendant’s retrial on double jeopardy grounds.

After trial by jury, defendant was convicted of these offenses and thereafter filed a motion for new trial in which he asserted that he was denied a fair trial as the State did not disclose for his use in trial material evidence favorable to him. The motion stated that Sergeant Fred Lokse, the only witness who testified in trial that he had observed defendant in the car which had been burglarized, was at the time of trial suspended from his police duties for misconduct, and was, after trial, discharged from the department. The trial court granted a new trial to defendant, finding that he should be given an opportunity to cross-examine the witness for evidence of bias related to the fact of his suspension. See People v. Mason (1963), 28 Ill. 2d 396, 192 N.E.2d 835; People v. Phillips (1981), 95 Ill. App. 3d 1013, 420 N.E.2d 837, appeal denied (1981), 85 Ill. 2d 572.

Prior to retrial, however, defendant moved to dismiss the information charging these offenses, asserting that the State had intentionally and knowingly failed to provide evidence favorable to him, to-wit: the suspension of the only witness testifying to defendant’s presence in the car. Defendant urged dismissal of the information on the grounds further prosecution was barred under section 3 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4). The State responded that although the matter of Sergeant Lokse’s suspension was known to it at the time of the first trial, that fact was not considered relevant to the offenses charged or admissible in that trial. The assistant State’s Attorney asserted that his office was not motivated by bad faith nor had it sought to deprive defendant of a fair trial.

The trial court found that the fact the witness had been suspended could have been used to impeach his testimony and was thus favorable information which must be disclosed under Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194. As the State failed to do so, the court found that the discovery violation precluded retrial under principles of double jeopardy. Defendant’s motion was granted, and the State appeals.

The State contends on appeal that the trial court lacked authority to dismiss the pending charges against defendant on double jeopardy grounds for claimed “prosecutorial overreaching.” It argues that principle is applicable only when a retrial of a defendant is sought following a mistrial which was occasioned by intentional misconduct by the State to provoke it. Defendant responds that the discovery omission violated his right to due process and the appropriate remedy is to punish the prosecutor by dismissing the information. Defendant does not discuss in his brief the application of section 3 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4) upon which his motion to dismiss was predicated in the trial court, but essentially relies here upon People v. Pendleton (1979), 75 Ill. App. 3d 580, 394 N.E.2d 496, and People v. Woodall (1974), 21 Ill. App. 3d 807, 315 N.E.2d 683, aff'd (1975), 61 Ill. 2d 60, 329 N.E.2d 203, to sustain his argument that the “prosecutorial overreaching” concept of double jeopardy applies in this case.

In addition to an acquittal or conviction in a first trial of an offense, and the other circumstances under which further prosecution for the same offense is barred by section 3 — 4 of the Criminal Code of 1961, the double jeopardy clauses of the Federal and State constitutions (U.S. Const., Amend. V.; Ill. Const. 1970, art. I, sec. 10) act to bar further prosecution of an offense which has been formerly prosecuted where: a conviction has been reversed on appeal for insufficiency of the evidence (Burks v. United States (1978), 437 U.S. 1, 14, 18, 57 L. Ed. 2d 1, 11, 14, 98 S. Ct. 2141, 2148, 2150-51; People v. Holloway (1982), 92 Ill. 2d 381, 386-87, 442 N.E.2d 191), and, where there was prosecutorial or judicial misconduct at trial which was intended to and did provoke defendant into requesting a mistrial. (Oregon v. Kennedy (1982), 456 U.S. 667, 679, 72 L. Ed. 2d 416, 427, 102 S. Ct. 2083, 2091; People v. Townsend (1983), 119 Ill. App. 3d 529, 531, 456 N.E.2d 938.) In the present case, defendant’s convictions at his first trial were not reversed on appeal for insufficiency of the evidence nor was he intentionally provoked into requesting a mistrial by conduct of the State or court. Defendant was, instead, granted a new trial, at his request, for failure of the State to disclose information which defendant might have used to affect the credibility of a witness against him.

Defendant has cited no authority for extension of this concept of double jeopardy to the circumstances presented here, nor has our research discovered any. People v. Pendleton (1979), 75 Ill. App. 3d 580, 394 N.E.2d 496, and People v. Woodall (1974), 21 Ill. App. 3d 807, 315 N.E.2d 683, affd (1975), 61 Ill. 2d 60, 329 N.E.2d 203, upon which he relies, are inapposite and do not offer support to defendant’s argument. People v. Pendleton was concerned with “prosecutorial overreaching” which caused a mistrial, thus invoking the traditional double jeopardy bar to further prosecution. Leave to appeal was granted by our supreme court in People v. Woodall and it found the indictment was properly dismissed prior to the third trial of defendant for the same offense, as his earlier conviction had been reversed for insufficient evidence. People v. Woodall (1975), 61 Ill. 2d 60, 61-62, 329 N.E.2d 203.

In Oregon v. Kennedy (1982), 456 U.S. 667, 679, 72 L. Ed. 2d 416, 427, 102 S. Ct. 2083, 2091, the court limited application of the “prose-cutorial overreaching” bar of double jeopardy where a mistrial was granted to circumstances where conduct by the prosecutor or judge was intended to provoke defendant into requesting a mistrial. In doing so, the court noted that the double jeopardy clause imposes no limitation upon the power of the government to retry a defendant who has succeeded in persuading a court to set his conviction aside, unless the conviction has been reversed because of the insufficiency of the evidence. (See United States v. DiFrancesco (1980), 449 U.S. 117, 130-31, 66 L. Ed. 2d 328, 341-42, 101 S. Ct. 426, 434.) Illinois reviewing courts have similarly rejected extension of this concept of double jeopardy from circumstances where a mistrial has been declared to those in which a defendant has been granted a new trial because of trial error. See People v. Dungy (1984), 122 Ill. App. 3d 314, 461 N.E.2d 485; People v. Hooker (1981), 96 Ill. App. 3d 202, 205, 421 N.E.2d 308; People v. Castiglione (1979), 75 Ill. App. 3d 469, 471, 473, 394 N.E.2d 607; see also People v. Reimnitz (1981), 97 Ill. App. 3d 946, 423 N.E.2d 934, cert, denied (1982), 456 U.S. 906, 72 L. Ed. 2d 162, 102 S. Ct. 1751.

Even had a motion by defendant for a mistrial been made and granted in this case for failure to disclose the suspension of the police officer, that would not have provided a basis to bar retrial for “prose-cutorial overreaching,” The State represented that it failed to make this disclosure believing it was not discoverable information or relevant to the trial of the case. The trial judge accepted that representation and made no findings suggesting intentional misconduct by the State. See People v. Townsend (1983), 119 Ill. App. 3d 529, 456 N.E.2d 938; People v. Gomez (1980), 84 Ill. App. 3d 785, 406 N.E.2d 886; People v. Hill (1975), 34 Ill. App. 3d 193, 339 N.E.2d 405.

We conclude the trial court was without authority to dismiss the information charging these offenses after granting defendant a new trial for trial error.

Accordingly, the judgment of the circuit court dismissing the information will be reversed and the cause remanded for further proceedings.

Reversed and remanded.

HOPE and LINDBERG, JJ., concur.


author: JUSTICE LINDBERG

text:
    EDGAR C. BUNDY, Plaintiff-Appellant, v. CHURCH LEAGUE OF AMERICA, et al., Defendants-Appellees.
    Second District
    No. 2—84—0129
    Opinion filed July 19, 1984.

      Ken E. North, of Solomon, Rosenfeld, Elliott & Stiefel, Ltd., of Chicago, for appellant.
    John Westra, of Johnson & Westra, of Wheaton, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

This is an interlocutory appeal from the sua sponte order of the circuit court of Du Page County which dissolved the injunction entered in an agreed order nine months earlier. Because the trial court lacked jurisdiction to dissolve the injunction, we vacate the dissolution order and remand.

Plaintiff, Edgar C. Bundy, filed a complaint against defendants, Church League of America (CLA) and several individuals who are members of the CLA’s board of directors, on March 16, 1983. The CLA is an unincorporated association organized for educational and literary purposes. Bundy had served as executive secretary, director, and member of the CLA, but his current status is part of the dispute giving rise to this action. The complaint alleged that defendants planned a meeting without proper notice or quorum as required by the CLA’s bylaws, that proposed amendments scheduled for consideration by defendants would deprive the membership of its right to vote, and that defendants violated CLA’s bylaws in purportedly removing Bundy from the CLA board. The original complaint was in two counts seeking declaratory and permanent injunctive relief. A motion was made later to add a third count which sought an accounting on the basis of alleged mismanagement.

On March 16, 1983, Bundy petitioned for and obtained from the circuit court a temporary restraining order (TRO) blocking the actions planned by defendant. On March 28, 1983, the TRO was continued until April 20, 1983. On that date, the trial court entered an order which recited the provisions of an oral compromise reached by the parties. The order enjoined the parties from taking certain actions as provided for in their compromise agreement.

On December 13, 1983, defendants filed a petition for rule to show cause why Bundy should not be adjudged in contempt for certain alleged conduct which violated the agreed order of April 20. On January 17, 1984, after a hearing on that petition, the trial court found that no justiciable issues existed on the pleadings and on that basis denied the petition, dissolved the TRO and the April 20 injunction, dismissed Bundy’s complaint without prejudice and granted him 28 days to file an amended complaint. The dissolution order had not been requested by either party.

On February 10, 1984, Bundy filed an amended complaint and an emergency motion for another TRO. The record does not indicate whether the TRO was granted, but does include a motion dated February 17 by defendants seeking dissolution of the TRO. On February 16, 1984, Bundy filed his notice of interlocutory appeal from the January 17 order.

On appeal, Bundy contends that the trial court lacked jurisdiction to enter its dissolution order and that the controversy is justiciable. Before reaching Bundy’s contentions, we address defendants’ assertions that this court lacks jurisdiction, that the appeal is moot, and that the appellate issues have been waived by Bundy’s filing of an amended complaint.

Of the issues raised by the parties, of necessity the first which should be addressed is the jurisdiction of this court to hear the appeal. Bundy brings this appeal as an interlocutory one as of right under Supreme Court Rule 307 (87 Ill. 2d R. 307). Defendants contend that the order appealed from was a final order, not appealable under Rule 307.

The January 17 order dissolving the injunction also struck Bun-dy’s complaint “without prejudice” and permitted Bundy 28 days to file an amended complaint. The order further specified that it was entered “without prejudice” to Bundy’s possible right to retirement benefit payments from the CLA. On February 10, 1984, Bundy filed an amended complaint again seeking declaratory and injunctive, preliminary and permanent, relief. Bundy’s notice of appeal was filed on February 16,1984, and expressly invoked Rule 307.

Rule 307(a)(1) provides that “[a]n appeal may be taken to the Appellate Court from an interlocutory order of court *** granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction ***.” (87 Ill. 2d R. 307(a)(1).) The January 17 order dissolved the injunction but dismissed the complaint without prejudice. To be final, a dismissal order must be entered with prejudice. (Peterson v. Tazewell County (1975), 29 Ill. App. 3d 915, 330 N.E.2d 888.) Thus, the January 17 order was interlocutory and was appealable as of right pursuant to Rule 307.

Defendants rely upon Statistical Tabulating Corp. v. Hauck (1972), 5 Ill. App. 3d 50, 282 N.E.2d 524. There, the appellate court dismissed an appeal from a permanent injunction because it was a final order which resolved fewer than all the claims rather than an interlocutory order. While Supreme Court Rule 301 permits appeals from final orders generally, Rule 304 permits appeals from final orders which resolve fewer than all claims only where the trial court expressly finds that there is no just reason for delaying enforcement or appeal. (87 Ill. 2d Rules 301, 304.) Like the present case, the trial court in Statistical Tabulating had not made such a finding. However, the present case is distinguishable in that the order appealed from is interlocutory as a whole rather than final as to the injunctive part. The January 17 order dismissed the whole complaint without prejudice, leaving the injunction issue open to further litigation.

Defendants also contend that this appeal is moot because the action which Bundy seeks to prevent by injunction, a meeting of the CLA board of directors in which that organization’s bylaws are amended to eliminate member voting, has already taken place upon the dissolution of the injunction which had barred that action. A case can become moot when, pending the decision on appeal, events occur which render it impossible for the reviewing court to grant effectual relief due either party. (Bluthardt v. Breslin (1979), 74 Ill. 2d 246.) There is nothing in the record to substantiate defendants’ assertion that the CLA board has taken the action which had been prohibited by the agreed order. However, a reviewing court can take judicial notice of such events which, while not appearing in the record, disclose that an actual controversy no longer exists between the adverse parties. (Bluthardt v. Breslin (1979), 74 Ill. 2d 246.) Furthermore, Bundy failed to obtain a stay of the January 17 order during the pendency of this appeal, as he might have done (see 87 Ill. 2d R. 305(b)(4)), and which would have prevented the CLA board’s action. In the absence of such a stay, it is possible for events to render an appeal moot. See Avondale Savings & Loan Association v. Amalgamated Trust & Savings Bank (1979), 78 Ill. App. 3d 244, 397 N.E.2d 121.

However, Bundy’s first contention is that the trial court lacked jurisdiction to dissolve the injunction. Every act of the court beyond its jurisdiction is void. (People ex rel. Prince v. Graber (1947), 397 Ill. 522; J.L. Simmons Co. v. Capital Development Board (1981), 98 Ill. App. 3d 445, 424 N.E.2d 821.) If we determine that the order dissolving the injunction is void for lack of jurisdiction, the injunction would have never lost its effect. In that event, the events asserted by defendants, if they occurred, could only have occurred in violation of the injunction. Since a determination of the validity of the trial court’s order may indeed then have an effect upon the parties, an actual controversy still exists which warrants resolution by this court. Thus, with regard to the issue of the trial court’s jurisdiction to enter the challenged order, this appeal could not have been rendered moot by the asserted events.

In the form of a motion to dismiss the appeal, defendants contend that Bundy, having filed an amended complaint following the dismissal of his complaint without prejudice, has waived any objection to the trial court’s ruling on the former complaint. Bundy objects to the motion both as to the form of the motion and as to its merits. Because of our determination that the motion lacks merit, we need not address the sufficiency of the form of the motion.

Defendants correctly cite the rule that a party who files an amended pleading waives any objection to the trial court’s ruling on the former complaints. (Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150.) However, the appeal here is an interlocutory one aimed not at that part of the January 17 order dismissing the complaint, but rather at that part dissolving the injunction of April 20, 1983. Both the notice of appeal and Bundy’s brief are framed with that limited objective. Thus, Bundy’s filing of an amended complaint does not prevent his raising an objection to the dissolution of the agreed injunctive order.

Moreover, one of the objections raised by Bundy on appeal relates to the trial court’s jurisdiction. A judgment, order or decree entered by a court which lacks jurisdiction of the parties or the subject matter or which lacks inherent power to make or enter the particular order involved is void and may be attacked at any time or in any court, either directly or collaterally. (City of Chicago v. Fair Employment Practices Com. (1976), 65 Ill. 2d 108.) We deny defendants’ motion to dismiss and turn our attention to the issue of the trial court’s jurisdiction.

Bundy contends that the trial court lacked jurisdiction to dissolve the injunction because the injunction was a final order which was not modified or vacated by any of the statutorily prescribed means. He points out that no appeal or post-trial motion was filed within 30 days of the injunction and that no petition for relief from the judgment pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1401) was ever filed.

The injunctive order of April 20, 1983, recited the provisions of an oral agreement entered by the parties in settlement of their dispute and “confirmed and ratified” those provisions as an order of the trial court. Even though the court stated that it retained jurisdiction of the matter, the order was file-stamped “Final Order, Case Closed.”

With regard to the question of whether that order was final, a permanent injunction is a “final judgment” within the meaning of the Code of Civil Procedure and the Supreme Court Rules which set 30-day limits on the filing of post-trial motions and notices of appeal. (Walker v. Board of Police & Fire Commissioners (1979), 77 Ill. App. 3d 958, 397 N.E.2d 2; see Ill. Rev. Stat. 1983, ch. 110, par. 2-1203; 87 Ill. 2d R. 303.) The fact that the trial court has inherent power to enforce its decree and to modify or revoke the injunction for equitable purposes due to changed conditions, as recognized in the order here by the trial court’s express retention of jurisdiction, does not import a lack of finality. People v. Mulgrew (1974), 19 Ill. App. 3d 327, 311 N.E.2d 378.

The injunction issued here was part of an agreed order. Such an order, while not a judicial determination of the parties’ rights, is conclusive on the parties and can be amended or set aside by one of the parties only upon a showing that the order resulted from fraudulent misrepresentation, coercion, incompetence of one of the parties, gross disparity in the position or capacity of the parties, or newly discovered evidence. (In re Haber (1981), 99 Ill. App. 3d 306, 425 N.E.2d 1007.) From our reading of the cases, we have concluded that the fact that a permanent injunction is contained in an agreed order does not prevent it from being a final order. (See Oak Park National Bank v. Dobson’s, Inc. (1979), 72 Ill. App. 3d 905, 391 N.E.2d 173; Filosa v. Pecora (1974), 18 Ill. App. 3d 123, 309 N.E.2d 356.) In Oak Park National Bank, the consent order provided that judgment would be entered if certain payments were not made by a certain date. The appellate court resolved that it need not decide the question of the finality of the consent order, but noted that the order might be considered final because it terminated the litigation between the parties on the merits. The only argument that the court noted against finality was one not applicable to the agreed order here: that there remained an act to be performed before execution, albeit the virtually ministerial one of either dismissing the case or entering judgment pursuant to the order. In Filosa, the appellate court considered the propriety of the trial court’s vacatur of a consent decree pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 72, now codified as Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1401), which dealt with relief from final orders, judgments and decrees. Although the vacatur was reversed, the opinion presumes, without addressing the question, that the consent decree was a final one for purposes of section 72. Thus, we hold that the April 20 injunctive order was a final order for purposes of determining the trial court’s jurisdiction to enter the January 17 dissolution order.

Generally, after 30 days from the date of the rendition of a final decree, a circuit court loses jurisdiction to alter or set aside the decree, which becomes a conclusive adjudication; a trial court is without authority to grant relief after 30 days except as provided in section 2 — 1401. (Williams v. A.E. Staley Manufacturing Co. (1980), 80 Ill. App. 3d 981, 400 N.E.2d 724, rev’d on other grounds (1981), 83 Ill. 2d 559.) It need not be decided here whether section 2 — 1401 relief was appropriate because no petition for that relief was ever filed, the trial court did not base its dissolution order on that basis, and defendants do not argue that the dissolution order may be affirmed on that basis.

However, it has been established that trial courts have inherent power or jurisdiction to modify or dissolve their own injunctions, even after the lapse of 30 days, in order to meet changing additions of fact or of law. (Material Service Corp. v. Hollingsworth (1953), 415 Ill. 284; Field v. Field (1967), 79 Ill. App. 2d 355, 223 N.E.2d 551; People ex rel. Illinois State Dental Society v. Norris (1979), 79 Ill. App. 3d 890, 398 N.E.2d 1163.) The Field opinion included the following quote:

“ ‘Where the grounds and reasons for which the injunction was granted no longer exist, by reason of changed conditions, it may be necessary to alter the decree to adapt it to such changed conditions, or to set it aside altogether, as where there is a change in the controlling facts on which the injunction rests, or where the applicable law, common or statutory, has in the meantime been changed, modified, or extended. ... On application to modify the decree, the inquiry is simply whether changes since its rendition are of sufficient importance to warrant such modification. However, the injunction, whether right or wrong, cannot on such a hearing be impeached in its application to the conditions that existed at its making.’ ” (Field v. Field (1967), 79 Ill. App. 2d 355, 359, 223 N.E.2d 551, 553, quoting 28 Am. Jur. Injunctions sec. 316 (1959).)

Since the cases speak in terms of “power” and “jurisdiction” (see, e.g., Material Service Corp. v. Isaacs (1962), 25 Ill. 2d 137, 139; Mate rial Service Corp. v. Hollingsworth (1953), 415 Ill. 284, 287-88, 112 N.E.2d 703, 705; H.K.H. Development Corp. v. Metropolitan Sanitary District (1968), 97 Ill. App. 2d 225, 247, 240 N.E.2d 214, 225; Field v. Field (1967), 79 Ill. App. 2d 355, 359, 223 N.E.2d 551, 553), we must conclude that a dissolution of a final injunctive order based on reasons other than those discussed is void for lack of jurisdiction.

The trial court’s written order dissolving the injunction was based upon its finding that “no justiciable issues now exist before the Court in the existing pleadings.” The court’s only elaboration on its reasoning in its oral order was that “the matter is perhaps a matter of internal battle within the organization of the Church League of America.” Whatever interpretation is given to the trial court’s reasoning, it is clearly not based upon changes that had occurred since the rendition of the injunction in the controlling facts or the applicable law. Rather, the characterization of the controversy as an internal one within the CLA could just as easily have been made on April 20, 1983, when the injunction was issued. Even if the previously enumerated grounds for setting aside an agreed order (see In re Haber (1981), 99 Ill. App. 3d 306, 309, 425 N.E.2d 1007, 1009), are applicable to give a trial court jurisdiction to vacate an agreed injunctive order outside the context of a section 2 — 1401 proceeding, no such grounds were relied upon by the trial court here. Thus, the trial court had no jurisdiction to dissolve the agreed injunctive order at the time and on the basis that it purported to do so. Because the court’s January 17 order was beyond the trial court’s jurisdiction, that order was void. (See J.L. Simmons Co. v. Capital Development Board (1981), 98 Ill. App. 3d 445, 446, 424 N.E.2d 821, 822.) We emphasize that this holding means that the agreed injunctive order of April 20, 1983, is still in effect and has been since its rendition.

Because of our determination that the trial court’s dissolution order was void for lack of jurisdiction, we need not address Bundy’s second contention that the trial court erred in finding that no justicia-ble issues were presented in the pleadings.

We vacate the order of the circuit court of Du Page County which dissolved the agreed injunctive order, and we remand to that court for further proceedings, if any, consistent with this opinion.

Vacated and remanded.

UNVERZAGT, and REINHARD, JJ., concur.


author: JUSTICE REINHARD JUSTICE UNVERZAGT,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY M. SCHUNING, Defendant-Appellant.
    Second District
    No. 2—83—0802
    Opinion filed July 19, 1984.

      UNVERZAGT, J., dissenting.
    G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Judith M. Pietrucha, both of State’á Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

In a jury trial, the defendant, Timothy M. Schuning, was found guilty of the offenses of rape (Ill. Rev. Stat. 1981, ch. 38, par. 11— 1(a)) and unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, par. 10 — 3(a)). The trial court entered a judgment of conviction with respect to the rape charge only, and subsequently sentenced the defendant to a seven-year term of imprisonment.

Defendant raises two issues on appeal: (1) whether the State failed to prove beyond a reasonable doubt that he committed the offense of rape; and (2) whether the trial court committed reversible error when it allowed the State to inform the jury, as impeachment evidence, that the defendant had been convicted of misdemeanor retail theft, for which he had received court supervision, and of criminal trespass to a motor vehicle.

At trial, Kathleen B., the complainant, testified that she had known the defendant for 21/2 years prior to the occurrence of the incident in question and that they were friends. They had the same friends and saw each other often. She admitted that she had previously engaged in a single act of sexual intercourse with the defendant in October 1981, in the basement of his parents’ home in Lombard. She stated, in addition, that she had been at the defendant’s residence many times before, which was located in the basement of his parents’ home, and had stayed overnight in the house numerous times when the defendant’s parents were not home. On those occasions the defendant and his brother and sometimes others were present in the home, but she spent those nights alone.

Late in the evening on October 6, 1982, the complainant telephoned the defendant to inquire how he was. When she learned he was not at home, she requested that the defendant return her call. According to the complainant, the defendant returned her call a short while later and invited her to his house. Because she did not want to walk in the dark, the defendant met her halfway.

They went to the basement of defendant’s home, where they sat on a couch and talked, watched television, and drank a few beers. Eventually, the defendant began to tickle her, and she asked him to leave her alone. When the defendant continued to tickle her, she pulled back and told him to stop it. Then the defendant pushed her shoulders down and got on top of her. She struggled to free herself by trying to push the defendant away from her. At this point the defendant was sitting on her stomach, and his arms were holding down her shoulders. After the complainant told the defendant to leave her alone, he bit her on the right cheek. Then he told her to be quiet or else he would bite through her face.

The complainant related further that the defendant, who was still sitting on her stomach, turned his back toward her and began to undo her pants. She began to fight him, told him to leave her alone, and removed a comb from his pocket, using it to scratch him in the lower back. She told the defendant to leave her alone and to stop. After the defendant removed her pants and underpants, he turned around and got back on top of her. She was unable to get up. The defendant began to pinch the top of her breasts as he was lying on her. She placed her hands between her legs so the defendant could not do anything and told him again to leave her alone. The defendant bit her on the other cheek and told her to remove her hand. The defendant again bit her in the face, which hurt her. She did nothing because she was scared. Then the defendant had intercourse with her for a few minutes, during which time she tried to get away, and told the defendant to leave her alone.

The complainant dressed in a hurry, ran from the basement and immediately walked five or six blocks to the home of Dennis Phelps, a friend of hers. The complainant, who was crying, asked Phelps to help her. After Phelps calmed her down and asked her what had happened, she told him she had been raped. Then Phelps took her to the police station.

The complainant stated that she was not free of defendant’s control until after sexual intercourse had occurred, because he held her down throughout the ordeal. Also, she related that she did not scream because the defendant told her he would bite through her cheek if she yelled. She stated she did not scream because she was afraid the defendant would hurt her. The complainant testified that the defendant may have told her that his parents were asleep upstairs, but she did not know whether she should believe him. She did .not see anyone in the house, including the defendant’s parents. In addition, she stated that she was wearing earrings at the time of this incident and that she lost an earring clasp during the struggle. She related, also, that she had marks on her face, bruises on her body, and a scrape on her knee as a result of the present occurrence.

Dennis Phelps testified that the complainant knocked on his basement window at approximately 1:30 a.m. on October 7, 1982. She was crying a lot and would not talk at first. Phelps finally calmed her down, and the first thing the complainant said to him was “he raped me.” He asked her if she wanted to go to the police station, and she did not want to do so at first. However, a short while later the witness took Kathleen to the police station. Phelps stated that Kathleen told him that she had been bitten, and Phelps noticed that the left side of her face was quite red.

Police officer Barbara Durnil, who transported the complaining witness to the hospital, observed circular marks in the cheek area on both sides of Kathleen’s face. The witness related that when she first viewed the complainant, Kathleen did not appear to be hysterical. Kathleen told her about the incident. Kathleen informed Officer Durnil that family members were in the upstairs area of the Schuning home and that the defendant had told her his family was asleep upstairs.

Barbara Svestka, a nurse who worked in the emergency room of Good Samaritan Hospital in Downers Grove, observed the complainant shortly after the alleged rape occurred. At that time Kathleen, who appeared quiet, told her she had been raped in a basement. The witness noticed circular or oval marks in the form of a mouth on both of the complainant’s cheeks and an abrasion on the right knee. There was no bruising of the skin or bleeding in the cheek area.

Dan Cuny, also a police officer, spoke with Kathleen at the hospital after the nurse had examined her. He described Kathleen as visibly shaken and upset when he interviewed her. The officer observed what appeared to be bite marks on Kathleen’s cheeks and an abrasion or scratch on her right knee; the skin on the cheeks was not broken or bleeding. In addition, he related that the complainant showed him bruises which she had in the chest area. Kathleen told him what happened in the basement of the Schuning home, and he thought the complainant informed him that the defendant’s parents were asleep upstairs during the incident in question.

During the afternoon of October 7, Officers Cuny and Frank Par-tipilo visited the Schuning home to execute a search warrant and arrest warrant for defendant. After entering the home, the police officers began to go down the steps to the basement. There they announced that they were police officers and told the defendant to come out. They received no response. Officer Partipilo testified that he then found the defendant hiding behind a basement door. In addition, Cuny related that he recovered a comb from underneath the couch in the basement and also found the back of an earring on the floor near the couch.

The defendant testified that he had known Kathleen for three years. He returned her telephone call shortly after 11 p.m. on October 6. According to the defendant, Kathleen invited herself to his residence, and he agreed to the visit. After she knocked on the basement window, the defendant went upstairs, opened the back door, and told her to be quiet going down to the basement because his parents were asleep. The defendant maintained that he did not meet the complainant halfway between her residence and his.

The defendant acknowledged that the two of them drank a few beers, talked, and watched a movie. However, his version of the subsequent events in issue differs from that which the complainant related. According to the defendant, he began to tickle Kathleen, who did not object. They lay on the couch “making out” for a little while and then began to undress one another. He engaged in sexual intercourse with Kathleen, who at no time informed him that she was opposed to having sex with him or asked him to stop. He did not bite the complainant on the face and did not threaten to bite through her cheek if she screamed. In addition, he denied that Kathleen attacked him with a comb.

Defendant stated that after the completion of the sexual act, the complainant sat up and dressed herself. They sat around and finished their beers, and then he walked Kathleen to the back door, where she told him that she would talk to him later. He said he hid behind the door when the police arrived the next day because of a prior distasteful encounter with the police a few years before.

Ramona Schuning, the defendant’s mother, testified that Kathleen had visited the Schuning home on prior occasions and had stayed overnight a couple dozen times. She stated that the basement sofa was positioned below the area where she and her husband slept. At the time of the occurrence in issue, she was not awakened by any sounds and did not hear anything.

Following defendant’s testimony, the trial court admitted into evidence certified copies of defendant’s prior convictions for criminal trespass to a motor vehicle and retail theft not exceeding $150, the latter offense resulting in a disposition of court supervision from which he was subsequently discharged.

The defendant’s first contention is that the State failed to prove beyond a reasonable doubt that he raped Kathleen. In particular, he argues that, although he did engage in sexual intercourse with the complainant at the time in question, forcible rape cannot be found in the present circumstances in light of the following facts: (1) that the complainant willingly engaged in sexual intercourse with the defendant on a prior occasion; (2) that the complaining witness “in effect invited herself over” to the defendant’s residence and “then stayed with him until the early morning hours”; (3) that the defendant employed no weapons, but purportedly only threatened to bite her cheek; and (4) that Kathleen did not scream or call for help even though the defendant’s parents were in the house. He concludes that the complainant’s testimony was not clear and convincing and that substantial corroboration was lacking.

The well-settled rule of law is that the testimony of a rape victim, standing alone, is sufficient to sustain a conviction of rape if it is clear and convincing (People v. Secret (1978), 72 Ill. 2d 371, 376, 381 N.E.2d 285; People v. Brown (1984), 122 Ill. App. 3d 452, 454, 461 N.E.2d 71), even though the defendant’s testimony contradicts hers. (People v. Spencer (1983), 119 Ill. App. 3d 971, 980, 457 N.E.2d 473.) However, if clear and convincing testimony is lacking, then corroboration is deemed necessary to sustain a rape conviction. (People v. Sanchez (1982), 110 Ill. App. 3d 893, 901, 443 N.E.2d 252.) Corroboration may be found in a prompt complaint or report of the occurrence (People v. Secret (1978), 72 Ill. 2d 371, 377, 381 N.E.2d 285), and in the victim’s injury and emotional upset. People v. Lucien (1982), 109 Ill. App. 3d 412, 417, 440 N.E.2d 899.

Although a court of review has a special duty to examine the evidence with care in a rape case, this obligation does not permit it simply to substitute another view of the evidence for that found credible by the trier of fact. (People v. Grover (1983), 116 Ill. App. 3d 116, 122, 451 N.E.2d 587; People v. Lucien (1982), 109 Ill. App. 3d 412, 416, 440 N.E.2d 899.) The issue of the plausibility of the complainant’s testimony is ultimately a matter of credibility, a question best determined by the triers of fact who heard the evidence and observed the demeanor of the witnesses. (People v. Sanchez (1982), 110 Ill. App. 3d 893, 901, 443 N.E.2d 252.) Thus, the existence of conflicting evidence alone will not warrant a reversal of the judgment entered below (People v. Grover (1983), 116 Ill. App. 3d 116, 122, 451 N.E.2d 587), and the court of review will set aside a conviction of rape only when the evidence is so palpably contrary to the findings or so unreasonable, improbable, or unsatisfactory that there is a reasonable doubt of the accused’s guilt. People v. Brown (1984), 122 Ill. App. 3d 452, 455, 461 N.E.2d 71.

In this case the testimony of the complainant was clear, convincing, and corroborated by other evidence. The evidence that Kathleen was well acquainted with the defendant, had engaged in a single act of intercourse with him one year before, and had come to his house late at night are all circumstances for the trier of fact to resolve in determining the credibility of her version of the incident on the night in question as contrasted to that of the defendant. The jury could reasonably conclude the complainant was physically restrained and forcibly raped, even though she did not yell out, from evidence of red bite marks on her cheeks and an abrasion on her leg. There was corroborating testimony that she promptly complained to police and others of the rape after leaving defendant’s home and was emotionally upset, factors tending to refute the defendant’s assertion that she consented to his conduct. Evidence of defendant’s hiding from the police is a circumstance tending to show consciousness of guilt. From a careful review of the record, we conclude that defendant was proved guilty of rape beyond a reasonable doubt.

Defendant’s other contention on appeal is that over his objection the trial court erred in admitting into evidence, after he testified, two “conviction statements” for the purpose of impeaching his credibility as a witness. He contends that his prior conviction for criminal trespass to a vehicle (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 2) was a misdemeanor conviction, not involving dishonesty or a false statement, inadmissible under the guidelines of People v. Spates (1979), 77 Ill. 2d 193, 395 N.E.2d 563, and that his purported prior “conviction” for retail theft not exceeding $150 (Ill. Rev. Stat. 1981, ch. 38, par. 16A — 3(a)), for which he received court supervision, and was subsequently discharged, was not a conviction.

We consider first the admissibility for impeachment purposes of the defendant’s prior conviction for criminal trespass to a vehicle. The decision of our supreme court in Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 363 N.E.2d 805, is dispositive of this issue. There it was specifically held that a conviction for criminal trespass to a vehicle, a misdemeanor, was not a crime of dishonesty or false statement as defined by statute, and did not fall under the provisions of People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, which allow, in the discretion of the trial judge, the introduction of certain prior convictions for the purpose of attacking the credibility of a witness who testifies. (Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 590-91, 363 N.E.2d 805.) The court in Knowles also rejected the same argument which the State makes in this appeal that the facts surrounding the witness’ prior conviction must be looked at to determine whether a crime involves dishonesty. Only the conviction itself, for the offense as defined by the statute, is to be considered in making this determination. (Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 590-91, 363 N.E.2d 805; see also People v. Grayer (1982), 106 Ill. App. 3d 324, 328-29, 435 N.E.2d 1196; People v. Kellas (1979), 72 Ill. App. 3d 445, 450, 389 N.E.2d 1382.) The defendant objected sufficiently below to this evidence, and the trial court erred in allowing into evidence this prior conviction for impeachment purposes.

We also conclude that the trial court erred in admitting a “conviction statement” of defendant’s prior disposition in a retail theft case which resulted in court supervision and defendant’s successful discharge therefrom. Successful completion of a disposition of supervision, which is provided for in section 5 — 6—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 6—1(c)), results in dismissal of the charges and no judgment of conviction is entered. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 1—21; People v. Bushnell (1984), 101 Ill. 2d 261, 266, 461 N.E.2d 980.) As only a conviction may be allowed to impeach and not an arrest, indictment, charge or actual commission of an offense (Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 590-91, 363 N.E.2d 805), a disposition of court supervision successfully discharged is not a conviction which can be used for impeachment purposes. (See People v. Miller (1981), 101 Ill. App. 3d 55, 61, 427 N.E.2d 987; People v. Kavanaugh (1980), 85 Ill. App. 3d 783, 786-87, 408 N.E.2d 23.) The court below erred in admitting such a disposition relating to the retail theft charge.

Having concluded that the court below erred in admitting this evidence for impeachment purposes, we must consider whether this was harmless error as the State argues in the alternative.

In Illinois, the test for review of evidentiary error is that such error can be labeled harmless only if properly admitted evidence is so overwhelming that no fair-minded jury could reasonably have voted to acquit the defendant or, as stated differently, only if the record affirmatively shows that the error was not prejudicial. (People v. Carlson (1982), 92 Ill. 2d 440, 449, 442 N.E.2d 504.) The improper admission of a prior conviction of a defendant for impeachment purposes has been held to be harmless error (People v. Vaughn (1978), 56 Ill. App. 3d 700, 705, 371 N.E.2d 1248; cf. People v. Gomez (1980), 80 Ill. App. 3d 708, 711-12, 399 N.E. 2d 1368), and not plain error under Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)). (People v. Steele (1984) 124 Ill. App. 3d 761.) In other decisions the improper introduction of a prior conviction was considered to be highly prejudicial and to warrant a new trial. (People v. Stover (1982), 89 Ill. 2d 189, 432 N.E.2d 262; Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 363 N.E.2d 805; People v. Kavanaugh (1980), 85 Ill. App. 3d 783, 408 N.E.2d 23.) The determination of harmless error must be analyzed on the particular facts of each case considering the trial record as a whole. United States v. Hasting (1983), 461 U.S. 499, 509, 76 L. Ed. 2d 96, 106, 103 S. Ct. 1974, 1980.

The question before us here is whether, absent this improper impeachment evidence, the properly admitted evidence is so overwhelming that no fair-minded jury could reasonably have voted to acquit the defendant. Evidence of a defendant’s prior conviction is admitted as it may affect his believability as a witness, not as evidence of guilt (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695), and the jury was so instructed in this case. (See Illinois Pattern Jury Instruction, Criminal, No. 3.13 (2d ed. 1981).) The credibility of the defendant was particularly relevant here as the only two direct witnesses to the incident in question, the defendant and the complainant, gave opposite testimony on the issue of consent to intercourse. Nevertheless, we conclude that the prior misdemeanor conviction for criminal trespass to a vehicle and the disposition of retail theft not exceeding $150 have little significance when compared to the credible direct testimony of the rape by the complainant and the substantial corroborating evidence of the rape by other neutral witnesses, who testified to signs of injury to the complainant and to her emotional upset and prompt complaint of the rape. Where a complainant’s testimony is well corroborated, reversible error will not be found. (See People v. Perruquet (1983), 118 Ill. App. 3d 339, 343, 454 N.E.2d 1051.) The two prior offenses are relatively minor offenses and are not of the same nature as the rape offense. The prior offenses were not “highlighted” before the jury in final argument by the prosecutor and were mentioned only once. (Compare People v. Kavanaugh (1980), 85 Ill. App. 3d 783, 787-88, 408 N.E.2d 23.) We note also that mention was made of the defendant’s “scrapes” with the law in his opening statement and his own direct testimony prior to introduction of these two misdemeanor offenses.

While the trial judge has the primary responsibility to know what prior offenses are admissible for impeachment purposes under People v. Montgomery, and its progeny, and should exercise considerable care in this function, we do not consider the error committed here, under this entire record, to have been so prejudicial as to affect the outcome of this trial and warrant reversal.

For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

SEIDENFELD, P.J., concurs.

JUSTICE UNVERZAGT,

dissenting:

This case should be reversed and remanded for a new trial because the defendant was prejudiced by the introduction of evidence of prior misdemeanor convictions.

In this case, the trial court allowed the State to introduce evidence of the defendant’s previous conviction of retail theft under $150 (Ill. Rev. Stat. 1981, ch. 38, par. 16A — 10(1)) and also evidence of a prior conviction of criminal trespass to a motor vehicle (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 2).

I agree with the majority opinion that it was error for the trial court to admit for purposes of impeachment the defendant’s prior conviction for criminal trespass to a vehicle. (Knowles v. Panopoulos (1977), 66 Ill. 2d 585.) I also agree with the majority that the admission of defendant’s prior retail theft “conviction” was error because the defendant was sentenced to court supervision and successfully completed supervision. The order terminating supervision is akin to a judgment of acquittal. People v. Tarkowski (1981), 100 Ill. App. 3d 153, 161.

Where I part company with the majority is their holding that the admissions of these convictions were harmless error. I am of the opinion it was prejudicial and, therefore, reversible error.

A reviewing court has a special duty to examine the evidence with care in a rape case. An examination of the evidence in this case reveals it to be closely balanced.

The crucial question whether the act of intercourse was forcible or consensual was ultimately one of credibility. (People v. Coe (1978), 67 Ill. App. 3d 552, 562.) In carrying out the truth-finding process, the jury necessarily had to gauge, to a certain extent, the credibility of the defendant as a witness; in addition, given the nature of this case and the conflicting evidence which the complainant and the defendant presented at trial, the jury’s verdict may well have turned, at least in part, upon the testimonial credibility of the defendant. As we have previously noted, evidence of a prior conviction can be highly prejudicial. (People v. Kavanaugh (1980), 85 Ill. App. 3d 783.) Improper admission of two prior “convictions” throws the scale of justice completely out of balance.

The majority assertion of other corroborating evidence in an attempt to minimize the error here is unconvincing.

I would reverse.