text:
    GREAT PLAINS RESOURCES, INC., et al., Plaintiffs-Appellees, v. THE CITY OF BENTON et al., Defendants-Appellants.
    Fifth District
    No. 5—83—0858
    Opinion filed September 19, 1984.

      Gerald D. Owens, of Benton, for appellants.
    Raymond J. Gengler, of Gengler & Gengler, of Denver, Colorado, and Howard & Howard, of Mt. Vernon (G. W. Howard III, of counsel), for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

Appeal is taken from a declaratory judgment of the circuit court of Franklin County in which the court found a city ordinance regulating the drilling of oil wells violative of the constitutions of the United States of America and the State of Illinois. The issue presented is whether the judgment was contrary to law or the manifest weight of the evidence before the trial court.

Chapter 28 of the Revised Code of the city of Benton governs the licensing and regulation of gas and oil wells. The following sections are the subject of this action: section 28 — 1 — 9, concerning license fees and royalty payments; sections 28 — 1 — 3(A) and 28 — 2 — 3, concerning the number and spacing of wells; and section 28 — 1 — 12, concerning who may apply for a drilling permit.

Although the constitutionality of section 28 — 1 — 12 is discussed in the parties’ briefs, the discussion has the effect of nullifying the issue. Section 28 — 1 — 12 requires that one who applies for a drilling permit must either own the property upon which the well will be placed or lease the property from the owner. The trial court presumed the term “owner” to refer to the owner of the surface land, and not to the owner of the mineral rights. The court reasoned that requiring such consent of one who possessed no interest in the subject of the drilling constituted “an unconstitutional taking of property in effect forcing the driller to ‘pay off’ the landowner who owns no part of the minerals.” The record is void of evidence suggesting that defendant intended the term “owner” to refer to the owner of surface property, and defendant asserts in its brief that the term refers to the owner of mineral rights. Plaintiffs assert in their brief that if the term “owner” refers to the one who possesses mineral rights, plaintiffs have no interest in the court’s adjudging section 28 — 1 — 12 unconstitutional. Thus, that portion of the court’s order declaring section 28— 1 — 12 unconstitutional is not at issue in this appeal.

Sections 28 — 1 — 3(A) and 28 — 2 — 3 contain the following provisions:

“28-1-3 PERMITTED WELLS: DRILLING BLOCKS.
(A) Not more than one (1) well for oil or gas shall be drilled to and completed in any sand, stratum, or horizon productive of oil and/or gas in the following drilling block:
(1) Drilling block numbered 1 ***.”
“28-2-3 WELL LIMIT TO PARTICULAR STRATUM. Not more than one (1) well for oil or gas shall be drilled to or completed in any sand, stratum, or horizon productive of oil or gas or oil and gas in any one of the drilling blocks mentioned as defined in Section 28 — 2 — 2 of this article and comprising the area mentioned in Section 28 — 2 — 1 of this article, provided, however, that if more than one (1) well shall be drilled outside the area mentioned in Section 28 — 2 — 1 and within four hundred feet (400’) of the boundary of any drilling block, one (1) additional well may be drilled in such drilling block to the sand, stratum, or horizon to which such well outside the area is drilled, which additional well shall be drilled at a location not more than three hundred feet (300’) from the limit line of the area to offset the additional well or wells that shall be so drilled on the land situated outside the area.”

The trial court found that “[sjections 28 — 1 — 3(A) and 28— 2 — 3 are unlawful mainly because there is no valid reason for such a rule and, therefore, is not a valid exercise of the City’s police power [sic].” This conclusion — i.e., that the spacing requirements of the ordinance are arbitrary — could reasonably have been based on the evidence presented at trial. Plaintiff L.L. Tuck testified that the requirements constituted “a wasteful type of order in that it would require you to drill more wells than needed in order to comply with the ordinance.” Defendant pursued minimal cross-examination on this subject and presented no evidence to rebut Mr. Tuck’s testimony. It is not the function of the appellate court to pass upon legal questions in an abstract sense, but rather to determine whether the decree of the circuit court is contrary to law or contrary to the manifest weight of the evidence. (Brosam v. Employers Mutual Casualty Co. (1965), 61 Ill. App. 2d 183, 190, 209 N.E.2d 350.) Based upon the evidence presented at trial, the circuit court could reasonably have concluded that the requirements of section 28 — 1 — 3(A) and 28 — 2 — 3 were arbitrarily drawn.

Section 28 — 1 — 9 contains the following provision:

“28-1-9 OIL WELL DRILLING - APPLICATION DEPOSIT. Every application for a permit to drill an oil or gas well shall be in writing, signed by the applicant or some person duly authorized to sign the same in behalf of the applicant, and shall be filed with the City Clerk and be accompanied by a deposit of Three Thousand Dollars ($3,000.00), in cash and a duly executed instrument in writing effective to assign to the City a V32 of 7/s working interest as an overriding royalty, free and clear of all costs, in and to any oil or gas which might be produced from such well.”

The trial court found that “the deposit of $3,000.00 plus a 1/32 overriding interest bears no relation to the City’s administrative costs and constitutes a confiscation of property.” These provisions, the court reasoned, violated the due process and equal protection clauses of the Federal and State constitutions. (U.S. Const., amend. XIV, sec. 1; Ill. Const. 1970, art. 1, sec. 2.) We consider first the question of due process.

While the powers of a municipal corporation to regulate activities and impose taxes are distinct, each power may be exercised by imposing a license fee. (Arends v. Police Pension Fund (1955), 7 Ill. 2d 250, 253, 130 N.E.2d 517.) The Illinois Constitution, however, expressly prohibits home-rule units from licensing for the purpose of raising revenue unless authorized to do so by statute (Ill. Const. 1970, art. VII, sec. 6(e)), and provides that non-home-rule units shall possess only those powers granted to them by law (Ill. Const. 1970, art. VII, sec. 7). While the record fails to establish whether the city of Benton is a home rule or non-home-rule unit, the city is in either case prohibited from “licensing for revenue” — i.e., raising revenue by the exercise of its police power (Rozner v. Korshak (1973), 55 Ill. 2d 430, 433, 303 N.E.2d 389)—since there is no act of the general assembly enabling the city to employ such authority. Defendant’s power to regulate the drilling of oil within the municipality is granted by section 11— 56 — 1 of the Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11—56—1), which states:

“The corporate authorities of each municipality may grant permits to mine oil or gas, under such restrictions as will protect public and private property and insure proper remuneration for such grants.”

The question, then, is whether the license and royalty fees imposed by defendant upon plaintiff bear a reasonable relationship to the costs of regulation and administration, or whether the fees are so excessive that they may be deemed arbitrary and unreasonable as a matter of law. Quad Canteen Service Corp. v. Ruzak (1980), 85 Ill. App. 3d 256, 258, 406 N.E.2d 616.

Defendant maintains that the license and royalty fees are necessary in order to ensure public safety. Mr. Paul A. Rogers, fire chief of the city of Benton, testified that the area underlying Benton contained . abandoned coal mine shafts, and the activity of drilling oil within the city limits created a risk of fire as a result of the drilling apparatus penetrating pockets of methane gas. Mr. Rogers stated that the city fire department would be unable to extinguish such a fire without additional equipment, the cost of which Mr. Rogers estimated at $337,000. Mr. Rogers stated that the city would be unable to purchase such equipment without a special source of funds. On cross-examination, Mr. Rogers testified that neighboring fire departments possessed some of the items the city considered essential to extinguish oil well fires, and that Benton had access to this equipment.

Plaintiff L.L. Tuck testified that he had been engaged in all aspects of the oil business for a period of 40 years, during which he had acquired extensive experience with oil well fires. According to Mr. Tuck, the standard mode for extinguishing a methane gas fire would involve the use of explosives by expert personnel. Mr. Tuck stated that equipment of the type sought by the city would be actually be ineffective against a methane gas fire. (Mr. Rogers had previously testified that he had personal experience with only one oil well fire resulting from methane gas, and that the fire had been extinguished by the use of explosives.) Mr. Tuck testified that, within eight hours after a fire would be ignited, expert personnel would be available to extinguish such a fire by explosion. Mr. Tuck also testified that the area of Benton in which the proposed drilling would take place was a vacant lot safely removed from human structures.

The reasonableness of the costs of defendant’s regulation in relation to the fees imposed upon plaintiff thus rested upon a determination of whether the additional firefighting equipment was necessary to protect the public and private property of the municipality. This determination was, in turn, dependent upon a resolution of conflicting expert testimony. In light of the testimony of Mr. Tuck, the trial court could reasonably have determined that the equipment characterized by defendant as essential to the public safety was not only nonessential, but extraneous. In such a situation the license and royalty fees required of plaintiff would properly be deemed excessive as a matter of law, and section 28 — 1 — 9 a veiled attempt to exact by means of the city’s police power revenue which could not, under Illinois law, be exacted by means of a tax. (Cf. City of Hartshorne v. Marathon Oil Co. (Okla. 1979), 593 P.2d 97.) The finding of the trial court in this regard was neither contrary to law nor against the manifest weight of the evidence. This conclusion renders unnecessary a consideration of whether the trial court was correct in determining that section 28— 1 — 9 also violated plaintiff’s constitutional right to equal protection of the laws.

The judgment of the circuit court is affirmed.

Affirmed.

WELCH, P.J., and EARNS, J., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    THE DEPARTMENT OF TRANSPORTATION, Petitioner-Appellee, v. JOHN G. KELLER et al., Respondents-Appellants.
    Fifth District
    No. 5—84—0022
    Opinion filed September 5, 1984.

      Harry J. Sterling, P.C., of Fairview Heights, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Roy E. Frazier, Jr., Assistant Attorney General, and Paul D. Giamanco, Special Assistant Attorney General, of counsel), for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Appeal is taken from an order of the circuit court of Madison County denying dismissal of a series of petitions in eminent domain filed by the Department of Transportation (petitioner). Petitioner sought acquisition of specific parcels of land for the purpose of constructing a 5.5-mile extension of Interstate 255. Petitioner also filed motions for immediate vesting of title pursuant to section 7 — 103 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 7—103). The landowners (respondents) subsequently filed a traverse and motion to dismiss the Department’s petitions. A hearing on these motions was held on November 22 and 23, 1983. The order denying respondents’ motion to dismiss was entered on December 7, 1983. A hearing on the motion for immediate vesting of title was held on December 12, 1983. Separate orders establishing preliminary compensation to respondents were entered on January 3, 1984, and January 13, 1984. From these orders, respondents appeal. The issues presented are (1) whether the evidence before the trial court was sufficient to sustain the finding that the properties were subject to the power of eminent domain, and (2) whether the trial court erred in precluding testimony of certain witnesses regarding the necessity of the proposed acquisitions.

The primary witness on behalf of petitioner was Mr. Frank D. Brown, a civil engineer and condemnation coordinator for the Illinois Department of Transportation. Mr. Brown described the proposed project for which petitioner sought condemnation of respondents’ property. Mr. Brown testified that funding for the project had been approved by the Governor and the State legislature, and identified the various parcels needed for its construction. The amount of the land sought by petitioner was, in Mr. Brown’s opinion, a reasonable quantity for construction of the highway. Other witnesses for petitioner included Mr. Laurel D. Berger and Mr. Frederick Bartelsmeyer, also civil engineers working for the Department of Transportation. Witnesses called on behalf of respondents included Mr. Dale Klohr, district engineer for the Department of Transportation, and two of the respondent landowners, John Keller and Gordon Gass. Respondents’ counsel attempted to question each of these witnesses regarding the “necessity” of the condemnation. Petitioner’s objections to some of these questions were sustained.

Preliminary findings of compensation in eminent domain proceedings are governed by section 7 — 104 of the Code of Civil Procedure, which reads in part:

“(b) At the hearing, if the court has not previously, in the same proceeding, determined that the plaintiff has authority to exercise the right of eminent domain, that the property sought to be taken is subject to the exercise of such right, and that such right is not being improperly exercised in the particular proceeding, then the court shall first hear and determine such matters. ***
(c) *** If the court finds that reasonable necessity exists for taking the property in the manner requested in the motion, the court then shall hear such evidence as it may consider necessary and proper for a preliminary finding of just compensation ***.”

Respondents first contend that petitioner failed to establish its right to condemn respondents’ property pursuant to section 7 — 104. Where a traverse is filed in an eminent domain proceeding, the burden is on the petitioner to make a prima facie case of the reasonable necessity of acquiring the disputed property. (Trustees of Schools v. First National Bank (1971), 49 Ill. 2d 408, 414, 274 N.E.2d 56.) “Necessity” for purposes of condemnation means simply that the State’s acquisition of land is “expedient,” “reasonably convenient,” or “useful to the public.” (Department of Public Works & Buildings v. Lewis (1952), 411 Ill. 242, 245-46, 103 N.E.2d 595.) Our review of the record indicates that petitioner met this burden. The testimony offered by Frank Brown, Laurel Berger, and Frederick Bartelsmeyer contained evidence sufficient to establish a prima facie showing that the project for which acquisition of the lands was sought was useful to the public, and that the acquisitions themselves were a reasonable and expedient means of effecting the project.

Respondents also contend that petitioner was without authority to exercise the powers of eminent domain since the construction plans offered as evidence at the hearing were not "final plans.” The record indicates, however, that the State’s plans were final to the extent that circumstances would reasonably allow. The fact that the Department of Transportation could not offer extensive plans for every parcel of land sought in the acquisition, or for every phase of a project which would extend over a period of several years, did not deprive the Department of authority to condemn the various tracts. Neither was the Department required, as respondents suggest, to obtain, prior to acquiring title, every permit which might be required in the course of construction. The case of Department of Public Works & Buildings v. Vogt (1977), 51 Ill. App. 3d 770, 366 N.E.2d 310, upon which respondents rely, is inapposite. In Vogt, the appellate court held that a trial court did not err in vacating its prior "quick take” order vesting title in the condemnor, where the condemnor had delayed the proposed construction for five years and, in so doing, had deprived the condemnees (who had received no compensation) of the value of their property during that period.

Respondents next argue that public policy, expressed by the Illinois legislature in the “Agricultural Areas Conservation and Protection Act” (Ill. Rev. Stat. 1981, ch. 5, par. 1002), precludes petitioner from taking at least two of the parcels. We agree with the trial court that, although the statement of legislative intent contained in the Act displays a manifest desire to preserve agricultural land from unnecessary and ill-considered development, the Act does not create a barrier to eminent domain simply by virtue of the fact that the property sought is utilized for agricultural purposes. Condemnation of the tracts in the instant case was not, in our judgment, precluded by either the statute or the policy upon which it was founded.

Respondents’ final contention is that the court erred in restricting the examination of the aforementioned witnesses with regard to the “necessity” of the condemnations. In ruling on one of the objections, the trial court offered the following analysis:

“The question we are limited to here is whether the lands which are sought to be taken here are going to be put to a public use, and whether the land that is being taken is necessary for that public use as determined by the legislature and executive department, who is determined to take this property. *** The question then becomes whether *** the land that is being taken is necessary for that public use. And I think for the Court to consider a necessity, meaning whether it is necessary to go here or across a golf course, would open up all the ranges of discretionary determinations that are made by this branch of the government.”

The court’s remarks imply that the term “necessary,” and consequently the issue of whether the acquisitions are “necessary,” are subject to two meanings, one of which forms the basis of an inquiry which is properly before the court, and one of which is not. This is another way of stating that the term “necessary,” for purposes of condemnation proceedings, is subject to a definition other than that to which the term is subject in common discourse. This distinction was recognized implicitly by the Supreme Court of Illinois in Department of Public Works & Buildings v. Lewis (1952), 411 Ill. 242, 245-46, 103 N.E.2d 595:

“The word ‘necessary’ in statutes such as the [Eminent Domain Act] ‘should be construed to mean “expedient,” “reasonably convenient” or “useful to the public,” and cannot be limited to an absolute physical necessity.’ [Citations.] Conversely, the word ‘necessary’ does not mean ‘indispensable’ *** or ‘an absolute necessity.’ The general rule is that, where the right of eminent domain is granted, the necessity for its exercise, within constitutional restrictions, is not a judicial question, and its exercise is not a proper subject for judicial interference or control unless to prevent a clear abuse of such power. [Citations.] This Court *** in Smith v. Claussen Park and Levee Drainage District, 229 Ill. 155, 163, stated, ‘If the court finds that the use for which the property is to be taken is a public one, then the court will not inquire into the extent to which the property is necessary for such use unless it appears that the quantity of property taken is grossly in excess of the amount necessary for the use.’ ”

The question of whether a public taking is “necessary,” then, may be an inquiry directed to one of two fields of reference. It may, first, constitute an attempt to determine the veracity of that proposition of which the petitioner is obliged to make a prim a facie showing in the first instance — ie., that the purpose for which the land is sought is one of public convenience, and the acquisition, reasonable in scope, is an expedient means of accomplishing the purpose. It may, second, constitute an attempt to determine whether, given the legitimacy of the project, a given acquisition is ‘ ‘indispensable” — i e., the only means of accomplishing a purpose, the public convenience and reasonable scope of which are not at issue. According to the rule set forth in Lewis, the first question would fall within the scope of judicial inquiry and the second question would not. The resolution of the issue presented in the instant case thus depends on a determination of precisely what questions the witnesses were not allowed to answer.

The record reveals that respondents have no legitimate complaint with regard to the testimony of their own witnesses, John Keller and Gordon Gass. Both witnesses were permitted to express their personal opinions regarding the necessity of the proposed acquisitions insofar as the acquisitions would promote public convenience or utility. The problematical question asked of respondents’ witness Dale Klohr appears to have referred to “necessity” in the sense of public utility; however, contrary to the implications in respondents’ brief, Mr. Klohr was permitted to answer the question. The testimony of petitioner’s witnesses, Frank Brown and Laurel Berger, was not, in our judgment, unfairly limited. The questions regarding “necessity” asked of Mr. Brown, to which the court sustained objections, were directed to the possibility of alternate routes (“necessity” in the second sense), and not to the public utility of the project or the scope and expedience of the acquisitions. Petitioner’s objections were properly sustained. The question asked of Laurel Berger regarding the “necessity” of the highway project appears to have been directed to the issue of public utility. While petitioner’s objection to the question was sustained, Mr. Berger answered, prior to the objection, that he had no opinion on the matter. The court’s apparent error in sustaining the objection cannot, therefore, be viewed as prejudicial. The court also sustained petitioner’s objections to questions asked Frederick Bartelsmeyer. Mr. Bartelsmeyer was not allowed to state whether he participated in the decision as to whether the highway project was “necessary.” This question, again, appears directed to the issue of public utility, and Mr. Bartelsmeyer should have been allowed to answer. Nevertheless, we cannot view the trial court’s ruling as reversible error. The evidence before the court, including the opinions of the other witnesses, was sufficient to enable the court to make an informed decision on the issue of public convenience. It cannot be inferred from the record that the opinion of Mr. Bartelsmeyer was critical in this regard.

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

Affirmed.

KARNS and JONES, JJ., concur.


author: JUSTICE HARRISON JUSTICE HARRISON

text:
    JOHN S. ERVIN, Plaintiff, v. SEARS, ROEBUCK AND COMPANY et al., Defendants (Sears, Roebuck and Company, Defendant and Third-Party Plaintiff-Appellee, v. Flagg-Utica Corporation et al., Third-Party Defendants-Appellants).
    Fifth District
    No. 5—83—0447
    Opinion filed August 16, 1984.
    Supplemental opinion filed on denial of rehearing September 20, 1984.

      Pope and Driemeyer, of Belleville (Allan Goodloe, Jr., of counsel), for appellants.
    Carl W. Lee, of Gundlach, Lee, Eggmann, Boyle & Roesser, of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Flagg-Utica Corporation (Flagg) and American Mutual Liability-Insurance Company (American), third-party defendants, appeal from summary judgments entered by the circuit court of Madison County in favor of Sears, Roebuck and Company (Sears), third-party plaintiff, in the sum of $95,234.57, on Sears’ third-party complaint. For the reasons which follow, we affirm the summary judgment entered against American, and reverse and remand for further proceedings on Sears’ third-party complaint against Flagg.

The history of this litigation is lengthy. In 1961 and 1962, Flagg sold underwear to Sears. The record contains several purchase contracts between Sears and Flagg in connection with this enterprise; each order is signed by at least one representative from each party. The majority of these contracts contain the following language:

“Seller agrees to protect, defend, hold harmless and indemnify Purchaser from and against any and all liability and expense arising out of the alleged or claimed infringement of any patent, trademark or copyright by merchandise furnished hereunder and any and all liability and expense (including but not limited to that arising out of death or injury to person or damage to property, by whomsoever suffered) arising out of any alleged or claimed defect in such merchandise, whether latent or patent, including allegedly improper construction and design, or in the failure of said merchandise to comply with specifications or with any express or implied warranties of Seller or arising out of the alleged violation by such merchandise or in its manufacture or sale of any statute, ordinance or administrative order, rule or regulation. These agreements and obligations shall not be affected or limited in any way by Purchaser’s extending express or implied warranties to its customers, except to the extent that any Purchaser’s warranties extend beyond the scope of Seller’s warranties, express or implied, to Purchaser.
Seller agrees to obtain and maintain, at its expense, during the term of this Contract, a policy or policies of Products Liability Insurance, with Vendor’s Endorsement naming Purchaser, with amounts and in such companies and containing such other provisions which shall be satisfactory to Purchaser covering purchases of merchandise made hereunder. All such policies shall provide that the coverage thereunder shall not be terminated without at least ten days’ prior written notice to Purchaser.”

At least one of the contracts contained, in lieu of “from and against any and all liability and expense” in the first sentence, the phrase “from and against any and all claims, actions, liabilities, losses, costs and expenses.”

As required by these agreements, Flagg obtained a policy of products liability insurance with a vendor’s endorsement naming Sears. This policy was issued by American, and the vendor’s endorsement states, in pertinent part:

“IT IS AGREED THAT SUCH INSURANCE AS IS AFFORDED BY THE POLICY WITH RESPECT TO THE HANDLING OR USE OF OR THE EXISTENCE OF ANY CONDITION IN THE GOODS OR PRODUCTS MANUFACTURED, SOLD, HANDLED OR DISTRIBUTED BY THE NAMED INSURED, APPLIES TO ANY PERSON OR ORGANIZATION NAMED BELOW WITH RESPECT TO THE DISTRIBUTION OR SALE IN THE COURSE OF BUSINESS OF SUCH PERSON OR ORGANIZATION OF GOODS OR PRODUCTS MANUFACTURED, SOLD [,] HANDLED OR DISTRIBUTED BY THE NAMED INSURED [.]”

The policy itself contains the following provision:

“With respect to such insurance as is afforded by this policy, the company shall:
(a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seek damages on account thereof, even if such suit is groundless, false or fraudulent; that the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient.”

On June 30, 1963, John Ervin was severely burned while welding in a tunnel near Omaha, Nebraska. Ervin filed suit against Sears on December 11, 1964, alleging that he was burned while wearing thermal underwear purchased from Sears and containing a “Sears” label, and that his burns were caused when the underwear “burst into violent flames.” Following the filing of Ervin’s complaint, Sears tendered defense of the suit to Flagg and American, both of whom refused to defend.

In 1968, Sears filed a third-party complaint against Flagg, alleging that the underwear worn by Ervin at the time he was injured had been sold by Flagg to Sears. Sears sought judgment against Flagg “for such sums as may be adjudged against Sears, Roebuck and Company in favor of plaintiff John S. Ervin, and for all costs, expenses, and attorneys’ fees” incurred by Sears. On May 23, 1969, Flagg filed a motion for summary judgment as to the third-party complaint. Attached to the motion was the affidavit of a vice-president of Flagg; this affidavit indicated that the underwear sold by Flagg to Sears in 1961 and 1962 contained the word “Pilgrim” on its label, and not the word “Sears.”

In 1970, trial was held on the complaint filed by Ervin against Sears. During that trial, Dewey Ward, manager of the Sears store in Alton, Illinois, testified that the type of underwear carried in the Alton store during 1961 and 1962 came from Flagg. The jury subsequently returned a verdict in favor of Sears. While the trial court ordered a new trial, that order was reversed by this court, which directed the trial court to enter judgment on the jury’s verdict. (Ervin v. Sears, Roebuck & Co. (1976), 36 Ill. App. 3d 64, 68, 343 N.E.2d 220.) Our decision was affirmed by the Illinois supreme court. Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140, 357 N.E.2d 500.

On April 22, 1977, Sears was granted leave to amend its third-party complaint by adding two additional counts, one directed against American and one against Flagg. Count IV, the count directed against American, alleged that American, by virtue of its contract of insurance with Flagg and the vendor’s endorsement thereto, was obligated to defend Sears in the action brought by Ervin, and failed to do so. Count VI alleged that, under the terms of the purchase contracts entered into between Flagg and Sears, Flagg was also obligated to defend Sears, and did not do so.

On March 1, 1983, Sears filed a motion seeking summary judgment against Flagg and American. On June 1, 1983, following a hearing, the court entered summary judgment in favor of Sears and against both Flagg and American in the amount of $95,234.57. Of the amount awarded, $57,431.55 represents the total attorney fees and costs expended by Sears in defending the Ervin suit, while the remainder of the judgment represents prejudgment interest assessed on those fees and costs by the trial court. The trial court also denied the motion for summary judgment filed in 1969 by Flagg.

Before addressing the substantive issues presented by the trial court’s entry of summary judgment against Flagg and American, we must first consider two procedural arguments advanced by these defendants. First, American asserts that Sears’ action against it is barred by the 10-year statute of limitations applicable to contract actions. (Ill. Rev. Stat. 1977, ch. 83, par. 17, current version at Ill. Rev. Stat. 1983, ch. 110, par. 13—206.) While American points out that Sears tendered defense of the Ervin case to it and Flagg on June 17, 1965, and that American was not added as a defendant in Sears’ third-party action until April 21, 1977, we believe that Sears’ cause of action against American did not accrue when Sears first tendered defense of the Ervin suit. While there appears to be no case directly on point, those decisions involving enforcement by attorneys of their professional service contracts are instructive. In Matchett v. Rose (1976), 36 Ill. App. 3d 638, 647, 344 N.E.2d 770, the court held that “[A] cause of action for enforcement of an attorney’s professional services contract to conduct certain litigation accrues from the time the services contracted for have been performed by the ending of the action” or some other termination of the retainer. (Emphasis added.) The rationale for this rule was well expressed in a case decided by our supreme court long ago:

“No other case than this could be required to illustrate the propriety of this rule. Here was a suit pending in court for more than twelve years, during all of which time the defense was conducted by these solicitors, with great ability, and the most constant assiduity, requiring, at one time, an almost constant attendance before the master, for about nine months, in stating the accounts of a partnership involved in that suit. Did the statute of limitations commence running at the termination of each day, as to the services rendered on that day? Were the solicitors obliged to pause in their defense, within each period of five years, to commence a suit against their clients for the services already performed, or forfeit them? The very statement of the proposition shows how embarrassing, inappropriate, and indeed, impracticable, such a rule would be.” Walker v. Goodrich (1855), 16 Ill. 341, 343.

A careful consideration of the facts present in this case compels us to conclude that Sears’ cause of action against American likewise accrued only when Sears finished defending the Ervin suit in 1976, when the Illinois Supreme Court issued its opinion in that case. The thrust of Sears’ complaint against American is that Sears was forced to use its own attorneys and pay its own costs due to American’s wrongful refusal to defend, and we think the policy considerations underlying the Walker v. Goodrich rule apply with equal force here. As in Walker v. Goodrich, compelling Sears to bring suit while its defense of the Ervin case was still incomplete would be most impractical, given that Sears’ damages could not be calculated with any sense of finality, and that a contrary conclusion would encourage the piecemeal filing of claims condemned in Walker v. Goodrich. Accordingly, we conclude that the trial court properly found that Sears’ action against American is not barred by the statute of limitations.

Next, American and Flagg assert that the judgments against them are barred by the doctrine of res judicata. American and Flagg rely on the fact that, in Federal litigation between Sears and American involving these same facts, the Federal district judge denied a motion for summary judgment filed by Sears. The Federal litigation, however, was ultimately dismissed without prejudice by stipulation of the parties. A voluntary dismissal of a cause of action does not preclude the filing of a new action based on the same matters (Liddell v. Smith (1965), 65 Ill. App. 2d 352, 360, 213 N.E.2d 604), and American and Flagg’s reliance on the principles of res judicata in this case is therefore inappropriate.

Turning to the merits, we believe that the court properly entered summary judgment in favor of Sears and against American. As a general rule, the duty of an insurer to defend an action brought against the insured is determined solely from the allegations of the complaint. If the complaint alleges facts within or potentially within policy coverage, the insured is obliged to defend the action even if the allegations are groundless, false or fraudulent. (Thornton v. Paul (1978), 74 Ill. 2d 132, 144, 384 N.E.2d 335.) Where potential coverage exists and an insurer unjustifiably refuses to defend, the insurer is estopped, because of its breach of contract, from disputing any question of coverage in any later action against it on the policy. (Murphy v. Urso (1981), 88 Ill. 2d 444, 451, 430 N.E.2d 1079.) The wrongful failure of the insurer to defend an action exposes the insurer to liability for the cost and expense which the insured was put to by the insurer’s breach of the insurance contract, and this liability embraces reasonable attorney fees. Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388, 397, 442 N.E.2d 245.

Application of these principles to the case at bar mandates the conclusion that summary judgment was properly entered against American. While Sears did not purchase the policy in question from American, it is an “insured” under the terms of the vendor’s endorsement of that policy, which specifically indicates that “such insurance as is afforded by the policy” applies to the named vendor. Moreover, the allegations of Ervin’s complaint against Sears alleged facts within or potentially within policy coverage, as Ervin’s complaint alleged that Ervin had purchased thermal underwear from Sears during the time period in which Flagg was supplying that underwear to Sears. While it is asserted that the underwear in question may not have been made by Flagg, it is the allegations of the complaint, and not the results of independent investigation by the insurer, which determine the duty to defend. Indeed, the duty to defend is not annulled even when the insurer knows that the allegations of the complaint are untrue. (Thornton v. Paul (1978), 74 Ill. 2d 132, 144, 384 N.E.2d 335.) If American believed that the underwear in question had been made by someone else, it should have either defended the Ervin suit under a reservation of rights or sought a declaratory judgment that there was no coverage; having done neither, its claim that there was no coverage under the policy comes too late. (Murphy v. Urso (1981), 88 Ill. 2d 444, 451, 430 N.E.2d 1079.) Accordingly, the trial court correctly entered summary judgment for Sears and against American.

In support of its claim that summary judgment was properly entered against Flagg under the terms of the purchase contracts earlier quoted, Sears relies on the rules discussed above with respect to American. Unlike American, however, Flagg is not an insurance company. Sears does not point out, and our research does not disclose, the existence of any Illinois case in which the rules articulated in Thornton v. Paul and like cases have been applied to situations not involving questions of coverage under an insurance policy. While Sears urges that this factor is immaterial, we do not agree. The purchase contracts between Flagg and Sears, which include language indicating that Flagg agrees to “protect, hold harmless and indemnify” Sears “from and against any and all liability” in connection with the subject underwear, seem to be more akin to indemnity agreements than to insurance policies. This distinction is significant, since, unlike insurance policies, which are subject to a general rule of liberal construction in favor of the insured (Cook v. Suburban Casualty Co. (1964), 54 Ill. App. 2d 190, 203 N.E.2d 748), indemnity agreements are sufficiently disfavored that they must be strictly construed (Bates v. Select Lake City Theater Operating Co. (1979), 78 Ill. App. 3d 153, 155, 397 N.E.2d 75). While we recognize that the contract in question also obligated Flagg to defend Sears in suits involving Flagg’s products, we think the analogy to an indemnity contract is nonetheless more appropriate than the analogy to an insurance policy proposed by Sears. To hold here that the contracts between Flagg and Sears should be interpreted so broadly as to require Flagg to defend based merely on the allegations of the Ervin complaint would do violence to the rule of strict construction applied to contracts of this type, and we decline to do so. Simply stated, while the law expressly prohibits those in the business of insurance from refusing to defend based on what they have discovered from “looking behind” the subject complaint, no such restriction is imposed on a business which, as part of its agreement with a purchaser of its products, agrees to defend and/or indemnify that customer in suits involving those products. While no Illinois court has had occasion to consider the viability of this distinction, we think it to be a reasonable one. As noted by our supreme court long ago, an insurance company’s agreement to defend actions against the insured is one of the “fundamental obligation[s]” of the insurance contract (Kinnan v. Hurst Co. (1925), 317 Ill. 251, 257, 148 N.E. 12); in contrast, the agreement to defend and indemnify in a contract of the type between Flagg and Sears is incidental to the main purpose of the agreement; namely, the purchase and sale of a product. Given the unique position of an insurance company as a professional “seller” of protection against loss, and the fundamentally different role of the manufacturer of goods, we hold that it is not unreasonable to compel American to defend the suit based on the allegations of Ervin’s complaint, while allowing Flagg a greater degree of freedom to investigate those allegations for the purpose of determining what its contractual obligations to Sears in connection with the Ervin suit in fact are.

In light of our conclusion that Flagg was not obligated to defend Sears based solely upon the allegations of the Ervin complaint, and that Flagg was entitled to investigate the truth of those allegations, we must also conclude that there exists a question of fact as to whether Flagg breached its contract with Sears. Where in the construction of a contract a legal principle is not involved, but simply a determination as to whether facts offered in evidence come within the provisions of the contract legally construed, a factual question exists. (Tomasek v. City of Edwardsville (1913), 183 Ill. App. 493, 498.) Such is the case here with respect to Flagg. If Flagg made the underwear worn by Ervin, it breached its duty to defend Sears; if it did not make the underwear, it breached no duty. Notwithstanding the many years of litigation between these parties, we cannot say that this question has been answered. It was not at issue in the trial of Ervin’s complaint against Sears, and has never been decided in the third-party litigation. Accordingly, we reverse the summary judgment entered against Flagg, and remand for trial on the issue of whether Flagg manufactured the underwear worn by Ervin at the time he was burned.

Finally, it is contended that the court erred in assessing prejudgment interest. In view of our conclusion that summary judgment was improperly entered against Flagg, we need not address this issue with respect to Flagg at this time. With respect to American, the trial court acted properly. It has long been held that an insurance policy is an “instrument of writing” within the meaning of the statute authorizing prejudgment interest (Ill. Rev. Stat. 1983, ch. 17, par. 6402), and that interest may be recovered from the time money becomes due under the policy. (Central National Chicago Corp. v. Lumbermens Mutual Casualty Co. (1977), 45 Ill. App. 3d 401, 408, 359 N.E.2d 797.) While American asserts that its failure to pay the money ultimately found to be owed to Sears was not vexatious or unreasonable, the existence of a good-faith defense does not preclude recovery of interest. (45 Ill. App. 3d 401, 408.) Accordingly, the trial court properly awarded Sears prejudgment interest calculated from the dates on which costs and attorney fees were incurred by Sears in defense of the Ervin suit.

For the foregoing reasons, the summary judgment entered by the circuit court in favor of Sears and against American Mutual is affirmed. The summary judgment in favor of Sears and against Flagg-Utica is reversed, and this cause is remanded for further proceedings not inconsistent with this opinion.

Affirmed in part, reversed in part and remanded.

WELCH, P.J., and EARNS, J., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE HARRISON

delivered the opinion of the court:

In a petition for rehearing filed in this case, American contends that we erred in concluding that Sears’ cause of action against American was not barred by the statute of limitations. The insurance policy issued by American provided, however, that “no action shall lie against the company unless, as a condition precedent thereto *** the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.” Under these circumstances, where the policy clearly operated to prohibit the insured from bringing suit prior to the time that its financial obligations to a third party could be calculated, Sears’ cause of action against American did not accrue on the date that American refused to defend the Ervin suit (see Olipra v. Zambelli (1971), 1 Ill. App. 3d 607, 611, 274 N.E.2d 877); rather, it accrued no earlier than 1976, when Sears expended its final attorney fees and costs in connection with the Ervin suit. The instant case is thus distinguishable from Del Bianco v. American Motorists Insurance Co. (1979), 73 Ill. App. 3d 743, 392 N.E.2d 120, relied on by American, where the insurance policy under consideration contained no clause dictating the time at which a suit by the insured could be brought.

WELCH, P.J., and KAHNS, J., concur.


author: JUSTICE KARNS

text:
      In re MARRIAGE OF CANDACE JEAN DILLEY, Petitioner-Appellee, and KENNETH DALE DILLEY, Respondent-Appellant.
    Fifth District
    No. 5—83—0801
    Opinion filed September 18, 1984.

      Stephen J. Allison, of Gollings, Allison & Gollings, P.C., of Decatur, for appellant.
    No brief filed for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

Kenneth Dale Dilley appeals from an order of the circuit court of Shelby County denying his petition for modification of a judgment of dissolution of marriage and retaining custody of the parties’ two minor children in the mother, Candace Jean Dilley.

The absence of specific findings by the trial court makes review in the instant case most difficult. Candace has compounded the problem by failing to file an appellee’s brief. While we might for this latter reason reverse, we think the minors’ best interests require us to consider the case on its merits, so far as we can do so without the aid of a responsive brief. First Capital Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The marriage was dissolved in 1980 and custody of the minors, Bridget, then age 6, and Monyonna, then age 4, was awarded to the mother. In May 1983 the father filed the petition to modify, alleging material changes in circumstances affecting the minors’ health and welfare which would require a change in custody to him. The amended petition alleged that the mother was no longer a fit and proper person to have the care, custody and control of the minors in that, inter alia, she allegedly used controlled substances, namely, marijuana, amphetamines and opium; she engaged in sexual intercourse and related sex acts with numerous paramours at times when the minors were present; she allegedly cohabited with an alleged convicted child abuser; she allegedly left the minors in the care of a babysitter for prolonged periods strictly for her benefit to allow her to leave the home to use drugs and have sexual relations; and she allegedly allowed the minors to wander unattended and barefooted and improperly clothed outside in cold weather and rain. Additionally, the amended petition asserted that Kenneth was a fit and proper person to have the care, control, and custody of the minors in that he was remarried, had a stable home for them and did not engage in “excessive conduct such as Petitioner” which would be injurious to their welfare. Candace admitted having engaged in sexual relations with several paramours at the home and admitted cohabiting there with one of them but denied every other allegation.

A hearing on the amended petition was held in October and November 1983. Evidence adduced established that Kenneth remarried in 1980 and now resides with his wife, Crystal, and their son, age 2, in Ankeny, Iowa. Kenneth testified that when he filed the petition he was not intending to move to Iowa and decided to move only six weeks before the hearing. Crystal works as a food service assistant manager, and Kenneth was then unemployed and testified that he would look after Bridget and Monyonna if he was awarded custody. He testified that preliminary arrangements have been made in Iowa for the minors’ schooling.

Kenneth produced evidence of Candace’s possession, use, and one isolated sale of illicit drugs. Not all of the evidence is particularly credible, but it does tend to establish that she at one time was involved with marijuana and amphetamines (no evidence regarding opium) and their use within the home. Witnesses testified to observing marijuana plants growing in the children’s bedroom and several incidents of marijuana smoking in the children’s presence. Dennis Dilley, Kenneth’s brother, and Jack Lennert, Candace’s estranged husband, testified to observing pills and capsules in her home on different occasions. Lennert also testified that he observed devices in which marijuana could be smoked. A paper bag filled with eight smaller envelopes of pills was introduced into evidence after Candace surrendered possession of it following the first day of the hearing. She testified that it was kept in her dresser drawer and that the pills were prescribed by her doctor for her diet. Her doctor testified that he had dispensed to her several types of pills fitting the description of those in the paper bag. It was never firmly established that these pills were kept illegally. Candace testified that she no longer used marijuana or any other controlled substance without a prescription. She said she ceased illicit usage in May 1983 and that she was currently undergoing a drug treatment program.

The mother’s witnesses established that Kenneth used to grow marijuana and smoke marijuana regularly. Crystal Dilley, his current wife, testified that he smoked marijuana every day when she first married him and that she saw him smoke it in the presence of Bridget and Monyonna on occasions between 1980 and 1983. She testified, however, that his usage ceased eight months prior to the hearing.

Much of the testimony established frequent paramour visits to the mother’s home while the children were in the home but nothing established that sexual activity occurred in their presence. Candace testified that she always took measures to protect the children from observing sexual acts, such as closing and locking the bedroom door when she was engaged in such activity. Her expert witness, a clinical psychologist, testified that during an interview with the children they related that the only sexual activity they ever observed was embracing and short kisses. Nothing in the record substantiates the charge that Candace left her children in the care of a convicted child abuser. Also, there was no mention of instances of neglect or inadequate provision for the children, as originally charged in the father’s petition.

In fact, there was much testimony tending to establish that the children were adequately supervised, disciplined and provided for by the mother in spite of changing residence five times in three years. Bridget’s teacher and Monyonna’s teacher both had kind words to say about the children. Bridget was described as a very conscientious student who always has her homework done. She was described as a leader among the children in the classroom and interacts excellently with them. Monyonna was described as a very sweet little girl who tried very hard to complete her schoolwork. Both children are in special learning disability programs at their school. They testified that each child came to school appropriately attired and that each had adequate school supplies and often brought her own lunch even though they were on the free lunch program at school. The mother’s minister testified that the mother brought the children to church whenever she could. Candace’s babysitter testified that she looked after the children while the mother was at work and that she would take them to school and pick them up each day. Candace testified that the home is adequately furnished, that she moved so that the children could have a home of their own and so the children could attend a special school for their learning disabilities, and that she changed jobs so that she could spend more time with them. Jack Lennert testified that his estranged wife’s current home is neat and clean.

Dr. Jerry L. Boyd, a clinical pyschologist, testified on behalf of the mother. He observed Candace and the children in his office, where he conducted diagnostic interviews and administered projective and objective psychological tests. He testified that Candace is very family-oriented and has a strong sense of her role as a mother.' He testified that she has a strong sense of attachment in caring for her children and that she takes those responsibilities most seriously and tries to be the best mother she can be. He described a favorable history of child management and concern for environment, discipline and parental responsibility as a role model. He noted that the children were well behaved and mannered. Dr. Boyd testified that he observed no outward signs of debilitating substance abuse. In his opinion Candace is a fit parent. Dr. Boyd was not significantly impeached on these matters but did admit that the children could be adversely affected by observing their mother’s role as a promiscuous person even if they never actually observed sexual activity.

The trial court found that Kenneth failed to prove by clear and convincing evidence that the best interests of the minors required removal of the mother as custodian and found that their best interests would not be served by modifying custody in favor of him or anyone else. The court found that “this is not a situation where the Court may say that the petition fails and case is closed.” “I believe instead this is a case where the Court would be remiss if there was not some form of judicial supervision invoked. ***[W]hat I am going to do is direct that the Department of Children and Family Services investigate this matter and provide the Court with a report over the next several months of the present ability of the mother *** to provide for the safe physical and emotional environment of the children. *** Upon the receipt of that report, I will then determine whether or not the further supervision is required or whether or not supervision should be terminated.”

Kenneth has alleged three errors. We find that only one of them deserves consideration: whether the judgment is against the manifest weight of the evidence. His alleged error regarding the court’s sustaining objections to Candace’s and Grace Anderson’s assertion of the privilege against self-incrimination in refusing to testify to whether each observed the other using drugs has no merit. Even if it were error, such testimony would have been cumulative and of no substantial import. Kenneth’s alleged error regarding the court’s refusal to allow certain evidence regarding Candace’s treatment at a drug counseling center is similarly without merit. The record indicates that the reason such evidence was offered would have provided nothing more than what was elicited from Candace herself. The court exercised its discretion in accordance with section 10 of the Mental Health and Development Disabilities Confidentiality Act (Ill. Rev. Stat. 1983, ch. 911/2, par. 810), and we cannot say that this discretion was abused.

Kenneth relies solely on Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 400 N.E.2d 421. He also makes a passing reference to Nye v. Nye (1952), 411 Ill. 408, 105 N.E.2d 300, by way of quoting a passage from Jarrett wherein the supreme court cited the holding in Nye that past moral indiscretions of a parent are not sufficient grounds for denying custody if the parent’s conduct establishes the improbability of such lapses in the future. The supreme court in Jarrett stated, “This rule focuses the trial court’s attention on the moral values which the parent is actually demonstrating to the children.” (Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 347, 400 N.E.2d 421, 424.) We are unsure whether he cites this as a proposition to support his case or to discredit the mother’s. Presumably, though it is not argued, Kenneth would have us assume that Candace’s sexual indiscretions have persisted to the date of the hearing and will thereafter continue. Presumably, he would also have us believe that his illicit drug use has ceased.

Specifically, he argues that her past sexual promiscuity with as many as 11 paramours and her past cohabitation with an indefinitely described number of them, but at least one, “if not presently having been aware to the children, would have been inferred or relayed to the children in some other manner through statements of the mother or persons living with the mother from time to time.” We take this to mean that the children are allegedly adversely affected by exposure to the repeated visits of the several paramours. Kenneth contends that a comparison of the instant case to Jarrett overwhelmingly indicates that the trial court made its decision against the manifest weight of the evidence.

Section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 610) is applicable to petitions for modification of custody. “[T]he court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, *** and that the modification is necessary to serve the best interest of the child.” The record before us establishes clearly and convincingly that a change has occurred in the circumstances of the custodial parent which would permit modification. The mother’s immoral and illegal activities are not only inimical to her good health, but they also bespeak of an atmosphere in the home conducive to the potential harmful effects to the children that should be avoided, as the court in Jarrett found. (Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 349, 400 N.E.2d 421, 425.) The children may indeed be affected adversely by exposure to this type of environment in spite of the otherwise adequate parenting exhibited by the mother. It is not difficult to imagine past and future harm to the children whose role model, teacher, and disciplinarian is openly and notoriously engaging in such activities with apparent impunity.

With this said, we remain uncertain about the children’s best interests. While there is ample evidence of a change in circumstances that would permit modification, we are not clearly convinced that the evidence establishes that a modification awarding custody to the father is necessary to serve those best interests. The psychologist’s testimony is entitled to great weight. We think it is also significant that there is no adverse evidence regarding the health, welfare and safety of the children while in the current care and custody of their mother. They seem to be well provided for. They are enrolled in special schools. They are taken to church. They have a babysitter watch them when the mother is not there. The home is neat and clean. In short, there is nothing in this record suggesting that Candace is not otherwise a good mother and fit parent.

On the other hand, the only evidence regarding the father’s fitness is essentially that he lives in Iowa with his wife and baby. We have no idea what has happened since November 1983: whether he is now employed, whether they acquired suitable housing, whether preparations have been made for the children’s special education needs, whether, in general, it would be in the children’s best interests for the father to have custody. Because the mother may be characterized as perhaps not the best person to have custody does not necessarily mean that the father is. Indeed, counsel at oral argument conceded that neither parent might be a better custodian than the other, noting that home studies by the Department of Children and Family Services have not been completed.

We cannot on this record hold that the best interests of the children would necessarily be served by allowing them to go to live with their father in Iowa. In this regard, we think the trial court did not err in denying, without prejudice, the petition. The trial court concluded that this is not an open-and-shut case. We agree. Home studies should be made for both the current household and the proposed household.

In accordance with the views expressed herein, the judgment of the circuit court of Shelby County denying the petition for modification of custody is affirmed. The cause is remanded for proceedings consistent herewith.

Affirmed and remanded.

WELCH, P.J., and HARRISON, J., concur.


author: PRESIDING JUSTICE ALLOY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES WHITSON, Defendant-Appellant.
    Third District
    No. 3—83—0098
    Opinion filed June 14, 1984.
    Modified on denial of rehearing August 2, 1984.

      Robert Agostinelli and Gary Hicks, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

On February 2, 1980, the defendant, Charles Whitson, was charged by indictment in the circuit court of Will County with four counts each of violation of enforcement of discipline, forcible detention, intimidation, unlawful restraint and armed violence. (Ill. Rev. Stat. 1979, ch. 38, pars. 1003-6-4(a), 10-4(a)(2), 12-6(a)(6), 10-3(a), 33A — 2.) Twelve other persons were named as defendants in the same indictment. The four counts charging intimidation were dismissed prior to trial. Following a bench trial, the defendant was convicted of four counts of unlawful restraint and sentenced to four concurrent extended terms of six years of imprisonment to be served consecutive to the term he was already serving.

The facts giving rise to these charges have been set out clearly and at length in the briefs filed before this court and will, therefore, not be reiterated here except as they directly relate to a particular issue.

We turn now to the first issue raised by the defendant: whether the court erred in requiring him to remain in shackles during the pretrial proceedings. With respect to this issue, the defendant argues that the court required him to remain shackled not because of a concern for safety but because the Department of Corrections would have withdrawn its supervisory personnel had the defendant been freed from all restraint.

To this argument of the defendant, the State responds, first, that the defendant waived the issue by failing to object, by objecting on different grounds at trial, and by failing to include the issue in his post-trial motion. Alternatively, the State argues that the shackling was proper and within the discretion of the trial judge. Finally, the State argues that, should the shackling of the defendant during pretrial proceedings be determined to be improper, the error was a harmless one.

Preliminarily, we note that the defendant was barred from most of the pretrial proceedings because of the prior misconduct of the co-defendants as a group. We also note that the incident out of which the charges arose involved the takeover of the orientation unit of the Stateville Correctional Center by the defendant and his codefendants, who were at the time all residents of the maximum security confinement unit and death row unit at Stateville.

Second, we note that although this defendant, Charles Whitson, did not object to the shackling on the grounds now raised, namely that it interferes with his ability to communicate with counsel, affronts the dignity of the court, and allows the Department of Corrections to usurp the judicial function, nonetheless, he did object. In view of the inherent complexity of a trial of this type, involving 13 defendants, we believe that the objection was sufficiently made.

The objection was not, however, renewed in the post-trial motion of the defendant. The State had pointed out, and we agree, that the failure of the defendant to include an alleged error in a post-trial motion waives the error (People v. Armstrong (1983), 111 Ill. App. 3d 471, 444 N.E.2d 276, 281-82); however, we find this question to be sufficiently significant that we elect to consider it under the doctrine of plain error. 87 Ill. 2d R. 615.

We are, therefore, confronted with the question of whether the court’s decision that the defendant remain shackled in the courtroom during those pretrial proceedings at which he was present was an abuse of discretion. We believe that it was not.

In People v. Boose (1977), 66 Ill. 2d 261, 268, 362 N.E.2d 303, 306, our supreme court adopted the position that a trial judge may not employ a general policy of imposing restraints on defendants who are prison inmates charged with a new offense absent a showing of necessity in the record. Boose involved a defendant who was required to appear shackled before a jury at his competency hearing; the only reason given by the court for the restraint was the nature of the crime with which he was charged.

In Boose, the court enumerated factors which might properly be considered by the trial judge in deciding that a defendant must remain shackled. Among these factors are: (1) the seriousness of the charge; (2) the defendant’s physical, mental and emotional temperament and character; (3) the defendant’s prior record; (4) past or present attempted escapes; (5) threat of harming others or of causing a disturbance; (6) risk of mob violence or attempting revenge or rescue; (7) the observers in the courtroom; (8) the nature and physical security of the courtroom; and (9) the adequacy and availability of alternative remedies. People v. Boose (1977), 66 Ill. 2d 261, 266-67, 362 N.E.2d 303, 305-06.

In the instant case, the pretrial proceedings began on February 19, 1980, and continued until jury selection had begun on October 26, 1982. On July 16, 1981, the court decided to hear the pretrial motions without the defendants present unless testimony was required. According to the court, this measure was necessary for security reasons, tear gas having been required the last time that all defendants were present in the courtroom. This procedure was modified on August 11, 1981, to allow individual defendants to be present during the arguments of their attorneys. However, the court required the defendants to remain shackled while they were in the courtroom during the pretrial proceedings.

On appeal, the defendant now argues that the trial judge allowed the Department of Corrections to usurp his authority regarding the determination as to the necessity for shackles in the courtroom. The argument of the defendant is based on the fact that a letter from the Director of the Department of Corrections was read into the record during the pretrial proceedings. In that letter, the Director^ indicated that “[i]n the event that it is ordered that the restraints be removed, the Department of Corrections would regretfully be compelled to decline to provide further courtroom supervision of the individuals” based upon “*** the security needs of these particular inmates and their past behavior in court during these proceedings.” The defendant argues that the court did not believe that the shackling was necessary but only yielded to pressure from the Department of Corrections. We disagree.

Although we agree with the defendant that shackling in the courtroom is to be avoided whenever possible, we nonetheless recognize that, under certain circumstances, restraints are essential. (In re Star ley (1977), 67 Ill. 2d 33, 37-38, 364 N.E.2d 72, 73-74.) In the instant case, although the trial judge at one point did indicate that he did not fear for his own personal safety, nonetheless he consistently expressed concern regarding the need to maintain courtroom security. In this context he specifically indicated that the Will County Sheriff’s Department was unable to provide sufficient security; it was, therefore, necessary that Department of Corrections personnel do so.

We are not here to judge the wisdom of the Department of Corrections’ position, and we will not fault the court for maintaining security in the courtroom. It is abundantly clear from a review of the record as a whole that the court considered at length whether it was necessary to continue the defendant’s restraints in order to maintain adequate courtroom security and concluded that it was.

Further, although the defendant invites us to make no distinction between the trial, whether by the court or by jury, and the pretrial proceedings, we decline to do so. In fact, the defendant was not shackled during his trial, the courtroom security considerations apparently having been resolved. Additionally, the defendant is unable to suggest any actual prejudice occurring to him as a result of his shackling during pretrial proceedings. In Boose, the supreme court identified three reasons to avoid shackling, where possible, at trial: (1) a tendency to prejudice the jury; (2) a restriction on the defendant’s ability to assist counsel; (3) an affront to the dignity of the judicial process. (People v. Boose (1977), 66 Ill. 2d 261, 265, 362 N.E.2d 303, 305.) In the instant case, during the pretrial proceedings, the court expressly ruled that it was not necessary for the defendants to be unshackled to take notes and that the dignity of the court was not offended. There was no jury.

Finally, we find this case to be similar to People v. Wilkes (1982), 108 Ill. App. 3d 460, 438 N.E.2d 1385, in which the shackling of the defendant during his jury trial was upheld because he had previously attempted to escape while unshackled. In that case, the court observed that although the trial judge had articulated only one reason for the shackling, there was no indication that he was unaware of the others set forth in Boose. In the instant case, the defendant and his codefendants had previously demonstrated that they were disruptive in the courtroom. The court was faced with a realistic need for security in the courtroom during pretrial proceedings and was faced with an absence of reasonable alternatives.

We turn now to the second issue raised by the defendant, namely, whether the court erred in refusing to consider the defense of necessity. In connection with this issue, the defendant argues that because there was some evidence to support the necessity defense, it was error for the court to refuse to consider it. Moreover, the defendant maintains that the court did not understand the law. In response, the State maintains that the trial judge properly refused to consider the necessity defense because the facts put forth by the defendant did not demonstrate that he was in imminent danger of bodily harm.

Conduct falls within the statutory definition of necessity “*** if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.” (Ill. Rev. Stat. 1979, ch. 38, par. 7—13.) In the instant case, the defendant relies on People v. Unger (1977), 66 Ill. 2d 333, 362 N.E.2d 319, to support his position. In Unger, the defendant, a resident at an honor farm, had been sexually assaulted by three inmates and received death threats as a result of having reported the assault to prison authorities. The defendant, charged with the crime of escape, said that he left the honor farm to save his life and planned to return after he had obtained help. In Unger, the court found the trial judge’s refusal to instruct the jury on the defense of necessity to be error.

The defense of necessity may be described as involving a choice between two admitted evils. (People v. Krizka (1980), 92 Ill. App. 3d 288, 290, 416 N.E.2d 36, 37.) In People v. White (1979), 78 Ill. App. 3d 979, 981, 397 N.E.2d 1246, 1247, the defendant, an inmate at a community correctional center, failed to return to that center after an authorized absence because a friend had told him that his wife had been raped and his daughter beaten. In White, the court determined that it was proper for the trial judge to refuse to allow the defendant to testify as to his reasons for escape because the facts presented more than a choice between two evil courses; rather, the correctional center had a procedure for emergency leave which was not utilized by the defendant. In White, the presence of another alternative which would cause less harm, besides the two evil choices, meant that the defendant was not justified in breaking the law.

In the instant case, the facts which, according to the defendant, support the defense of necessity were the deplorable conditions which the prisoners had previously complained of, including bugs and vermin, broken windows, cold food, lack of access to the law library, and yard time and showers only once a week. According to the defendant, in order to place their plight before the warden, the inmates took over the unit on September 23, 1979, holding the guards captive, and made reasonable demands. The defendant argues that, given the gravity of the complaints, the court could have concluded that the takeover was necessary in order to avoid greater injury than the offense could reasonably be expected to cause.

The State responds that the facts in the instant case crucially differ from those in Unger because defendant Whitson was not in imminent danger of bodily harm and because the defendant had not demonstrated that he had exhausted all the available legal alternatives. Additionally, the State points out that the defendant’s presence on a unit which provided fewer privileges than those provided to the general prison population was a result of the defendant’s prior conduct and, thus, he was not without blame as to his present situation. Finally, the State argues that the defendant’s conduct, participating in the inmate takeover of the unit, could well have resulted in greater injury than that which he was seeking to avoid, since the defendants were armed with homemade weapons.

We agree with the State on all counts and find that the trial court correctly refused to find that the defendant’s actions fell within the defense of necessity.

In addition to the two issues raised by the defendant with respect to his trial, the defendant also raises four issues regarding his sentencing. The first two sentencing issues raised by the defendant are: whether the trial court abused its discretion in denying his motion for discovery and for a continuance at his sentencing hearing and whether the trial judge considered improper evidence in sentencing the defendant to a maximum extended term of six years.

The parties agree that these identical issues were raised and decided by this court in People v. Whitson (1984), 120 Ill. App. 3d __. (Rule 23 order), which was a joint sentencing hearing with the one presently in question. In that case, this court affirmed the defendant’s conviction but reversed and remanded the cause for a new sentencing hearing, ruling that the court’s denial of the defendant’s motion for a continuance constituted an abuse of discretion which denied the defendant a due opportunity for confrontation and cross-examination.

In that case, this court did not address the question of whether the trial court considered improper evidence in sentencing the defendant but denied the defendant’s request that the cause be remanded for a new sentencing hearing before a different judge, presuming instead that the same trial judge will disregard all evidence except that which is competent and relevant to his determination on resentencing. See People v. Skidmore (1978), 56 Ill. App. 3d 862, 372 N.E.2d 723, cert, denied (1978), 439 U.S. 912, 58 L. Ed. 2d 258, 99 S. Ct. 282.

Finally, in this appeal, the defendant raises two additional issues pertaining to his sentence. First, the defendant contends that his sentence was impermissibly disparate from the sentences received by his codefendants because the aggravating factor used to justify his extended term also applied to his codefendants; however, he was the only one to receive an extended term. Specifically, the defendant points out that each of the five defendants who were tried together had been convicted of one or more felonies of a class greater than unlawful restraint within the preceding 10 years excluding time spent in custody. Second, the defendant contends that the trial court erred in imposing extended terms of imprisonment for his convictions for unlawful restraint because those offenses were not the most serious of which he was convicted.

We decline to address the disparate sentencing question because we remand for a new sentencing hearing and resentencing. We deem it appropriate, however, to consider the defendant’s charge that his extended term for his unlawful restraint convictions were improper because unlawful restraint was not the most serious offense of which he was convicted and therefore these extended terms are in contravention of the applicable statutory provision. (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—2(a).) According to the defendant, because he was convicted of a more serious offense, aggravated battery, at his other trial, for which he received an extended term of 10 years, he could not properly be sentenced to an extended term in the instant case.

Although we note that a consolidated appeal pertaining to this statutory language is now pending before our supreme court (People v. Jordan, (1984), 103 Ill. 2d 192), we do not find the question to be decided there to be determinative here. Instead, we agree with the State’s argument that the fact that this defendant had a separate trial resulting in separate convictions arising out of distinct factual situations renders the statutory directive that a defendant may be sentenced to an extended term only for the “most serious” offense to be inapplicable here. There merely happened to be a joint sentencing hearing.

Accordingly, for all of the reasons stated above, the unlawful-restraint convictions of the defendant are hereby affirmed and the cause is reversed and remanded for a new sentencing hearing.

Affirmed in part, reversed in part, and remanded.

STOUDER and SCOTT, JJ., concur.