author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH KEY, Defendant-Appellant.
    First District (1st Division)
    No. 82—2581
    Opinion filed March 5, 1984.
    Rehearing denied March 26, 1984.

      Scott Graham, of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, James S. Veldman, and Louis F. Stalzer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, defendant Kenneth Key was convicted of aggravated battery, attempted rape, unlawful restraint, deviate sexual assault and three counts of armed violence. Defendant was sentenced to concurrent terms of five years for aggravated battery, 15 years for attempted rape, 30 years for deviate sexual assault and 30 years for armed violence.

On appeal, defendant raises the following issues: (1) whether there was probable cause to arrest defendant and whether the trial court erred in refusing to quash defendant’s arrest and suppress identification evidence; (2) whether defendant was denied a fair trial by the introduction of inadmissible hearsay; (3) whether defendant was denied effective assistance of counsel; (4) whether certain prosecutorial remarks during closing argument deprived defendant of a fair trial; (5) whether defendant’s conviction for armed violence based on unlawful restraint must be vacated; (6) whether defendant’s unlawful restraint conviction must be vacated; and (7) whether remaining convictions must be remanded for resentencing.

The record discloses that on the evening of June 3, 1981, the victim was attacked with a screwdriver and sexually assaulted in her apartment. After the attack, the victim, with the aid of a neighbor, went outside and stopped a police officer who took her to Jackson Hospital.

At trial, the victim testified that she was walking to her apartment when she met defendant, whom she said she had known for four months. Defendant asked her for a glass of water and she invited him into her apartment. Defendant then put his arm around her neck and held a screwdriver to her throat while leading her to the bedroom where he threw her on the bed. Defendant took the sheet off of the bed and wrapped part of it around her eyes and stuffed part of the sheet into her mouth. Defendant then tore the victim’s blouse and pulled down her pants and panties and attempted to rape her. Defendant ordered her not to move and when she did he began stabbing her neck and chest with the screwdriver. Defendant then placed her on the bed springs, threw the mattress on top of her and continued to stab her. The victim was then able to escape but tripped and defendant again stabbed her and hit her on the head with a television. Defendant left the apartment, and she washed up and changed her clothes. At Jackson Hospital the victim was treated for stab wounds.

Chicago police officer Doris Byrd testified that she spoke with the victim at Jackson Hospital. The victim told Byrd that she was attacked by a man known to her as “Blue” who lived at 7434 South King Drive. The victim described defendant as black, five foot eight inches tall, 200 pounds, approximately 30 years old with brown eyes, black hair and a medium brown complexion and wearing a blue jean jacket and brown shoes. Byrd and her partner, Officer Thomas Jones, spoke with the victim’s building manager, Marilyn Flowers, who told them that defendant was known as “Blue” and has previously lived in the building. Defendant’s rental application indicated that defendant’s mother lived at 7626 South Yates. Byrd testified that she and Jones went to that address and were admitted into the home by defendant’s mother. Defendant told the officers that he was known as “Blue.” After being apprised of the charges against him, defendant was taken to Jackson Hospital where a “show-up” was conducted and the victim identified defendant as her attacker. Defendant was then placed under arrest. While in custody, defendant’s blood-stained shoes were confiscated by Officer Byrd. Furthermore, according to Byrd, she obtained a search warrant for defendant’s home and confiscated a bloodstained blue jean jacket and a pair of shorts, also blood-stained.

James Doran, Chicago police department microanalyst, testified that the blood on all the clothing was Type 0 but that he was unable to subgroup the blood any further. Doran noted that both defendant and the victim had Type 0 blood. Defense expert witness, Emmett Harmon, a microbiologist, testified that he tested the blood found on the clothing and both of the parties’ blood samples. In Harmon’s opinion, the blood on the clothing did not come from either party.

Defendant denied at trial that he committed the crimes with which he was charged. Defendant testified that on the evening of June 3, 1981, he went to the beach with Joy Hudson and Jan Bolden and returned home around 10 o’clock that evening. Defendant then went to the store and to McDonald’s, returned home, and went to sleep. Defendant’s testimony was corroborated at trial by Jan Bolden and by defendant’s mother, Judy Key.

I

Defendant first contends that the trial court erred in denying his motions to quash his arrest and suppress evidence where there was no probable cause to arrest defendant. Defendant argues his arrest was illegal where the facts known to the police at the time of the arrest were not sufficient to show probable cause. Defendant claims that based on the United States Supreme Court’s holding in Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, it was a violation of the fourth amendment to make a warrantless, non-consensual entry into defendant’s home to make a felony arrest in the absence of exigent circumstances. Defendant claims the State’s failure to obtain a warrant, coupled with the failure to obtain consent to enter defendant’s home, rendered the entry illegal and tainted the evidence seized from defendant’s home. Defendant maintains, therefore, that the illegally seized evidence should have been suppressed. Additionally, defendant claims that the identification evidence obtained from the show-up should have been suppressed.

Initially, we note that the issue concerning the existence of consent to enter defendant’s home is waived by defendant’s failure to raise the issue in a pretrial or post-trial motion. (See People v. Adkisson (1980), 83 Ill. 2d 1, 413 N.E.2d 1238; People v. Devine (1981), 98 Ill. App. 3d 914, 424 N.E.2d 823.) A police officer has probable cause to arrest when the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested is guilty. (People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.) A general description of the offender is insufficient to establish probable cause unless supported by other relative facts and circumstances known to the arresting officer. People v. Lippert (1982), 89 Ill. 2d 171, 432 N.E.2d 605, cert, denied (1982), 459 U.S. 841, 74 L. Ed. 2d 85, 103 S. Ct. 92.

We are convinced in this case that the trial court could have found, based on the evidence presented at the pretrial hearing, that Officers Byrd and Jones had probable cause to arrest defendant without a warrant. The victim described defendant in detail as well as giving the officers defendant’s nickname. According to Officer Jones, defendant fit the description given by the victim. The victim also told the officers that defendant had lived in her building, and the building manager corroborated that information. The officers were led to defendant’s residence by information also obtained from the building manager. At defendant’s home, the officers noticed a tatoo on defendant’s arm bearing the name “Blue,” and defendant affirmed that he was known by that name.

Furthermore, the trial court found that the arrest was made pursuant to exigent circumstances. In People v. Abney (1980), 81 Ill. 2d 159, 169-71, 407 N.E.2d 543, 547-48, our supreme court identified three exigent circumstances: (1) the need for prompt action; (2) the absence of any deliberate or unjustified delay by officers during which time a warrant could have been obtained; (3) the belief that the suspect was armed and exhibited some violent character. (See also People v. Eichelberger (1982), 91 Ill. 2d 359, 438 N.E.2d 140, cert denied (1982), 459 U.S. 1019, 74 L. Ed. 2d 514, 103 S. Ct. 383.) In the same opinion, the court identified additional factors which suggest the officers acted reasonably: (1) the officers were acting on a clear showing of probable cause based on reasonably trustworthy information; (2) the defendant was clearly identified as the assailant; (3) there was strong reason to believe the defendant was on the premises entered; and (4) the entry was peaceful. (People v. Abney (1980), 81 Ill. 2d 159, 171-72, 407 N.E.2d 543, 549.) Upon our review of the record, we cannot say that the trial court’s determination that exigent circumstances existed was manifestly erroneous. Nor are we convinced that there was not a reasonable basis for the issuance of the search warrant and for the admission of both the physical and identification evidence. In our opinion, the totality of circumstances in this case demonstrated the reasonableness of defendant’s arrest, and we will not disturb the trial court’s decision denying defendant’s motions to quash his arrest and suppress evidence. See People v. Dunagan (1983), 118 Ill. App. 3d 474, 455 N.E.2d 542.

II

Defendant next contends the trial court improperly admitted alleged hearsay testimony. In particular, defendant claims as error the admission of testimony by the victim and Officer Taylor that the victim told Officer Taylor that her attacker was known as “Blue” and had lived in her apartment building. Defendant claims that the hearsay testimony was a violation of the general rule that a witness’ testimony cannot be corroborated or bolstered by introducing a prior inconsistent out-of-court statement. (People v. Powell (1973), 53 Ill. 2d 465, 292 N.E.2d 409.) Further, defendant maintains that the hearsay testimony did not come within the following two exceptions to the rule: (1) that the in-court testimony is a recent fabrication; or (2) that the witness has a positive motive for testifying falsely. Finally, defendant argues that his theory of the case, that the building janitor committed the crime, was not properly evaluated in light of the hearsay testimony and therefore was prejudicial error. The State responds that defendant waived review of this alleged error by failing to object to the testimony at trial (People v. Patterson (1981), 102 Ill. App. 3d 844, 430 N.E.2d 574), and by failing to raise the issue in his post-trial motion. People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.

The State presents several alternative arguments in the absence of waiver. We need not reach those arguments, however, for we agree that defendant has waived objection to the alleged hearsay testimony for purposes of review.

III

Defendant next contends that he was denied effective assistance of counsel. Defendant complains in particular of: defense counsel’s failure to raise the issue of consent to enter defendant’s home; counsel’s failure to object to hearsay testimony; counsel’s choice of an expert witness who allegedly did not aid defendant in his defense; and counsel’s failure to object during the prosecutor’s closing argument.

Although the right to effective assistance of counsel is well established, a defendant is entitled to a fair trial, not a perfect one. (People v. Royse (1983), 99 Ill. 2d 163, 457 N.E.2d 1217.) In Royse, our supreme court examined the standard for evaluating counsel’s performance where ineffective assistance of counsel is alleged. The court determined that whether counsel is retained or court-appointed, representation is deficient “if the incompetence produced substantial prejudice to the defendant without which the result would probably have been different.” (99 Ill. 2d 163, 168, 99 N.E.2d 1217.) Competency of counsel depends on the facts and circumstances of each case viewed in their totality from the entire record, rather than focusing upon isolated instances occurring during the course of the trial. People v. Mahon (1979), 77 Ill. App. 3d 413, 395 N.E.2d 950.

After reviewing defendant’s specific complaints concerning defense counsel’s performance at trial, we are not convinced that defense counsel’s representation of defendant was so prejudicial as to have deprived defendant of a fair trial. Moreover, defendant’s complaints are directed at questions of trial strategy, exercise of judgment and discretion. A reviewing court’s examination of competence does not extend to review of those areas. (See People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 211.) The record in this case reveals that defense counsel represented his client vigorously and, on the whole, sufficiently ably to preclude a finding of incompetency.

IV

Defendant contends that he was denied a fair trial because of numerous improper and prejudicial remarks by the prosecution during closing argument.

Defendant has waived review of the errors, as claimed, by failing to make timely objection to them during trial. (People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59.) Even where no objection is made, however, inflammatory remarks warrant reversal when defendant has been denied a fair trial or where the remarks substantially interfere with the fundamental integrity of the judicial process. (People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59; People v. Romero (1967), 36 Ill. 2d 315, 223 N.E.2d 121.) After examining the arguments, we conclude that they did not so substantially undermine the fairness of defendant’s trial as to warrant reversal.

V

Defendant contends his conviction for armed violence based on unlawful restraint must be vacated in view of the supreme court’s decision in People v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E.2d 512. In Wisslead, the court held that armed violence based on unlawful restraint was unconstitutional. The court reasoned that such a conviction would require the imposition of a penalty which would be greater than for a conviction of a more serious offense, such as aggravated kidnaping, thereby making the penalties unconstitutionally disproportionate.

In this case, defendant was found guilty of both unlawful restraint and armed violence. Apparently, the trial court chose to merge the offenses and impose a 30-year sentence. Because we are unable to determine from the record the weight which was accorded to each of the offenses in imposing the sentence, on the authority of People v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E.2d 512, we reverse the conviction for armed violence and remand this cause for proper sentencing for the offense of unlawful restraint. People v. Bourke (1983), 96 Ill. 2d 327, 449 N.E.2d 1338.

VI

Defendant also contends his conviction for unlawful restraint must be vacated. Defendant argues that his convictions for deviate sexual assault and unlawful restraint were based on the same conduct and, therefore, defendant could not have been convicted of both offenses. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) It appears from the record that both of said offenses were predicated on separate criminal acts and that each of the charges is supported by the record. Moreover, not one of the crimes is a lesser-included offense of the others. Defendant had not attempted to set forth any basis for claiming that the particular offenses are so wanting in facts or detail, or that the evidence was so insufficient, as to warrant the vacating of his unlawful restraint conviction. As the court stated in People v. King, “when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” (66 Ill. 2d 551, 566, 363 N.E.2d 838, 845.) Defendant has made only general allegations and, after reviewing the record, we find sufficient evidence to support defendant’s separate convictions for deviate sexual assault and for unlawful restraint.

VII

Having affirmed defendant’s convictions for unlawful restraint and deviate sexual assault, we need not reach the issue whether those convictions were improperly considered by the trial court in sentencing defendant.

For the foregoing reasons, defendant’s conviction for armed violence is vacated and the cause remanded for resentencing on defendant’s conviction for unlawful restraint. In all other respects, the judgment of the circuit court is affirmed.

Affirmed in part and vacated in part and remanded.

McGLOON and GOLDBERG, JJ., concur.


source: Caselaw Access Project

author:
PRESIDING JUSTICE BUCKLEY
      JUSTICE CAMPBELL,

license: Public Domain

text:
    STANLEY WATKINS, Plaintiff-Appellant, v. EDWARD M. BURKE et al., Defendants-Appellees.
    First District (1st Division)
    No. 84—327
    Opinion filed March 15, 1984.

      CAMPBELL, J., specially concurring.
    Thomas Johnson, James P. Chapman, Susan Berkowitz, and Alan Mills, all of Chicago, for appellant.
    Andrew M. Raucci and Michael Levinson, both of Chicago, for appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff, Stanley Watkins, brought this action to review a decision of the Chicago Board of Election Commissioners striking and dismissing certain objections he had filed with respect to Edward M. Burke’s nominating petitions for Democratic ward committeeman. Plaintiff alleged in the proceedings before the board that 382 names appearing on defendant’s petitions were per se invalid under section 7 — 10 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 7 — 10) because the signatures of these voters also appeared on the Republican party candidate’s nominating petitions. Section 7 — 10 prohibits any person from “signing] the petitions for or be[ing] a candidate in the primary of more than one party.”

The board rejected plaintiff’s argument, finding that section 7 — 10 only acted to preclude an otherwise qualified person from signing a second nominating petition for the primary of a different party. The board concluded that if the voters in question had signed Burke’s nominating petitions for Democratic ward committeeman before signing the Republican nominating petitions, then the signatures on Burke’s petitions were valid and the same signatures on the Republican nominating petitions were invalid. If the 382 people subject to plaintiff’s objections had signed the petitions in the reverse order, then the signatures on Burke’s nominating petitions were invalid and would be striken. Since plaintiff had the burden of demonstrating the invalidity of the 382 signatures and since he failed to present any evidence with respect to the order of signing, his objections were dismissed.

On judicial review of the board’s decision, the circuit court affirmed, finding that plaintiff had failed to meet the burden of proof incumbent on him of demonstrating the order of signing of the various petitions. On appeal plaintiff raises the following questions for review: (1) whether or not under section 7 — 10 of the Election Code voters who sign the nominating petitions of more than one party should have their names stricken from a nominating petition irrespective of the order of signing; and (2) whether or not plaintiff met his burden of demonstrating defendant’s circulators filed false affidavits in connection with the nominating petitions because they “knew” the signers of the Burke petition were not “qualified primary electors” of the Democratic party. We affirm the judgment of the trial court.

Section 7 — 10 of the Election Code provides for a circulator’s affidavit in which the circulator is to certify:

“*** that the signatures on that sheet of the petition were signed in his presence, and are genuine and that to the best of his knowledge and belief the persons so signing were at the time of signing the petitions qualified voters of the political party for which a nomination is sought.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch, 46, par. 7 — 10.)

With respect to those voters signing the nominating petition, section 7 — 10 goes on to provide:

“but no such person may sign petitions for or be a candidate in the primary of more than one party.” Ill. Rev. Stat. 1981, ch. 46, par. 7 — 10.

In construing these statutory provisions, this court is required to determine and follow the intent of the legislature (Miceli v. Lavelle (1983), 114 Ill. App. 3d 311, 448 N.E.2d 989.) The construction urged by plaintiff would automatically curtail the right of an otherwise qualified voter to participate in the primary electoral process by signing a nominating petition if the voter even inadvertently signed the nominating petitions of more than one party. Plaintiff argues that under these circumstances a voter’s signature would be per se invalid and that the name should be stricken from the nominating petitions of both political parties. We do not believe that this draconian sanction represents the reasoned intent of our legislature, nor does the language of the above cited statute mandate such a drastic result.

Accordingly, we hold that where an otherwise qualified voter has signed the nominating petitions of more than one party, the signature appearing on the petition first signed is valid and all subsequent signatures appearing on the nominating petitions of other parties are invalid. We believe this less restrictive construction is consistent with the legislative intent evinced in section 7 — 10 of the Election Code that a person signing a nominating petition be qualified at the time of signing as well as with the laudable public policy of protecting the right of the electorate to participate in the primary electoral process. Thus, section 7 — 10 will only act to disqualify a voter from signing the nominating petition of a given political party where the voter has previously committed himself to a different political party.

From the above holding, it follows that plaintiff was required to show which nominating petition was signed first. The mere appearance of a given voter’s signature on both the Democratic and Republican nominating petitions was insufficient for disqualification. While we can appreciate the difficulty of proving the order of signing, difficulty of proof does not shift the burden of proof. (Shumak v. Shumak (1975), 30 Ill. App. 3d 188, 332 N.E.2d 177.) Since plaintiff failed to present any evidence on the order of signing, the board correctly dismissed his objections.

Similarly, we find little merit in plaintiff’s second contention that Burke’s circulators filed false affidavits because they allegedly “knew” the signers of the Burke petition were not “qualified primary electors.” Nothing in the record indicates that any of the 382 persons mentioned in plaintiff’s objections were not qualified voters of the Democratic party at the time of signing Burke’s nominating petitions.

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

Judgment affirmed.

McGLOON, J., concurs.

JUSTICE CAMPBELL,

specially concurring:

While I concur in the results of this case, I do so for reasons different than those adopted by the majority.

The election in which the defendant candidate will appear on the ballot will occur on March 20, 1984. In view of the urgency of this appeal, this case was subject to an expedited briefing schedule and was consolidated for purposes of oral argument only with the case Fortas v. Dixon (1984), 122 Ill. App. 3d 697. Both cases presented issues relating to the sufficiency of the nominating petitions submitted for the position of ward committeeman in the city of Chicago. In the present case, the objections to the nominating petitions were overruled and the candidate will remain on the ballot. In the second case, the objections were sustained, causing the candidate to fall short of the required minimum number of signatures and the candidate was not certified to remain on the ballot.

In a third unrelated case, four other candidates for ward committeeman in the city of Chicago successfully argued before the United States District Court for the Northern District of Illinois that the minimum signature requirements for nominating petitions set forth in section 7 — 10(i) of the Election Code (Ill. Rev. Stat. 1983, ch. 46, par. 7 — 10(i)) denied them equal protection of the laws and were, therefore, unconstitutional. The Federal district court ordered that the candidates whose nominating petitions contained 5% of the primary electors from their district were to be placed on the ballot for the March 20, 1984, election. (Smith v. Board of Election Commissioners (N.D. Ill., 1984), 587 F. Supp. 1136.) For reasons which I will enumerate in my dissent to Fortas v. Dixon (1984), 122 Ill. App. 3d 697, I would apply the rationale of the Smith decision and affirm the result of this case since the record indicates that regardless of whether or not the challenged signatures are stricken from defendant Burke’s petitions, his petitions contain signatures of over 5% of the primary electors from his ward.


author: JUSTICE VAN DEUSEN

text:
    PERIMETER EXHIBITS, LTD., Plaintiff, v. GLENBARD MOLDED BINDER, INC., Defendant and Third-Party Plaintiff-Appellee (Thomas W. Bruckman, Third-Party Defendant-Appellant; William J. Streff Enterprises, Ltd., Third-Party Defendant).
    Second District
    No. 83—227
    Opinion filed February 22, 1984.
    Supplemental opinion filed on denial of rehearing April 11, 1984.

      Douglas K. Morrison and Joseph R. Marconi, both of Marconi & Morrison, of Chicago, for appellant.
    Arthur G. Jaros, Jr., of Richter & Jaros, of Oak Brook, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

The third-party defendant Thomas W. Bruckman, a former corporate officer of the third-party plaintiff, Glenbard Molded Binder, Inc., appeals from a trial court order granting a default judgment in favor of the third-party plaintiff against him in the sum of $2,300.

On December 21, 1981, Perimeter Exhibits, Ltd. (Perimeter), filed its complaint against Glenbard Molded Binder, Inc. (GMB), for the balance due and owing on a contract to construct a trade show exhibit booth. On May 17, 1982, GMB filed a third-party complaint against Thomas W. Bruckman and W. J. Streff Enterprises, Ltd. (Streff Enterprises). As succinctly summarized by Bruckman in a motion for dismissal of the third-party complaint, the third-party complaint alleged that third-party defendant Bruckman breached a duty of loyalty as an employee of GMB in cooperating with Streff Enterprises in appropriating GMB booth space at a trade show for display of a non-GMB product called Multi-File and sought damages for the proportionate value of the GMB booth used to display Multi-File.

Bruckman was served with summons and a copy of the third-party complaint on May 26, 1982. On June 18, 1982, William J. Streff, an attorney and also an officer of Streff Enterprises, filed an appearance on behalf of W. J. Streff Enterprises, Ltd., and Thomas W. Bruckman. On June 26, 1982, both third-party defendants were in default for failure to answer or otherwise plead.

Upon discovering that an appearance had been filed by the third-party defendants, GMB served notice on Bruckman and Streff Enterprises that it would seek an order of default against them on September 8, 1982, for failure to plead. On September 8, 1982, both William J. Streff and Thomas Bruckman appeared in person. The court, under the misapprehension that Bruckman had filed his appearance pro se, granted Brockman’s motion for additional time to answer or otherwise plead and ordered Bruckman to answer by September 29, 1982. In the same order the court entered an order of default against Streff Enterprises and took the motion for default against Bruckman under advisement; discovery cut-off was set for December 31, 1982, and trial was set for January 7,1983.

No answer or other pleading was filed by or on behalf of Bruckman, and on December 29, 1982, GMB filed another motion for an order of default against Bruckman and a motion to prove up damages and for the entry of a money judgment against both third-party defendants. On the same date attorneys Marconi and Morrison moved for leave to enter their appearance on behalf of Brockman and to grant Brockman leave to answer or otherwise plead to the third-party complaint. In an order entered that day, the trial court denied GMB’s motion for an order of default against Bruckman but awarded GMB $300 attorney fees as a sanction for Brockman’s failure to plead; granted Marconi and Morrison leave to file their appearance on behalf of Brock-man; gave Bruckman one day in which to file his responsive pleading; and extended the discovery cut-off until January 5. Also, on December 29 the judge orally advised that the case would be tried on January 7, 1983, and admonished attorney Morrison to make his client available for a deposition prior to the new discovery cut-off date.

On December 30, 1982, Bruckman filed a motion to dismiss pursuant to section 2 — 619(a)(3) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(a)(3)) alleging a prior pending action between the same parties for the same cause, and he filed his answer and affirmative defenses. His motion and one of the affirmative defenses referred to cases Nos. 81 CH 8410, 81 CH 8411 and 81 CH 8346, all pending in the circuit court of Cook County.

On December 30, 1982, GMB’s counsel mailed a notice of deposition to Bruckman’s attorney for January 4, 1983, following the failure of Bruckman’s counsel to return GMB’s attorney’s call the prior afternoon to arrange such deposition on January 3, 4 or 5. On January 3, Bruckman’s attorney called GMB’s attorney and advised him that Bruckman would not appear for the deposition and was told that such failure would be unacceptable. On January 5, 1983, GMB filed a motion for sanctions alleging, inter alia, Bruckman’s failure to appear for the January 4 deposition because he had left town on business January 3 and requesting that Bruckman be debarred from maintaining any defense to the complaints on file and be barred from filing any further pleading other than those allowed by the December 29 order. GMB also filed a motion to strike Bruckman’s affirmative defenses.

On January 5 Bruckman filed a motion to sever the third-party complaint from the main action and to continue the third-party action, a motion for leave to file a counterclaim and to name three additional defendants, and a motion to quash the notice for the January 4 deposition claiming that GMB sent notice of the deposition before his attorney was able to contact Bruckman, as the attorneys had agreed by phone, to arrange for a convenient date.

On January 7, the date set for trial, the judge denied Bruckman’s section 2 — 619 motion, reviewed the procedural history of the case and granted GMB’s motion for sanctions for Bruckman’s wilful refusal to submit to a deposition. The court therefore struck Bruckman’s answer and affirmative defenses and found Bruckman to be in default, and the third-party complaint was taken as confessed against him. After reviewing the affidavits submitted for the prove-up of damages, the court entered judgment in favor of Perimeter and against GMB on the original complaint and also entered judgment in GMB’s favor on the third-party complaint for $2,300. The court refused to rule on any of the other pending motions Bruckman had filed including his section 2 — 615 motion to dismiss (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615) filed that day.

On February 4, Bruckman filed a motion to vacate and a motion for change of venue for purposes of hearing the motion to vacate, alleging the trial judge to be prejudiced against him and his attorneys. On March 14, 1983, Bruckman’s motions to vacate and for a change of venue were denied. On the same day, Bruckman filed his notice of appeal of the January 7, 1983, order and the denial of his post-trial motion.

Bruckman first maintains on appeal that the trial court erred in denying his section 2 — 619(a)(3) motion (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(a)(3)) in that the third-party complaint was preceded by a pending action for the same cause. In his motion, he referred specifically to case No. 81 CH 8411 filed in Cook County over seven months prior to the third-party complaint. In that case, GMB requested declaratory and injunctive relief alleging, inter alia, Bruckman’s unauthorized appropriation of a portion of GMB’s trade show booth for the display of Streff Enterprises’ products, in which GMB had no interest. In the third-party complaint, GMB seeks damages from Bruckman and Streff Enterprises for a proportionate value of the GMB booth used to display those Streff Enterprises products. Therefore, it is Bruckman’s position that the cause is the same and the third-party complaint should have been dismissed.

In denying Bruckman’s motion, the court noted the different relief sought in the two actions, and it found that the issues and parties were different and that its findings in the third-party complaint would not be res judicata in the Cook County lawsuit.

Bruckman correctly cites Catalano v. Aetna Casualty & Surety Co. (1982), 105 Ill. App. 3d 195, for the proposition that a disparity in the legal theory, issues, burden of proof or relief sought in the two actions will not bar section 2 — 619(a)(3) relief where the two actions arise out of the same transaction or occurrence and there is a substantial similarity of issues between them. As GMB concedes, both the instant case and the Cook County case require the resolution of the factual question of whether Bruckman obligated and had authority to obligate GMB for the trade show space devoted to Streff Enterprises’ items. Though the trial court used the term “res judicata,” it is more probably true that a fact finding on this question in one cause would have collateral estoppel effect in the other. Merely because there were other additional issues and questions in the Cook County case does not destroy the substantial similarity of this issue between the two cases. (See Tambone v. Simpson (1980), 91 Ill. App. 3d 865, 868.) Likewise, the fact that this case called upon the court to determine the reasonable value of Perimeter’s work does not negate such similarity and is related instead to a difference in the type of relief sought in the two actions. Therefore, it appears that Bruckman’s motion did not fail to meet the “same cause” requirement.

In a somewhat related vein, Bruckman states in his reply brief that under GMB’s theory a third-party complaint could never be subject to dismissal because the cause will not be the same due to allegations raised in the original complaint and because the parties will never be the same due to the presence of the original plaintiff. As discussed above, the presence of such additional allegations is not necessarily fatal to a 2 — 619(a)(3) motion; however, failure to meet the “same parties” requirement would be. GMB correctly observes that Perimeter is a party in this action but is not a party to the Cook County action. GMB would reject Bruckman’s attempt to treat the third-party complaint as separate from the main action and, in support, notes that section 2 — 406(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 406(b)) speaks of bringing in a third party to "the action,” thereby establishing that there is only one action.

However, section 2 — 406(b) goes on to state that “[s]ubsequent pleadings shall be filed as in the case of a complaint and with like designation and effect.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 406(b).) Further, as Bruckman points out, a third-party complaint may be subject to a motion to dismiss for failure to state a cause of action (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615) without affecting the original action (Mohrdieck v. Village of Morton Grove (1981), 94 Ill. App. 3d 1021), and it may be severed for trial from the original complaint at the court’s discretion (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 614(b)). Therefore, it appears that a third-party complaint can be considered as a separate complaint for purposes of a section 2 — 619 motion to dismiss. The presence of Perimeter as a party in the original suit is not fatal to the “same party” requirement of section 2 — 619, particularly since Perimeter’s rights and claims are not at issue in the Cook County action.

However, even if the “same party” and “same cause” requirements are met, the granting of Bruckman’s 2 — 619 motion does not necessarily follow. Our supreme court has recently said that the purpose of the section, successor to section 48 of the Civil Practice Act, “is to avoid duplicative litigation [citations], and the trial court’s analysis should be geared toward effectuating that purpose. Notwithstanding this policy, however, we do not believe that the legislature intended that the filing of a section 48(lXc) motion should result in automatic dismissal or that two separate actions concerning the same subject matter could never proceed simultaneously. The more reasonable construction is that the circuit court possesses some degree of discretion in ruling upon the motion.” A. E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 252-53.

The purposes of section 2 — 406(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 406(b)), allowing for the bringing of third-party complaints, are to avoid two actions which should be tried together to save the time and cost of a reduplication of evidence, to obtain consistent results from identical or similar evidence, and to do away with the serious handicap to a defendant of a time difference between a judgment against him, and a judgment in his favor against the third-party defendant. (Muhlbauer v. Kruzel (1968), 39 Ill. 2d 226, 229; Ill. Ann. Stat., ch. 110, par. 2 — 406, Historical and Practice Notes, at 415 (Smith-Hurd 1983).) GMB claims that Bruckman’s motion sought to put it at risk in the very way that this section was designed to prevent.

First, GMB argues that inconsistent results adverse to it could ensue if relief is granted by two different courts on the same issue. Specifically, it fears that the trial court here might find the total amount claimed by Perimeter to be reasonable and award judgment against GMB based on that amount while the Cook County circuit court might later find it unreasonable and not award a full proportionate share against Bruckman. Second, it fears that the time difference between the two judgments would force GMB to immediately pay Perimeter here and wait to obtain redress from Bruckman in the Cook County action.

This argument is persuasive. If the third-party complaint were dismissed here, GMB would have to amend its Cook County complaint to seek money damages, and the question of the reasonableness of Perimeter’s charges would be an issue in fixing damages. Because the parties would be different in the two suits, collateral estoppel would not apply to the factual determination of the reasonableness of Perimeter’s charges (see Skolnik v. Petella (1941), 376 Ill. 500, 503-04), and the second court could therefore make a fact finding inconsistent with that of the first court. Further, the Cook County case is not close to trial, and GMB would have to wait a considerable time to recover, if at all, the proportionate share of Perimeter’s claim that GMB alleges to be due from Bruckman.

In seeking to effectuate the purposes of the statute, the trial court appropriately exercised its discretion to deny the motion even though the “same party” and “same cause” requirements were met. While the trial court denied the motion on other bases, it appears that the denial was proper. This court may affirm the trial court order if it is correct even though such affirmance is not based on the trial court’s stated rationale. Hintz v. Lazarus (1978), 58 Ill. App. 3d 64, 67.

Bruckman next maintains that the third-party complaint failed to state a cause of action against him because (1) no personal gain to Bruckman was alleged, (2) the third-party complaint is unrelated to the main claim, and (3) no duty of indemnification by Bruckman to GMB was alleged. A third-party complaint, as any other complaint, must state a cause of action as well as disclose some relationship upon which a duty to indemnify may be predicated. Muklbauer v. Kruzel (1968), 39 Ill. 2d 226, 230-32.

In support of his first point, Bruckman cites Graham v. Mimms (1982), 111 Ill. App. 3d 751. That case concerned two consolidated appeals. In the first, Mimms appealed an adverse judgment for breach of fiduciary duties to the corporation and its minority shareholders by misappropriating corporate assets and opportunities. In the second, the dispositive issue was whether the Fullers, installed as officers and directors of the corporation by Mimms as controlling shareholder, obtained any property or benefits from the alleged wrongdoing upon which a constructive trust could be fastened. (111 Ill. App. 3d 751, 755.) Finding none, the court reversed the trial court judgment imposing a constructive trust. A constructive trust does not arise unless the alleged constructive trustee holds property upon which the trust can be fastened. (111 Ill. App. 3d 751, 770.) Graham is, as GMB insists, therefore inapposite to a case where, as here, GMB sought damages for Bruckman’s breach of fiduciary duties as an employee and the loss thereby caused to his employer (56 C.J.S. Master & Servant sec. 79 (1948); see also Stawasz v. Aetna Insurance Co. (1968), 99 Ill. App. 2d 131, 134).

In his second point, Bruckman maintains that the breach of employment contract alleged in the third-party complaint is unrelated to the main action by Perimeter. However, a review of the two complaints reveals that Perimeter sought payment for construction of the exhibit booth of which, GMB asserts in its third-party complaint against Bruckman and Streff Enterprises, a substantial portion was devoted to the latter’s products by the unauthorized actions of Bruckman that constituted a breach of his employment contract. Bruckman’s actions allegedly obligated GMB to Perimeter for the full amount and GMB sought the pro rata portion from Bruckman and Streff Enterprises. There is an obvious relationship between the main action and the third-party claim.

In his third and final point, Bruckman insists that the complaint failed to allege a duty on his part to indemnify the claim made by Perimeter against GMB. Though there is language in Illinois Bell Telephone Co. v. Dynaweld, Inc. (1979), 70 Ill. App. 3d 387, 394, that the plaintiff must allege and prove the existence of this duty, the contention in that case was that the third-party complaint failed to allege facts sufficient to disclose a duty to indemnify. The general rule is that facts, not legal conclusions, must be alleged. A third-party complaint must disclose facts, and not conclusions, upon the basis of which a possibility of indemnification is shown. (Gillette v. Todd (1969), 106 Ill. App. 2d 287, 294.) In this case, GMB’s third-party complaint did allege an employment relationship and concomitant duty of loyalty and breach of said duty of loyalty by causing a portion of the GMB exhibit being constructed by Perimeter to be devoted to Streff Enterprises products instead of being exclusively devoted to the business of GMB. The facts giving rise to the existence of a duty to indemnify are adequately alleged. The third-party complaint, while inartfully stated, was sufficient to withstand a motion to dismiss for failure to state a cause of action. See In re Estate of Lipchik (1975), 27 Ill. App. 3d 331, 334.

As the third issue on appeal, Bruckman maintains that the trial court erred in dismissing his answer and affirmative defenses as sanctions. On January 7, 1983, the date set for trial at the September 8 hearing, the judge ascertained that Pertimeter and Bruckman were ready for trial but that GMB was not because it had been unable to take Bruckman’s deposition before trial. The court then recited the procedural history of the case and granted GMB’s motion for sanctions because of Bruckman’s wilful refusal to submit to a deposition and struck his answer and affirmative defenses. Bruckman insists that the trial court erred both in imposing sanctions at all and in imposing the most extreme sanction available.

First, he asserts that his failure to comply with discovery by not appearing for the January 4 deposition was reasonable so that sanctions were not appropriate. Sanctions under Rule 219(c) (87 Ill. 2d R. 219(c)) are to be imposed only when the noncompliance is unreasonable and the order entered is just. In determining whether the noncompliance is unreasonable, the standard is whether the offending party’s conduct is characterized by a deliberate and pronounced disregard for the rules and the court. Sanchez v. Phillips (1977), 46 Ill. App. 3d 430, 434.

Here, it is clear that Bruckman failed to answer within the initial period after service. On September 8, 1982, the court defaulted the third-party codefendant but gave Bruckman additional time to answer. The September 8 order also states that he was to answer by September 29. In his affidavit filed with the motion to vacate the January 7, 1983, order, he states that he appeared in court on September 29 and Judge Cox then gave him additional time to retain counsel and file responses, but there is no verification of such appearance in the record.

Bruckman did not retain his present counsel in this matter until some time in mid-December even though he knew it was set for trial on January 7. In his affidavit, he claims that financial setbacks due to his wrongful termination by GMB delayed his retention of counsel. His counsel, who had actually been active in the Cook County case for a considerable time, entered their appearance in this case on December 28, 1982, and filed his answer on December 30. It should also be noted that Brockman’s initial appearance in June 1982 was filed by Attorney William J. Streff, who still appears of record as Brockman’s attorney.

At the December 29 hearing, Brockman’s counsel was advised by the court to make the client available for deposition prior to the January 5 discovery cut-off date. In an uncontroverted affidavit, GMB’s attorney stated that he spoke to Brockman’s attorney on December 29 who said that he had already spoken to his client and he would get back to him with the best date for the deposition. Nevertheless, according to Brockman’s affidavit, he left town on December 30 and did not return until two days after the date set for trial. He claimed in this affidavit that his trips were longstanding and could not be cancelled, though he did not say why.

As Bruckman observes in his brief, once a court finds that there has been a refusal to comply with the discovery rules, the burden is on the noncomplying party to show that the refusal was reasonable. (Campen v. Executive House Hotel, Inc. (1982), 105 Ill. App. 3d 576, 587.) It appears that he failed to meet this burden. The imposition of sanctions was therefore proper.

Bruckman goes on to argue that even assuming arguendo that the imposition of sanctions was proper, the trial court abused its discretion by imposing the most severe sanction available. In his reply brief, he characterized this as a case where there was “a single failure of a party to appear for a deposition” and “nothing more” and compares this case with Gallo v. Henke (1982), 107 Ill. App. 3d 21. In that case, the court found that the record failed to disclose a wilful or contumacious refusal to comply with discovery where it appeared that no attempt had been made to contact the out-of-State plaintiff to advise her of the deposition. Here, in contrast, there was considerable evidence that Bruckman wilfully absented himself from the State for the time that he knew his deposition would be required. Moreover, as the court observed, Bruckman and his attorneys had consistently delayed and thwarted the processes of the court so that Brockman’s failure to appear for his deposition appears to have been the culmination of obstructionary conduct rather than an isolated event.

As Bruckman states in his brief, striking an answer and thereby causing a default is the most severe sanction a court can impose on a recalcitrant defendant, and such sanction is only proper in those cases where the actions of a party show deliberate, contumacious, or unwarranted disregard of a court’s authority. (Jones v. Healy (1981), 97 Ill. App. 3d 255.) The particular sanction imposed in a case rests largely within the broad discretion of the court, and the exercise of such discretion will not be disturbed unless an abuse is apparent. (Sanchez v. Phillips (1977), 46 Ill. App. 3d 430, 434-35.) While it is true that the trial court is to seek a means to have discovery accomplished rather than merely to inflict punishment (Gallo v. Henke (1982), 107 Ill. App. 3d 21, 27; Presbyterian St. Luke’s Hospital v. Feil (1979), 75 Ill. App. 3d 438, 444), it is also appropriate to consider the need for using discovery sanctions as a general deterrent which will provide a strong incentive for all litigants to fully and accurately comply with discovery rules (Campen v. Executive House Hotel, Inc. (1982), 105 Ill. App. 3d 576, 588). Taking into account the entire procedural history of this case, the trial court did not abuse its discretion in imposing the sanctions ordered, and it was not obligated to choose one of the alternative courses suggested by Bruckman.

As his final issue on appeal, Bruckman contends that the trial court erred in denying his motion for a change of venue. He filed his motion on the same day as his motion to vacate the January 7 order. In it, he alleged that he believed that Judge Cox was prejudiced against him and/or his attorneys, and he supported the motion with affidavits by his own counsel and another attorney, who was unconnected with the cause.

The venue statute (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1001) allows such a motion where any party or his attorney fears that he will not receive a fair trial because the judge is prejudiced against him or his attorney. Subsection (c) (Ill. Rev. Stat. 1981, ch. 110, par. 2— 1001(c)) requires that the motion be made before the judge has ruled on any substantive issue in the case. (E.g., Oberman v. Byrne (1982), 104 Ill. App. 3d 1046.) Here, Judge Cox had already granted GMB’s motion to default the codefendant Streff Enterprises, denied two GMB motions to default Bruckman, awarded $300 in attorney fees to GMB for Bruckman’s failure to plead, and extended the discovery cut-off date to allow the taking of Bruckman’s deposition prior to the date he set for trial. These actions were all prior to January 1983. On January 7, 1983, the judge denied Bruckman’s section 2 — 619 motion, granted GMB’s motion for sanctions and awarded money judgments on the main complaint in Perimeter’s favor and on the third-party complaint in favor of GMB. Clearly, Bruckman’s motion was made subsequent to substantive rulings made by Judge Cox.

However, he relies on a statutory exception to the general rule which allows a petition for a change of venue presented upon a ground occurring after such substantive rulings (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1001(c)). After a substantive ruling, a party seeking such change must demonstrate actual prejudice on the part of the judge. (In re Custody of Santos (1981), 97 Ill. App. 3d 629, 630.) Bruckman argues that he made such a showing, since the affidavits of his own counsel and a disinterested witness “clearly demonstrate a prejudiced judge so out of control as to destroy even a semblance of impartiality in the courtroom.”

Bruckman’s contention is without merit on two bases. First, by affidavit of his own counsel, Judge Cox treated his counsel disrespectfully during hearings on December 29 and January 5, as well as on January 7. Even assuming, as both parties do, that the first substantive rulings were on January 7, the motion should have been brought before the judge ruled at the January 7 hearing because the alleged prejudice was manifest before then. Instead, Bruckman waited until unfavorable rulings were entered on that day and then asserted the court’s prejudice as grounds for a change of venue.

But aside from the question of timeliness of the motion, Bruckman failed to demonstrate actual prejudice. The independent witness’ affidavit reveals that on January 7 he was present in Judge Cox’ courtroom on an unrelated matter; that “Judge Cox displayed visible hostility towards Bruckman’s counsel,” “yelled at the attorney for no apparent reason,” “his hands shook noticeably” while addressing them, he “continually interrupted said attorneys when they attempted to speak,” and he threatened to evict one of them from the courtroom; that he addressed the other counsel with temperance and respect; and that his behavior created an appearance of bias and an atmosphere that was not one of fairness and objectivity. However, the affiant was not present during other hearings, nor was he aware of the procedural history of the case, that included two denials of GMB’s prior motions for default, Bruckman’s failure to file an answer within the extended time allowed by the court and prior warning by the judge that further attempts to delay and obstruct the case would not be tolerated. Also, Bruckman’s attorneys did interrupt the judge several times on January 7; attempted to establish that they had knowledge of the case for only two weeks when, in fact, they have been involved in the Cook County cases, which they alleged in their pleadings including the 2 — 619 motion to be identical to this case, for over a year; and accused counsel for both GMB and Perimeter of “collusion” in trying to “hang Bruckman” and settle the case without being able to offer any proof of such allegations when requested to do so by the court.

Rather than depicting prejudice and partiality, the record taken as a whole seems to show a trial judge who had attempted to accommodate Bruckman for about four months and who had reached the end of his patience with what he considered to be delay and obstruction by Bruckman and his counsel. The motion for change of venue, therefore, was properly denied.

The judgment of the trial court is affirmed.

Still pending in the trial court are GMB’s motion for expenses and fees for untrue allegations made without reasonable cause in Bruckman’s motion to vacate and supporting affidavits and the rule to show cause why Bruckman’s counsel should not be held in contempt of court for filing a false certificate of service. The cause is remanded to the circuit court for hearing and a determination of the appropriate disposition of these matters. See Hartman v. Hartman (1971), 2 Ill. App. 3d 163, 168; Brooks v. Goins (1967), 81 Ill. App. 2d 12, 20-22.

Judgment affirmed and cause remanded with directions.

LINDBERG and HOPF, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE VAN DEUSEN delivered the opinion of the court:

Upon denial of petition for rehearing, we note that in his petition for rehearing, defendant Bruckman contends that this court was incorrect in concluding that William J. Streff was an attorney. Reexamination of the record discloses that an ambiguity does exist in this regard and one cannot say with certainty from the record whether or not Mr. Streff was an attorney. Even if we were to assume arguendo that Mr. Streff was not an attorney, such fact is not of sufficient importance to cause us to change or modify our considered opinion in this matter.

Petition for rehearing is denied.

LINDBERG and HOPF, JJ., concur.


author: JUSTICE SULLIVAN

text:
    THE PEOPLE ex rel. ILLINOIS DEPARTMENT OF HUMAN RIGHTS, Plaintiff-Appellee, v. ARLINGTON PARK RACE TRACK CORPORATION et al., Defendants-Appellants.
    First District (5th Division)
    No. 83—1174
    Opinion filed March 2, 1984.

      LeMoine D. Stitt, of Stitt, Moore & Lennon, of Rolling Meadows, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Kathryn A. Spalding, Assistant Attorney General, of counsel), for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Defendants appeal from an order permanently enjoining them from implementing a policy of prohibiting children under the age of 14 from residing in the backstretch area of Arlington Park Race Track, in violation of section 3 — 104(A) of the Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 3 — 104(A)). They contend that (1) section 3 — 104(A) is inapplicable under the facts of this case; and (2) the policy in question is rationally related to legitimate health, safety, and welfare considerations.

Defendant Arlington Park Race Track Corporation (the Track) is licensed by the Illinois Racing Board to operate Arlington Park Race Track. During its five-month race meeting, generally held from May through September each year, it has traditionally provided living facilities for certain employees of trainers who have been assigned stalls for horses accepted for racing. Currently, the Track owns nine facilities (hereinafter dormitories) in an area commonly known as the backstretch, providing over 600 rooms ranging in size from 80 to 206 square feet, with the larger rooms being designated for double occupancy and the smaller for single occupancy. Some of the rooms have individual washroom and shower facilities, but the majority of them are serviced by communal facilities, usually located in the same building. None of the rooms are equipped for cooking, which is prohibited under both Track rules and Illinois Racing Board rules because of the proximity of the dormitories to the stabling area. Nevertheless, a number of occupants, both those with children and those without, frequently breach those rules by using hot plates, and it appears that the Track has taken no steps to stop these violations.

Rooms in the dormitories are allocated to trainers on the basis of one space for each 2.5 horses accepted for racing. The trainers in turn assign the spaces to hot walkers, exercise persons, and grooms employed by them to care for the horses. A $75 refundable damage deposit is paid by the trainer for each space; no further charge is made to the trainer, and the trainers do not charge rent to their employees, who are among the lowest-paid workers in the industry. The employees may occupy the rooms so long as they are employed by a trainer who has horses stabled at the track, that trainer continues to give permission for such occupancy, and the employee is licensed by the Elinois Racing Board and observes its rules.

The Track also maintains 16 two-bedroom trailers in an area removed from the backstretch, ostensibly for rental to those employees who are accompanied by their families. The Track charges $300 per month for the rental units, but they are rented only during the race meeting, and the Track does not recover its costs through the rental charge.

For a number of years, some employees have brought their spouses and/or children to live with them in the dormitories, allegedly because either the cost of other housing was prohibitive or no space was available in the rental area maintained by the Track or in nearby communities. While exact figures apparently are not available, it seems that an average of 20 to 30 families live at the backstretch during each race meeting, and it is estimated that 30 to 40 children, the majority of whom are six years old or younger, are involved. The Track has been aware of the presence of these children since the early 1970’s without taking action to exclude them. However, in April 1982, the Track notified trainers that no children would be permitted to reside at the backstretch during the 1982 race meeting.

On May 6, 1982, several employees affected by that policy filed charges with the Elinois Department of Human Rights (the Department), alleging violation of section 3 — 104(A) of the Elinois Human Rights Act (the Act), which provides:

“It is a civil rights violation for the owner or agent of any housing accommodation to:
(A) Require, as a condition precedent to the rental of a housing accommodation, that the prospective tenant shall not have, at the time the application for rental is made, one or more children under the age of 14 years residing in his or her family ***.” (Ill. Rev. Stat. 1981, ch. 68, par. 3-104(A).)

Shortly thereafter, the Department filed the instant action pursuant to section 7 — 104 of the Act, which provides in pertinent part:

“(1) At any time after a charge is filed, the Department may petition the appropriate court for temporary relief, pending final determination of the proceedings under this Act ***.
* * *
(3) When the petition is based upon a civil rights violation as defined in Article 3 of this Act, the relief or restraining order entered by the court shall not exceed 5 days unless:
(a) A longer period is agreed to by the respondent, or
(b) The court finds that there is substantial evidence to demonstrate that the respondent has engaged in unlawful discrimination.” (Ill. Rev. Stat. 1981, ch. 68, par. 7 — 104(A).)

However, in its prayer for relief, the Department asked the court to grant a permanent injunction as well as a temporary restraining order and a preliminary injunction. A temporary restraining order was entered on May 14, 1982. No appeal was taken therefrom, and the parties subsequently agreed that the order should remain in effect until the trial court reached a final determination on the Department’s request for a permanent injunction.

Defendants admitted in their answer that their policy is to prohibit children from living at the backstretch, but raised as affirmative defenses that section 3 — 104(A) was inapplicable to the dormitories because they are not “housing accommodations” as defined in section 3 — 101(C) of the Act (Ill. Rev. Stat. 1981, ch. 68, par. 3 — 101(C)) and are not rented by the employees; that its action was required both by the rules of the Illinois Racing Board and by village ordinances; and that it provided housing for families on a subsidized rental basis. After extensive hearings on these defenses, the trial court entered its final order permanently enjoining implementation of any policy prohibiting children under the age of 14 from residing at the backstretch on May 20, 1983 (the May 20 order), and the Track filed the instant appeal. The trial court supplemented that order with a written memorandum containing extensive findings of fact and conclusions of law on October 7, 1983 (the memorandum opinion), shortly after the Track filed its initial brief in this appeal.

Opinion

Prior to reaching the merits of this action, some further explanation is necessary regarding pertinent matters which have developed since the filing of this appeal from the May 20 order. Several months after that date, the parties realized that the trial court did not have the power to enter a permanent injunction. Section 8 — 111(D) of the Act states that “[ejxcept as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act.” (Ill. Rev. Stat. 1981, ch. 68, par. 8 — 111(D).) Thus, under the Act, the circuit court may only grant temporary relief during the pendency of administrative proceedings before the Illinois Department of Human Rights and the Illinois Human Rights Commission (Ill. Rev. Stat. 1981, ch. 68, par. 7 — 104), or review an order of the Commission in accordance with the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 68, par. 8— 111(A)). Since the complaint issued by the Department (apparently issued after the trial court’s ruling and the parties’ belated discovery that the order was improper) is still pending before the Commission, the court had power to act only for the purpose of granting temporary relief pursuant to section 7 — 104. In the instant case, such relief could be granted only for a maximum five-day period unless the Track agreed to an extension thereof, or the court made a finding that there was substantial evidence of a civil rights violation; in effect, unless the court entered a preliminary injunction. In the instant case, the Track elected to consent to continuation of the temporary retraining order pending a final determination on the merits, and thus no preliminary injunction was entered.

It is settled that even if a court is one of general jurisdiction, when its power to act in a particular matter is controlled by statute, the court is governed by the rules of limited jurisdiction. (Brown v. VanKeuren (1930), 340 Ill. 118, 172 N.E. 1.) Subject matter jurisdiction includes not only the power to hear and determine a class of cases (Kemling v. Country Mutual Insurance Co. (1982), 107 Ill. App. 3d 516, 437 N.E.2d 1253), but the power to grant the particular relief requested (J. L. Simmons Co. v. Capital Development Board (1981), 98 Ill. App. 3d 445, 424 N.E.2d 821). Defects in subject matter jurisdiction cannot be waived (Volkmar v. State Farm Mutual Automobile Insurance Co. (1982), 104 Ill. App. 3d 149, 432 N.E.2d 1149), nor can such jurisdiction be conferred on the court by the acquiescence or the stipulation of the parties (Talandis Construction Corp. v. Illinois Building Authority (1978), 60 Ill. App. 3d 715, 377 N.E.2d 237). Thus, it was clear to the parties that, on appeal, it would be necessary for us to vacate the May 20 order, since the trial court did not have the power to grant a permanent injunction.

We hasten to point out that the trial court did precisely what the parties requested: it considered the merits of this action and entered a permanent injunction. It had every reason to expect that the Department, which was created by the Act and should be most familiar with the procedures thereunder, would not request improper relief, or that the Track, which obviously would be profoundly affected by an adverse ruling, would raise any questions as to the propriety of the relief requested. Nevertheless, the fact remains that the permanent injunction granted was void for lack of power in the court to order it, and by the time this defect was brought to the trial court’s attention, sometime in mid-October 1983, it had long since been deprived of jurisdiction to modify or amend that order because a notice of appeal had been filed. See Montgomery Ward & Co. v. Wetzel (1981), 98 Ill. App. 3d 243, 423 N.E.2d 1170; County of Cook v. Priester (1974), 22 Ill. App. 3d 964, 318 N.E.2d 327.

The foregoing should have ended the matter. The May 20 order would be overturned, as the Track requested, albeit for a reason not raised in its appeal, and the Department could still seek to prevent any irreparable injury to the charging parties by seeking temporary relief in the manner prescribed by statute. It has ample time to do so, since the facilities in question are currently unoccupied and will not be in use for several months; however, not content with this result, the parties still seek a ruling on the merits from this court. Their reasoning is unclear, since both agree that the order must be vacated, and neither parties’ rights would be unalterably foreclosed by that result. In any event, they have attempted to obtain a decision by the unprecedented filing of a joint motion before this court on October 31, 1983, after appellants’ brief was filed, asking us to amend the May 20 judgment and the trial court’s memorandum opinion to grant a preliminary injunction pending completion of administrative proceedings before the Illinois Human Rights Commission. They reason that this is an order which the trial court could have entered, had it been requested, because it did have the power to enter a preliminary injunction; therefore, they posit, we can “correct” the error in the entry of a permanent injunction by the simple procedure of amending the May 20 order and then considering whether the trial court abused its discretion in granting a preliminary injunction.

We granted the motion to amend on November 15, 1983; however, because we were concerned about the propriety of reviewing an order which the trial court not only did not enter but was never asked to enter, we asked the parties during oral argument to address the question of our jurisdiction to review an order from which, because it never existed, no appeal was ever taken — an order which, in effect, was entered by this court. Subsequently, both parties filed memoranda in support of jurisdiction.

Our concern in this matter is not merely procedural; this court’s jurisdiction is limited to consideration of those matters which are raised in a notice of appeal (Rinck v. Palos Hills Consolidated High School District No. 2S0 (1979), 82 Ill. App. 3d 856, 403 N.E.2d 470), and it is immaterial that, in the instant case, both parties advocate our assumption of jurisdiction since they may not confer jurisdiction upon us by stipulation or acquiescence (In re Marriage of Peterson (1980), 85 Ill. App. 3d 520, 406 N.E.2d 934), any more than they could confer power on the trial court to enter a permanent injunction. Even if neither party contests our jurisdiction, it is our duty to consider that matter (Allabastro v. Wheaton National Bank (1980), 91 Ill. App. 3d 222, 414 N.E.2d 537), and we must decline to proceed where jurisdiction is lacking (City Wide Carpet, Inc. v. John (1980), 83 Ill. App. 3d 538, 404 N.E.2d 465).

The parties here agreed at trial that no preliminary injunction should issue, and therefore would have been estopped from asserting on appeal that the trial court erred in failing to enter such an order. (See Ziebell v. Board of Trustees (1979), 73 Ill. App. 3d 894, 392 N.E.2d 101.) Since the trial court did not err in failing to grant a preliminary injunction, the parties asked us to amend the May 20 order before considering the merits of the order actually entered and granting appropriate relief. The question, then, is whether we have the power to amend the May 20 order, as requested, and therefore have jurisdiction to consider the propriety of granting a preliminary injunction.

The starting point for our inquiry is Supreme Court Rule 366(a) (87 Ill. 2d R. 366(a)), wherein the powers of a reviewing court are enumerated. That Rule contains two sections which address certain powers of amendment:

“In all appeals the reviewing court may, in its discretion, and on such terms as it deems just,
(1) exercise all or any of the powers of amendment of the trial court;
* * *
(3) order or permit the record to be amended by correcting errors or by adding matters that should have been included ***.” (87 Ill. 2d R. 366(a).)

We do not believe that the motion to amend is supportable under either of these subsections. With regard to subsection 1, we note that in order to have jurisdiction, we must be able to make our amendment retroactive to May 20, 1983, since the only jurisdiction we have is based on the notice of appeal from the May 20 order. Thus, our November 15 order amending the judgment must of necessity be a nunc pro tunc order. Clearly, under the circumstances of this case, the trial court could not have entered such an order, since a nunc pro tunc order serves merely to correct a prior order which incorrectly reflects what the trial court actually ruled at that time (Bradley v. Burrell (1981), 97 Ill. App. 3d 979, 424 N.E.2d 15); it may not be used to correct judicial errors or supply omitted judicial action (Trosper v. Trosper (1980), 82 Ill. App. 3d 1012, 403 N.E.2d 692). In the instant case, the May 20 order accurately reflected the trial court’s ruling; it was asked to enter a permanent injunction, and it did so. In view thereof, the trial court, and therefore we, could not correct it through entry of a nunc pro tunc order.

Subsection 3 of Rule 366(a) is also inapplicable, since it obviously has reference to our power to amend the record to correct inaccuracies or omissions. We do not believe that it gives us the power to rewrite the record as the parties wish it were written, so that it reflects an action which the trial court neither took nor contemplated taking. This subsection is related to Rule 329, which provides:

“The record on appeal shall be taken as true and correct unless shown to be otherwise and corrected in a manner permitted by this rule. Material omissions or inaccuracies *** may be corrected by stipulation of the parties or by the trial court *** or by the reviewing court or a judge thereof.” (87 Ill. 2d R. 329.)

(See also Catalano v. Pechous (1978), 69 Ill. App. 3d 797, 387 N.E.2d 714.) The parties here have not shown that the record is inaccurate; in fact, they admit that the order entered is an entirely accurate reflection of what the trial court ordered.

The motion to amend, then, is not supported by either of the powers of amendment granted to this court pursuant to Rule 366. However, in their motion, as well as in the supplemental memoranda on the question of jurisdiction, the parties assert, without argument or citation to any authority, that our November 15 order amending the trial court’s judgment is authorized by subsection 5 of Rule 366(a), which provides that we may “enter any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief *** that the case may require.” (87 Ill. 2d R. 366(a)(5).) We have searched in vain for a case which would support the parties’ interpretation of subsection 5; however, it became clear to us in the course of that research, although no case directly so states, that this rule is related to the relief which we may grant when, after reviewing the merits of the issues presented on appeal, we determine that the trial court has erred. Thus, pursuant to this rule, we need not merely decide whether to affirm or reverse; if no factual issues exist, we may take such action as the trial court was requested to take, but refused, without remanding the cause for further proceedings. We do not believe that it was intended to grant us the power to rewrite the record in order to review an order which, in hindsight, the parties wish they had requested. To rule otherwise would completely destroy the concept of appellate jurisdiction and expand our function beyond that of an appellate court. In effect, what the parties ask us to do is to enter a preliminary injunction, without even considering whether that action is appropriate, and then review our own order. This would be particularly inappropriate here, where the temporary restraining order which remains in effect by agreement of the parties is, in substance, a preliminary injunction.

For the foregoing reasons, we believe that our November 15 order was improvidently granted and should be vacated. The trial court’s order of May 20, granting a permanent injunction, was outside the court’s power as provided in section 8 — 111(D) of the Act (Ill. Rev. Stat. 1981, ch. 68, par. 8 — 111(D)) and is also vacated.

This court’s order of November 15,1983, is vacated.

The trial court’s order of May 20, 1983, is vacated, and this matter is remanded for further proceedings.

MEJDA, P.J., and WILSON, J., concur.


author: PRESIDING JUSTICE MEJDA

text:
    C & K DISTRIBUTORS, INC., Plaintiff-Appellant, v. THOMAS C. HYNES, Cook County Assessor, et al., Defendants-Appellees.—COMBINED WAREHOUSE COMPANY, INC., et al., Plaintiffs-Appellants, v. THOMAS C. HYNES, Cook County Assessor, et al., Defendants-Appellees.
    First District (5th Division)
    Nos. 83—352, 83—359 cons.
    Opinion filed March 9, 1984.

      David C. Dillon, of Dillon & Nash, Ltd., of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Thomas J. McNulty, and Robert S. Vihon, Assistant State’s Attorneys, of counsel), for appellees.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

This is an appeal from the dismissal of two petitions for writ of certiorari seeking review of the subject parcels’ real property assessment classifications. Plaintiffs present two issues for review: (1) whether a common law writ of certiorari is the proper means by which to seek direct review of the legality of a decision by the board of appeals or board of review; and (2) whether the mixed Class 5 and Class 6 classification presently assigned to the subject parcels violates the Illinois Constitution, the Revenue Act, or the Cook County Real Property Assessment Classification Ordinance as amended (Ordinance No. 80 — 0—14). For the reasons which follow, we affirm.

The two cases which are the subject of this appeal involve a dispute as to the legality of real property tax assessment classifications assigned by the Cook County Assessor (Assessor) and Cook County Board of Appeals (Board of Appeals or Board) to industrial real property owned or leased by the respective plaintiffs, C & K Distributors, Inc., and Combined Warehouse Company, Inc., et al. In each case plaintiffs petitioned the Board of Appeals seeking review of the assessment established for their respective property by the Assessor. Each plaintiff requested that the established market value of its property be reduced and that its property be reclassified from its existing mixed classification — partially Class 5, assessed at 40% of market value, and partially Class 6, assessed at 16% of market value — to an entirely Class 6 property assessment classification. Upon review, the Board of Appeals established a market value in excess of that requested by plaintiffs for their respective parcels and refused to alter the property assessment classifications. Plaintiff Combined Warehouse Company, Inc., then filed a complaint for tax injunction contesting the validity of the partial Class 5-Class 6 assessment classification assigned to its property. After the complaint was stricken with leave to amend said plaintiff filed an amended complaint for a writ of certiorari and plaintiff C & K Distributors, Inc., filed a complaint for a writ of certiorari for review of the Assessor’s and Board of Appeals’ actions. On December 6, 1982, the circuit court dismissed the complaints with prejudice. Plaintiffs’ motion for rehearing was denied by order entered January 6,1983. Plaintiffs appeal.

Opinion

The first issue raised by plaintiffs is whether, on the facts here presented, a common law writ of certiorari will lie for review of a decision by the Board of Appeals. Plaintiffs argue that the Board of Appeals exceeded its jurisdiction and that it acted illegally and, therefore, its actions may properly be reviewed under a writ of certiorari. Defendants maintain that the Board had jurisdiction and proceeded legally in the instant case and that the writ, therefore, does not lie.

The starting point of our analysis is to determine when the writ may properly be granted. “It is the law in this State that circuit courts have the power to issue common law writs of certiorari addressed to all inferior tribunals whenever it is shown either that they have exceeded their jurisdiction or have proceeded illegally, and no direct appeal or other mode of direct review of their proceedings is provided.” (Goodfriend v. Board of Appeals (1973), 18 Ill. App. 3d 412, 418, 305 N.E .2d 404; Kinsloe v. Pogue (1904), 213 Ill. 302, 72 N.E. 906.) The application of the writ of certiorari is limited to two classes of cases. It may be used to obtain a review over a decision by an inferior court or tribunal where (1) it is shown that such court or tribunal was without jurisdiction or where it exceeded its jurisdiction, or (2) it is shown that such court or tribunal did not “proceed legally,” that is, where it did not follow the essential procedural requirements applicable to such cases. Jarman v. Board of Review (1931), 345 Ill. 248, 255, 178 N.E. 91; Carroll v. Houston (1930), 341 Ill. 531, 535, 173 N.E. 657; Hartley v. Will County Board of Review (1982), 106 Ill. App. 3d 950, 436 N.E.2d 1073.

Bearing these principles in mind, we turn to the facts of the instant case. Plaintiffs herein appeal the trial court’s dismissal of their respective complaints for writs of certiorari. The question for determination is, therefore, whether the factual allegations contained in plaintiffs’ complaints, which allegations must be taken as true for the purposes of a motion to dismiss, were sufficient to state a basis for review by common law writ of certiorari.

Plaintiffs, by their respective complaints, in substance allege that defendant Board of Appeals both exceeded its jurisdiction and acted illegally in classifying the subject parcels as a prorata mixture of Class 5 and Class 6. Specifically, plaintiffs’ complaints contain the following factual allegations: (1) plaintiffs, through their attorney, appeared before the Board of Appeals and requested (a) a reclassification of the subject parcels from their existing classification, partially Class 5 and partially Class 6, to entirely Class 6, and (b) a reduction in the 1981 market value assigned to the subject parcels by the Assessor; (2) plaintiffs’ requests for reclassification were denied, the market values of the subject parcels were reduced but the reduction was less than was requested; (3) the ordinance under which real estate taxes are assessed provides for classification of real estate, for purposes of assessment of real estate taxes, into several assessment classes which are taxed at various percentages of market value; (4) at all pertinent times said ordinance provided for the assessment of both new and substantially rehabilitated industrial property at 16% of market value (Property Assessment Class 6) rather than at 40% of market value, the normal rate for industrial property (Class 5); and (5) the subject parcels meet the definitional standards for Class 6 contained in the ordinance. Plaintiffs also allege that a property nearby and comparable to plaintiffs was given an entirely Class 6 assessment classification. Plaintiffs further allege the absence of another method of review.

Plaintiffs’ allegations that the Board of Appeals exceeded its jurisdiction and proceeded illegally are mere conclusions of law which need not be taken as true for purposes of a motion to dismiss. (Pierce v. Carpentier (1960), 20 Ill. 2d 526, 531, 169 N.E.2d 747.) We must here determine whether plaintiffs’ factual allegations are sufficient to state a claim for review by common law writ of certiorari.

Plaintiffs first contend that the Board exceeded its jurisdiction by refusing to alter the mixed Class 5- Class 6 property assessment classification applied by the Assessor to plaintiffs’ parcels. In support of its allegation that defendant Board of Appeals exceeded its jurisdiction, plaintiffs argue that the power granted to an assessing official can only be exercised in accordance with the statutory requirements. Plaintiffs assert that the only valid property classifications are those specifically established by county ordinance and that any property classification not so established, such as the mixture of Class 5 and Class 6 applied to the subject parcels, is void. Plaintiffs further assert that, in light of the granting of an entirely Class 6 assessment classification to a property comparable to their parcels, the Board of Appeals’ denial of plaintiffs’ request for a Class 6 assessment constitutes “an unauthorized classification of real estate and a discriminatory taxation for which there is no basis in law” relying upon article IX, section 4(b) of the 1970 Illinois Constitution, which states that classifications of real property for the purpose of taxation “shall be reasonable and assessments shall be uniform within each class.”

Jurisdiction is authority to hear and decide a cause. (People ex rel. Raymond v. Talmadge (1901), 194 Ill. 67, 68, 61 N.E. 1049.) It does not depend upon the correctness of the decision made and is not lost because of an erroneous decision. (Baker v. Brown (1939), 372 Ill. 336, 341, 23 N.E.2d 710.) Ordinance No. 80 — 0—14, the ordinance governing the assessments here at issue, provides in pertinent part that “[t]he Assessor shall assess and the Board of Appeals shall review assessments on real estate in the various classes ***.” The applicable ordinance authorizes review of assessment classifications by the Board of Appeals; the Board, therefore, did have jurisdiction to review the assessment classifications assigned by the Assessor.

The allegations in the instant case do not challenge the jurisdiction of the Board to hear and rule on the cause brought before it but instead question the result obtained thereby. The gist of plaintiffs’ argument in this regard is that the Board has jurisdiction to act only insofar as its determinations were adjudged to be correct or that it had no jurisdiction to arrive at an erroneous determination. We do not adopt this limited definition of jurisdiction, however, for “ '*** [t]he rulings of a court may be erroneous and yet it may have jurisdiction and proceed legally.’ ” (Joyce v. City of Chicago (1905), 216 Ill. 466, 471, 75 N.E. 184, quoting from People ex rel. Maloney v. Lindblom (1899), 182 Ill. 241, 245, 55 N.E. 358.) We find this principle applicable to the decisions of the Board of Appeals when acting judicially (see Goodfriend v. Board of Appeals (1973), 18 Ill. App. 3d 412, 305 N.E.2d 404), and we conclude, therefore, that the Board did not act outside its jurisdiction in confirming the assessment classifications.

Plaintiffs also contend that by refusing to alter the mixed property assessment classification the Board failed to proceed legally and that review by common law writ of certiorari is, therefore, proper. The term “proceed legally” in this context means to follow the essential procedural requirements applicable in such cases. (Joyce v. Chicago; Hartley v. Will County Board of Review (1982), 106 Ill. App. 3d 950, 436 N.E.2d 1073.) In Hartley the court found that review by common law certiorari was proper where plaintiff alleged that the board of review failed to give her notice and opportunity to participate in determinations as required by the applicable statute. The court therein stated that such failure constituted “a failure by the board to conform to the essential form of proceedings set forth and mandated by the statute. It is of little consequence whether we term such failure ‘acting in excess of jurisdiction’ or ’proceeding illegally,’ that is, outside the essential form of procedures legally applicable. Whichever characterization we use, it is clear that such a failure is sufficient to state a basis for review by common law certiorari, providing that no adequate review is available by other manner.” (106 Ill. App. 3d 950, 959-60, 436 N.E .2d 1073.) Plaintiffs in the instant case make no allegation of failure to conform to the essential form of proceeding. As stated above, their allegations, in substance, challenge the correctness of the Board’s determination, not the procedure by which that determination was reached. We find, therefore, that plaintiffs herein have failed to allege sufficient facts to show that the Board “acted in excess of its jurisdiction” or failed to “proceed legally” and the trial court, therefore, did not err in dismissing plaintiffs’ complaints for common law writ of certiorari.

Plaintiffs also raise the contention that they have no adequate remedy at law and that review under the common law writ of certiorari is the only manner of review available. Plaintiffs admit that it is a well-settled rule in Illinois that a writ of certiorari will not issue if an adequate legal remedy is available. (First National Bank & Trust Co. v. Rosewell (1982), 93 Ill. 2d 388, 396, 444 N.E.2d 126, cert, denied (1983), 464 U.S. 803, 78 L. Ed. 2d 70, 104 S. Ct. 50; Murphy v. Cuesta, Rey & Co. (1942), 381 Ill. 162, 45 N.E.2d 26; Kinsloe v. Pogue (1904), 213 Ill. 302, 72 N.E. 906; Hartley v. Will County Board of Review (1982), 106 Ill. App. 3d 950, 436 N.E.2d 1073.) The legal remedy available to plaintiffs herein is the specific tax objection or “payment under protest” authorized by statute. (See Ill. Rev. Stat. 1981, ch. 1981, ch. 120, par. 675.) Our supreme court recently sustained the proposition that the availability of such legal remedy to the taxpayer precludes review under a writ of certiorari. (First National Bank & Trust Co. v. Rosewell; see also La Salle National Bank v. County of Cook (1974), 57 Ill. 2d 318, 312 N.E .2d 252.) And the Supreme Court has declared such legal remedy to be “plain, speedy and efficient.” (Rosewell v. LaSalle National Bank (1981), 450 U.S. 503, 67 L. Ed. 2d 464, 101 S. Ct. 1221.) We find that there was an adequate legal remedy available to plaintiffs in the instant case and that the complaint for common law writ of certiorari was, therefore, properly dismissed.

Plaintiffs’ second issue raises questions regarding the correctness of the Board’s determination and is, therefore, beyond the scope of this appeal.

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

Affirmed.

SULLIVAN and O’CONNOR, JJ., concur.