author: JUSTICE JOHNSON

text:
    CHICAGO TITLE AND TRUST COMPANY, Trustee, et al., Plaintiffs-Appellees, v. THE COUNTY OF COOK, Defendant-Appellee—(The Village of Northbrook, Counterplaintiff-Appellant, v. The County of Cook, et al., Counterdefendants and Third-Party Defendants-Appellees).
    First District (4th Division)
    No. 82—2001
    Opinion filed December 15, 1983.

      Ross & Hardies, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Jane C. Casey and Matthew M. Klein, Assistant State’s Attorneys, of counsel), for appellees County of Cook, William F. Harris, Lena Bruno, and Sidney R. Olsen.
    Thomas R. Burney and Jerome S. Schain, both of Schain, Burney and Kenny, and N. A. Giambalvo, of Boodwell, Sears, Sugrue, Giambalvo and Crowley, both of Chicago, for appellee American National Bank and Trust Co.
   JUSTICE JOHNSON

delivered the opinion of the court:

This appeal arises from litigation challenging the rezoning of a parcel of land located in an unincorporated area of Cook County. The dispute has a lengthy history which involves hearings before the Cook County Zoning Board of Appeals (Zoning Board), the circuit court of Cook County (the County), and an interlocutory appeal to this court in an earlier matter.

The issues raised on appeal are (1) whether the trial court’s finding of validity of the rezoning ordinance is supported by the evidence; (2) whether the village of Riverwoods submitted a valid protest against the rezoning; (3) whether the doctrine of res judicata bars the trial court’s ruling upholding the rezoning and special use; and (4) whether the rezoning and special use constitutes illegal contract and spot zoning.

We affirm.

In its most basic sense, this action is brought by the Village of Northbrook (the Village) to prevent a four-acre tract in an unincorporated area of Cook County, near Lake-Cook Road and Sanders Road, from being developed with a two-story office building.

After denying four earlier petitions for rezoning the subject property, the Cook County Board of Commissioners (County Board) adopted an amendatory zoning ordinance and special use to permit the construction of a two-story office building as of January 22, 1981. The rezoning of the subject property was challenged by the Village in a six-count countercomplaint filed in the chancery division of the circuit court of Cook County following the County Board’s approval of the property owner’s request for rezoning. The history of this litigation is lengthy and the facts are voluminous. Those facts pertinent to the resolution of this appeal are, here, summarized.

Chicago Title and Trust held legal title to the subject property as trustee. During the period since the original petition for rezoning was filed in 1971, title has been transferred to American National Bank and Trust Company which now holds legal title. Chicago Title and Trust Company no longer has any interest in the litigation. The beneficial interest owner of the property, Joseph Judah, is not a named party to this action.

In 1971, Chicago Title and Trust Company, as Trustee, petitioned the County Board to rezone the property from an R-3 residential district to a B-4 business district. That petition was denied. Chicago Title and Trust Company filed suit in the chancery division of the circuit court of Cook County challenging the County Board’s denial of its petition. (Chicago Title & Trust Co. v. County of Cook, 72 CH 4519.) That complaint was dismissed with prejudice on December 16, 1974.

In 1975, the property owner again petitioned for rezoning from single-family residential to a commercial district. The County Board denied the petition. However, the area was reclassified as an R-4 residential district. That classification was in effect the same as the previous R-3 classification which permitted only single-family use.

In 1976, the property owner again petitioned for rezoning from R-4 (single-family residential) to C-4 (general commercial). Once again the petition was denied. The instant court action was instituted by the Chicago Title and Trust Company against Cook County, following the denial of the 1976 petition for rezoning. The Village of Northbrook was granted leave to intervene as a defendant.

The Village filed a motion to dismiss the Chicago Title and Trust Company’s complaint on the ground that the dismissal with prejudice in 1974 of the 1972 suit invoked the doctrine of res judicata, thus barring the present suit. The Village’s motion was denied.

An interlocutory appeal was brought by the Village and, on September 6, 1978, this court remanded the cause to the trial court and issued an order which stated in pertinent part:

“(2) The order appealed from is reversed insofar as it denies the motion of intervenor-appellant to dismiss plaintiff’s complaint on the ground of res judicata. This court holds that the dismissal of plaintiff’s complaint with prejudice constitutes a legal bar to further proceedings, subject, however, to the qualification expressed in paragraph (3) here of.
(3) The cause is remanded to the circuit court with directions that a limited hearing be held to determine whether there has been any change in the circumstances of the parties hereto or of the subject property since December 16, 1974, (date of dismissal with prejudice of the previous complaint filed by plaintiff-appellee during 1972), which would in law authorize plaintiff to proceed with the litigation, and then to enter appropriate orders on the resulting finding.”

Following this remand to the trial court, legal title was transferred from Chicago Title and Trust Company to American National Bank and Trust Company.

In 1980, the property owner sought and was allowed to file an amended complaint. The amendment limited the request for relief to seeking only those office uses that are normally permitted in a C-4 zoning district. The Village then filed a motion to strike the property owner’s amended complaint. Both motions were continued generally by the trial court until the property owner had exhausted administrative remedies.

During the period in which the cause was pending in the trial court, the property owner submitted a new application to the County Board. The application sought a change from the R-4 single-family designation to C-4 commercial designation.

The property owner’s application was approved and the County Board rezoned the property to a C-4 commercial area with a special use provision allowing for the construction of an office building. There were certain specifications for the type of building to be constructed, the landscaping and development of its environs.

The Village then filed its countercomplaint in the pending suit (1976 action) challenging the rezoning and special use. This counter-complaint necessarily caused the parties to shift their legal positions. The Village and the County now found themselves to be adversaries. The County and the legal titleholder (counterdefendants) now jointly opposed the Village. Count I of the countercomplaint charged that because the village of Riverwoods had filed a valid protest against the rezoning, the Cook County Zoning Ordinance mandates that a favorable vote by three-fourths of all members of the Board of Commissioners was necessary for adoption of the rezoning and special use ordinance. Count II of the countercomplaint charged that in reviewing whether the rezoning was reasonable, the doctrine of res judicata limited the trial court’s review of the rezoning to whether the circumstances of the surrounding property had changed during the time since the initial petition for rezoning was filed in 1974.

Count III of the countercomplaint charged that the rezoning ordinance was invalid because the Zoning Board did not submit its findings of facts and recommendations to the County Board within 90 days after the public hearings. The trial court’s order with respect to count III of the countercomplaint is not being appealed by the Village.

Count IV of the countercomplaint charged that the rezoning and special use amounted to illegal contract zoning. Count V of the coun-tercomplaint charged that the rezoning and special use was not reasonably related to the public health, safety and welfare. Count VI of the countercomplaint challenged the County’s authority to issue a building permit for the proposed development. The trial court held that count VI was not yet ripe for adjudication. A trial was held on the remaining counts of the Village’s countercomplaint.

At trial it was established that following a public hearing on the proposed rezoning, the village of Riverwoods filed a resolution with the Zoning Board protesting the rezoning and special use. This protest was mailed to the following: the secretary of the Zoning Board, Joseph Judah (owner of the beneficial interest in the property), Mr. Judah’s attorney, the president of the County Board, the attorney for the Village of Northbrook, the village manager of Deerfield, the village manager of Northbrook, and at least one other attorney. The protest was mailed within 30 days following the close of the public hearings. However, the Zoning Board noted that it was not received within 30 days after the hearings.

The owner of the property proposed to develop a two-story office building of approximately 44,000 square feet. The proposal included privately maintained sewer and water systems. A large portion of the subject property would be paved. The County Board gave its approval of the development plans.

Wilton Battles, a city planning and zoning consultant, testified for the Village that single-family residential use was the character of the area and that such was the best use for the area. Mr. Battles also stated that on the south side of Lake-Cook Road there was a trend toward office and research development. However, he felt that the tollway acted as a natural buffer separating the two areas.

Steven Lenet, a city planning and zoning expert, testified on behalf of the property owner and the other counterdefendants. His opinion was that the best use for the property would be development of a professional office building. It was his opinion that residential use of the property would be unreasonable.

Gregory Opelka, a professional real estate appraiser, appraised the value of the property on behalf of the Village at $90,000 per acre for commercial use and $41,000 per acre for residential use. Terrence O’Brien, also a professional real estate appraiser, testified for the counterdefendants that the property was valued at $125,000 per acre for commercial use and $35,000 per acre for residential use. Four homeowners from the surrounding area testified that the proposed commercial development would decrease their property value.

There was also testimony that the traffic on Lake-Cook Road had increased from a daily count of 15,000 vehicles in 1975 to 21,400 in 1981. The owner of the beneficial interest in the property testified that the housing market made it unprofitable to develop single-family homes. He also stated that he sought the zoning changes without the authorization of the trustee.

The vice-president and manager of the land trust division of American National Bank testified that the bank does not authorize specific actions of this type with respect to property for which the bank is trustee. Neither does the bank expect to be given reports by the beneficial interest owner regarding zoning actions.

At the conclusion of the trial, the court ruled in favor of the coun-terdefendants on all counts. The pertinent parts of the court’s findings are as follows:

“B. As to all matters arising under Count I, II, III, and IV of the Counter-complaint including all allegations concerning the procedural aspects of the County’s decision approving the amendatory zoning ordinance and the special use *** the counter-defendants are entitled to judgment on such Counts on the basis of the pleadings, the testimony and the evidence adduced at trial and on the basis of applicable law.
C. The protest filed by the Village of Riverwoods was properly held invalid by the Cook County Board of Commissioners for the reasons that it was not properly circulated to all parties represented by counsel as required by paragraph 13.15 of the Zoning Ordinance and it reached the Secretary of the Zoning Board of Appeals after the expiration of the thirty (30) day deadline for submitting said protest as required by paragraphs 13.96(2) and 13.15 of the Zoning Ordinance.
D. Neither the doctrines of res judicata, collateral estoppel or the law of the case barred the Cook County Board from acting upon and approving the challenged amendatory zoning ordinance and special use. Notwithstanding, the evidence establishes that there is no identity of parties in this case and the former case. For that reason the doctrine of res judicata and collateral estoppel do not apply.
E. The Cook County Zoning Ordinance does not provide that an amendment or special use are invalid if the Zoning Board of Appeals files its protest later than ninety days after the close of the public hearing.
F. The County Board’s action here in approving an amendment and a special use which limits the use of the property to certain uses in the C-4 General Commercial District is not illegal contract zoning.
* * *
J. The County Board’s decision is supported by adequate findings; its findings are supported by the manifest weight of the evidence, the County Board otherwise proceeded according to Law. The County Board’s decision should be affirmed and the relief requested by the Counter-plaintiff should be denied.
K. Counter-plaintiff’s evidence failed to overcome the presumption of validity that the Court must accord to a decision of the Cook County Board of Commissioners when considered with the evidence presented by the counter-defendants. Accordingly the court finds that the C-4 amendatory zoning ordinance and the special use is compatible with and beneficial to the surrounding area and that the existing land uses and zonings in the area favor the proposed development.
L. Counter-plaintiff’s evidence failed to establish that the amendatory zoning ordinance and special use would cause substantial depreciation of nearby property. The Court finds after considering the evidence presented and the credibility of the witnesses that the C-4 special use would have no discernible effect on nearby property values, including residential property values.
M. Counter-plaintiff’s evidence failed to establish that the amendatory zoning ordinance and special use would not result in a gain to the public and that the property is unsuitable for the C-4 special use. The Court finds based on the evidence presented that the C-4 special use will result in a gain to the public including the provision of additional services, the generation of more jobs and more real estate taxes.
N. The evidence establishes that the hardship is greater to the property owner from restricting the use of the property to residential uses than the benefit to the public from such a restriction.
O. The location of the subject property at two heavily trav-elled intersections, the trend of development in the area and the length of time the development in the area took place make the property more suitable for the approved use than for single-family use.
P. For the reasons stated in paragraphs I-P, counter-plaintiff failed to establish that the County Board’s decision bears no relationship to the public health, safety and welfare. Based on the evidence presented by the parties, the Court concludes that the C-4 Special Use bears a reasonable relationship to the public health, safety and welfare and provides for the highest and best use of the subject property.”

The Village contends that the County acted unreasonably and arbitrarily in authorizing the C-4 zoning for commercial development. Further, the property is best suited for residential use, and commercial development would result in a reduction in value of the surrounding residential property. The County action in rezoning the area is unsupported by any evidence of a change in the character of the area or a trend toward commercial development. Therefore, the trial court’s ruling is against the manifest weight of the evidence. We disagree.

In an action to prevent the enforcement of a zoning ordinance, the moving party has the burden of proving by clear and convincing evidence that the application of the ordinance is arbitrary and unreasonable and has no relation to the public health, safety and welfare. (Aurora National Bank v. City of Aurora (1976), 41 Ill. App. 3d 239, 244, 353 N.E.2d 61, 65.) A presumption of validity always attaches to a zoning ordinance. 41 Ill. App. 3d 239, 244.

Illinois courts have enumerated a number of factors to be considered in determining the validity of zoning ordinances. Included among these are: the extent to which the property values are affected by the particular classifications; the extent to which destruction of the value of the subject property promotes the health, safety, morals or general welfare of the public; the relative gain to the public as compared to the hardship imposed on the individual property owner; and the length of time the property has been vacant as previously zoned considered in the context of land development in the area. La Salle National Bank v. City of Chicago (1977), 54 Ill. App. 3d 944, 949-50, 369 N.E.2d 1363,1367.

The courts have also considered other intangible factors, and if it appears that restricting the property to a particular use nets only a small gain to the public when compared to the hardship imposed upon the property owners, then the court is fully justified in declaring the restrictive ordinance unreasonable. LaSalle National Bank v. City of Chicago (1977), 54 Ill. App. 3d 944, 950.

In the instant case, the County has already passed an ordinance rezoning the property so that it may be used for a special commercial use instead of the single-family use for which it had previously been zoned. In light of the stated law, we can find no basis on which to do what the Village asks, i.e., find that the rezoning to C-4 is unreasonable, arbitrary and invalid.

The facts show that there is a significant amount of commercial development in the area, similar to that proposed by the property owner. Furthermore, there has been no development of new single-family homes in the area for several years.

There was conflicting testimony by the experts for the parties as to the difference in value if the property is developed commercially as proposed by the owner or if it is developed for single-family use. Not unexpectedly, there was great disparity between the figures offered by the parties. There was also conflicting testimony by the parties’ experts as to what constitutes the highest and best use for the property. Again, it was not surprising that the property owner’s expert opined that a commercial use such as that proposed was the best use, while the opponent’s expert voiced a contrary opinion.

There was evidence that the owner had been unable to sell the property while it was zoned for single-family use; and development of single-family homes presented an economic difficulty. The property has been vacant for many years. The initial attempt at rezoning was in 1971.

Where the testimony in a trial without a jury is contradictory, the weight to be given to that testimony is a matter for the trial court, and its finding will not be disturbed unless manifestly against the weight of the evidence. (Aurora National Bank v. City of Aurora (1976), 41 Ill. App. 3d 239, 244, 353 N.E.2d 61, 65.) The trial court’s ruling indicates more weight was given to the evidence proffered by the counterdefendants. We have carefully examined the record, and we cannot conclude that the trial court’s ruling was against the manifest weight of the evidence.

Furthermore, the evidence does not show a clear pattern of single-family use in the subject area, but, rather, a mixture of commercial uses and single-family dwellings. There is sufficient evidence to support the counterdefendants’ argument that there is a trend toward certain types of commercial uses in the area. Clearly, the property does not appear to be part of a solidly residential area. So, unless some compelling reasons of public welfare or safety exists, the imposition of a residential restriction on the subject property could be properly found to be unreasonable. Aurora National Bank v. City of Aurora (1976), 41 Ill. App. 3d 239, 247.

We hold that the trial court’s ruling that the amendatory zoning ordinance is reasonable and valid and is amply supported by the record.

We next address the Village’s contention that the protest resolution submitted by the village of Riverwoods was valid and, therefore, a favorable vote by three-fourth’s of all the members of the County Board was necessary to rezone the property. The Village argues that the provisions of section 13 — 15 of the Cook County Zoning Ordinance, which requires circulation of the protest resolution to specific parties, were satisfied, thus the Zoning Board improperly disregarded the protest. We reject this argument.

Section 13.15 of the Cook County Zoning Ordinance states in pertinent part:

“b. The protest is made in writing and submitted to the Secretary of the Zoning Board of Appeals not earlier than seven (7) days after the Zoning Board of Appeals hearing has taken place, and not later than thirty (30) days after the hearing has taken place, and provided that said written protest is circulated by the protesting party to all parties in the case represented by counsel.”

We find no ambiguity in the meaning of the Ordinance. We deem it appropriate to focus on specific language of the Ordinance. The phrase, “submitted to the Secretary of the Zoning Board of Appeals *** not later than thirty (30) days after the hearing has taken place,” means what it says. The secretary of the Zoning Board of Appeals must receive the protest within 30 days. We do not construe the phrase cited above to mean that the protest resolution must be mailed within 30 days.

The counterdefendants cite Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App. 3d 561, 421 N.E.2d 285, as support of their persuasive argument that all of the technical requirements for a valid protest must be met. In Thompson, the court strictly construed the language of the zoning ordinance' in making a determination regarding the validity of a protest. We believe that construction to be applicable in this case.

If the Board of Commissioners had intended that the ordinance be interpreted as urged by the Village, it could have drafted the ordinance accordingly. As the court in Thompson did, we also decline to give the protest provision a broader interpretation than that which appears on the face of the provision. Therefore, we hold that the trial court correctly found that the protest resolution was not submitted within the requisite time.

The Village next contends that the challenged rezoning is barred by the doctrine of res judicata. In support of this contention, the Village gives a lengthy recitation of the history of the property, the various attempts at rezoning, and earlier litigation involving the same property.

The Village does not explain how and why res judicata is applicable. Alternatively, it argues that the doctrine of the law of the case also bars the trial court’s action and, further, that it limits the trial court’s role to making a determination of whether there are changed circumstances which warrant rezoning. The Village argues that there was no proof of a material change in circumstances, thus the trial court’s action was improper. We reject this argument.

The essence of the doctrine of res judicata is the prevention of relitigation of the same matter between the same parties. (Mistretta v. Village of River Forest (1971), 2 Ill. App. 3d 102, 104, 276 N.E.2d 131, 133.) Where a former adjudication is relied upon as an absolute bar, there must be identity of parties, subject matter and causes between the two actions. (2 Ill. App. 3d 102, 104.) Where facts are alleged in the second action which arose after the termination of the prior litigation and the issue in the second litigation differs from the first, the second suit is not barred by the earlier one.

The record suggests that the principal issue in the earlier litigation dealt with the constitutionality of the County Zoning Ordinance which restricted the use of the property for certain commercial uses. In this case, the Village’s countercomplaint challenges the right of the County to rezone the property, allowing it to be used for a certain type of commercial development.

One test for determining identity of causes of action is whether the same evidence would sustain both actions. (LaGrange Federal Savings & Loan Association v. Rock River Corp. (1981), 97 Ill. App. 3d 712, 715, 423 N.E.2d 496, 500.) The right asserted by Chicago Title and Trust Company (the plaintiff in the 1972 action) is not the same as the issues raised in the present case. Further, the doctrine of res judicata generally applies only to facts and conditions as they existed when the prior judgment was entered. LaGrange Federal Savings & Loan Association v. Rock River Corp. (1981), 97 Ill. App. 3d 712, 715.

The counterdefendants argue persuasively that this case is not a second challenge to the zoning of property where the previous zoning has been upheld. Rather, the Village is attempting to assert the prior order in which the action was voluntarily dismissed with prejudice as a bar to rezoning the property for uses other than that allowed by the earlier ordinance. Further, the effect of the appellate review of the earlier case was to make the doctrine of res judicata applicable insofar as it prevented relitigating the validity of the existing zoning ordinance without any change in circumstances. This does not amount to a bar against rezoning the property.

The parties to the earlier action are not the same as the parties in this case. In the earlier case, Chicago Title and Trust Company was the plaintiff. Title to the property is now held by American National Bank, and the former plaintiff (Chicago Title and Trust Company), which was also the plaintiff in the 1972 action, no longer has any interest in the litigation. Secondly, the participants in the present suit stand in a different position than their counterparts in the earlier suit. In the earlier suit, the County of Cook was the primary defendant, and Chicago Title and Trust Company (which then held legal title to the property) stood in an adverse position to the County. In this case, American National Bank — the legal titleholder — and the County of Cook are aligned on one side, and the Village is the adversary. Again, the counterdefendants argue persuasively that these changes in the legal positions due to the rezoning make it reasonable for the trial court to have ruled that there was no identity of parties.

The Village’s alternate argument that the doctrine of the law of the case bars the trial court’s action and limits its role to making a determination of whether there are changed circumstances also fails. We agree with the counterdefendants that no further action was taken by the trial court on the earlier suit. As discussed earlier, the instant litigation does not constitute a continuation or relitigation of the former action. Therefore, the doctrine of the law of the case is inapplicable under these facts. We hold that the trial court’s ruling upholding the ordinance in question is not barred by the doctrines of res judicata or the law of the case.

The Village next contends that the rezoning and special use constitutes illegal contract and spot zoning. The Village asserts that the County has agreed to the rezoning of the property in return for the property owner’s promise to abide by certain restrictions on development of the property. The rezoning and special use restricts the use of the property in a manner not consistent with general C-4 commercial zoning. The Village concludes that illegal contract zoning is clearly shown by these facts.

The Village advances the alternate argument that the rezoning constitutes illegal spot zoning. It argues that no substantial evidence was proffered by the counterdefendants to justify the rezoning.

We find nothing in the record to support the Village’s contention that a deal was illegally struck between the County and the property owner before the property was rezoned. Secondly, the County zoning ordinance clearly permits special uses such as the one which the Village asserts as probative of illegal contract zoning.

The counterdefendants cite section 13.10 — 9 of the Cook County Zoning Ordinance, which provides in relevant part:

“Prior to the granting of any special use, the Zoning Board of Appeals may recommend, and the Board of Commissioners may impose, such conditions and restrictions upon the establishment, location, construction, maintenance, and operation of the special use as deemed necessary for the protection of the public interest and to secure compliance with the standards and requirements specified in Section 13.10 — 7 of this Article.”

They are persuasive in their contention that the Ordinance gives the County the authority to impose conditions on special uses in zoning and rezoning as was done in this case.

We believe the record amply supports the trial court’s finding that the rezoning and special use did not constitute illegal contract or spot zoning. We find that the trial court was correct in its finding that the rezoning and special use was amply supported by the record. Further, the burden of proof was upon the Village to establish that the rezoning and special use was arbitrary, unreasonable and not related to public health, safety and welfare. The Village did not meet its burden.

We adhere to the principle that where there is room for legitimate difference of opinion concerning the reasonableness of the classification effected by an ordinance, or amendment thereto, the courts will not interfere with the legislative judgment. Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App. 3d 561, 576, 421 N.E.2d 285, 297.

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

Affirmed.

ROMITI, RJ., and LINN, J., concur.


source: Caselaw Access Project

author: JUSTICE HOPF

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CONNIE DOWNEY, Defendant-Appellant.
    Second District
    No. 83—285
    Opinion filed December 20, 1983.

      G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

On March 8, 1983, the circuit court of Lake County found defendant, Connie Downey, had violated the terms of his probation by committing the offense of intimidation (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 6(a)(5)). He was subsequently sentenced to three years with the Department of Corrections on each count concurrently.

The defendant appeals contending that his conduct did not legally amount to intimidation. Alternately, defendant contends that the State’s proofs were insufficient to establish his guilt of intimidation by a preponderance of the evidence.

Defendant was originally placed on 30 months’ probation on July 20, 1982, having pleaded guilty to certain possession of narcotics charges. The State’s amended petition for revocation charged defendant with rape, intimidation and harassment by telephone. As to the harassment charge the court directed a finding for the defendant; found him not guilty of the rape charge; but found that defendant had violated his probation by committing the crime of intimidation.

During mid-1982 defendant and victim, Marianne Jacobson, a married woman, carried on a sexual liaison. After September they remained just friends. In early December the victim in a telephone conversation advised defendant that her husband and daughter would be away on vacation at the end of the month. At 1:30 a.m. on December 29, 1982, defendant appeared at her home desirous of resuming the sexual aspect of their relationship. Jacobson declined, advising defendant that she was desirous of making her marriage work. Defendant told her he would force her to continue; that if she did not, he would tell her husband of the activities with him; and, that he would bring over friends and family in support of his revelations. Jacobson feared he might hit her. She accompanied defendant to her bedroom.

In the bedroom she again told him that she had ended the affair because of her desire to preserve her marriage as opposed to “some fault” on his part. Defendant said he understood, but in response to her inquiry, “Then you won’t force me through this?” replied, “Well, I’m already here.”

Upon completion of the act she asked if he was going to come back and tell her husband. He replied in the negative. The next day after working a full shift, she reported the incident to the police. On cross-examination Jacobson admitted that she lay next to him for about five minutes and conversed, and that she did this voluntarily.

Defendant, on his own behalf, testified that he came over on the invitation of Mrs. Jacobson; that the act was mutually anticipated, consummated, and appreciated. Defendant claimed that they thereafter argued over money he had borrowed from her. She threatened to harass him, and he responded that if she did her husband would likely find out about their affair.

The court expressly found that it considered most of the victim’s testimony to be credible, and that defendant’s testimony was “not credible.”

The court revoked defendant’s probation and sentenced him to a term of three years’ incarceration with credit given for time served while on probation.

Defendant contends that the threat allegedly made to expose their affair to the victim’s husband is not the type of “threat” proscribed under section 12 — 6(a)(5) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 6(a)(5)). Section 12 — 6(a)(5) provides:

“Sec. 12 — 6. Intimidation, (a) A person commits intimidation when, with intent to cause another to perform or to omit the performance of any act, he communicates to another a threat to perform without lawful authority of the following acts:

* * *

(5) Expose any person to hatred, contempt or ridicule; ***.”

Defendant adopts a position that a threat to reveal the truth regarding another person, which threat does not amount to a civil tort in the nature of libel, slander, or invasion of privacy is not actionable under section 12 — 6(a)(5) of the Criminal Code of 1961. He supports this by relying on Landry v. Daley (N.D. Ill. 1968), 280 E Supp. 938, rev’d on other grounds sub nom. Boyle v. Landry (1971), 401 U.S. 77, 27 L. Ed. 2d 696, 91 S. Ct. 758. That court reviewed section 12— 6(a)(5), against plaintiff’s constitutional challenge that the statute was vague and overbroad. The court commented:

“Sub-paragraph (a)(5) makes criminal threats to ‘expose any person to hatred, contempt or ridicule [without lawful authority].’ This phrase is taken from the definition of libel and slander. The exposure of another to hatred, contempt or ridicule is unlawful when it constitutes libel, slander, invasion of privacy, or criminal libel. In a prosecution for violation of this sub-paragraph the state would be required to prove, in addition to the other elements of the intimidation statute, that the threat-maker’s execution of his threat would have constituted one of those torts or crimes given his state of mind and the circumstances existing at the time the threat was made.” (280 F. Supp. 938, 965.)

It would appear that the Landry court was concerned that section 12 — 6(a)(5) of the Criminal Code of 1961 was impermissibly vague and overbroad, and sought to cure the constitutional infirmity by the imposition of certain civil standards upon the statute for the purpose of narrowing its application.

Section 12 — 6(a)(5) of the Code, on its face, does not restrict liability to one who commits a civil defamation against another for the purposes of extortion. Its facial language simply directs that the underlying threat need only expose the victim to “hatred, contempt or ridicule.” Granted that this latter phrase, as pointed out by the Landry v. Daley (N.D. Ill. 1968), 280 F. Supp. 938, rev’d on other grounds sub nom. Boyle v. Landry (1971), 401 U.S. 77, 27 L. Ed. 2d 696, 91 S. Ct. 758, court, may have been “taken from the definition of libel and slander,” this standing alone is not proof that the legislature intended to adopt the body of civil defamation law as the standard of criminal liability pursuant to section 12 — 6(a)(5) of the Code. Had the legislature intended to limit the statute it could have done so by simply specifying liability where one threatens to commit libel, slander or violate the victim’s privacy. Its absence even suggests that the legislature intended a broader application for the statute. The broader application would seem to be more within the purposes of section 12— 6(a)(5) of the Code. This interpretation does not render the statute constitutionally infirm.

The purpose of the statute is to prohibit the making of specified threats “intended to compel a person to act against his will.” (People v. Hubble (1980), 81 Ill. App. 3d 560, 562-63, 401 N.E.2d 1282, 1284.) The statute does not restrict a citizen’s right of free speech, but merely restricts the exercise of such a right to effect an extortion. To construe section 12 — 6(a)(5) of the Code as Landry does would severely limit the statute in curing the evil for which the statute was enacted. To so hold would open the door to those who would extort money or other performance from their victims, based upon an embarrassing truth.

If you limit its reach to only those who threaten to violate their victim’s right of privacy, as those rights are defined in the civil law, one bent upon extortion could simply threaten to narrow their publication of the embarrassing truth to a select few. The case at bar is in point as the threat does not contemplate a broad public exposure as would technically constitute an invasion of her privacy. See Prosser, Torts sec. 117 et seq., at 802 (4th ed. 1971).

There does not appear to be any reason why an extortion attempt should be any more or less sanctioned by the law, depending merely upon the scope of the proposed publication of a little-known truth about the victim. It is submitted that the plain language of section 12 — 6(a)(5) of the Code does not limit the scope of that provision in the manner determined by the Landry v. Daley (N.D. Ill. 1968), 280 F. Supp. 938, rev’d on other grounds sub nom. Boyle v. Landry (1971), 401 U.S. 77, 27 L. Ed. 2d 696, 91 S. Ct. 758, court, or as proposed by the defendant herein. We believe that the language should be given its plain effect. (Airdo v. Village of Westchester (1981), 95 Ill. App. 3d 568, 569, 420 N.E.2d 472, 473.) We specifically decline to follow the opinion of Landry regarding section 12 — 6(a)(5) of the Code.

The gravamen of the offense is the improper influence on another. Public policy is not served by allowing accusations, even against the guilty, if the sole purpose is extortion. People v. Hubble (1980), 81 Ill. App. 3d 560, 564, 401 N.E.2d 1282, 1285.

Such a construction would not render the statute unconstitutional. It doe not implicate any right of free speech. It merely prevents private extortions based upon threatened public or private speech. The intimidation statute in question has no “inhibitory effect on freedom of speech.” (See People v. Holder (1983), 96 Ill. 2d 444, 449, 451 N.E.2d 831, 833.) Nor does such an interpretation render the statute overbroad and vague. The scope of the prosecution under the statute is also limited by the fact that the underlying threat must be intended to cause another to perform or omit the performance of some act. Cf. 96 Ill. 2d 444, 453-54, 451 N.E.2d 831, 835-36.

Defendant next urges that the evidence was not sufficient to establish his guilt by a preponderance of the evidence. As defendant noted, criminal offenses serving as the basis for a revocation of probation need only be established by a preponderance of the evidence. (People v. Cooper (1977), 66 Ill. 2d 509, 514, 363 N.E.2d 817, 819.) To disturb a finding of probation violation on review, the trial court’s judgment must be contrary to the manifest weight of the evidence. (People v. Crowell (1973), 53 Ill. 2d 447, 451-52, 292 N.E.2d 721, 723.) We do not so find.

Defendant contends that the circumstances of their prior relationship and the facts pointing to the victim’s alleged willingness and cooperation in the venture lead to the conclusion that she was not in fact coerced. However, these facts were in dispute. It was the function of the trial court as trier of the fact to weigh the credibility of the witnesses. (People v. Akis (1976), 63 Ill. 2d 296, 298, 347 N.E.2d 733, 734.) In rendering judgment the court verbalized that he deemed her testimony to be more credible than his in certain areas. The testimony of this single witness was sufficient to support the revocation of defendant’s probation. See People v. Sparkman (1979), 68 Ill. App. 3d 865, 871, 386 N.E.2d 346, 351.

The trial court’s finding that defendant committed the offense of intimidation is not against the manifest weight of the evidence. The judgment of the trial court of Lake County is affirmed.

Affirmed.

SEIDENFELD, P.J., and NASH, J., concur.


author: JUSTICE BARRY

text:
    NORTHWESTERN STEEL AND WIRE COMPANY, Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE, Defendant-Appellee.
    Third District
    No. 3—82—0806
    Opinion filed December 21, 1983.

      Hamilton Smith and John J. Jawor, both of McDermott, Will & Emery, of Chicago, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Rosalyn Kaplan, Assistant Attorney General, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Northwestern Steel and Wire Company appeals from a judgment of the circuit court of "Whiteside County in favor of the Department of Revenue of the State of Illinois entered in an administrative review proceeding in which Northwestern challenged the amount of tax applicable to gaseous oxygen supplied by Union Carbide to Northwestern’s steel mill in Sterling, Illinois.

In 1971 Northwestern entered into an agreement with Union Carbide whereby Union Carbide would install an oxygen supply facility on land leased from Northwestern, and Northwestern would purchase oxygen as needed for its steel mill. The contract referred to Union Carbide as “Seller” and Northwestern as “Buyer.” Pursuant to the terms of the agreement, Union Carbide installed oxygen facilities near Northwestern’s steel mill premises. The oxygen plant converts the air surrounding it into gaseous or pure oxygen by removing nitrogen, argon, moisture and impurities from it. Gaseous oxygen is stored in two tanks which are part of Union Carbide’s oxygen supply system.

The oxygen used by Northwestern is withdrawn from the tanks and piped to numerous outlets throughout the mill. When a cutting tool is connected to an oxygen outlet in the mill, the oxygen is ignited, creating an extreme heat which is concentrated on the material to be cut. The oxygen plant operates automatically. When a Northwestern employee turns on a valve at an oxygen outlet in the mill, thereby withdrawing gaseous oxygen from the storage tanks, the plant automatically produces and feeds into the storage tanks new gaseous oxygen to replace that which was used. Activation of the plant is controlled solely by Northwestern.

Liquid oxygen is used as a backup supply in the event of a breakdown in the oxygen plant generators or in the event of a demand on the plant that is greater than its capacity. Liquid oxygen is trucked from Chicago by Union Carbide and placed in special storage tanks which are part of the system. If Northwestern’s usage exceeds the maximum capability of the oxygen plant to generate oxygen from air, the plant automatically converts liquid oxygen into gaseous oxygen and adds the gaseous oxygen to the appropriate storage tanks.

The agreement with Union Carbide provided for Northwestern to pay a facility charge of $26,886 per month whether any gaseous oxygen is delivered in a given month or not, and also provided for no payment in addition to the facility charge for the first 20,000,000 cubic feet of gaseous oxygen delivered in any month. Northwestern also had to pay an additional charge per cubic feet for liquid oxygen used when required by increased demand. Union Carbide is required to maintain the oxygen supply system and during maintenance shut downs of the oxygen-producing part of the system, Union Carbide must furnish the liquid oxygen as needed.

After Northwestern completed construction of a new 14-inch mill in 1975, Northwestern and Union Carbide entered into a new agreement by which Union Carbide would provide a liquid oxygen system with storage tanks and vaporizing equipment to convert liquid oxygen into gaseous oxygen. For this system Northwestern purchased the liquid oxygen, and Union Carbide trucked it to Sterling. This new facility is also totally automatic. The agreement required Northwestern to pay a facility charge of $1,025 per month plus a cubic foot charge for the liquid oxygen purchased from Union Carbide. Due to unfavorable business conditions, the new mill operated only six out of 26 months between May 1975 and June 1977, but the facility charge was paid every month.

The Illinois Department of Revenue conducted an audit during 1977, as a result of which Northwestern had to file an amended use tax return for the period from January 1, 1974, through June 30, 1977, and pay in excess of $82,000 taxes, penalties and interest. In November of 1977 Northwestern filed a claim for credit for the full amount paid. Northwestern based its claim for credit upon the assertion that the facility charges were rent payments, not part of the cost of the oxygen sold, and also that a use tax should not be imposed on the amount of gaseous oxygen transferred in excess of 20,000,000 cubic feet per month. That claim was denied. After a protest and an administrative hearing before a hearing officer, the claim was again denied.

After having exhausted its administrative remedies, Northwestern filed a complaint for administrative review in the circuit court of Whiteside County, and following a hearing, the trial court ruled that plaintiff does owe a use tax on the gaseous oxygen produced from the air under the 1971 agreement, but not on the gaseous oxygen produced from liquid oxygen under both the 1971 and 1975 agreements since Northwestern had already paid a use tax on the liquid oxygen when it was purchased and was not required to pay a second tax. This ruling eliminated the Department’s claim as to oxygen supplied under the 1975 agreement, and reduced the claim as to the 1971 agreement, resulting in a credit of $1,586.62 against the use tax previously paid. The trial court also ruled that the facility charge is a part of the cost of the product.

Northwestern has appealed from the judgment of the circuit court, asserting (1) that gaseous oxygen is not tangible personal property within the meaning of section 3 of the Use Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 439.3); (2) that no transfer of gaseous oxygen from Union Carbide to Northwestern occurred; and (3) that the facility charge was rent and not part of the charge for transfer of ownership of gaseous oxygen. An integral part of Northwestern’s argument on these issues is its contention that an earlier decision of this court, Keystone Consolidated Industries, Inc. v. Allphin (1977), 45 Ill. App. 3d 714, 359 N.E.2d 1202, should be overruled. We do not agree, and we believe Keystone to be controlling in the case at bar.

Before considering the merits of Northwestern’s contentions, we must first acknowledge the Department’s assertion that Northwestern is attempting to raise they'question of whether gaseous oxygen is tangible personal property for the first time upon appeal and that we should treat the issue as waived since it was not argued in the trial court or in the administrative proceedings. The briefs of the parties filed in the trial court are a part of the record, and they indicate that Northwestern’s arguments assumed that gaseous oxygen is tangible personal property. Shortly before the trial court hearing, Northwestern did raise the issue of whether gaseous oxygen is tangible by means of a letter to the trial court. Presumably the trial court considered that issue (as well as the other issues) to have been disposed of by the decision in Keystone where this court stated: “The gases [oxygen and nitrogen] are tangible personal property and as such are subject to the use tax.” (45 Ill. App. 3d 714, 718, 359 N.E.2d 1202, 1205.) We do not believe the issue was in fact waived in the trial court, and in any event, in the exercise of our discretion, we choose to discuss this issue.

Northwestern submitted the appeal briefs from the Keystone case to the trial court, and they are included in the record on this appeal. On the basis of those briefs, Northwestern asserts here that the issue was not argued in Keystone and that, we there did not have the benefit of the authorities cited herein by Northwestern, and therefore we reached the wrong conclusion in Keystone. We believe that point is not well taken and overlooks the rather obvious fact that appellate courts frequently do research beyond the briefs submitted to them, and sometimes of necessity rely upon authorities not cited by the parties to the appeal. We must, therefore, decline to presume that we erred in deciding an issue overlooked by the parties to an earlier appeal.

At this time we have considered the authorities cited by Northwestern. In addition, we think it important to note that one of the most elementary scientific principles is that gas is one of three forms of states of matter — the other two being liquid and solid. The primary authority relied upon by Northwestern is Farrand Coal Co. v. Halpin (1957), 10 Ill. 2d 507, 104 N.E.2d 698, where the Illinois Supreme Court considered the meaning of the phrase “tangible personal property” in the context of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1955, ch. 120, par. 440 et seq.) in a case involving the taxability of electrical energy. The court first stated with approval the law definition from Webster’s dictionary of “tangible” as consisting of or pertaining to matter or a material body, and then discussed the indicia of tangibility as gleaned from the testimony of expert witnesses:

“From the evidence it appears that although energy and mass are closely interrelated, indestructible, equivalent, interchangeable, directly proportional to and may be equated with each other, yet energy as such cannot be separated from mass or matter and stored, weighed, transported, handled, liquified, solidified, photographed, touched or otherwise perceived by the senses in its own right or capacity separate and apart from mass or matter. All witnesses who testified on the subject, including plaintiff’s witnesses, agreed that energy cannot be separated from matter and tagged or otherwise physically identified in any way, cannot be located spatially, and does not have dimensions. In all these respects energy falls short of fitting into the ordinary and popularly understood meaning of the word ‘tangible’ as used by the General Assembly in the act in question.” (Emphasis added.) Farrand Coal Co. v. Halpin (1957), 10 Ill. 2d 507, 511, 140 N.E.2d 698, 700-01.

If we use the same test here that the supreme court used in Farrand to determine tangibility, we find in the record of the instant case that oxygen can be separated from other mass or matter, it can be stored, transported, handled, liquified, physically identified, located spatially, and does have dimensions. The contract entered into between Northwestern and Union Carbide provides for the separation of oxygen from the air and for its storage, transportation, and handling. Frequent reference is made to cubic footage of gaseous oxygen, thereby acknowledging that it is capable of being physically identified, located spatially and measured. The contract provides for the use of liquid oxygen, thus demonstrating that oxygen is matter which can be converted to another state. The fact that oxygen cannot be “touched” in its gaseous state is not the controlling factor. While gaseous oxygen is colorless and odorless, and thus invisible, it is matter, nonetheless. Additionally, we have found no evidence that the Illinois General Assembly intended to exempt from use taxes all sales involving the transfer of property in a gaseous state. We again hold, as we did in Keystone, that gaseous oxygen is tangible personal property subject to the use tax.

Northwestern also contends that tax liability was improperly imposed here because no transfer of oxygen from Union Carbide to Northwestern took place. This argument is based upon three factors: (1) that neither Union Carbide nor Northwestern owned the atmospheric air surrounding the oxygen facility, and that neither one owned the oxygen in that air so there was no transfer of ownership possible; (2) that the process of converting air into gaseous oxygen is a process of elimination of impurities, like filtering, so that nothing is added to the air; and (3) that the oxygen facility was entirely automatic so that employees of Northwestern actuate the production when they open the valves in the mill. From these facts, Northwestern suggests that Union Carbide supplies a service, not a product. The first two factors were present in the Keystone case where Keystone purchased both oxygen and nitrogen from a plant constructed by Chemetron on the premises of Keystone’s steel and wire plant in Peoria. There we analyzed the language of the contract and held:

“We find that the clear intent of the parties, as indicated by the plain language of the contract is for Chemetron to produce and sell and Keystone to buy the oxygen and nitrogen needed by Keystone. Once oxygen and nitrogen have been separated from the atmosphere, they become valuable commercial products capable of- being sold and taxed, and are so treated in the contract.” Keystone Consolidated Industries, Inc. v. Allphin (1977), 45 Ill. App. 3d 714, 718, 359 N.E.2d 1202, 1204.

In the case at bar, as in Keystone, the parties refer to themselves as “Buyer” and “Seller” and refer to the gaseous oxygen as the “product.” The contract here makes provision for no warranties by the seller, other than warranty of title, states that “Buyer shall purchase and pay for Buyer’s requirements of gaseous oxygen,” and provides for the terms of payment “for all oxygen purchased hereunder ***.” These few examples of contract terminology are sufficient to indicate that the parties plainly intended to sell and buy gaseous oxygen. Thus we conclude that a product was transferred from seller to buyer here just as it was in Keystone, and is subject to taxation here as it was in Keystone.

Northwestern urges us to make a factual distinction on the basis that here the oxygen plant was totally automatic and activated solely by Northwestern employees within the Northwestern plant. Neither the briefs nor opinion in Keystone give any indication whether the Chemetron plant was similarly automatic. However, we cannot agree that such a distinction would be valid even if it were existant. Northwestern is contending, in effect, that a manufacturer who constructs, owns, and maintains a production plant on leased property does not own the product produced and stored in that plant solely because the production and delivery systems are designed to operate automatically. We believe that advances in modern technology which permit automated operations should not be permitted to defeat traditional concepts of ownership of property. We note that Union Carbide installed meters to measure the amount of oxygen supplied to plaintiff, and it billed Northwestern on the basis of cubic footage furnished. Accordingly, we hold that a taxable transfer of property from Union Carbide to Northwestern took place under the terms of the 1971 agreement.

The final issue presented by Northwestern is identical to another issue decided in Keystone: was the monthly facility paid by Northwestern to Union Carbide a rental payment for use of the oxygen supply plant, and thus not subject to the use tax, or was it a part of the purchase price of the oxygen and thus taxable. In Keystone the identical arrangement was held to include the facility charge as a part of the cost of transfer of oxygen and nitrogen. According to the briefs from the Keystone appeal, the terms of the contract in Keystone provided that the facility charge was to be paid monthly whether oxygen and nitrogen were supplied or not. Thus, contrary to Northwestern’s argument before this court, Keystone is not distinguishable on the ground that the contract here provides for payment even in months when no oxygen is supplied.

In Keystone, we considered the statutory language of section 2 of the Use Tax Act (Ill. Rev. Stat. 1975, ch. 120, par. 439.2), which stated that the selling price (which is the measure of tax liability) “shall be determined without any deduction on account of the cost of the property sold, the cost of materials used, labor or service cost or any other expense whatsoever ***.” Then we stated:

“The plain language of the statute is clear. No reimbursement of any of the seller’s expenses whatsoever may be deducted from the selling price in computing use tax liability. In construing section 2, the supreme court has said, ‘These words are all-embracing in their scope.’ (Vause & Striegel, Inc. v. McKibbin (1942), 379 Ill. 169, 172, 39 N.E.2d 1006, 1008.) Here the facility and storage charges are for the purpose of compensating Chemetron for some of the costs of producing and storing the oxygen and nitrogen supplied to Keystone. Under the statute, these charges are a part of the selling price.” (Keystone Consolidated Industries, Inc. v. Allphin (1977), 45 Ill. App. 3d 714, 719, 359 N.E.2d 1202, 1205.)

We believe that holding controls in this case.

Northwestern argues that it would make no sense to say that the facility charge is a charge for the transfer of gaseous oxygen in a month when no oxygen is used by Northwestern, and further that in a month of small usage, the cost per cubic foot of the cubic feet used would be greater than in other months. According to the audit by the Department of Revenue, gaseous oxygen was supplied to Northwestern in every month of the period involved in this appeal, so the question concerning months of no use is really a hypothetical question. Northwestern emphasizes that its plant was closed down during some of the time covered by the 1975 contract and the facility charge was paid for those months. However, Northwestern is not disputing its tax liability for those months, so we do not see how the subsequent shutdown is relevant to the 1971 contract at issue here. Furthermore, we think the difference in per cubic foot charge for the sale of smaller quantities is not an unusual commercial practice.

Finally, to hold that the facility charge is not a part of the purchase price would mean that the first 20,000,000 cubic feet transferred each month were delivered free of charge and not taxable at all since the contract provided for no charge other than the facility charge for the first 20,000,000 cubic feet of oxygen used. We cannot condone such a tax avoidance scheme.

Having concluded that Keystone is controlling as to all the issues presented by Northwestern, we affirm the judgment of the circuit court of Whiteside County.

Affirmed.

SCOTT and HEIPLE, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    DENNIS DICKMAN, Plaintiff-Appellant, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    Third District
    No. 3—83—0157
    Opinion filed December 29, 1983.
    Christopher W. Bohlen, of Blanke, Norden, Barmann & Bohlen, P.C., of Kankakee, for appellant.

      Robert W. Boyd, of Ackman, Marek, Boyd & Simutis, Ltd., of Kankakee, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This action was brought by plaintiff, Dennis Dickman, for recovery of property damage occasioned by two windstorms under an insurance policy issued by defendant, Country Mutual Insurance Company. The circuit court of Kankakee County dismissed the complaint on the grounds that the limitations period contained in the policy had run as to the first windstorm. The trial court then permitted the plaintiff to file an amended complaint with regard to the second windstorm. Following a hearing on the merits the trial court entered judgment for the defendant.

On June 20, 1978, and at all relevant times thereafter, the plaintiff was insured under a Multi-Purpose Farm-Owners Policy of Insurance issued by the defendant. On September 17, 1978, a barn located on the plaintiff’s premises was allegedly damaged by a windstorm. Following this occurrence, notice was given to the defendant of the loss.

The defendant then requested that the plaintiff contact a local contractor chosen by the defendant in order to obtain an estimate of the damages. On April 3, 1979, the contractor determined the barn was beyond repair. Thereafter, in July of 1979, the defendant engaged an engineer to examine the barn. He determined the barn was in very good condition.

The defendant contends that it then contacted the plaintiff and orally denied his claim on or about July 30, 1979. The plaintiff denies this contention and states that he first learned of the denial one year and one day from the date of the loss when he phoned the defendant on September 18,1979.

In November of 1979, the plaintiff had the barn examined by an architect who found wind damage. Subsequently, in February of 1980, the plaintiff contacted the Illinois Department of Insurance and in March he received the Department’s response which included for the first time a written denial of the claim by the defendant.

On June 7, 1980, a second windstorm allegedly damaged the plaintiff’s barn. The plaintiff filed a claim regarding this second occurrence which was later denied in writing.

A complaint was filed in January of 1981, alleging damage to the barn as a result of both storms. A motion to dismiss the complaint was filed by the defendant based upon the failure of the plaintiff to file suit within the one year limitations period contained in the insurance policy. The motion was granted in its entirety on this basis. A motion for rehearing was then filed by the plaintiff on the grounds that the second storm was not so barred. The court allowed the filing of an amended complaint relative to the second storm only and after a trial, the court entered judgment in favor of the defendant.

The issue which the plaintiff has requested we review is whether the trial court erred in granting the defendant’s motion to dismiss in that there was a disputed factual issue as to the applicability of the insurance policy limitations period.

In deciding the merits of a motion to dismiss, a trial court cannot determine disputed factual issues solely upon affidavits and counteraffidavits. In such situations, the parties must be afforded an opportunity to present evidence as provided by statute. Stevens v. O’Bryant (1979), 74 Ill. App. 3d 239, 392 N.E.2d 935.

It is apparent, based upon the affidavits filed relative to the motion to dismiss, that there is a disputed factual issue, specifically, when the plaintiff received notification of the defendant’s denial of coverage. Consequently, we must'decide whether or not this is a relevant fact in determining the propriety of the trial court’s action.

The plaintiff argues that the limitations period contained in the policy was impliedly waived by the defendant and that this implied waiver or waiver by estoppel was a result of not receiving notification of the denial of coverage, either orally or in writing, until after the limitations period had run. The defendant counters this argument by claiming that even if notification was given the plaintiff after the limitations period had run, the defendant was under no obligation to so notify the plaintiff based upon the absence of any notification requirement in the insurance policy.

With reference to all insurance companies, the Illinois legislature has declared certain acts to be improper claims practices if committed without just cause and either knowingly or with such frequency as to indicate a persistent tendency to engage in that type of conduct. (Ill. Rev. Stat. 1981, ch. 73, pars. 766.5, 766.6.) One of those acts is the failure to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed. Ill. Rev. Stat. 1981, ch. 73, par. 766.6(i).

We believe that this provision evidences a strong legislative intent to impose a duty upon insurance companies to either affirm or deny coverage within a reasonable period of time after notification of a claim. This reasonable period of time would certainly fall well before the contractual limitations period had run. Therefore, we find that the defendant was under an obligation to deny plaintiff coverage prior to the running of the limitations period.

However, the failure to notify an insured of denial of coverage is not the only relevant factor in establishing waiver by estoppel of a contractual limitations period. In Downing v. Wolverine Insurance Co. (1965), 62 Ill. App. 2d 305, 210 N.E.2d 603, the court held that the defendant insurance company had waived or was estopped from enforcing insurance policy provisions requiring suit to be filed within one year of the loss and proof of claim to be made within 60 days of the loss. The insurance company had not notified the insured of a denial of liability under its policy until after the contractual limitations period for filing suit had expired. Prior to the denial notification, the insured had had frequent conversations with representatives of the company leading him to believe that his claim was still open. In addition, a letter was written by the claims representative to the insurance company’s claims supervisor stating that the company’s position in the case would be improved one year after the day of the loss.

In holding the insurance company had waived the limitations provisions contained in its policy, the court adopted the view that insurance policy limitations periods are to be strictly construed, slight circumstances being sufficient to constitute a waiver of such provisions. A positive act by the company intended to induce postponement is not necessary.

In Ames v. Crown Life Insurance Co. (1980), 85 Ill. App. 3d 203, 406 N.E.2d 222, the waiver by estoppel issue was again presented, but within a different factual setting. After the insureds had notified the insurance company of their claim, the only communication between the insurance company and its insureds was two memoranda relating to the processing of the claim. No further inquiries were made by either party. The insureds then filed suit after the three-year policy limitations period had expired.

The court held that the company had neither waived its right to enforce the limitations provision nor been estopped from asserting its rights under such provision. Downing was distinguished by the court as a case where the parties had been in the process of negotiating the claim up to the time the limitations period expired. In addition, evidence was presented in the form of a letter from the claims service to a company representative implying that the company postpone denial of coverage in order to induce an untimely filing of suit. In Ames, final contact between the parties occurred two years before the end of the limitations period and the court concluded there simply was no unjust, inequitable or unconscionable conduct by the insurance company in Ames as there had been in Downing.

We believe that the factual situation presented in the instant case by the plaintiff is closer to that presented in Downing than that in Ames. The plaintiff contends that he did not learn of the defendant’s denial of coverage until after the policy limitations period had run; orally in September 1979, when the plaintiff telephoned the defendant, and in writing in February 1980, when the plaintiff received a response to its inquiries from the Department of Insurance. Furthermore, it is undisputed that during the year following the windstorm the defendant chose to hire a contractor and an engineer to assess the damages to the plaintiff’s barn. These actions could have led the plaintiff to believe his claim was still being considered by the defendant.

The plaintiff’s version of the facts, if found to be credible by the trial court, could establish waiver by estoppel on the part of the defendant insurance company. Therefore, the dismissal of the plaintiff’s cause of action as to the first windstorm on the grounds that the policy limitations period for filing suit had run was improper. A relevant factual dispute existed as to the elements necessary to establish waiver by estoppel, thus precluding the court from granting the defendant’s motion to dismiss.

We would also note that while this matter was pending, the Illinois General Assembly adopted section 143.1 of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 755.1), a provision providing for the tolling of insurance policy limitations periods from the date proof of loss is filed until the date the claim is denied in whole or in part. It appears as if the legislature has recognized that this area of insurance law was in need of clarification and has attempted to rectify the type of situation presented by the case at hand.

Accordingly, for the reasons set forth above, the judgment of the circuit court of Kankakee County granting the defendant’s motion to dismiss is reversed and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

ALLOY and SCOTT, JJ., concur.