text:
    ROBERT BURT et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF COAL CITY COMMUNITY UNIT SCHOOL DISTRICT NO. 1, GRUNDY COUNTY, Defendant-Appellee.
    Third District
    No. 3-84-0677
    Opinion filed April 12, 1985.

      Paul E. Root and Roger B. Gomien, both of Gomien and Root, of Morris, for appellants.
    Bradley W. Hayes, of Dunn, Hayes & Condon, and Robert H. Adcock and Gary A. Dobbs, both of Adcock & Dobbs, both of Morris, for appellee.
   JUSTICE WOMBACHER

delivered the opinion of the court:

This case comes on an interlocutory appeal from Grundy County. The basis of the appeal is the trial court’s granting of a motion to vacate which dissolved an injunction.

The defendant board of education (hereinafter board) sought competitive bids on the district’s bus transportation contract on March 21, 1984. It is required to do so under section 10 — 20.21 of the School Code (Ill. Rev. Stat. 1983, ch. 122, par. 10 — 20.21). The contract was to run from August 20, 1984, to June 30, 1987. The submitted sealed bids were publicly opened on May 14. Members of the board, as well as representatives of the various bidders, were present. Plaintiff Kline’s bus company’s (hereinafter Kline’s) bid was lowest. However, the board adopted a resolution at such meeting awarding the contract to Broadway Garage (hereinafter Broadway).

Kline’s filed the instant action on June 1, seeking injunctive relief to prevent the board from entering into the contract with Broadway, and a writ of mandamus requiring the board to award the transportation contract to Kline’s. A temporary restraining order issued that day. However, service of the order was not had until June 4, and in the interim, the board and Broadway entered into a contract on June 1. The temporary restraining order was extended, ordering the board to not perform under the June 1 contract until final resolution of the case.

On August 2, 3, 6 and 7, the trial court held a hearing on the merits. At the conclusion, it found that Kline’s was the lowest responsible bidder and was entitled to the relief requested. Subsequently, on August 9, the court ordered the board enjoined from performing under the June 1 contract with Broadway during the term in question. A writ of mandamus issued ordering the board to award the transportation contract to Kline’s. On August 14, the board awarded the contract to Kline’s, executing it that day.

On August 24, Broadway filed a $1 million breach of contract action against the board. Subsequently, the board moved to vacate this trial court’s orders granting relief to Kline’s. In substance, the motion stated that Broadway was a necessary, indispensable party that should have been joined. That motion was granted, and Broadway’s suit was consolidated with this one. By virtue of the effect on the injunction, Kline’s exercised its statutory right to an interlocutory appeal under Supreme Court Rule 307 (87 Ill. 2d R. 307).

The first issue to be discussed on appeal is whether Broadway is an indispensable party whose presence below was necessary. The law defining necessary parties in this State is well settled. Consolidated Cable Utilities, Inc. v. City of Aurora (1982), 108 Ill. App. 3d 1035, 1039, 439 N.E.2d 1272, presents the correct definition of “necessary parties.”

“ ‘A necessary party is one whose presence in the suit is required for any of three reasons: (1) to protect an interest which the absentee has in the subject matter of the controversy which would be materially affected by a judgment entered in his absence [citations]; (2) to reach a decision which will protect the interests of those who are before the court [citations]; or (3) to enable the court to make a complete determination of the controversy [citation].’ Lerner v. Zipperman (1979), 69 Ill. App. 3d 620, 623, 387 N.E.2d 946, 949.”

It is clear, given this analysis, that Broadway is a necessary and indispensable party. Broadway falls within any of the three categories set forth above. The action brought by Kline’s was to determine the validity of the board’s actions. Kline’s claimed it was the lowest responsible bidder, and by law, it should have been awarded the contract. Broadway was awarded the contract and had all the benefits and rights under it. Though action by the board under the contract was restrained, the contract was presumed valid until declared otherwise. The award of a contract to a bidder will not normally be interfered with unless there is a showing of manifest injustice or palpable abuse of discretion, (Cardinal Glass Co. v. Board of Education (1983), 113 Ill. App. 3d 442, 447 N.E.2d 546.) Broadway’s interest was in a $297,000 contract. If a court held that the board could not go forward with the contract with Broadway, its rights would certainly be materially affected.

Broadway’s presence would also protect the interests of the board before the trial court. After the relief was granted below, Broadway filed suit. Inclusion of Broadway in the present case would help the board protect its own interests. It would also prevent issues from being relitigated. Although not at issue here, the trial court wisely consolidated the two actions below. Broadway’s inclusion would also lead to a final determination of the validity of the June 1 contract, an important point in both actions. The one thing an overburdened court system does not need is two actions consecutively arguing the same issues. For the reasons just stated, the inclusion of Broadway would also enable the lower court to make a complete determination of the controversy at hand.

Having just concluded that Broadway is an indispensable party, we must now determine whether the action of the trial court, when it vacated the order granting relief, was proper. The basis for the court’s action was that Broadway was not joined. The relevant statute concerning nonjoinder of parties is in the Code of Civil Procedure, section 2 — 407, which states in pertinent part, “New parties may be added *** at any stage, before or after judgment, as the ends of justice require and on the terms which the court may fix.” (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 407.) Thus, there is no waiver of the claim of a failure to join an indispensable party. Nor is it fatal to a complaint in a motion to dismiss. Cf. Fed. R. Civ. P. 12(b)(7).

Case law supports this findings. Failure to join a necessary party is not fatal in all instances. (Williams v. Madison Country Mutual In surance Co. (1968), 40 Ill. 2d 404, 240 N.E.2d 602.) Objection can be made at hearing or on appeal, and the court will take note of the omission and require inclusion even though no objection is made by a party litigant. (Hobbs v. Pinnell (1959), 17 Ill. 2d 535, 162 N.E .2d 361.) Objections to nonjoinder that are not made at trial must show that the decree will have the effect of depriving the party omitted of his legal rights. (Pease v. Chicago Crayon (1908), 235 Ill. 391, 85 N.E. 619.) Where objection to nonjoinder of parties is not made until the final stage of a proceeding, it will receive little favor, and in such case, to be of avail, it must appear that decree or order will have the effect of depriving the party omitted of some material right without a hearing. (McCullough v. Schuberth (1948), 334 Ill. App. 333, 79 N.E.2d 754; see also Boddiker v. McPartlin (1942), 379 Ill. 567, 41 N.E.2d 756; Chicago, Burlington & Quincy R.R. Co. v. Commerce Commission ex rel. Brotherhood of Railroad Trainmen (1936), 364 Ill. 213, 4 N.E .2d 96.) However, as the statute points out, consideration of objections is within the sound discretion of the court hearing the matter. “This paragraph leaves a certain amount of discretion in the trial court.” (Rhodes v. Davis (1940), 374 Ill. 65, 28 N.E.2d 113; see also Zieler v. Village of Oak Lawn (1974), 23 Ill. App. 3d 752, 320 N.E .2d 86.) This is the well-settled law in Illinois and continues to be viable. The transformation from the Civil Practice Act to the Code of Civil Procedure produced no changes in the statute. Ill. Ann. Stat., ch. 110, par. 2 — 407, Historical & Practice Notes, at 445 (Smith-Hurd 1983).

Yet, equally well settled is the principle that no error occurs when the interests of a necessary party omitted from the case are adequately represented by another who appears. The absent party must receive actual and efficient protection. (Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 362 N.E.2d 382.) Kline’s, in various ways, tries to make identical the interests of the board and Broadway. This court will not speculate on the effect that marriages of relations and employment of spouses will have on the considerations of a small-town school board and its long-time supplier of transportation. This court also will not say that such relationships, as alleged by plaintiffs, constitute sufficient representation in a court of law. Neither does the fact that the owners of Broadway testified for the board under the subpoena. Plaintiffs allude to the fact that the board’s lawyers “prepped” Broadway’s owners as probative of the question of whether there was a common interest. Under these circumstances, it would be surprising to do otherwise.

Given the lawsuit by Broadway, the board and Broadway now seem as at odds as Kline’s and Broadway. The board cannot adequately protect Broadway’s interests without placing its own in jeopardy. The case cited by plaintiffs in support of their allegation of common representation is easily distinguishable. Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 362 N.E.2d 382, concerned a real estate action where the absent mortgagee was held to have had the same interests as the representative mortgagor. Kline’s attempt to place the board and Broadway in bed together is hardly applicable here.

The final argument is that the board is estopped from raising its objection after it had voluntarily satisfied and accepted the judgment. This logic is questionable at best. The board had to satisfy the court orders. Failure to do so could have resulted in contempt proceedings. Further, the board had a statutory compulsion to conform to the court orders. The board is required to provide busing under the School Code. (Ill. Rev. Stat. 1983, ch. 122, par. 29 — 3.) Thus, the board was caught on the horns of a dilemma. It had to obey the orders or be in contempt of court and in violation of the School Code. In this situation, equity would not require that the board be estopped.

Therefore, this court holds that the actions of the trial court were entirely proper. Broadway Garage is a necessary and indispensable party. It was well within the court’s sound discretion to vacate the judgment upon the board’s timely motion. The case will be affirmed. A full hearing on all issues should be held with Broadway aligned as the court sees fit. Therefore, the case will be remanded for such further proceedings not inconsistent with this opinion and the views expressed herein.

Affirmed and remanded.

BARRY and SCOTT, JJ., concur,


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE LEE BAILEY, Defendant-Appellant.
    Second District
    No. 83—1042
    Opinion filed April 9, 1985.
    G. Joseph Weller, Paul J. Glaser, John R. Wimmer, and Marguerite S. Klimkowski, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Judith M. Pietrucha, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The circuit court of Kane County found the defendant, Willie Lee Bailey, guilty of the offense of theft over $300 (Ill. Rev. Stat. 1983, ch. 38, par. 16 — 1(a)(1)) and sentenced him to five years’ imprisonment. The defendant appeals and raises two assignments of error in this court: (1) that the State failed to prove him guilty of theft over $300 beyond a reasonable doubt; and (2) that he was denied due process of law because the prosecutor improperly interfered with a codefendant’s decision of whether to testify on the defendant’s behalf.

Two codefendants, Allen Woods and Joseph Burton, were charged with the same offense. Woods entered a negotiated guilty plea and was sentenced to a 3V2-year term of imprisonment. Burton and Bailey waived trial by jury, and their cases were tried by the court. The court entered a directed finding as to Burton and found Bailey guilty.

At trial, the State presented the testimony of three witnesses: Thomas Lester, who was handling the sales floor for Radio Shack on the date in question, Robert Trammell, the manager who was working at his desk at the back of the store, and Danny Pittman, an Aurora police officer.

Lester testified that on the date in question there was a Model 100 portable computer and a Minisette 9-cassette recorder displayed in a briefcase on a podium near the center of the store. The items were displayed in a briefcase because “[t]he whole concept of that particular model is it’s a portable computer, they can carry it to work in a briefcase.” The retail price of the computer and the recorder on that date was $799 and $69.95, respectively.

At about 2:20 p.m., a man later identified as Allen Woods entered the store. Lester approached him and asked if he could be of any assistance. No other customers were present in the store. Lester described this man as around 6 feet tall and very slender. He was wearing a maroon shirt, and he had a green jacket draped over his shoulder like a shawl. The man asked Lester some questions. The man pointed at some small computers and asked if they were calculators. Lester replied that they were small compact computers. Lester talked with the man for about a minute.

About half-way through his conversation with Woods, a second man, subsequently identified as Bailey, entered the store. He wandered over to Lester and Woods at first and then headed toward the back of the store.

Lester testified that, after his discussion with Woods, Bailey told Lester that he owned a video recorder and had had a plug break off in one of the jacks on the front of the unit. He wanted to know how it could be fixed. Lester testified that he looked up and glanced over to see where Woods was, and he was right in front of the briefcase display on the podium. Lester subsequently testified that he could not see the display from where he had his conversation with Bailey because of a partition. Lester testified that Bailey asked him some other questions that he could not remember. At some point, Lester told Bailey that that particular store did not really handle the video recorders. During this conversation Lester saw Woods leaving the store. After Woods left, the conversation between Lester and Bailey lasted a “[mjatter of minutes. Wasn’t very long at all.” Bailey then left the store. He did not stop to look at other merchandise on the way out.

Lester looked at the briefcase and noticed that the small computer was gone. Lester went out the door. Bailey was still right outside the door, and Woods was out in the parking lot, heading toward a silver, four-door, later model Pontiac or Oldsmobile. Someone else was sitting in the driver’s seat of the car. Lester had a side view of Woods, whose coat was still around his shoulders.

Lester accosted Bailey and said, “[H]ey, your friend just — you know, took a computer.” On cross-examination, Lester stated that Bailey replied, “I don’t know what’s going on.” Bailey then headed toward the car. Lester did not see Woods or Bailey get into the car. He ran inside the store and told Trammell, the manager, what had occurred.

Trammell took off out the door and Lester followed him. Trammell ran over behind the car, which was starting to back out, and yelled to Lester the license plate number. Lester wrote it down.

The car then left the parking lot, turning onto Lake Street. Lester stated that when the car turned onto Lake Street, “they put a little bit of power to it, they got on it,” although previously there had been no “undue haste.”

Lester called the police and provided them with, among other things, the license plate number and a description of the car. About 20 to 30 minutes later the police arrived at Radio Shack. They brought a tape recorder and a computer which Lester recognized as the missing items. Lester was called upon to view three black men in a police van, and he recognized the two who had been in the store, mainly by what they were wearing.

Lester stated that, when they were in the store, there was no conversation between Woods and Bailey. During Lester’s conversation with him, Bailey spoke in a normal voice. When Lester was asked whether Bailey physically prevented him from going anywhere in the store, Lester replied, “Physically, no. I start to look up and he’d ask another question.” Bailey and Woods were in the store for a total of four or five minutes.

When Woods left, he did not run out of the store, but rather he took his time. Both Woods and Bailey walked away from the store. At that time, Bailey did not prevent Lester from running over to the car Woods was approaching. The following colloquy occurred:

“Q. [Mr. Janes, defense counsel] Would you say that he— could you say that Mr. Bailey didn’t cooperate with you [in] any manner in trying to find out about this computer or cassette recorder?
A. [Mr. Lester] I would say he played dumb, like he didn’t know what was going on.
Q. He didn’t refuse to answer any questions to you about it, did he?
A. No.
Q. He didn’t try to physically prevent you from doing anything physically about it?
A. No.”

Lester testified that when he first saw the silver car, he could not tell whether the engine was running or not. There was nothing obstructing the view of the car’s license plate.

On redirect examination, Lester stated that when he saw Woods walking away, he (Lester) was not able to see whether there was anything underneath Woods’ coat.

The testimony of Robert Trammell, the manager of the store, was substantially similar to that of Lester with the following exceptions. Trammell stated that when Bailey was talking to Lester, he spoke loudly. Trammell also stated on direct examination that after Lester told Bailey that Woods had taken a computer, Bailey “took off running,” although on cross-examination Trammell testified that he did not see Bailey after he left the store and before he got into the car.

Officer Pittman testified on direct examination that he was on patrol on the date in question in a marked squad car. He received a radio dispatch about the theft from Radio Shack at 2:33 p.m. About a minute later and eight blocks from the store, he encountered a grey, four-door Oldsmobile 98 going in the direction opposite to him. There were three men inside, and the license number matched the one given on the dispatch. Pittman made a U-turn and followed the car for about a mile, where he stopped it.

Pittman approached the front door on the driver’s side. As he was obtaining identification from the driver, he saw the man on the rear seat (Woods) bend down and open his car door. Pittman then heard something being dropped outside the car. Pittman then recovered the stolen property from underneath the car directly under the rear passenger door.

Pittman then arrested the three occupants of the car. He identified Burton as the driver and Bailey as the passenger in the front seat. The three men were loaded into a van and transported back to the Radio Shack store along with the stolen merchandise. Pittman then recounted Lester’s identification of Bailey, Woods, the computer, and recorder.

Following Pittman’s testimony, the State rested. Arguments were then presented on the defendants’ motions for directed findings at the close of the State’s case. The motion on behalf of Bailey was denied, and that on behalf of Burton was granted. The attorney for Bailey then informed the court that he had no evidence to present, and brief closing arguments were presented. During the course of those arguments the following colloquy occurred:

“MR. JANES: *** The State’s case has not proven my client guilty beyond a reasonable doubt. It has not included [sic] any reasonable hypothesis of innocence, and I would ask that there be a finding of not guilty.
MR. WECHTER [Assistant State’s Attorney]: Your Honor, I haven’t heard any reasonable hypothesis of innocence set forth in this case.
THE COURT: I can think of a lot of them. Well, I’ll retract that statement and ask that it be stricken from the record. I think it was just inappropriate on my part to make that kind of comment.”

Following further argument, the court found Bailey guilty.

The defendant’s first contention is that the State failed to prove him guilty of theft over $300 beyond a reasonable doubt. Specifically, he claims that the trial court erred in finding him accountable for the theft because his behavior at the time of the incident was consistent with a reasonable hypothesis of innocence.

In order to demonstrate a defendant’s legal accountability for an offense under section 5 — 2(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 5 — 2(c)), the State must establish beyond a reasonable doubt that the accused solicited, aided, abetted, agreed, or attempted to aid another person in the planning or commission of the offense; that such participation occurred either before or during the perpetration of the crime; and that this participation was with the concurrent, specific intent to promote or facilitate the commission of the offense. (People v. Grice (1980), 87 Ill. App. 3d 718, 724-25, cert. denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714.) While mere presence at the scene of the crime is insufficient to establish legal accountability for the commission of the offense, a person may aid or abet without actively participating in the overt act. (People v. Ruckholdt (1984), 122 Ill. App. 3d 7, 10; People v. Pleshko (1983), 120 Ill. App. 3d 864, 875; People v. Grice (1980), 87 Ill. App. 3d 718, 725, cert, denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714.) Words of agreement are not necessary to establish a common purpose to commit a crime, because a common design can be inferred from the circumstances surrounding the commission of the unlawful act. (People v. Tate (1976), 63 Ill. 2d 105, 109; People v. Ruckholdt (1984), 122 Ill. App. 3d 7, 10-12; People v. Bolla (1983), 114 Ill. App. 3d 442, 447-48.) However, proof that a defendant was present during the commission of a crime without opposing or disapproving it, later maintained a close affiliation with his or her companions, and failed to report the crime are factors which a court may consider in determining a defendant’s legal accountability. People v. Ruckholdt (1984), 122 Ill. App. 3d 7, 11; People v. Grice (1980), 87 Ill. App. 3d 718, 725, cert, denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714 (and cases cited therein).

Where a defendant is convicted under the theory of legal accountability based upon solely circumstantial evidence, the facts proved must be consistent with the accused’s guilt, but inconsistent with any reasonable hypothesis of innocence. (People v. Wright (1976), 43 Ill. App. 3d 458, 460; People v. Grice (1980), 87 Ill. App. 3d 718, 725, cert, denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714.) However, the trier of fact is not required to search out various potential explanations compatible with innocence and raise them to the status of a reasonable doubt. (People v. Harris (1975), 34 Ill. App. 3d 906, 908, cert, denied (1976), 429 U.S. 1002, 50 L. Ed. 2d 614, 97 S. Ct. 534; People v. Grice (1980), 87 Ill. App. 3d 718, 726, cert, denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714.) The trial court’s conclusion that a defendant is legally accountable for the criminal conduct of another will not be set aside on review unless the evidence is so improbable, unsatisfactory or unreasonable that a reasonable doubt of the defendant’s guilt exists. People v. Tate (1976), 63 Ill. 2d 105, 108; People v. Ruckholdt (1984), 122 Ill. App. 3d 7, 11; People v. Bolla (1983), 114 Ill. App. 3d 442, 448; People v. Grice (1980), 87 Ill. App. 3d 718, 726, cert, denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714.

As the parties do not dispute the facts in the present case, the controversy surrounds the inferences to be drawn from the facts. The State claims that there are sufficient facts from which the trial court could have inferred that the defendant was acting in concert with Woods. The defendant contends, however, that the evidence against him was only circumstantial and did not exclude the possibility that he was only an innocent bystander. After reviewing the evidence, we conclude that the trial judge’s determination that the defendant was legally accountable for the theft was clearly justified.

The defendant and Woods entered the Radio Shack store at approximately the same time. Woods went to the podium at the front of the store where the computer and cassette player were located. The defendant engaged the only salesman in a conversation at the rear of the store. The defendant questioned him about video recorders and the salesman informed him that the store sold only computers and software. Each time the salesman looked up, the defendant would ask him another question.

Meanv/hile, Woods took the small, briefcase-sized computer and exited the store. After Woods left, the defendant abruptly ended his conversation with the salesman and exited the store without further browsing, additional questions or purchase. Noticing that the computer was missing, the salesman approached the defendant outside the store and told him that his friend took a computer. The defendant denied any knowledge and proceeded to follow Woods toward the car containing codefendant Burton, the driver, which immediately departed.

Clearly, these actions support the inference that the defendant and Woods were engaged in a common scheme to steal property from the store. Conversely, there is insufficient evidence in the record that the defendant established a reasonable hypothesis of innocent behavior. Therefore, the trial judge could have reasonably concluded, based on inferences from the defendant’s conduct, specifically his conduct inside the store, his abrupt flight from the store and his departure with the individual who physically removed the property, that the defendant aided, agreed, or attempted to aid in the commission of the theft, and was not merely an innocent bystander.

Finally, the defendant requests that this court focus on the trial court’s remark made during argument. The prosecutor stated that he had not heard “any reasonable hypothesis of innocence,” and the trial judge replied, “I can think of a lot of them.” The judge immediately retracted that statement, stating, “I think it was just inappropriate on my part to make that kind of comment.” The defendant relies on People v. Warren (1976), 40 Ill. App. 3d 1008, where a conviction of possession of marijuana, following a bench trial, was reversed on the basis that after closing arguments and prior to finding the defendant guilty, the trial judge, in a colloquy with the prosecutor and defense counsel, expressed doubts as to the defendant’s guilt. We believe the facts of Warren are distinguishable in that there the court indicated continuous and repeated doubts as to the defendant’s guilt. In the case at hand, the judge’s offhand statement was immediately retracted. We do not believe the remark indicated the continuous doubt of the defendant’s guilt that was deemed present in the Warren case.

The defendant’s second contention is that he was denied due process of law because the prosecutor improperly interfered with a co-defendant’s decision of whether to testify on the defendant’s behalf. The State correctly notes, however, that the defendant did not raise this contention in his post-trial motion.

Generally, the failure to raise specifically a claim of error in a post-trial motion constitutes a waiver which precludes the reviewing court from considering that issue on appeal. (Ill. Rev. Stat. 1983, ch. 38, par. 116 — 1; People v. Lucas (1981), 88 Ill. 2d 245, 250; People v. Baynes (1981), 88 Ill. 2d 225, 230; People v. Jackson (1981), 84 Ill. 2d 350, 358-59; People v. Tannenbaum (1980), 82 Ill. 2d 177, 181; People v. Carlson (1980), 79 Ill. 2d 564, 576.) It is not sufficient for a defendant to object to an alleged error during the trial to preserve it for review. (Wilson v. Clark (1981), 84 Ill. 2d 186, 189, cert, denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140; People v. Tannenbaum (1980), 82 Ill. 2d 177, 181; People v. Brown (1981), 100 Ill. App. 3d 57, 73; People v. Andino (1981), 99 Ill. App. 3d 952, 954-55; People v. Pallardy (1981), 93 Ill. App. 3d 725, 730.) Since the defendant in the present case did not specifically raise this matter in his post-trial motion, it may be deemed waived.

However, Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)) provides a limited exception to the general rule of waiver. Under Supreme Court Rule 615(a), the court of review may take notice of plain errors or defects affecting substantial rights which were not brought to the trial court’s attention. (87 Ill. 2d R. 615(a); People v. Jackson (1981), 84 Ill. 2d 350, 359; People v. Foster (1979), 76 Ill. 2d 365, 380; People v. Pugh (1982), 106 Ill. App. 3d 901, 906; People v. Thiel (1981), 102 Ill. App. 3d 28, 30.) Thus, errors which have not been properly preserved for review may be considered under Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)) in cases where the evidence is closely balanced or the error was of such magnitude that the accused was denied a fair trial. People v. Lucas (1981), 88 Ill. 2d 245, 251; People v. Carlson (1980), 79 Ill. 2d 564, 576-77; People v. Pickett (1973), 54 Ill. 2d 280, 283; People v. Pugh (1982), 106 Ill. App. 3d 901, 906.

Generally, substantial governmental interference with a defense witness’ free and unhampered choice to testify violates due process. (United States v. Henrieksen (5th Cir. 1977), 564 F.2d 197; United States v. Morrison (3d Cir. 1976), 535 F.2d 223; United States v. Thomas (6th Cir. 1973), 488 F.2d 334; People v. McKiness (1982), 105 Ill. App. 3d 92.) The defendant contends that the prosecutor’s conduct at the plea negotiation violated his right to call codefendant Woods as a witness. The State argues, however, that the defendant’s right to due process was not violated because the plea agreement simply secured Woods’ truthful testimony in exchange for a favorable negotiated sentence.

At the time of Woods’ plea negotiation, a dispute arose as to the terms of the initial plea agreement entered into by the parties. The prosecutor claimed that the plea agreement was contingent upon Woods’ agreeing not to testify later at his codefendant’s trial. The defendant contended, however, that that was not a term of the agreement and that Woods would be reluctant to testify at his codefendant’s trial if he would be penalized by the State with respect to his own sentence. After much discussion, the prosecutor stated that the following plea agreement was reached:

“Three and a half years in the Department of Corrections for a plea to a Class 3 felony theft, Defendant [Woods] will be placed under oath, he’ll swear to the facts as I state them on the record as to what the proof will be, and that includes he will swear that his co-defendants Bailey and Burton were involved with him in a common scheme or plan to commit this offense.”

In People v. McKiness (1982), 105 Ill. App. 3d 92, the defendant contended that the prosecutor’s threats to the defendant’s brother caused the brother not to testify, thus depriving the defendant of his due process rights constitutionally guaranteed. In that case, the prosecutor stated that if the defendant’s brother testified in the defendant’s behalf, the prosecutor would guarantee the brother would go to jail and the prosecutor would go to trial on all charges pending against the witness. We found that the prosecutor’s comments were improper and calculated to intimidate the witness and prevent him from testifying. The case at hand is clearly distinguishable from Mc-Kiness.

This agreement clearly did not require Woods to agree not to testify in any matter regarding his codefendants. There was no provision that the agreement would be void and that he would be tried if he did testify at their trial. In fact, at the request of the defendant’s attorney, the trial judge ordered that Woods be held in Kane County during the subsequent bench trial in case the defendant wanted to call him as a witness. Therefore, it is our opinion that the defendant in the present case was not denied a fair trial because of the plea negotiation and agreement entered into between the prosecutor and codefendant Woods.

For the reasons set forth above, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

REINHARD and STROUSE, JJ., concur.


author: JUSTICE ROMITI

text:
    EARLEE FORD, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (4th Division)
    No. 83—1435
    Opinion filed March 21, 1985.
    Rehearing denied April 29,1985.

      Kroll & Rubin, Ltd., and William J. Harte, Ltd., both of Chicago (William J. Harte and Debra 0. Elder, of counsel), for appellant.
    James D. Montgomery, Corporation Counsel, of Chicago (Jerome A. Siegan and Maureen Kelly Ivory, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff Earlee Ford (Ford) was injured when the motorcycle he was driving struck a pothole in West Cermak Road in Chicago at about 2 p.m. on April 17, 1980. Ford filed suit against the city of Chicago alleging that improper road maintenance had caused the pothole. Following a jury trial, judgment was entered on the verdict assessing Ford’s damages at $930,000 but finding him 95% comparatively negligent (for an award to Ford of $46,500), and Ford has appealed. He raises the following questions for our review:

1. Whether the jury’s verdict that Ford was 95% comparatively negligent was against the manifest weight of the evidence;

2. Whether admission into evidence of Ford’s motorcycle was so prejudicial as to outweigh any probative value, thus constituting reversible error;

3. Whether an ambulance report offered by Ford should have been admitted into evidence as an exception to the hearsay rule or as impeachment of a witness;

4. Whether a public utility’s inspection report was properly admitted into evidence as a business record;

5. Whether the trial court erred in refusing to impose sanctions upon the city pursuant to Illinois Supreme Court Rule 219(c) (87 Ill. 2d R. 219(c)), on the ground that it failed to comply with certain of Ford’s discovery requests;

6. Whether certain questions posed at trial by counsel for the city were improper, irrelevant, and immaterial and consequently so prejudicial to require a new trial;

7. Whether the trial court committed reversible error in excluding the testimony of Ford’s expert regarding line of vision testing.

We affirm.

The following is a summary of the pertinent pleadings and evidence produced at trial. Ford alleged in his complaint against the city that he was injured on April 17, 1980, as he was riding his Honda 750 motorcycle in the 3500 West block of Cermak Road in Chicago. According to his testimony as well as that of Carl Johnson, who was riding his own motorcycle on Cermak near Ford when the accident occurred, Ford was riding eastbound on Cermak at roughly 2 p.m. on the day of the accident. He had stopped behind an automobile in the center eastbound lane at the intersection of Central Park and Cermak because the light of the traffic control device was red. Ford was seated in the normal position with his feet on the lower foot pegs. When the light turned green, Ford proceeded behind the car in front of him. He was in the right-hand side of the left lane approximately two to three feet north of the dash marks. As the car slowed to make a left turn off Cermak, Ford also slowed. When he was roughly 40 to 60 feet behind the car, he turned on his right turn signal, checked the right mirror, looked over his right shoulder, double-checked the right mirror, and then began to change lanes. He was traveling roughly 20 to 25 miles per hour and leaning slightly to the right as he executed the lane change. He was thrown from the motorcycle when he hit a pothole in the right-hand lane of Cermak. Ford testified that only a few seconds elapsed from the time he began to change lanes until he struck the pothole. He stated he had been looking ahead slightly to the right and did not see the pothole because the car obstructed his vision.

Based upon the testimony of individuals who lived on Cermak or traveled the road, an employee of Peoples’ Gas, Light & Coke Co, a safety and claims manager for the State of Illinois Department of Transportation, and Ford and Johnson, it was established that the area of the pothole had been previously repaved but had settled such that the riding surface in the wheel lane had been pounded down a considerable amount below the surrounding concrete. The pothole was roughly 4 to 5 feet wide and 8 to 9 feet long and was surrounded by and covered with gravel. A Chicago police department officer who investigated the accident shortly after it occurred also testified regarding the scene, but stated that he noticed no pothole or other depression in the road surface.

Both Ford and the city presented expert testimony regarding whether the road conditions were reasonably safe or whether they would cause a reasonable motorcycle- rider to lose control under similar conditions. Marjorie Jennings, motorcycle safety coordinator of the Cook County motorcycle safety program, testified on behalf of Ford. Ronald Eltzeroth, a communications dispatcher and motorcycle instructor of police for the city of Champaign and motorcycle safety rider’s course instructor at the University of Illinois, testified on behalf of the city. Jennings testified in essence that a similar motorcycle in similar conditions could go out of control because the motorcycle’s instability during a lane change would render the pothole extremely hazardous, and that a rider under similar conditions would have difficulty seeing the pothole because his view would be obstructed by the car in front of him. Eltzeroth testified essentially that the average rider under similar circumstances would not have attempted the lane change at 20 to 25 miles an hour with a following distance of 40 to 60 feet. He stated that a safe maneuver would have been to change lanes at 20 to 25 miles per hour with a following distance of 116 to 146 feet.

Based upon the evidence presented at trial, the jury assessed Ford’s damages at $930,000 but found him 95% comparatively negligent and reduced his award to $46,500. The trial court entered its judgment on this verdict and subsequently denied Ford’s post-trial motion for a new trial. Ford’s timely appeal followed.

I

Ford argues that the jury’s verdict was contrary to the manifest weight of the evidence and therefore should be reversed and the cause remanded for a new trial.

A court of review is empowered to reverse a jury verdict only if it was against the manifest weight of the evidence. (Spankroy v. Alesky (1977), 45 Ill. App. 3d 432, 439, 359 N.E.2d 1078.) The manifest weight of the evidence standard also applies where the jury’s verdict assessed the degree of the plaintiff’s comparative negligence. (Bofman v. Material Service Corp. (1984), 125 Ill. App. 3d 1053, 1060-62, 466 N.E.2d 1064.) A verdict is said to be against the manifest weight of the evidence where it is palpably erroneous and wholly unwarranted (Frankenthal v. Grand Trunk Western R.R. Co. (1983), 120 Ill. App. 3d 409, 415, 458 N.E.2d 530), is clearly the result of passion or prejudice (Ogg v. City of Springfield (1984), 121 Ill. App. 3d 25, 42, 458 N.E.2d 1331), or appears to be arbitrary, unreasonable, and not based upon the evidence (Gabrenas v. R.D. Werner Co. (1983), 116 Ill. App. 3d 276, 285, 451 N.E.2d 1307). When considering whether a verdict was contrary to the manifest weight of the evidence, a reviewing court must view the evidence in the light most favorable to the appellee (here, the city of Chicago). Kemper v. McDougal-Hartmann Co. (1984), 127 Ill. App. 3d 512, 515, 468 N.E.2d 998.

Ford argues here that the jury’s verdict which found him 95% comparatively negligent was not supported by the evidence presented below. Specifically, he analyzes in detail the conflicting testimony of the two expert witnesses at trial, Jennings and Eltzeroth. He urges that Jennings’ testimony clearly showed that a reasonably prudent motorcycle rider would have acted as he did shortly prior to the accident, would have followed an automobile at the rate of speed and distance he used, and would have been unable to see the pothole in sufficient time to maneuver safely in order to avoid it or ride over it without injury. Ford claims that the testimony of Eltzeroth, in comparison, was equivocal and contradictory regarding proper speed and following distance.

Although there was conflict in the testimony of the two experts, nevertheless we cannot say that on these grounds the jury’s verdict was against the manifest weight of the evidence. A verdict “cannot be set aside merely because the jury could have drawn different inferences and conclusions from conflicting testimony or because the reviewing court would have reached a different conclusion if it had been the trier of fact.” (Turner v. Chicago Transit Authority (1984), 122 Ill. App. 3d 419, 425, 461 N.E.2d 551.) Nor should we lightly overturn the trial court’s denial of Ford’s post-trial motion for a new trial, as the trial court had a similar opportunity to view the trial proceedings and all of the evidence and argument presented to the jury. (See Berner v. Kielnik (1983), 117 Ill. App. 3d 419, 424, 453 N.E.2d 729.) Based upon our review of the record, we conclude that the evidence produced at trial was sufficient to support the jury’s verdict assessing Ford’s degree of negligence in the accident.

II

Ford contends that the trial court’s admission of his motorcycle into evidence for the jury’s viewing was reversible error because its prejudicial effect clearly outweighed its probative value.

“Tangible objects of almost every kind involved in an incident have been ruled properly admitted as tending to establish a fact of consequence.” (E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 401.4, at 117 (4th ed. 1984).) Courts have long favored the admission and use of such evidence in order to clarify an expert witness’ testimony or assist him in its presentation (Hubbard v. McDonough Power Equipment, Inc. (1980), 83 Ill. App. 3d 272, 282, 404 N.E.2d 311), as well as to aid the jury to better understand the issues in a case (Ogg v. City of Springfield (1984), 121 Ill. App. 3d 25, 38, 458 N.E.2d 1331). The overriding considerations in admitting such evidence are relevance and fairness. (Lake County Forest Preserve District v. Vernon Hills Development Corp. (1980), 85 Ill. App. 3d 241, 246, 406 N.E.2d 611, aff’d (1982), 92 Ill. 2d 72, 440 N.E.2d 848.) The admission of such evidence is within the sound discretion of the trial court and will not be disturbed on review absent a clear abuse thereof. Ogg v. City of Springfield (1984), 121 Ill. App. 3d 25, 38, 458 N.E.2d 1331; Simmons v. City of Chicago (1983), 118 Ill. App. 3d 676, 684, 455 N.E.2d 232.

Based on our review of the record, we cannot say that the trial court’s admission of the motorcycle into evidence constituted a clear abuse of discretion, since we find no unfairness or prejudice to Ford in its admission. The record shows that the motorcycle was used by the city’s expert during the course of his testimony to discuss size, weight and maneuverability of the motorcycle, and height and line of vision of a rider. All of these matters were important to the jury’s understanding of the expert’s testimony as well as the cause and nature of the accident and Ford’s resulting injuries.

Ford argues that admission of the motorcycle into evidence for the jury’s viewing in the courtroom was prejudicial because the motorcycle was large while the courtroom was small. Consequently, Ford contends, the jury was overwhelmed by the size of the motorcycle during the course of the testimony of the city’s expert. We find no per se error in admission of the cycle merely because it was large while the courtroom itself was, in Ford’s view, too small. The record shows that the trial court refused to take the jury outdoors to view the motorcycle because the weather was wintery. Under these circumstances, we cannot say that the trial court’s decision constituted an abuse of discretion.

Ill and IV

Ford urges that the trial court’s refusal to admit an ambulance report into evidence in order to establish the existence of the pothole on the day of the accident was reversible error. He also argues that the trial court’s admission of a public utility inspection report in order to establish the nonexistence of the pothole was reversible error.

The ambulance report which Ford sought to introduce below was that made by the paramedics of the Chicago fire department who arrived at the scene of the accident in order to provide medical assistance to Ford. The comment portion of the report stated:

“Victim was riding motorcycle. Struck pothole. Lost control. His body landed on the curb of the street.”

Ford argued before the trial court that the document was admissible as a business record, as a public record, as an admission against interest of an agent of the city, and as impeachment of the testimony of the Chicago police department officer to the effect that he noticed no pothole when he investigated the scene of the accident.

Error in the exclusion or admission of evidence does not require reversal where there has been no prejudice or where the evidence has not materially affected the result. (Bass v. Washington-Kinney Co. (1983), 119 Ill. App. 3d 713, 727, 457 N.E.2d 85; Oak Lawn Trust & Savings Bank v. City of Palos Heights (1983), 115 Ill. App. 3d 887, 897, 450 N.E.2d 788.) Consequently, assuming arguendo that the report offered by Ford was admissible on any one of the grounds he asserted, we conclude that any error was harmless. The jury’s verdict which assessed Ford’s damages at $930,000 clearly established that the jury determined there was indeed a pothole in Cermak Road on the day of Ford’s accident. Since the purpose of the ambulance report was to establish the existence of the pothole, the failure to permit its admission had no effect on the jury’s determinations.

We reach a similar conclusion with regard to the trial court’s admission of the inspection report of Peoples’ Gas Light & Coke Co., which stated that the road surface was “okay.” Any error in admission was harmless to Ford, as the jury obviously concluded that there was a pothole in Cermak Road on the day of Ford’s accident.

V

Ford argues that the trial court’s refusal to impose sanctions upon the city for its alleged failure to comply with discovery requests constituted reversible error. Specifically, he maintains that the city failed to disclose to him the name of its expert witness as required by the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1003(c)), failed to provide to him a copy of the ambulance report he requested pursuant to the Illinois Supreme Court Rules (87 Ill. 2d R. 201), and failed to furnish him with a copy of the public utility’s inspection report which he requested pursuant to discovery rules (87 Ill. 2d R. 201). Ford contends that the trial court’s refusal to impose sanctions upon the city under Supreme Court Rule 219(c) (87 Ill. 2d R. 219(c)) constituted reversible error.

Sanctions for noncompliance with a party’s discovery requests are appropriate when such noncompliance has been “unreasonabl[e].” (87 Ill. 2d R. 219(c); Krasnow v. Bender (1979), 78 Ill. 2d 42, 47, 397 N.E.2d 1381.) Unreasonableness will be found where the offending party’s conduct can be characterized as a deliberate and pronounced disregard for the rules and the court. (Permiter Exhibits, Ltd. v. Glenbard Molded Binder, Inc. (1984), 122 Ill. App. 3d 504, 512, 461 N.E.2d 44.) The criteria to be considered in determining the necessity or propriety of sanctions include surprise to opposing counsel, prejudicial effect, diligence of opposing counsel, timely objection and good faith. (Roedner v. Central Illinois Public Service Co. (1983), 117 Ill. App. 3d 81, 87, 452 N.E.2d 842; Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 1018, 388 N.E.2d 770.) Imposition of such sanctions rests within the sound discretion of the trial court, whose decision will not be disturbed on review absent a clear abuse thereof. Miller v. Board of Education (1983), 119 Ill. App. 3d 88, 94, 456 N.E.2d 143.

The record shows that several weeks passed before the city provided the requested information to Ford. This lapse of time, although an indication of a certain tardiness on the part of the city, was nevertheless insufficient to demonstrate that the city’s conduct was intentional, deliberate, or calculated to harm Ford. Further, any lack of utmost diligence attributable to the city caused no prejudice to Ford in his preparation for litigation. Both the inspection report and the ambulance report were furnished to Ford in ample time prior to trial. Similarly, the identity of the city’s expert witness was made known to Ford in sufficient time for him to depose the expert before trial began. Accordingly, we cannot say that the trial court’s refusal to impose sanctions against the city was an abuse of discretion.

VI

Ford suggests that certain questions posed at trial by counsel for the city were improper, irrelevant, and immaterial and consequently so prejudicial to require a new trial.

A reviewing court will not find error to be reversible unless it is demonstrated that the error was substantially prejudicial and affected the outcome of the trial. (Holsapple v. Country Mutual Insurance Co. (1983), 112 Ill. App. 3d 512, 518, 445 N.E.2d 909.) The role of the reviewing court is not to ensure that the record is totally free from error. Stromquist v. Burlington Northern, Inc. (1983), 112 Ill. App. 3d 37, 45, 444 N.E.2d 1113; Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 1019, 388 N.E.2d 770.

Our review of the record discloses no substantial prejudice to Ford resulting from the questions posed. In each instance, counsel for Ford made timely objections which the trial court sustained. Cautionary instructions to the jury were also given where requested by Ford’s counsel. Finally, the questions were inconsequential and could have had no significant influence upon the jury’s verdict. Accordingly, we find no reversible error.

VII

Ford argues that the trial court’s refusal to admit testimony of his expert regarding a line of vision testing experiment she had performed was reversible error.

The admissibility of an experiment depends upon whether the conditions of the experiment are substantially similar to the actual circumstances of the particular case, although the conditions need not be identical. (Kent v. Knox Motor Service, Inc. (1981), 95 Ill. App. 3d 223, 226, 419 N.E.2d 1253.) Experiments are incompetent as evidence where they do not duplicate the essential conditions existing at the time of the accident which gave rise to the litigation. (Galindo v. Riddell, Inc. (1982), 107 Ill. App. 3d 139, 144, 437 N.E.2d 376; Hubbard v. McDonough Power Equipment, Inc. (1980), 83 Ill. App. 3d 272, 280, 404 N.E.2d 311.) The trial court’s determination of admissibility is within its sound discretion and will not be reversed on appeal absent clear abuse. Terrell v. Lovelace (1978), 65 Ill. App. 3d 332, 336, 382 N.E.2d 135.

The trial court here determined that the experiment evidence offered by Ford did not substantially duplicate the essential conditions surrounding Ford’s accident, and we cannot conclude that this decision was clearly erroneous. Ford’s expert tested line of vision by driving an automobile, not a motorcycle, under similar circumstances to those Ford had encountered. The fact that Ford was riding a motorcycle rather than driving a car when the accident occurred was without question one of the essential elements leading to the accident, and we cannot say that the trial court’s decision to exclude testimony regarding the experiment on this ground was clearly an abuse of discretion.

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

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE TRAPP

text:
    JUDITH KINCAID, Adm’r of the Estate of Lonnie G. Kincaid, Deceased, Plaintiff-Appellant, v. PARKS CORPORATION et al., Defendants-Appellees (AAA Equipment Service Company, Clarklift of Quincy, Inc., Third-Party Defendant).
    Fourth District
    No. 4—84—0336
    Opinion filed April 4, 1985.

      Richard P. O’Connell, Ltd., of Quincy, for appellant.
    Delmer R. Mitchell and Ted M. Niemann, both of Schmiedeskamp, Robertson, Neu & Mitchell, of Quincy, for appellees Garrelts Wholesale, Inc., and Abbott Automotive Supply, Inc.
    Grady E. Holley, of Holley, Keith & Mehlick, and Carol J. Hansen-Fines, both of Springfield, for appellee Parks Corporation.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff Judith Kincaid brought this wrongful death action as administrator of her husband’s estate. She alleged her husband died as a result of inhalation of acid that he had used during the course of his employment. Defendant Parks Corporation packaged and labeled the acid and sold it to defendant Garrelts Wholesale, Inc., which, in turn, resold it to defendant Abbott Automotive Supply, Inc. Abbott later resold the acid to decedent’s employer, third-party defendant AAA Equipment Service Company, Clarklift of Quincy, Inc.

Plaintiff filed a complaint against Parks, Garrelts, and Abbott in December 1980. Pursuant to defendants’ motions, her complaint was dismissed but she was given leave to amend. Her first amended complaint was dismissed on her own motion. In December 1983, plaintiff filed a second amended complaint consisting of 14 counts. The following counts were brought separately against each defendant: one count in strict liability in tort alleging the acid was improperly labeled; a second count in strict liability alleging the acid was unreasonably dangerous for its intended purpose; a negligence count; and a count for breach of an implied warranty of merchantability. Additionally, plaintiff brought counts against Abbott alone for oral misrepresentation and breach of an implied warranty of fitness for a particular purpose.

Defendants filed motions to dismiss various counts of the second amended complaint. The trial court dismissed the second strict liability count against each defendant but granted plaintiff leave to amend these counts. The court dismissed “with prejudice” the counts based on an implied warranty of merchantability because of a lack of privity. Finally, the court dismissed the last two counts brought against Abbott with prejudice, also for lack of privity.

Thereafter, plaintiff amended her second amended complaint. This complaint contained five counts: count I against Parks based on strict liability in tort, count II against Parks under a negligence theory, count III against Abbott for strict liability, count IV against Abbott under a negligence theory, and count V against Garrelts for strict liability. During the course of the jury trial, plaintiff voluntarily dismissed both Abbott and Garrelts. The jury returned a verdict in favor of Parks. Following the trial, plaintiff again amended her complaint. This complaint contained only a strict liability count and a negligence count, both brought against Parks.

Plaintiff appeals, contending the trial court erred in dismissing counts from her second amended complaint “with prejudice.” She maintains section 2 — 318 of the Uniform Commercial Code (Ill. Rev. Stat. 1983, ch. 26, par. 2 — 318) dispenses with any privity requirement under her implied warranty counts. Defendants assert plaintiff waived any objection with regard to the court’s rulings on her second amended complaint by filing a later complaint. The supreme court has recently held that “allegations in former complaints, not incorporated in the final amended complaint, are deemed waived.” Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150,155, 449 N.E.2d 125,127.

Plaintiff maintains the rule in Foxcroft must be limited to cases where a count is dismissed but leave to replead the count is granted. Plaintiff contends this case is factually distinguishable from Foxcroft because the trial court dismissed counts from her second amended complaint “with prejudice.” A dismissal with prejudice is tantamount to an adjudication on the merits. (Van Slambrouck v. Marshall Field & Co. (1981), 98 Ill. App. 3d 485, 487, 424 N.E.2d 679, 682.) The trial court, however, need not have added the words “with prejudice.” All dismissals, other than ones for lack of jurisdiction, improper venue, or failure to join an indispensable party, operate as an adjudication on the merits unless the order or a statute specifies otherwise. 87 Ill. 2d R. 273.

Despite plaintiff’s contention, we find Foxcroft indistinguishable from the present case. In Foxcroft, members of the Townhome Owners Association brought suit against the builder and developer of their condominiums. The original complaint contained three counts: count I alleged a breach of an implied warranty of habitability; count II asserted a negligence theory; and count III alleged breach of a fiduciary relationship. Pursuant to defendant’s pretrial motion, the court dismissed counts II and III for failure to state a cause of action. The court refused to dismiss count I as to those plaintiffs who purchased directly from defendant, but the court granted the motion as to subsequent purchasers because they were not in privity with defendant. Thus, at least one count in Foxcroft was dismissed on the same grounds on which the counts in this case were dismissed.

Plaintiffs in Foxcroft thereafter filed an amended complaint. Count I, brought on behalf of original purchasers, alleged breach of an implied warranty of habitability. Count II, also brought on behalf of original purchasers, was based on a negligence theory. Count III asserted the same negligence theory on behalf of subsequent purchasers. On defendant’s motion, the trial court dismissed count III. Plaintiffs later filed a motion for reconsideration of the orders dismissing, as to subsequent purchasers, counts I and II of the original complaint as well as count III of the amended complaint. This motion was denied, indicating the trial court would not have allowed plaintiffs leave to replead those counts.

On appeal in Foxcroft, the subsequent purchasers asserted the trial court erred in dismissing counts I and III of the original complaint. The appellate court found the trial court had properly dismissed these counts “on the merits.” (Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1982), 105 Ill. App. 3d 951, 955-56, 435 N.E.2d 210, 214.) On appeal, the supreme court refused to reach the merits of the issue, holding that plaintiffs had waived any objection to the trial court’s rulings on their original complaint. The court rejected plaintiffs’ contention that the original complaint could be considered on review because they had not manifested an intent to abandon the original counts. The court also declined to follow Enlow v. Illinois Central R.R. Co. (1968), 103 Ill. App. 2d 269, 243 N.E.2d 847, which had held that when a trial court dismissed the original complaint on the merits, indicating it would not accept the theory of the original complaint as stated, plaintiff, in pleading over on the basis suggested by the trial court, does not waive dismissal of the original complaint. Instead, the court decided to adhere to the well-established principle that a party who files an amended pleading waives any objection to the trial court’s ruling on former complaints. Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150,153-54, 449 N.E.2d 125, 126.

The arguments that plaintiff now asserts were rejected in Foxcroft. Moreover, we note the rule in Foxcroft has already been applied when a count in a former complaint was dismissed “with prejudice.” Kievman v. Edward Hospital (1984), 122 Ill. App. 3d 187, 460 N.E.2d 901.

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

Affirmed.

GREEN, P.J., and MILLS, J., concur.


author: JUSTICE SCHNAKE

text:
    UNITY VENTURES, Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    Second District
    No. 84—210
    Opinion filed April 9, 1985.

      Roy M. Harsch, Richard J. Kissel, Frederick L. Moore, and Carol L. Dorge, all of Martin, Craig, Chester & Sonnenschein, of Chicago, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (James C. Siebert and Kathleen Smith, Assistant Attorneys General, of Chicago, of counsel), for respondent Environmental Protection Agency.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, of counsel), for respondent County of Du Page.
   JUSTICE SCHNAKE

delivered the opinion of the court:

Unity Ventures (Unity), a partnership engaged in the development of certain real estate in Du Page County for residential purposes, has petitioned this court under Supreme Court Rule 335 (87 Ill. 2d R. 335) and section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. lllVz, par. 1041) for direct review of an order of the Pollution Control Board (the Board) denying Unity’s request for a variance from the Board’s Rule 963(a), which limits the duration of sewer construction permits to two years. Unity contends that the Board’s decision was contrary to the manifest weight of the evidence, and that the Board erred by imposing certain sanctions on Unity for violation of prehearing discovery rules. The Illinois Environmental Protection Agency (the Agency) and the County of Du Page (the county) have moved this court to dismiss Unity’s petition for review on grounds of mootness. These motions have been taken with the case.

On January 31, 1979, the Agency issued a joint sewer construction and operating permit for one of Unity’s residential real estate developments known as Hobson Greene Unit Two. Unity Ventures was the “permittee to construct,” and the Du Page County Department of Public Works (DCDPW) was the “permitee to own and operate.” Pursuant to Rule 963(a) the permit included as a condition that “construction must be completed in *** two years.”

On September 29, 1980, or about IV2 years after the permit was issued, Unity filed with the Board a petition for a variance from the two-year construction requirement. The petition alleged that Unity began to develop its Hobson Greene project in 1973. The project was to be developed in three phases. The second phase, Hobson Greene Unit Two, which is the subject of this proceeding, was to be located on 59 acres of land bordered by Greene Road on the east and by 75th Street on the south. It was to include 78 single-family homes and 22 multiple-family residences. Unit Two would generate sewage in the amount of 239,200 gallons per day design average flow (GPDDAF) or 2,392 population equivalents (PE). The first phase, Unit One, was to be located on a 33-acre tract of land immediately north of Unit Two on Greene Road. It was to include 35 single-family homes and would generate sewage in the amount of 14,000 GPDDAF or 140 PE. The third phase, Unit Three, was to be located on a 51-acre tract of land bordered by Greene Road on the east and 75th Street on the north. It was to consist of 121 single-family homes and “480 [sic] multiple family dwelling units” and would generate sewage in the amount of 168,400 GPDDAF or 1,684 PE. Sanitary sewer service to the Hobson Greene project was to be provided by sewer extensions ultimately tributary to the DCDPW’s Lisle and Woodridge sewage treatment plants.

According to the variance petition, on February 8, 1979, Unity and DCDPW were issued a joint permit, similar to the one at issue here, to construct and operate a sewer extension to service Unit One. By the date the variance petition was filed, Unity had completed construction of that sewer extension and all improvements necessary to service Unit One. Unity had not, however, begun construction of the sewer extension to Unit Two pursuant to the permit involved here. According to the variance petition, there were two reasons for Unity’s decision not to proceed. One was that there had been a substantial decrease in demand for housing as a result of increased home mortgage rates and a general downturn in the economy. The other reason involved “uncertainties” regarding the Lisle and Woodridge sewage treatment plants, which had been placed on restricted status by the Agency because they were not providing adequate sewage treatment.

The variance petition alleged that Unity had a legal right to construct and connect the sewer extension to Unit Two so long as construction was completed by January 30, 1981, because the two-year construction and operating permit was obtained before the Lisle and Woodridge sewage treatment plants were placed on restricted status. The petition also alleged that Unity would be able to complete construction by that deadline, but that to do so would require substantial expenditures for overtime labor.

According to the petition, Unity would not have begun the Hob-son Greene project if it was unable to develop Units One and Two “along a parallel timeframe.” The petition stated:

“To date, Unity has expended the following amounts of money with respect to Hobson Greene Units 1 and 2:
Land Development Costs $270,990.78
Land Improvement Costs 224,766.23
Interest and Real Estate Tax 1,338,856.45
Total Costs Incurred
Exclusive of Raw Land Cost $1,834,613.46.”

Finally, the petition alleged that the variance requested would have no adverse environmental impact. Unity sought a construction time limitation of three to five years from the date of the Board’s ruling.

On October 30, 1980, the Board, by a 3-2 vote, entered an order dismissing the variance petition on the ground that the pleading of hardship was insufficient. On December 19, 1980, the Board granted Unity’s motion for reconsideration, but, again by a vote of 3-2, reinstated its order dismissing the petition.

Unity petitioned this court for review, and, in an order entered under Supreme Court Rule 23 (73 Ill. 2d R. 23) filed February 2, 1982, this court reversed the order of the Board dismissing the petition, and remanded the cause for a hearing.

On remand the Agency filed on June 4, 1982, a motion for an order requiring Unity to disclose certain information about the organization of its business. The motion noted that in the affidavit verifying its variance petition, Unity was represented as being a partnership. A copy of Unity’s partnership agreement, obtained by the Agency in a related lawsuit in the circuit court of Du Page County, showed that it was entered into on June 1, 1979. The permit for which Unity was seeking an extension of time was, however, issued four months earlier. In a deposition taken in the related lawsuit, William A. Alter, one of Unity’s partners, testified that he assumed the permit was issued to the corporation known as Unity Ventures. The Agency alleged that said corporation withdrew from doing business in Illinois three weeks after the partnership was formed. The permit included as one of its conditions that it “may not be assigned or transferred without a new permit from the Illinois Environmental Protection Agency.” According to the Agency’s records, there had been no transfer of the permit. The Agency’s motion requested that Unity be ordered to provide additional information “concerning the original permittee, the present holder of the permit and the legal authority under which the permit may be extended for and transferred to the partnership.”

On June 11, 1982, the Agency served Unity with a request for admission of facts. The 40 facts set forth related to the history of Unity’s business organization as it related to acquisition of the permit; the extent of expenditures on the part of Unity, the partnership, related to the Hobson Greene project; ownership of the real estate involved; the extent of preparations on the part of Unity, the partnership, to begin construction of Unit Two; and the density of dwelling units permitted on Unit Two under a judgment order entered by the circuit court of Du Page County in case No. 75 — 1128—6. The Agency stated in its request for admission of facts that under Board rules failure to respond within 20 days might cause the facts to stand admitted.

Also on June 11 the Agency served Unity with 40 interrogatories which dealt with the same subjects, as well as the extent of expenditures by Unity, the corporation, and by William A. Alter, individually and doing business as Unity, related to the Hobson Greene project. The interrogatories inquired also into the basis for an assertion in Unity’s variance petition that the estimated cost to carry Unit Two would be $175,000 per year until development.

Finally, on the same date that the above discovery requests were served, the Agency served Unity with a request for production of documents concerning the subjects set forth above. The request also sought Federal income tax returns as well as financial statements of Unity, the partnership; Unity, the corporation; and William A. Alter, doing business as Unity. The Agency requested Unity to respond to its interrogatories and requests to produce in 14 days or by June 25, 1982.

On June 16, 1982, Unity filed a motion requesting an extension of time to respond to the discovery requests to July 1, 1982. The record does not disclose whether this motion was ever ruled on.

On July 1, 1982, the Board denied the Agency’s motion for an order requiring Unity to provide information about the history of its business organization because “normal discovery methods will provide the information requested.”

On August 5, 1982, a prehearing conference was held before Hearing Officer Robert Hurwitz. He granted Unity’s oral motion for an extension of time to respond to the Agency’s discovery requests to August 10,1982.

On the latter date Unity filed its response to the request for admission of facts. Of the 40 requests, 22 were objected to and the others resulted in admissions or denials. On the same date Unity filed its third motion for an extension of time to respond to the remaining discovery requests. This time an extension was sought until August 31, 1982. In its motion Unity stated that it was “in the process of responding” to the interrogatories and request for production of documents. The hearing officer granted the motion.

The Agency subsequently filed a motion to strike Unity’s response to the Agency’s request for admission of facts. The Board denied this motion in part and referred the remaining part to the hearing officer.

On August 25, 1982, Unity made an oral motion to the hearing officer for a fourth extension of time to respond to the outstanding discovery requests. The extension of time was grantéd to September 17,1982.

On September 16, 1982, Unity filed its fifth motion for an extension of time to respond to the outstanding discovery requests. This motion stated as its grounds that Unity was about to file a “major lawsuit” relating to the subject matter of the variance petition. The motion stated that Unity’s counsel was in the process of evaluating the impact of the lawsuit on the variance proceeding. An indefinite stay of discovery was sought, conditioned on Unity’s reporting to the hearing officer by October 1, 1982, on the effect of the major lawsuit on the variance proceeding.

On October 5, 1982, the Board entered an order which, among other things, noted that Unity had yet to respond to the interrogatories and request for production of documents. Unity was ordered to respond by October 12, 1982. On that date Unity filed a motion to strike the interrogatories on the grounds that they were “objectionable, oppressive and unduly burdensome in number,” and that the Agency had unspecified “alternative means of obtaining the information sought.” Unity filed also a motion to strike the request for production of documents on the same bases, and because the documents sought were “neither relevant [nor] likely to lead to any relevant material.” The Agency followed with a motion to compel discovery and a request for sanctions. The Agency also filed a motion for an order overruling certain of Unity’s objections to the Agency’s request for admission of facts.

On November 12, 1982, the Board entered an order denying Unity’s motions to strike the interrogatories and request for production, and requiring Unity to respond by November 19, 1982. The order provided that if Unity failed to do so, the Board would impose sanctions. The Board also overruled certain of Unity’s objections to the Agency’s request for admission of facts, and ordered Unity to admit or deny those facts by November 19, 1982. Unity did not receive its copy of this order until November 18, 1982.

On November 24, 1982, the Agency filed a motion for sanctions based on Unity’s failure to respond to the discovery requests. On December 1, 1982, Unity filed a response in opposition to the motion, as well as a motion for reconsideration of the Board’s order of November 12, or, in the alternative, for yet another extension of time to respond to outstanding discovery requests.

On December 2, 1982, the Board entered an order finding Unity’s actions “intentionally dilatorious,” and imposing sanctions for its failure to respond to discovery. The order struck from the variance petition all allegations concerning ownership of the real estate, expenditures for development of the Hobson Greene project, ownership of the permit, and plans for development. Unity was forbidden from raising any issues involving the above matters at the hearing.

Unity subsequently filed a motion for reconsideration of the order imposing sanctions, and to amend its variance petition so that it sought only a two-year period for completion of construction, rather than three to five years, said two-year period to commence upon completion of a new sewage treatment plant then under construction or on January 1, 1984, whichever came first. The Board denied Unity’s motion for reconsideration of the order imposing sanctions, but allowed Unity to amend its petition.

Unity filed its amended petition on January 17, 1983. In addition to the amendment in the prayer for relief noted above, the petition was amended to include allegations about the construction of the new sewage treatment plant, the Greene Valley plant, by Du Page County, and the villages of Lisle and Woodridge. The new plant was going to treat a significant portion of the sewage then being treated by the Lisle and Woodridge facilities which had been placed on restricted status. The Greene Valley plant was scheduled to be completed in August of 1983.

Pursuant to section 37 of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. HV-k, par. 1037), the Agency subsequently filed its recommendation, which was that the variance petition be denied.

The petition proceeded to a hearing on June 30, 1983. In the meantime there had been numerous motions filed by both Unity and the Agency regarding the discovery sanctions, but they remained in effect. At the hearing only one witness testified, James Huff, a consulting engineer. Huff testified on behalf of Unity. He stated that he had reviewed the plans for the sewage treatment facilities involved, the discharge monitoring reports, the National Pollution Discharge Elimination System (NPDES) permits, and various related correspondence. He estimated that the new Greene Valley sewage treatment plant would begin accepting sewage from the Woodridge plant in September of 1983. Huff testified that during start-up of such a plant, it normally runs at about 25% of capacity. If the Greene Valley plant was started up in this manner, it would initially accept 1.5 million gallons of sewage per day or 15,000 PE. Under these circumstances, the loading on the Woodridge plant would be reduced, and the overall effluent quality of the Lisle and Woodridge plants would be improved. Huff stated that during the start-up of the Greene Valley plant, if it processed sewage at 25% of capacity during that time, “the introduction of a fraction [sic] of the [2,400 PE from Hobson Greene Unit Two] would not be detrimental — the effluent quality would be better still than it would have been historically.” He said it “would not result in any change in the effluent quality. It would be better than what is currently being discharged by the Woodridge facility.”

Huff stated that the county was planning to close down the Lisle plant when Greene Valley became fully operational. At this time the Woodridge and Greene Valley plants should have capacity to treat 100,000 PE. Huff stated that data for 1982 indicated that the total sewage flow in the area was 77,450 PE, and that there would, therefore, be sufficient capacity to treat the 2,392 PE from Hobson Greene Unit Two with no effect on effluent quality.

Huff testified that the county had included the 2,392 PE attributable to Unit Two in the design capacity of the Greene Valley plant. He testified that once the Greene Valley plant was fully operational, and the Lisle plant was shut down, there would be capacity to treat 1,600 PE of sewage in addition to that currently being treated, and that which could be treated under an order entered by the circuit court of Du Page County in related litigation. Huff stated that the 2,392 PE attributable to Unit Two was part of the sewage which could be treated under that court order.

Following the hearing the parties submitted briefs, and on December 15, 1983, the Board, by a vote of 7-0, entered an order denying the requested variance for two reasons. The first was that the permit was originally issued to Unity, the corporation, which ceased to exist on June 21, 1979. The Board concluded that, because of the condition of the permit prohibiting its transfer without a new permit from the Agency, the permit expired on that date, or more than a year before the variance petition was filed. The order stated:

“The Board wishes to note that this is not, in its opinion, an issue in which form is elevated over substance. As afore-mentioned, the badly-overloaded Lisle-Woodridge plant was placed on restricted status May 31, 1979. Based on imposition of restricted status, the Board questions whether the Agency would have had legal authority on June 1, 1979 to issue, or to transfer from one ‘Unity’ to the other, the ‘new’ permit specified by [the condition of the permit] absent prior grant of a variance by the Board from 35 Ill. Adm. Code 309.241.”

The second basis for the Board’s order was that Unity had failed to prove that it would suffer an “arbitrary or unreasonable hardship” if the variance were not granted, as required by section 35 of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. lll1^, par. 1035). The Board acknowledged Unity’s argument that it was not required to prove hardship because the evidence showed that granting the variance would result in no environmental effect, but the Board concluded:

“[T]he Lisle-Woodridge plants have been unable to meet effluent standards, even given their improved performance in the past two years. As the Agency suggests, the Green [sic] Valley system can be expected to have an inconsistent performance while the usual, initial ‘debugging’ process occurs. The system is still on restricted status, and will doubtless remain so until both the Woodridge and Green Valley plants are operating properly. Unity has therefore proven that a less adverse environmental effect would occur by a connection after Green Valley is operational than before, but not that none will occur. Hardship therefore must be proven.”

The Board subsequently denied Unity’s motion for reconsideration, and Unity filed its timely petition for review in this court.

We will first consider the motion of the Agency and the county to dismiss this petition for review on grounds of mootness. Attached to the motion was a copy of a letter from the Agency to the DCDPW notifying the latter that restricted status of the sewage treatment plants involved would be lifted May 15, 1984, because of the completion of the Greene Valley plant, and the demonstration of sufficient sewage treatment capacity to assure compliance with applicable effluent standards. Also attached to the motion was an affidavit of Thomas McSwiggin, manager of the permit section of the Agency’s Division of Water Pollution Control, which stated that, as of the date the motion to dismiss was filed, the Woodridge and Greene Valley plants had capacity to treat 9,500 PE of sewage in addition to that currently being treated and that for which permits had been issued and applications for permits had been filed. The motion alleged that the petition for review was moot because Unity no longer needed a variance to extend the life of its old permit. Since there was sufficient sewage treatment capacity to treat the 2,392 PE from Unit Two, all Unity had to do was apply for a new permit. Unity opposed the motion to dismiss. It maintained that its petition for review was not moot because Unity had no assurance that if it applied, it would be granted a new permit. Unity argued that any new permit it might be issued might not be “equivalent in all of its aspects” to the permit involved in the instant case. Finally, Unity maintained that even if a new and equivalent permit was assured, the case would not be moot because of the expense involved in applying for a new permit.

Ordinarily, a reviewing court is restricted to the record of the trial court. (People ex rel. Coats v. Sain (1962), 24 Ill. 2d 248, 181 N.E.2d 179.) The same rule applies to the review of orders of administrative agencies. (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 110.) Matters dehors the record can be considered, however, insofar as they concern the question of mootness. (LaSalle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 379, 121 N.E.2d 486.) The reason for that exception to the rule is that the existence of a real controversy is an essential requisite to appellate jurisdiction, and courts allow facts which affect their right and duty to proceed in the exercise of such jurisdiction, but which do not appear in the record before it, to be shown by extrinsic evidence. (3 Ill. 2d 375, 379.) The material attached to the motion of the Agency and the county to dismiss the petition for review, which is dehors the record of the Board, will therefore be considered by this court, but only on the question of mootness.

In LaSalle National Bank, our supreme court defined mootness as follows:

“A case is moot when it does not involve any actual controversy. [Citation.] Where the issues involved in the trial court no longer exist, an appellate court will not review a case merely to decide moot or abstract questions, to establish a precedent, or to determine the right to, or the liability for, costs, or, in effect, to render a judgment to guide potential future litigation.” (3 Ill. 2d 375, 378-79.)

In the instant case more is at stake than court costs. As Unity argues, the expenses it would have to incur in a new permit application proceeding are at stake. Unity maintains that it should not have to reapply, whereas the Agency and the county contend that it should. This difference between the parties is sufficient to create an actual controversy, and we need not consider Unity’s arguments concerning the possibility that a new permit application might not yield a new and equivalent permit. This case is not moot, and the motion of the Agency and the county to dismiss Unity’s petition for review is, therefore, denied.

We next consider whether the Board’s decision was contrary to the manifest weight of the evidence. As noted above, the Board denied the variance for two reasons, viz., (1) because the permit expired before the petition for variance was filed when the original permittee, Unity, the corporation, ceased to exist, and (2) because Unity had not proved that it would suffer an “arbitrary or unreasonable hardship” if the variance was denied. We need not discuss the first basis for the Board’s order because, in our judgment, the second basis was a proper and sufficient reason for denial of the variance.

Section 35 of the Environmental Protection Act provides, in relevant part:

“The Board may grant individual variances beyond the limitations prescribed in this Act, whenever it is found, upon presentation of adequate proof, that compliance with any rule or regulation, requirement or order of the Board would impose an arbitrary or unreasonable hardship.” (Ill. Rev. Stat. 1983, ch. IIU/2, par. 1035.)

The burden of proving arbitrary or unreasonable hardship is on the party seeking the variance. (Ill. Rev. Stat. 1983, ch. IIIV2, par. 1037.) The petitioner must establish that the hardship resulting from a denial of the variance would outweigh the injury of the public from a grant of the petition. (Caterpillar Tractor Co. v. Pollution Control Board (1977), 48 Ill. App. 3d 655, 363 N,E.2d 419.) The Board’s finding on such questions of fact are held to be prima facie true and correct (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 110) and may not be reversed unless they are against the manifest weight of the evidence. Philipsborn Equities, Inc. v. Pollution Control Board (1981), 94 Ill. App. 3d 1055, 419 N.E.2d 470.

Unity argues that the evidence is uncontradicted that to grant its requested variance would result in no environmental harm. It relies on Huff’s testimony that during the start-up of the Greene Valley plant, the introduction of the 2,392 PE of sewage from Hobson Greene Unit Two “would not result in any change in the effluent quality. It would be better than what is currently being discharged by the Woodridge facility.” This testimony must, however, be evaluated in light of the fact, acknowledged in Unity’s amended petition for variance, that the Woodridge facility had been placed on restricted status by the Agency because it was not providing adequate sewage treatment. Unity also cites Huff’s testimony that the Greene Valley plant was scheduled to start up in September of 1983, and that said facility was being constructed so as to accommodate the flow of sewage from Unit Two. Finally, Unity argues that balanced against no environmental harm, there would be a hardship to Unity from a denial of the variance in that Unity would have to apply for a new permit with no assurance that one would be granted.

The instant case is remarkably similar to Philipsborn Equities, Inc. v. Pollution Control Board (1981), 94 Ill. App. 3d 1055, 419 N.E.2d 470. In that case the developer obtained sewer construction and operation permits from the Agency, which, like those in the instant case, were conditioned on completion of the construction in two years. Because of adverse economic conditions the developer did not complete construction of the sewer by the deadline, and the permits expired. Sometime later the sewage treatment facility involved was placed on restricted status because it was discharging legally impermissible concentrations of contaminants. Problems also developed involving the sanitary collection system. The developer subsequently sought a variance to enable it to construct and operate sewer connections to service 60 apartments. The Board granted the request with respect to four model apartments, but with respect to the remaining units the Board authorized “construction only” permits. The Board refused the developer’s request that the variance authorize operating permits for those units conditioned upon the completion of improvements in the sewage treatment facilities.

On appeal the developer argued that the Board’s order was contrary to the manifest weight of the evidence. Like Unity, it argued that it had presented uncontradicted evidence that when the improvements in the sewage collection and treatment facilities were completed, the sewage from the development could be safely and adequately treated. The developer also maintained that denial of the variance would result in an arbitrary and unreasonable hardship in that, when the new facilities were completed, the developer would have to bear the costs and delay of another variance proceeding. The appellate court rejected these arguments, stating:

“We do not believe it was against the manifest weight of the evidence for the Board to refuse Philipsborn’s request that the permits issue automatically upon the completion of the proposed Barrington Improvements. The proposed improvements may ultimately prove to be inadequate. Although improvements to treat and transport raw sewage may seem adequate in theory at the time proposed, such improvements may prove deficient once implemented. (See Springfield Marine Bank v. Pollution Control Board (1975), 27 Ill. App. 3d 582, 327 N.E.2d 486.) Thus, any hardship to the petitioner cannot be viewed as unreasonable and arbitrary.” Philipsborn Equities, Inc. v. Pollution Control Board (1981), 94 Ill. App. 3d 1055,1058.

In the instant case, as in Philipsborn Equities, the developer’s evidence on the question of environmental effect was conditioned on the assumption that the new sewage treatment facilities would operate as efficiently as they were supposed to. As in Philipsborn Equities, the only real hardship shown was the cost and delay involved in further proceedings to obtain a new permit. As in Philipsborn Equities, we cannot fault the Board for taking a “wait-and-see” approach with respect to the new sewage treatment facilities. The Board’s denial of the variance was not contrary to the manifest weight of the evidence.

We finally consider Unity’s argument that the Board erred by imposing the sanctions against it for violation of prehearing discovery rules. The parties agree that the Board has authority under its rules to impose the type of sanctions involved here where a party unreasonably refuses to comply with discovery rules or an order entered thereunder, and they agree that review of the Board’s decisions regarding such sanctions should be governed by the same principles as review of a trial court’s imposition of sanctions under our Supreme Court Rules.

Under those rules a trial court, in determining which sanction to impose, must seek to accomplish discovery, rather than to inflict punishment. (Jones v. Healy (1981), 97 Ill. App. 3d 255, 422 N.E.2d 904.) On the other hand, it is appropriate for the trial court to consider the need to use sanctions as a general deterrent in order to provide a strong incentive for all litigants to comply with discovery rules. [Perimeter Exhibits, Ltd. v. Glenbard Molded Binder, Inc. (1984), 122 Ill. App. 3d 504, 461 N.E.2d 44.) The imposition of sanctions is generally a matter within the discretion of the trial court, and its decision will not be reversed in the absence of an abuse of discretion. (Fine Arts Distributors v. Hilton Hotel Corp. (1980), 89 Ill. App. 3d 881, 412 N.E.2d 608.) The sanction of dismissal, however, should be invoked only in those cases where the actions of a party show a deliberate, contumacious, or unwarranted disregard of the court’s authority. Jones v. Heady (1981), 97 Ill. App. 3d 255, 422 N.E.2d 904.

Unity maintains that the sanctions imposed were so severe that the rule relating to dismissal should apply, i.e., the sanctions should only be upheld if Unity’s actions showed a deliberate, contumacious, or unwarranted disregard of the Board’s authority. Unity argues that such a conclusion cannot be drawn because the record does not support even the Board’s finding that Unity was guilty of dilatory conduct. The Board, Unity notes, entered only one order compelling it to answer the Agency’s discovery requests, and Unity did not receive that order until one day before compliance was due. Unity maintains that the hearing officer had “perfunctorily” granted its previous requests for extension of time. Finally, Unity contends that its delay caused no prejudice, and that there was no reason to continue the sanctions after it amended its petition.

Initially, we note that the Board did not dismiss Unity’s petition for variance. Unity was afforded an evidentiary hearing, and, in fact, as discussed above, has argued in this court that it was able to present sufficient evidence at that hearing to require a decision in its favor. What the Board did was to prohibit Unity from introducing evidence concerning the issues on which it had failed to provide discovery. We are aware of no authority, and Unity has cited none, to the effect that the standards relating to the sanction of dismissal are applicable under these circumstances.

Moreover, we believe the Board’s finding that Unity was guilty of dilatory conduct was amply justified. Unity filed a total of five motions for extension of time before the Board on October 5, 1982, ordered it to respond to the outstanding discovery requests. In its third motion filed .two months earlier Unity had stated that it was “in the process of responding” to the requests. Yet, when ordered to respond, Unity filed motions to strike the requests, one motion directed to the interrogatories, and the other to the request for production of documents. Each motion contained less than a page of text. They set forth the general objections that the discovery requests were too burdensome, would not lead to relevant evidence, and concerned information which the Agency could obtain by unspecified “alternative means.” These documents did not take two months to prepare. Moreover, without reiterating the substance of the Agency’s discovery requests here, we will note our conclusion that the broad objections Unity interposed were frivolous. It is true that Unity did not receive the Board’s order overruling those objections and requiring answers until one day before the answers were due. Unity, however, filed nothing for 13 days after receipt of the order, and then it did not file the answers, but rather a motion for reconsideration of the order requiring answers, or, in the alternative, for yet another extension of time. The Board did not impose sanctions until the following day. Under the circumstances, we believe the Board was justified in concluding that Unity unreasonably refused to comply with discovery and, therefore, in imposing sanctions. Moreover, the particular sanctions imposed, exclusion of evidence on the issues for which discovery had been sought, were appropriate. See Allaert Rendering, Inc. v. Pollution Control Board (1980), 91 Ill. App. 3d 160, 414 N.E.2d 497.

Finally, we agree with the Board that Unity’s amendment of its variance petition was irrelevant to this issue. The amendment changed only the duration of time sought for the construction permit, and provided information about the Greene Valley plant. It did not substantially change the issues in the case involved in the Agency’s discovery requests.

For the foregoing reasons, we affirm the order of the Pollution Control Board denying the petition for variance.

Affirmed.

LINDBERG and UNVERZAGT, JJ., concur.