text:
    ARCHIE VEST, Plaintiff-Appellee and Cross-Appellant, v. THE CITY OF GRANITE CITY, Defendant-Appellant and Cross-Appellee.
    Fifth District
    No. 81-5
    Opinion filed April 16, 1982.

      WELCH, J., specially concurring.
    Irvin Slate, Jr., of Granite City, for appellant.
    Robert W. Bosslet, Jr., of Chapman and Carlson, of Granite City, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

During a rainstorm that had lasted approximately an hour on the night of August 25, 1975, an automobile stalled while it was being operated in one of the four lanes of Nameoki Road, a major traffic artery of the city of Granite City. A passerby, the plaintiff, Archie Vest, offered his help to the driver of the stalled vehicle, Faye Barton. Determining that the battery of the stalled car needed to be “jumped,” plaintiff turned his own vehicle around and parked it in the same lane as the disabled one, “nose to nose” with it. Plaintiff’s vehicle was, then, facing in a direction opposite that of oncoming traffic and close enough to the disabled vehicle that the “jumper cables” would reach the batteries of the two vehicles. As plaintiff stood between the two vehicles attempting to connect the cables to the batteries without the benefit of flares or other devices to provide warning, a third vehicle operated by John Winklemeier struck the rear of the stalled car and pushed the stalled car forward. As a result of the forward motion of the stalled car, plaintiff’s leg was pinned between the stalled vehicle and his own and was severely fractured.

In consequence of the incident John Winklemeier’s insurer paid plaintiff $10,000 in settlement of a claim. Plaintiff then brought a negligence suit against S. M. Wilson Construction Co., Paul Seebold Concrete Co. and the city of Granite City for their conduct with reference to the City’s storm sewers serving Nameoki Road. Because the city of Granite City was the only defendant remaining at the time of trial and is the only defendant bringing this appeal, we shall discuss only those allegations of negligence directed against the defendant city.

Plaintiff maintained that the city’s negligence with respect to its storm sewers resulted in ponding and flooding of that part of Nameoki Road where the collision occurred, which, in turn, caused the Barton vehicle to stall and the Winklemeier vehicle to be unable to stop. Plaintiff alleged that his injuries were the “direct and proximate result of the negligent acts or omissions” of the defendant city. Seeking $250,000 and costs of suit, plaintiff alleged, among other things, that the city had negligently and carelessly failed to inspect and to maintain adequately its storm sewer system after installation, that it had “[negligently and carelessly accepted the design and plans pertaining to road widening installation” in the area in question in 1966 when the city knew or should have known “of prior drainage problems and prior drainage recommendations which it failed to heed in accepting the design and plans as aforesaid,” and that it had “[negligently and carelessly failed to rectify and alleviate the poor drainage along and upon” that part of the road in question when the city knew or should have known “through its own observation or from prior studies pertinent to [the area in question] that the drainage provided was not adequate.”

Finding the plaintiff free from contributory negligence, the jury found against the defendant city and awarded the plaintiff $100,000. The trial court denied both the city’s post-trial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial and the plaintiff’s motion for an order of “additur awarding the Plaintiff additional damages in the amount of $100,000” or, in the alternative, an order granting him a new trial on the issue of damages only. The city has appealed raising several issues. Plaintiff has cross-appealed contending that the damages awarded him were inadequate as a matter of law. In view of the disposition we make in this case we consider but one of the issues raised by the city, that of proximate cause.

In the often cited and frequently quoted case of Merlo v. Public Service Co. (1942), 381 Ill. 300, 316-18,45 N.E.2d 665, 675, with respect to the relation between independent acts of third persons and proximate cause, the court stated:

“This court in the case of Illinois Central Railroad Co., v. Oswald, 338 Ill. 270, has clearly announced the rule applicable in this case. It was there said that if the negligence charged does nothing more than furnish a condition by which the injury is made possible and that condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury where the subsequent act is an intervening efficient cause which breaks the causal connection between the original wrong and the injury and itself becomes the proximate or immediate cause. The cause of an injury is that which actually produces it, while the occasion is that which provides an opportunity for the causal agencies to act. (Briske v. Village of Burnham, 379 Ill. 193.) The test that should be applied in all cases in determining the question of proximate cause is whether the first wrongdoer might have reasonably anticipated the intervening cause as a natural and probable result of the first party’s own negligence. (Seith v. Commonwealth Electric Co., 241 Ill. 252.) If the act of a third party is the immediate cause of the injury and is such as in the exercise of reasonable diligence would not be anticipated and the third person is not under the control of the one guilty of the original wrong, the connection is broken and the first act or omission is not the proximate cause of the injury. There may be more than one proximate cause of an injury. But if two wholly independent acts, by independent parties, neither bearing to the other any relation or control, cause an injury by one creating the occasion or condition upon which the other operates, the act or omission which places the dangerous agency in operation is the efficient intervening cause that breaks the causal connection and makes the other act or omission the remote and not the proximate cause of the injury.
What constitutes the proximate cause of an injury in a particular case is ordinarily a question of fact to be determined from all the attending circumstances, and it can only be a question of law when the facts are not only undisputed but are also such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn from them. (Phillabaum v. Lake Erie and Western Railroad Co., 315 Ill. 131.) Manifestly and undoubtedly, neither the lack of insulation nor the sagging wires did anything more than furnish a condition, and the intervening, independent act of the crane operator was the efficient and proximate cause of the fatal injuries to decedents. There is no evidence in the record tending to show otherwise. The trial court properly entered judgment in favor of the defendant Public Service Company of Northern Illinois, notwithstanding the verdict.”

Applying the facts of the case at bar to the law as stated, we find that any negligence on the part of the city of Granite City did nothing more than furnish a condition by which plaintiff’s injury was made possible. If the condition caused an injury by the subsequent, independent act of the third person, John Winklemeier, the creation of the condition by the city could not have been the proximate cause of plaintiff’s injury. The negli'gent act of Winklemeier actually produced plaintiff’s injury; any negligence on the part of the city with regard to the installation and maintenance of the drainage system in the street could have been merely the occasion providing an opportunity for the causal agency to act. It cannot be said that in the exercise of reasonable diligence the defendant city could have anticipated as a natural and probable result of its conduct in the installation or maintenance of its storm sewers that during a rainstorm of sufficient intensity to cause flooding of a portion of Nameoki Road the vehicle of one of the motorists driving in that street would stall, that another motorist driving in the same direction would stop to render assistance to the stalled motorist, turn his vehicle around and position it so that it was “head to head” with and in close proximity to the stalled vehicle, that the driver of the second vehicle would then place himself between the two vehicles while he was looking into the problem with the stalled vehicle, and that yet a third vehicle would approach its driver, see the stalled vehicle, apply his brakes, be unable to stop, strike the stalled vehicle in the rear, drive it into the second vehicle and in the process injure the driver of the second vehicle. Nor can it be said that the third person, Winklemeier, was under the control of the city of Granite City. The facts are undisputed and such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn from them. Manifestly and undoubtedly the city’s alleged acts and omissions with respect to its drainage system did nothing more than furnish a condition; the intervening, independent act of Winklemeier was the efficient and proximate cause of plaintiff’s injury. The actions or omissions of the city with regard to the installation and maintenance of the Nameoki Road drainage system are remote indeed, not proximate, to the injury of the plaintiff. There is no evidence in the record tending to show otherwise. Thus, as a matter of law the proximate cause of plaintiff’s injury in this instance cannot be the defendant city’s conduct with reference to its storm sewers.

We have examined a number of cases in which the negligence of a municipality or other similar entity was alleged by a plaintiff to be the proximate cause of an injury and found by a court of review to have furnished nothing more than a condition. In Storen v. City of Chicago (1940), 373 Ill. 530, 27 N.E.2d 53, the plaintiff, a seven-year-old child, had been injured while playing near a fire hydrant, which was located in the center of a parkway or grass plot between the paved portion of a street and the sidewalk. An automobile traveling west struck a car parked along the street curb on the same side of the street as the hydrant and east of it with such force that the parked automobile was forced in a westerly direction along the street curb, which had been constructed by the defendant. When the car that had been struck reached a point where the curb was level with the pavement of the street for about 10 feet, the car veered onto the parkway and pinned the plaintiff against the hydrant, thereby injuring her. The curb had been constructed in that way at that point in anticipation of the construction there of a driveway, which had never been built. Reversing a $15,000 jury verdict for the plaintiff, the court explained its ruling:

“The issue presented for decision is whether the construction and maintenance by the defendant of the opening in the curb for use as a driveway constituted negligence, and, if so, whether such negligence was a contributing cause of plaintiff’s injuries. Admittedly, the negligence of the person driving the automobile which struck [the] parked car was the immediate cause of plaintiff’s injuries. The question remains, did defendant’s negligence, if any, also render it accountable to plaintiff. In short, was the condition of the curb, in legal contemplation, a direct contributing cause of the injuries suffered by the plaintiff. Where two or more persons, under circumstances creating primary accountability, directly produce a single, indivisible injury by their concurrent negligence, they are jointly and severally liable, even though there is no common duty, common design or concerted action. [Citations.] If, however, a negligent act or omission does nothing more than furnish a condition making an injury possible, and such condition, by the subsequent act of a third person, caused an injury, the two acts are not concurrent and the existence of the condition is not the proximate cause of the injury. [Citation.] Obviously, the depression in the curb in the present case did nothing more than furnish a condition and, if it constituted negligence on the part of defendant, was not an act concurrent with the negligence of the driver of the automobile which struck the parked car. The action of the driver, moreover, was not such as in the exercise of reasonable diligence the defendant would have anticipated, nor was the driver under the defendant’s control.” 373 Ill. 530, 533-34, 27 N.E.2d 53, 54-55.

In the subsequent case of Briske v. Village of Burnham (1942), 379 Ill. 193,39 N.E.2d 976, cited in Merlo, the plaintiff sought to recover damages for personal injuries suffered when an automobile in which she was riding as a guest struck a barricade across a street vacated two years earlier by the defendant village. Suing two railroad companies, together with the village, the plaintiff maintained that the defendant village had been “negligent in vacating the street and then leaving it, apparently a public thoroughfare, in a dangerous condition for travelers, without sufficient notice or warning at the point of vacation that the street beyond was closed and dangerous, and that, in the absence of such notice, the village remained liable for defects in the street.” (379 Ill. 193,198,39 N.E.2d 976, 978.) Affirming the appellate court’s reversal of a $3,000 jury verdict and limiting its inquiry to a determination of the proximate cause of the accident, the court held as follows:

“Manifestly, neither the fact that the vacated street was open to ■ public travel nor the existence of the barricade did anything more than furnish a condition, and if either constituted negligence on the part of the respective defendants they were not acts concurrent with the negligence of Jakubcyk, the driver of the automobile in which plaintiff was a guest. In short, the intervening efficient cause of plaintiffs injuries was Jakubcyk’s negligence.” 379 Ill. 193, 199, 39 N.E.2d 976, 979.

In the more recent case of Carr v. Shirland Township (1978), 66 Ill. App. 3d 1033, 384 N.E.2d 449, the plaintiff had been injured while a passenger in a car that had proceeded into an intersection without stopping and had collided with a pickup truck. The plaintiff sued the driver of the car and Shirland Township alleging that the defendant township had been negligent in various respects, including its placement or maintenance of a stop sign at the intersection in question. The court found that the driver of the car had a duty to yield the right of way to the driver of the pickup truck “even without the presence of the ‘Stop Ahead’ signs or the ‘Stop’ sign.” (66 Ill. App. 3d 1033, 1036, 384 N.E.2d 449, 452.) Affirming the trial court’s judgment that plaintiff had failed to state a cause of action against the township, the court quoted as follows the rule set forth in Briske, which had cited Storen, among others, for the proposition:

“ ‘If a negligent act or omission does nothing more than furnish a condition making an injury possible, and such condition, by the subsequent independent act of a third person, causes an injury, the two acts are not concurrent and the existence of the condition is not the proximate cause of the injury.’ ” (66 Ill. App. 3d 1033,1037,384 N.E.2d 449, 452.)

In Carr the court held that “the facts indicate that none of the allegedly negligent acts on the part of Shirland were the proximate cause of plaintiff’s injuries and, at most, such acts furnished merely a condition making plaintiff’s alleged injuries possible.” 66 Ill. App. 3d 1033,1037,384 N.E.2d 449, 452.

In a still more recent case, Jeanguenat v. Zibert (1979), 78 Ill. App. 3d 948,397 N.E.2d 1235, the plaintiff had been injured in a collision between the automobile in which she had ridden as a passenger and an illegally parked car that it had struck. Plaintiff sued the driver of the automobile in which she had ridden, the owner of the parked car and the city of Peru. The allegation of negligence asserted against the defendant city involved “the failure ‘to maintain adequate and sufficient no-parking signs and markings’ in the vicinity of the accident.” (78 Ill. App. 3d 948, 952, 397 N.E.2d 1235,1239.) The court affirmed the trial court’s directed verdict in favor of both the owner and operator of the parked car and the city of Peru, applying the same rationale to the asserted negligence of both of these defendants. The court deemed both Merlo and Briske controlling, stressed the “total and unexplained inattention to the roadway” (78 Ill. App. 3d 948, 952, 397 N.E.2d 1235,1239) of the driver of the car in which plaintiff had ridden and concluded that to the extent that the negligence of either the driver of the illegally parked car or the city of Peru contributed to obstructing the road where the accident occurred, that obstruction by them was the remote and not the proximate cause of the plaintiff’s injury. The court found that the subsequent independent act of the driver of the vehicle in which plaintiff was passenger became the proximate or immediate cause of his injuries. We consider the analysis in each of these cases sound and of guidance to us in our determination in the case at bar.

Because in the instant case as a matter of law any negligence on the part of the city could not have been the proximate cause of plaintiff’s injury, we can but conclude that the trial court should have granted the city’s motion to enter judgment in its favor notwithstanding the verdict, and we hereby enter judgment in favor of the defendant city of Granite City.

In addition to the foregoing, we find another basis in the record to require reversal of the judgment under review. Earlier in this opinion we alluded to the fact that motorist Winklemeier was not under the control of the city of Granite City so that it would be liable for his conduct in striking the stalled vehicle. Upon the basis of the record before us, we think it could also be said that the act or omission of the city of Granite City with respect to the installation and maintenance of the Nameoki Road drainage system was not the cause, proximate or remote, of the failure of Winklemeier’s brakes or of his collision with the stalled vehicle. Winklemeier’s testimony as a witness called by plaintiff upon direct, cross-examination and redirect examination refuted plaintiff’s claim and insinuation that Winklemeier’s brakes had failed because of moisture which resulted from the flooded condition of Nameoki Road. His repeated testimony was that his brakes “grabbed” and that he skidded into the stalled car. While it is true that the water upon the road would induce skidding, the same consequence would attend a wet, as distinguished from a flooded, road surface. No evidence was presented which would contradict the Winklemeier testimony that his brakes were working, that they “grabbed” and that he skidded into the stalled vehicle. The alleged negligence of the city in installing and maintaining the drainage system for Nameoki Road cannot, therefore, be assigned as a cause of the collision of the Winklemeier vehicle with the stalled car, and the city therefore committed no negligent act or omission that contributed to the collision. A light rainfall that did not result in flooding of Nameoki Road would furnish a wet road capable of causing skidding.

In view of the conclusion we reach with respect to the element of causation, we necessarily find no merit in the plaintiff’s contentions in his cross appeal.

Reversed.

KASSERMAN, J., concurs.

JUSTICE WELCH,

specially concurring:

I concur in the result reached by the majority only insofar as it is based upon the lack of proof that the flooding of Nameoki Road was a cause of Winklemeier’s collision with the stalled Barton vehicle. As noted by the majority, Winklemeier did not state that his brakes failed to function when he depressed the brake pedal or that he swerved out of his lane when he applied the brakes. Instead, he recalled that his brakes had “grabbed.” This testimony, which is uncontradicted, does not support the plaintiff’s theory that the conduct of Granite City in not alleviating the flooding of Nameoki Road contributed to the collision. Consequently, the plaintiff’s chain of causation is incomplete and the evidence introduced at trial does not support the jury’s verdict against the city.


source: Caselaw Access Project

author: . PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
      In re MARRIAGE OF DIANA CUMMINS, Petitioner-Appellant, and JOHN CUMMINS, Respondent-Appellee.
    Second District
    No. 81-313
    Opinion filed May 4,1982.

      Robert A. Chapski and Jonathan L. Carbary, both of Elgin, for appellant.
    William J. Foote, of Dreyer, Foote and Streit, of Aurora (Paul T. Patricoski, of counsel), for appellee.
   . PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Whether there is an absolute right to a change of venue upon the filing of any successive post-decree petition to modify support provisions of a decree of dissolution of marriage alleging changed conditions, is the question here involved.

The petitioner (wife) obtained a dissolution of marriage on November 14, 1980. The decree entered by Judge Weiler required the respondent (husband) to pay child support of $60 per week for each of the two minor children of the parties. The same judge entered an order on January 14,1981, reducing the payment to $50 per week based on his finding that there had been a decrease in the husband’s 1980 earnings. The wife remarried on January 30,1981. On February 20,1981, the husband filed a motion for a reduction of child support “based upon a change of financial circumstances,” and asking the court to consider that the new husband was living in the marital home and paying some of the expenses thereof.

On February 26,1981, the wife filed a motion for a change of venue from Judge Weiler alleging that he was prejudiced against her and also filed a motion to dismiss the petition for reduction.

On the same date, Judge Weiler, after a hearing, entered an order denying the wife’s motion for a change of venue and continued the hearing on all pending matters to March 3, 1981, later scheduling the hearing for April 3,1981.

On April 3, 1981, the wife filed a petition for rule to show cause and orally moved for a change of venue with regard to her petition. On the same day the court entered an order denying the motion for a venue change and denying the husband’s petition for reduced child support because of his financial condition, but reserving the issue of reduction in child support and other relief based upon the wife’s remarriage.

On the continued date for the hearing on all pending matters, April 7, 1981, the wife again filed a motion for change of venue for the petition for rule to show cause, alleging that Judge Weiler was prejudiced against her. On the same date the judge entered an order reducing child support payments to $37.50 per child per week because of the wife’s changed financial condition resulting from her remarriage. The order also denied the wife’s April 7 motion for change of venue, finding no showing of prejudice. The wife appeals from the orders of April 3 and April 7, contending that the trial judge improperly denied her motion for change of venue and, alternatively, that he abused his discretion in reducing child support payments.

The venue act provides that as pertinent:

“501. Causes for change of venue §1. A change of venue in any civil action may be had in the following situations:
(2) Where any party or his attorney fears that he will not receive a fair trial in the court in which the action is pending, because the inhabitants of the county are or the judge is prejudiced against him, or his attorney, or the adverse party has an undue influence over the minds of the inhabitants. In any such situation the venue shall not be changed except upon application, as provided in this Act, or by consent of the parties.
503. Petition — Verification—Time for presentation §3. Every application for a change of venue by a party or his attorney shall be by petition, setting forth the cause of the application and praying a change of venue, which petition shall be verified by the affidavit of the applicant. A petition for change of venue shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, provided that if any grounds for such change of venue occurs thereafter, a petition for change of venue may be presented based upon such grounds.” Ill. Rev. Stat. 1979, ch. 110, pars. 501, 503 (formerly ch. 146, pars. 1,3).

Particularly where prejudice on the part of the judge is alleged, these provisions are to be liberally construed in order to effect rather than defeat a change of venue. (Rosewood Corp. v. Transamerica Insurance Co. (1974), 57 Ill. 2d 247, 251.) The trial judge has no discretion as to whether the change will be granted if a proper and timely petition is filed and cannot inquire as to the truthfulness of the allegations of prejudice. (57 Ill. 2d 247,251.) The motion need not specify the basis of the charge of prejudice; a general allegation of a suspicion of prejudice is sufficient. (American State Bank v. County of Woodford (1977), 55 Ill. App. 3d 123, 128.) The motion is timely if filed before the hearing has begun or the judge has ruled on a substantive issue in the case. (Templeton v. First National Bank (1977), 47 Ill. App. 3d 443, 447.) Any order entered after an improper denial of a change of venue is void. Sansonetti v. Archer Laundry, Inc. (1976), 44 Ill. App. 3d 789, 798.

Preliminarily, the husband argues that the wife has never appealed the February 26 order denying her motion for change of venue and that the orders of April 3 and 7 denied request for a change of venue only with regard to her petition for rule to show cause. However, an order granting or denying a change of venue is not a final order and is not otherwise appealable. (City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App. 3d 417, 428.) The wife therefore did not waive her right to a venue change by not appealing the nonappealable order of February 26. If she was entitled to a change of venue she was entitled to appeal from any appealable orders entered following an improper denial of her motion, including the order of April 7 granting the husband’s petition for modification.

The husband also argues that the wife waived any right to a change of venue by arguing her motion to dismiss, which was filed along with the motion for a change of venue, without insisting that her motion for a change of venue be heard first. However, the wife’s motion for change of venue was filed before the trial court had made any ruling. The motion to dismiss and motion for change of venue were argued and disposed of essentially simultaneously. This is not a case where the wife attempted first to determine the judge’s attitude towards the issues and then to remove him on the basis of a conclusion of prejudice. (See Executive Commercial Services, Ltd. v. Daskalakis (1979), 74 Ill. App. 3d 760, 769. See also Smith v. Smith (1967), 87 Ill. App. 2d 21, 26.) We conclude that the wife has not waived her right to a change of venue based on this issue.

The husband’s principal argument is that his petition for reduced child support was not a new trial or “action” under the venue act, but rather a continuation of the previous dissolution proceedings. Thus, he maintains that the wife must show actual prejudice to obtain a change of venue and, on her failure to do so, her motion was properly denied.

It has long been the rule in the appellate courts that a post-dissolution proceeding such as the husband’s petition is a “suit or proceeding” under the venue act. (See McPike v. McPike (1882), 10 Ill. App. 332, 334.) In this district we have consistently followed McPike in holding that a trial judge has a nondiscretionary duty to grant a change of venue upon a timely and formally sufficient motion alleging the trial judge’s prejudice, treating the post-dissolution proceedings as a new or independent action under the venue act. (Jackson v. Jackson (1938), 294 Ill. App. 508, 511-12; Fox v. Coyne (1960), 25 Ill. App. 2d 352, 362; Gates v. Gates (1963), 38 Ill. App. 2d 446, 448; Smith v. Smith (1967), 87 Ill. App. 2d 21, 25-27.) The same result has been consistently reached in the first district. Des Chatelets v. Des Chatelets (1937), 292 Ill. App. 357, 360-62; Minster v. Minster (1964), 53 Ill. App. 2d 428, 432; Johnson v. Johnson (1975), 34 Ill. App. 3d 356, 365-66; Rosenblum v. Murphy (1976), 42 Ill. App. 3d 1029, 1032.

We do not find any contrary holding except for In re Custody of Santos (1981), 97 Ill. App. 3d 629. Santos rejects McPike and its progeny because they “rely on a false premise” and, further, are currently undesirable for “procedural reasons and demographic reasons.” 97 Ill. App. 3d 629, 631.

We are not persuaded that the prior cases are falsely premised. They conclude that a petition to modify a divorce decree on questions of support or custody is a “new proceeding” as an action or suit supplemental to the prior decree in pursuit of a right given by statute, if there has been a change in circumstances warranting modification. (McPike v. McPike (1882), 10 Ill. App. 332, 334. See also Smith v. Smith (1967), 87 Ill. App. 2d 21, 26.) Santos reasons that such a petition is not a new proceeding but a mere “extension” of the same marital proceedings, as it involves redocketing of the original decree, and deals with the same parties and children. However, the petition for modification is not an action to set aside the earlier judgment and retry the earlier proceeding, but in fact recognizes the prior decree as final and res judicata on the facts then determined and requires proof of new facts arising after the prior adjudication. The earlier decree is recognized and given its proper effect, but is modified to meet new circumstances and the proceeding adjudicates new rights. These factors seem to us more significant than any procedural affinity with the earlier dissolution proceedings.

Nor can we agree with Santos that the McPike rule allows “judge shopping” by permitting a “litigant who loses his point in a divorce decree to turn right around and file a post-decree proceeding before a new judge ° * * so that a litigated matter can be relitigated de novo.” (97 Ill. App. 3d 629, 631.) The original matter is not relitigated in a post-decree modification proceeding, and there is no trial de novo. The petition for modification, as indicated, recognizes and gives full effect to the earlier decree both as final and as res judicata of the facts then before that court; and the modification petition arises from a statutory claim of right based on new facts said to arise after the previous determination. Considerations of policy, therefore, appear not to justify abandoning the long-standing rule that a petition for modification of a dissolution decree based on changed circumstances is a separate proceeding under the venue act, entitling a party to a change of venue upon a formally sufficient request.

We therefore conclude that the trial court erred in denying the wife’s petition for a change of venue. It follows that any action taken by the court after the denial of the motion was without legal effect. (See, e.g., Rosenblum v. Murphy (1976), 42 Ill. App. 3d 1029, 1033.) We do not, therefore, reach the issue presented on the merits.

The order denying the change of venue is reversed, and the cause is remanded with directions to grant the change of venue, to vacate the subsequent orders and for further proceedings consistent with this opinion.

Reversed and remanded with directions.

UNVERZAGT and VAN DEUSEN, JJ., concur.

       It is noted that Santos was decided without an appellee’s brief; that the appellate court found that the petition was not timely filed anyway; and thus the discussion of the issue before us appears there to have been, dicta.


author: Mr. JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD MURRAY, Defendant-Appellant.
    Fourth District
    No. 17304
    Opinion filed April 26,1982.
    Daniel D. Yuhas and Diana N. Cherry, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE WEBBER

delivered the opinion of the court:

Defendant appeals from his conviction of the offense of resisting or obstructing a peace officer in violation of section 31 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 31 — 1). He was found guilty of the offense by a jury in the circuit court of Vermilion County and after denial of his post-trial motion was sentenced by the court to 30 days’ imprisonment.

Defendant’s issues on appeal, (1) double jeopardy, (2) compulsory joinder, and (3) reasonable doubt, arise from the fact that he underwent two trials, as will be explained later. We need not consider the double jeopardy and reasonable doubt arguments, since we hold that there was a violation of the compulsory joinder statute (Ill. Rev. Stat. 1979, ch. 38, pars. 3 — 3 and 3 — 4) and reverse on that basis.

Briefly summarized, the facts giving rise to the offense are these: Danville police officers received a complaint about loud music at an apartment. They repaired to the scene where they found a party in progress at about 11:20 p.m. The party turned out to be the celebration of the wedding of Michael Joe Crider, which had taken place that day. Crider became abusive toward the police and was arrested for disorderly conduct. A police van was summoned for the purpose of transporting Crider to the stationhouse. Upon its arrival at the scene, a large crowd of people, about 100 in number according to the testimony, gathered around it. As the officers were attempting to place Crider in the van, defendant kept talking to them and according to their testimony kept getting in their way. Crider was eventually loaded into the van and as it was departing the scene, defendant began picking up garbage cans and throwing them in front of it.

As a result of this incident, defendant was charged by a two-count information with mob action and obstructing a peace officer. The mob action count alleged that he was part of an assembly of two or more persons whose purpose was an unlawful act, that of interfering with the arrest of Crider. Count II charged defendant with the offense of obstructing a peace officer in that he, knowing certain persons to be peace officers, did:

“knowingly obstruct, to-wit: throw bottles and trash cans at units driven by said officers, said officers in the performance of an act within their official capacity, to-wit: the arrest of Michael Crider « * ft ”

A jury trial was held on February 27,1981. Defendant was found not guilty of mob action, but guilty of obstructing a peace officer. Defendant’s motion for new trial was allowed.

Prior to the retrial, the State filed an amended information in two counts. Both alleged the offense of obstructing a peace officer in violation of section 31 — 1 of the Code. Count I reiterated in haec verba the allegations of the prior information set forth above concerning the throwing of bottles and trash cans. The operative language of count II was that defendant was guilty of obstruction:

“in that he and then and there knowing Frank Christian to be a peace officer did knowingly obstruct by standing in front of the doors of a police van to prevent Frank Christian from putting Michael Joe Crider in the van, said officer in the performance of an act within his official capacity, to-wit the arrest and transportation of Michael Joe Crider, 0 #

The retrial took place on June 24,1981. The jury found defendant not guilty of count I (throwing bottles and trash cans) but guilty of count II (standing in front of the doors of the van). A post-trial motion, which did not raise the questions of double jeopardy or compulsory joinder, was denied.

Section 3 — 3(b) of the Criminal Code of 1961 provides:

“If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, * * * if they are based on the same act.”

Section 3 — 4(b) (1) of the Code provides in part:

“A prosecution is barred if the defendant was formerly prosecuted for a different offense, 6 e e if such former prosecution:
(1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for an offense of which the defendant could have been convicted on the former prosecution; or was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3 — 3 of this Code * *

The mob action count in the first information, on which defendant was acquitted, was based on the same acts upon which the prosecution now seeks to convict by means of the second count in the amended information. By the plain language of the statute, set forth above, thát prosecution is barred since the evidence ait the second trial was essentially the same as that in the first.

The State argues that the mandatory joinder provisions do not apply since the evidence of blocking the doors to the van in the second trial was not necessarily encompassed by the mob action evidence in the first trial. The argument is self-defeating. If the evidence were not the same, there would have been no point in introducing it at the first trial. The mob action count in the first trial and the second count of obstruction in the second trial were based upon the same acts.

The judgment of the circuit court of Vermilion County on the jury verdict of guilty of obstructing a peace officer is therefore reversed and defendant’s sentence is vacated.

Reversed.

MILLS and TRAPP, JJ., concur.


author: PRESIDING JUSTICE GREEN JUSTICE WEBBER,

text:
    ILLINOIS CEREAL MILLS, INC., Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    Fourth District
    No. 17473
    Opinion filed April 26,1982.
    WEBBER, J., dissenting.
    Tyrone C. Fahner, Attorney General, of Chicago (Paul J. Bargiel, Special Assistant Attorney General, of Doss, Puchalski, Keenan, Bargiel & Dicks, Ltd., and Patricia Rosen, Assistant Attorney General, of counsel), for appellant.
    McDermott, Will & Emery, of Chicago (Hamilton Smith, of counsel), for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On July 2,1979, defendant, Department of Revenue, State of Illinois, issued a final assessment against plaintiff, Illinois Cereal Mills, Inc., imposing liability against plaintiff in the total sum of $67,135.05 for taxes assessed under the Retailers’ Occupation Tax Act (ROTA) (Ill. Rev. Stat. 1979, ch. 120, par. 440 et seq.); the Use Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 439.1 et seq.); the Municipal Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 24, par. 8 — 11—1); and the Municipal Use Tax Act (Ill. Rev. Stat. 1979, ch. 24, par. 8 — 11—6). Plaintiff appealed that determination to the circuit court of Edgar County. On September 3, 1981, that court determined that portions of the assessment were for sales made to purchasers for resale by them and thus not retail sales within the meaning of the foregoing acts, affirmed the assessment in the amount of $26,021.54, reversed the assessment for the balance, and entered judgment accordingly. Defendant appeals.

The acts previously described were not intended to impose a tax on sales to purchasers who will, in turn, sell at retail the items purchased. Section 2c of the ROTA (Ill. Rev. Stat. 1979, ch. 120, par. 441c) was enacted to provide a means of verifying that sales claimed by retailers as having been made for resale were in fact of that category. (Dearborn Wholesale Grocers, Inc. v. Whitler (1980), 82 Ill. 2d 471, 413 N.E.2d 370.) Section 2c states in pertinent part:

“If the purchaser is not registered with the Department as a taxpayer, but claims to be a reseller of the tangible personal property in such a way that such resales are not taxable under this Act or under some other tax law which the Department may administer, such purchaser (except in the case of an out-of-State purchaser who will always resell and deliver the property to his customers outside Illinois) shall apply to the Department for a resale number. Such applicant shall state facts which will show the Department why such applicant is not liable for tax under this Act or under some other tax law which the Department may administer on any of his resales and shall furnish such additional information as the Department may reasonably require. # # #
Except as provided hereinabove in this Section, no sale shall be made tax-free on the ground of being a sale for resale unless the purchaser has an active registration number or resale number from the Department and furnishes that number to the seller in connection with certifying to the seller that any sale to such purchaser is nontaxable because of being a sale for resale.” Ill. Rev. Stat. 1979, ch. 120, par.- 441c.

Except for a few sales for small sums which will be discussed later, the evidence at the hearing before defendant showed conclusively that the sales giving rise to the disputed portion of the assessment were for resale, but plaintiff did not comply with the literal documentation and verification requirements of section 2c. The evidence also conclusively showed that plaintiff, whose principal products are vegetable oil and feed for livestock, sells its products almost entirely for resale but does make a small but not isolated amount of sales to the ultimate consumers. Of those originally in question, sales totaling approximately $110,000 were admitted by plaintiff’s officers to have been made at retail.

Plaintiff maintains that: (1) under Dearborn, section 2c of the ROTA does not make the furnishing of resale certificates from purchasers having an active registration or resale number from the department a condition, precedent to the exemption of sales for resale from taxation; (2) section 2c would violate the uniformity provision of article IX, section 1, of the Illinois Constitution of 1870 and the equal protection clause of the United States Constitution if it were construed to bar those making sales for resale from proving their sales were for resale by means other than resale certificates merely because they make a few sales at retail; and. (3)' some of its sales for resale were exempt under article I, section 10, clause 2, of the United States Constitution, commonly referred to as the export clause. For the first time on appeal plaintiff maintains defendant is collaterally estopped from claiming plaintiff was required to meet the certificate requirements of section 2c.

We must summarily reject the collateral estoppel contention. The extreme reluctance of Illinois courts to apply any kind of estoppel against the State in cases where the revenue is involved is well documented. The supreme court stated in People ex rel. Scott v. Chicago Thoroughbred Enterprises, Inc. (1973), 56 Ill. 2d 210, 220, 306 N.E.2d 7, 12, “Our decisions, however, have made it clear that the doctrine of estoppel cannot be invoked where governmental activities of the State are concerned, particularly those relating to the public revenues, except in extraordinary circumstances.” (Emphasis added.) Similarly, in a suit where the Department of Revenue sought to subpoena a taxpayer’s books and records after the taxpayer had previously submitted its books and records to the department for audit, obtained a notice of tax liability for ROTA taxes, and paid the amount determined, the supreme court held the department was not estopped from requiring production of the documénts, in order to examine them, concerning the period for which the taxes had already been paid. The court stated, “It is firmly established that where the public revenues are involved, public policy ordinarily forbids the application of estoppel to the State.” Austin Liquor Mart, Inc. v. Department of Revenue (1972), 51 Ill. 2d 1, 4, 280 N.E.2d 437, 439.

No case has been called to our attention concerning the question of the application of the type of estoppel known as collateral estoppel or estoppel by verdict in a suit involving the assessment for or collection of taxes for the State as distinguished from the units thereof. However, in People v. Chas. Levy Circulating Co. (1959), 17 Ill. 2d 168, 161 N.E.2d 112, a circuit court order sustaining an objection to an assessment of capital stock for tax purposes was reversed on appeal. The tax involved the revenue of a county. In holding that the county was not estopped as to an issue decided in a previous case between the parties, the court stated that neither equitable estoppel nor “estoppel by verdict” applies “to the State or a county in the collection of its revenues by taxation.” (17 Ill. 2d 168,176,161 N.E.2d 112,116.) The court overruled People ex rel. Carr v. Omega Chapter of Psi Upsilon Fraternity (1927), 324 Ill. 540, 155 N.E. 279. Although the issue in Chas. Levy Circulating Co. concerned the revenue of a county, the dictum that the same rule was applicable to matters concerning the “revenue by taxation” of the State was direct and strong. The logic of applying the rule by analogy to matters concerning the State revenue is of overwhelming strength. (See also People ex rel. Nelson v. Ridgeway Services, Inc. (1975), 32 Ill. App. 3d 478, 335 N.E.2d 503.) Defendant’s claim for taxes was not barred by collateral estoppel.

In Dearborn, the taxpayer filed a complaint for administrative review of assessments for taxes arising under the ROTA and Municipal Retailers’ Occupation Tax Act. The circuit court reversed the administrative decision. The appellate court reversed the circuit court. The supreme court reversed the appellate court and set aside the assessment. There, as here, the taxpayer was unable to show compliance with section 2c of the ROTA but showed that it made sales only at wholesale. The supreme court examined section 2c and also the portion of section 1 of the ROTA (Ill. Rev. Stat. 1979, ch. 120, par. 440) defining the term “Sale at retail,” noting that those sections were provided for by amendments to the ROTA made in 1965 and 1967 while article IV, section 13, of the Illinois Constitution of 1870 was in force. Because section 13 limited the contents of an Act to the subject expressed in its title and the title of the ROTA was “ ‘An Act in relation to a tax upon persons engaged in the business of selling tangible personal property to purchasers for use or consumption’ (1933 Ill. Laws. 924)” the court held section 2c to be inapplicable to sellers not selling at retail. (Dearborn Wholesale Grocers, Inc. v. Whitler (1980), 82 Ill. 2d 471,477,413 N.E.2d 370,373.) The court noted that it had always held the subject of the tax was not merely the selling of goods but the selling of them for use or consumption. It also noted that the word “purchaser” as used in section 2c was defined in section 1 as “ ‘anyone who, through a sale at retail, acquires the ownership or title to tangible personal property for a valuable consideration.’ ” 82 Ill. 2d 471, 479, 413 N.E.2d 370, 374.

Plaintiff argues that because a retailer can be held to be also operating in other capacities (see Massell v. Daley (1949), 404 Ill. 479,89 N.E.2d 361; Snite v. Department of Revenue (1947), 398 Ill. 41,74 N.E.2d 877), section 2c violates article IV, section 13, if it makes compliance therewith a requirement for tax exemption for sales for resale made by a seller who also makes sales for retail. However, the Dearborn court stated: “If section 2c is construed as applying only to retailers, the problems just discussed are eliminated.” (Dearborn Wholesale Grocers, Inc. v. Whitler (1980), 82 Ill. 2d 471, 479, 413 N.E.2d 370, 374.) The problems discussed were those caused by article IV, section 13. For section 2c to apply only to retailers who do not also sell for resale would make section 2c meaningless, for it applies only to sales for resale. The Dearborn opinion clearly intended for section 2c to be a requirement for retailers who also sell for resale. We find no indication in the opinion that the court intended section 2c to be inapplicable to those, like plaintiff, who sell mostly for resale but make some sales at retail. The making of those sales brings it within the coverage of the section.

Plaintiff also maintains that because its retail sales are such a small part of its total sales, its position is not sufficiently different than that of a taxpayer whose sales are all for resale, to permit subjecting it to section 2c requirements when the latter is not so subjected. It contends that in doing so section 2c violates the uniformity requirements of article IX, section 1, of the Illinois Constitution of 1870 and the equal protection clause of the fourteenth amendment to the Constitution of the United States because of the lack of a reasonable basis for the difference. (Fiorito v. Jones (1968), 39 Ill. 2d 531, 236 N.E.2d 698.) However, we find a reasonable basis to exist. The purpose of section 2c is to verify that a sale is exempt. (Dearborn.) A greater chance that a sale may erroneously be claimed as resale exists when the seller sells both at retail and for resale than when the seller is shown to be selling exclusively for resale. Accordingly, requiring stricter verification is justified under the circumstances. The legislation meets constitutional muster.

We are unable to find evidence in the record to support plaintiffs claim that some of its sales for resale for which taxes were assessed were for export. Plaintiff’s brief does not give us a clue as to where that evidence is. Accordingly, we also reject that contention.

The record does show that a small amount of the Use Tax was assessed because of a purchase by plaintiff of $19 worth of burlap bags. As these bags were used to package products sold, we agree with the circuit court that these purchases were for resale and not subject to the use tax.

The judgment of the circuit court is reversed and the assessment made by the defendant is affirmed except in regard to the use tax assessment previously described. That portion of the judgment is affirmed. The case is remanded to the circuit court of Edgar County with directions to enter judgment in accordance with this opinion.

Affirmed in part; reversed in part; remanded.

LONDRIGAN, J„ concurs.

JUSTICE WEBBER,

dissenting:

I concur with my colleagues on the questions of estoppel, constitutional sufficiency of section 2c, and export. However, insofar as they read Dearborn and section 2c to mandate that any retail sale, no matter how insignificant, converts a taxpayer whose principal business is wholesaling into a retailer, I dissent.

In Dearborn the supreme court reiterated its longstanding position that the ROTA is an excise tax on the privilege of making retail sales and has no application otherwise. There the taxpayer maintained that it was not a retailer, although a field audit by the Department indicated that about 1.5& of its gross sales might have been at retail for the period concerned. The hearing examiner held that the taxpayer was a wholesaler but nonetheless held it subject to 2c. The appellate court took essentially the same position but was reversed by the supreme court, which said:

“While the amendments with which we are here concerned [section 2c added by amendment in 1965 and itself amended in 1967] do not in terms purport to impose the retailers’ occupation tax upon a wholesaler, that is their effect under the construction given them by the appellate court: A wholesaler, like the plaintiff here, is assessed for a supposed tax deficiency; section 4 makes the Department’s corrected returns presumptively correct; if the wholesaler cannot prove that his sales were for resale by the documentation prescribed by section 2c, then section 1 renders the presumption of liability conclusive. The wholesaler is made liable for the tax despite uncontroverted evidence that he is not engaged in the business of selling property at retail, and indeed makes no retail sales at all.
Such an anomalous result could not occur in the absence of these amendments, for without them the plaintiff’s evidence would have been sufficient to rebut the Department’s prima facie case. [Citation.] Under our decisions this attempt by indirection to extend the retailers’ occupation tax to one not engaged in that business would invalidate the amendments.” Dearborn Wholesale Grocers, Inc. v. Whitler (1980), 82 Ill. 2d 471, 477-78, 413 N.E.2d 370, 373.

The instant case is unlike Dearborn in that the plaintiff here admitted to certain retail sales, although in a lesser amount (about .66% of its gross) than that found by the audit in Dearborn. In my judgment it makes no difference whether the retail sales are admitted by the taxpayer or maintained by the audit. ROTA can apply only to such sales as can be established to be at retail and not for resale.

The essential teaching of Dearborn is that there are two types of evidence involved, contrary to the position of the Department, which maintains that the resale registration is exclusive. In the first instance the taxpayer may introduce whatever kind of evidence is available to it to establish the nature of its business and the nature of the specific sales in question. In Dearborn it consisted of affidavits from its salesmen and the general registration number of its purchasers; no resale certificates were introduced. On this basis the supreme court held that the taxpayer was exclusively a wholesaler.

Once it has been established that there are retail sales, whether by the introduction of evidence or by admission as in the instant case, then, and then only, does section 2c come into play and exemption can be established solely by the resale certificates. This is the second type of evidence, but it will never be reached until it is first established that the taxpayer acted as a retailer as to some sales. In my opinion the supreme court made this plain in Dearborn when it said:

“The apparent purpose of section 2c is rather to provide a means of verifying a claim made by a person subject to the Act as a retailer that a particular sale by him is exempt from tax because the purchaser is not himself the ultimate user or consumer of the property.” (Emphasis added.) (82 Ill. 2d 471,479,413 N.E.2d 370, 374.)

If it were otherwise, as the supreme court indicated in the prior quotation, it would be compelled under its prior decisions to hold section 2c unconstitutional.

This is precisely what the trial court did in the instant case. It examined evidence which led it to conclude that the major portion, or $597,949.50, of the questioned sales of $710,830 were of a wholesale nature to which the ROTA could not apply. As to the balance, it held them to be taxable and reduced the assessment accordingly.

Admittedly, the Department has a more difficult time when the taxpayer is acting in the capacities of both wholesaler and retailer, but it cannot be permitted to use section 2c, which was enacted presumably to make its job easier with retailers, as a dragnet to include all sales made by anyone conducting business of any nature within the State of Illinois. The ROTA remains a tax on the privilege of doing a retail business and no other.

Dearborn found the taxpayer to be exclusively a wholesaler and not subject to the ROTA in any respect. I find nothing in that opinion which prevents a taxpayer from acting in both capacities, i.e., wholesaler and retailer, and segregating its sales accordingly. When questioned by the Department, it may use whatever evidence it may obtain, including after-acquired section 2c certificates, to establish the nature of the sales. Once the wholesale sales have been separated out, then the burden is upon it to produce section 2c certificates acquired simultaneously with the sale to establish retail exemptions. Failing this, it is liable to the extent that it cannot so produce.

I would affirm the trial court.


author: PRESIDING JUSTICE GREEN

text:
    GARY S. AUBURN et al., Plaintiffs-Appellants, v. AMOCO OIL COMPANY et al., Defendants-Appellees.
    Fourth District
    No. 17523
    Opinion filed April 26,1982.
    Darrel F. Parish, of Owen, Roberts, Susler & Murphy, of Decatur, for appellants.
    Laurence W. Grabb, of Ryan, Grabb, Cini & Bennett, of Mattoon, for appellees.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

In this case we hold that the warranty of habitability implied in a lease of a dwelling by the doctrine enunciated in Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351, 280 N.E.2d 208, and expanded in Pole Realty Co. v. Sorrells (1981), 84 Ill. 2d 178,417 N.E.2d 1297, does not give rise to a cause of action for personal injuries or property damage. In doing so we are following the precedent set forth in pre-Pole Realty cases in comprehensive opinions by the Appellate Court for the First District in Beese v. National Bank (1980), 82 Ill. App. 3d 932, 403 N.E.2d 595, and that of the Fifth District in Dapkunas v. Cagle (1976), 42 Ill. App. 3d 644, 356 N.E.2d 575.

On March 26, 1981, in a multiparty case, plaintiffs, Gary S. Auburn and Karen Auburn, filed a third amended complaint in the circuit court of Macon County. The complaint was against defendants, Charles K. Ekiss and Alberta J. Rogers, as executors of the estate of Florence M. Ekiss, deceased. On September 14, 1981, the court allowed with prejudice defendants’ motion to dismiss the complaint, denied plaintiffs leave to file a fourth amended complaint, and found no just reason to delay enforcement or appeal of the order. Plaintiffs have appealed. We affirm.

The third amended complaint alleged: (1) plaintiffs were tenants under a lease with defendants’ decedent covering a dwelling house in Moultrie County; (2) plaintiffs resided in the house and kept substantial personal property in it; (3) at all times mentioned defendants’ decedent was in breach of her implied warranty that the premises were habitable because the furnace in the house and its appliances and fuel supply were not in working order and were not reasonably safe for their intended purposes; and (4) as a proximate result of the foregoing, an explosion occurred destroying the house and causing plaintiffs to suffer substantial personal injury and property damages. Defendants’ motion to dismiss alleged: (1) the theory of implied warranty of habitability does not give rise to a cause of action for damages for personal injury caused by breach of the warranty; (2) the lease, incorporated in the complaint, contained a clause disclaiming liability upon the lessor for the injuries alleged; and (3) the complaint contained no allegation that the injuries were caused by a hidden defect existing when plaintiffs commenced occupation and of which plaintiffs were unaware.

In pronouncing its ruling dismissing the third amended complaint, the trial court made a docket entry stating it was following the precedent of Beese and Dapkunas that no cause of action for personal injuries results from a breach of the implied warranty of habitability.

The opinion in Jack Spring is fully explained in Pole Realty, Beese, Dapkunas and numerous other cases. A lessor of a multiple-dwelling unit sued a lessee in forcible entry and detainer based upon failure to pay rent. The trial court struck an affirmative defense in which the lessee alleged the lessor had breached an implied warranty of habitability by failing to comply with the Chicago Building Code. On appeal, the supreme court reversed, holding that: (1) such a warranty is implied in leases for multiple-dwelling units; (2) the warranty could have been met by compliance with the applicable provisions of the building code; (3) a breach of the warranty by the lessor would be germane to whether the lessee was in default on rent; and (4) striking the defense was error.

In Pole Realty the implied warranty of habitability was extended to single-unit dwellings. The issue there also arose from a defense filed to a suit in forcible entry and detainer and, again, the allegation of breach was a violation of the Chicago Building Code. There, unlike in Jack Spring, the defendant also filed a counterclaim seeking relief which included damages for physical and emotional injury arising from the alleged breach of the warranty. Upon plaintiffs motion, both the breach-of-warranty affirmative defense and the counterclaim were stricken by the trial court on the ground that the warranty was not applicable to leases of single-unit dwellings. The supreme court agreed with the appellate court’s decision (Pole Realty Co. v. Sorrells (1979), 78 Ill. App. 3d 361, 397 N.E.2d 539) that the warranty applied to leases of single-unit dwellings and affirmed the appellate court’s decision to reverse the order striking the mentioned affirmative defense and the counterclaim.

Even after Pole Realty uncertainty exists as to whether the implied warranty of habitability arises from a lease of all dwellings or only those subject to a building code. (See Eaton, The Implied Warranty of Habitability in Illinois: Prairie State Lags Behind Other Industrial States in Landlord-Tenant Law, 1979 S. Ill. U.L.J. 183.) No allegation of the third amended complaint stated the dwelling here to be subject to a municipal building code. In Beese and Dapkunas, lack of a building code covering the premises whose lease was in question was held to be one of the grounds for a ruling in favor of the lessor. Here, however, the motion to dismiss was not based on the failure to allege the existence of a building code. In any event, because of our conclusion that no action for personal injury or one for property damage lies here, we need not consider whether the demised premises need be subject to a building code in order for the warranty to be implied.

Plaintiffs assert that because the Pole Realty court reversed the order striking the counterclaim which sought damages for emotional and physical injury arising from the breach of warranty, that decision is precedent establishing the validity of the type of action they have brought here. We disagree.

Neither the supreme court nor the appellate court opinions in Pole Realty discuss any issue concerning the propriety of the counterclaim other than the question of the types of dwellings whose leases were covered by the warranty, except for the following from the appellate court opinion:

“Defendant also contends that the trial court erred in striking her counterclaim for damages resulting from plaintiff’s alleged breach of the implied warranty. It is clear that a counterclaim raising the issue of whether excess rent has been paid may be asserted in an action for possession of property based upon non-payment of rent. (Peoria Housing Authority v. Sanders (1973), 54 Ill. 2d 478, 298 N.E.2d 173.) Accordingly, we further hold that the trial court erred in striking defendant’s counterclaim.” (78 Ill. App. 3d 361, 366, 397 N.E.2d 539, 543.)

We conclude that the question of whether an action for personal injury or property damages can arise from a breach of the implied warranty of habitability was never a subject of inquiry by the supreme court in Pole Realty.

Although we are aware of no Illinois case on the exact point, the following is pertinent to the precedent of Pole Realty as to the issue here:

“A decision is, generally, not a precedent as to a point which was not sufficiently argued and presented to the court, although if the point was an essential one the fact that it was duly presented and considered may be presumed. ” #
If a point is essential to the decision rendered, it will be presumed that it was duly considered, and that all that could be urged for or against it was presented to the court; but, if it appears from the report of the case that it was not taken or inquired into at all, there is no ground for this presumption, and the authority of the case is proportionately weakened. * * *” 21 C.J.S. Courts sec. 186c (1940).

The appellate court opinion in Pole Realty describes the nature of the counterclaim in more detail than does the supreme court opinion. It indicates counterclaimant was suing for a decrease in the value of the tenancy, bills for extermination services, and excessive gas bills as well as the physical and emotional injuries. The appellate court of this State has held that the implied warranty may be used as a sword as well as a shield and that an independent action for breach may stand. (Jarrell v. Hartman (1977), 48 Ill. App. 3d 985, 363 N.E.2d 626; Gillette v. Anderson (1972), 4 Ill. App. 3d 838, 282 N.E.2d 149.) Both of these cases concerned claims for a deterioration in the benefits from the lease rather than for personal injuries or property damage arising from a catastrophe resulting from a breach as here. The major thrust of the counterclaim in Pole Realty seems to have been similar to that in the cited cases. In this light, any consideration by the supreme court of whether the personal injury claim was proper seems even less likely.

Moreover, the Pole Realty opinions would indicate it was unlikely that the issue, of whether an action for personal injuries could arise from the breach, was ever raised in the trial court. A reviewing court can consider for the first time on review the question of whether a pleading states a cause of action only if the pleading completely fails to state a cause of action. (Lasko v. Meier (1946), 394 Ill. 71, 67 N.E.2d 162.) The Pole Realty counterclaim did state a cause of action even if the claim for personal injuries was invalid. Thus, if the question upon which precedent is claimed was hot raised in the trial court, once the supreme court determined the warranty was applicable to the lease, it could not have upheld the striking of the counterclaim on the basis of a ground not raised below. Accordingly, a determination that a claim for personal injury or property damage lies for a breach of the warranty would not have been “essential” for the supreme court’s upholding the counterclaim.

We are aware of no Illinois cases upholding the cause of action plaintiffs seek to assert. Beese and Dapkunas set forth a few cases from other jurisdictions that do. However, this shortage of precedent, of itself, does not stop us from recognizing the cause of action. Plaintiffs’ argument that such an action would be appropriate under general legal principles has some force. They point out that under section 2 — 715(2) (b) of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 715(2)(b)) a buyer has a cause of action for “injury to person or property proximately resulting from any breach of warranty.” They also mention how the tort of strict liability for defective product has arisen from the contractual theories of warranty.

In both Beese and Dapkunas the trial court had dismissed complaints by tenants seeking recovery against landlords for personal injuries resulting from breach by the landlords of warranties of habitability implied from the leases. In neither case was the leased property subject to a building code. In both cases the appellate court, in affirming the dismissal, held that the implied warranty recognized in Jack Spring did not arise unless the property was subject to a building code. Both courts also held that the complaints were also defective because no action for personal injuries can result from a breach of the implied warranty of habitability. Both courts indicated that an extension by them of the law of landlord and tenant was neither appropriate nor desirable. We are in general agreement with the reasoning of the courts in those cases. We note that even with respect to actions by tenants for damages for injury to person or property arising from breach of express promises by the landlord, the Illinois cases indicate that the breach must be negligently made and other aspects of tort law are also applicable. Moldenhauer v. Krynski (1965), 62 Ill. App. 2d 382, 210 N.E.2d 809; Alaimo v. Du Pont (1954), 4 Ill. App. 2d 85,123 N.E.2d 583; Cromwell v. Allen (1909), 151 Ill. App. 404.

Although Beese and Dapkunas are not binding upon us, we choose to follow their precedent. We do not deem Pole Realty to have changed their authority on the question of actions for personal injury and property damage. As were those courts, we are unwilling to extend the operation of the implied warranty of habitability to the extent requested by plaintiffs. Accordingly, we affirm the judgment of the trial court.

Affirmed.

MILLS and LONDRIGAN, JJ., concur.


author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACOB KILLEN, Defendant-Appellant.
    Fourth District
    No. 17149
    Opinion filed April 29,1982.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.

      J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Following a jury trial, the defendant, Jacob Killen, was convicted of robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 1), attempt rape (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4), and deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 3). Defendant was sentenced to a term of 7 years for robbery, 15 years for attempt rape, and 30 years for deviate sexual assault. He now appeals his sentence, contending that the trial court abused its discretion in sentencing him to 30 years’ imprisonment for deviate sexual assault. For the reasons enunciated below, we vacate defendant’s sentence and remand for resentencing for the deviate sexual assault conviction.

As no issue as to reasonable doubt is raised, we need only briefly outline the factual background of the case. The victim of the deviate sexual assault was an 18-year-old female employed as a clerk at a convenience food store in Springfield, Illinois. She identified the defendant as the individual who came into the food store on July 15, 1980, at approximately 4 a.m. Her shift was from midnight to 8 a.m., and she worked alone. The defendant came up behind her and stuck something in her back which she thought to be a knife but did not see it. He then forced her to give him the money from the cash register. After receiving the money, he directed the clerk into a storage room. Once inside, he ordered her to disrobe. The clerk was forced to bend over and defendant attempted to penetrate her but was unable to do so. He then ordered her to perform an act of fellatio upon him, with which she complied. He attempted to again have intercourse with her but was unable to penetrate her. He then had her perform a fellatio act again. He threatened to “cut her” if she failed to comply with his demands. While engaged in the fellatio act, defendant asked of the victim questions of a personal nature. After completion of the fellatio act, defendant fled from the store via an emergency door.

The presentence report disclosed that the 20-year-old defendant had two prior felony convictions; a burglary conviction in 1979 and a recent conviction in 1980 for armed robbery. He was serving a 7-year sentence for armed robbery at the time of the sentencing hearing. The State recommended that the defendant be sentenced to a 25-year term of imprisonment for deviate sexual assault not to be served concurrently with the 7-year imprisonment he was currently serving for armed robbery. However, the trial court stated that it was considering that “the offense of deviate sexual assault was accompanied by exceptionally heinous behavior indicative of wanton cruelty” and sentenced defendant to a 30-year term of imprisonment for deviate sexual assault. The court also stated that because of the exceptionally heinous behavior indicative of wanton cruelty, the defendant could have been sentenced to an extended term. The 30-year term of imprisonment for deviate sexual assault was to run concurrently with the prison terms for robbery and attempt rape and also with the sentence imposed for the prior armed robbery conviction. For two reasons, we conclude that the trial court erroneously considered as a factor that the offense of deviate sexual assault was accompanied by exceptionally heinous behavior indicative of wanton cruelty.

Section 5 — 5—3.2(a) of the Unified Code of Corrections sets forth factors in aggravation for the trial court to consider in deciding whether a term of imprisonment or a more severe sentence should be imposed. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(a).) Section 5 — 5—3.2(b)(2) provides that the trial court may consider as a reason to impose an extended term sentence that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(2).) It is clear that the statute provides that the court is only to make a finding that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty in imposing an extended-term sentence. In the instant case, the trial court made such a finding, noting that he could sentence the defendant to an extended term, but instead used the finding to impose a maximum term sentence. As a Class X felony was involved, the court could have sentenced the defendant to not less than 6 years nor more than 30 years. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(3).) We believe that the trial court’s approach short circuits the sentencing procedures set forth in the Unified Code of Corrections. In imposing a sentence, the court is to consider the factors in aggravation and mitigation, and then, and only then, may the court consider whether an extended-term sentence should be imposed because the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Section 5 — 5—3.2(b)(2) was not intended to provide an automatic imposition of a maximum term sentence, without imposing the extended-term sentence. Therefore, section 5 — 5—3.2(b) (2) is to be considered only in establishing an extended-term sentence. Otherwise, a trial court could leap to a conclusion that a maximum term could be imposed without consideration of factors in aggravation and mitigation.

Nor do we believe that the offense of deviate sexual assault in the instant case was accompanied by exceptionally heinous behavior indicative of wanton cruelty. As noted recently by the supreme court, the extended term provisions in the Unified Code of Corrections were not intended to convert every offense into an extraordinary offense subject to an extended term sentence. (People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520.) Certainly, crimes such as the one in the instant case are shocking and reprehensible and represent a serious problem in our society. While the underlying crime itself demonstrates a callousness on the part of the defendant and is repugnant to society, we cannot say in the instant case that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. The victim was not battered and apparently received no physical injury. No doubt, the victim has suffered deep and permanent emotional scars. While we empathize with the trial court’s efforts to deter others from crimes of this nature, to say that every such crime is accompanied by heinous behavior indicative of wanton cruelty would be to divest the court of any discretion in the sentencing process.

In view of the foregoing, the defendant’s sentence for robbery and attempt rape is affirmed; defendant’s sentence for deviate sexual assault is vacated and remanded for resentencing.

Affirmed in part; sentence as to deviate sexual assault vacated; cause remanded for resentencing.

MILLS and TRAPP, JJ., concur.


text:
      In re MARRIAGE OF ROBERT EARL HAWKINS, Petitioner-Appellant, v. DEBRA L. HAWKINS, Respondent-Appellee.
    Fourth District
    No. 17419
    Opinion filed April 29,1982.

      Thomson, Thomson, Mann & Mann, P. C., of Jacksonville, for appellant.
    Charles E. McNeely, of Jacksonville, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Petitioner, Robert Earl Hawkins, appeals from an order of the circuit court of Morgan County entered on July 29, 1981. That order granted a petition filed under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, eh. 110, par. 72) by the respondent, Debra L. Hawkins, and set aside the judgment of dissolution of marriage insofar as it approved and incorporated the property settlement agreement of the parties. Petitioner maintains the trial court erred in granting respondent’s section 72 petition. We disagree with petitioiier and affirm the trial court’s decision.

The record shows that petitioner filed a petition on June 16, 1980, requesting that his marriage to respondent be dissolved and that the court approve the marital settlement agreement of the parties. The agreement stated that the parties acknowledged that each of them had been fully informed of the property and income of the other and provided that: (1) petitioner would pay respondent $600 per month for a period of three months, with the payments to also terminate on respondent’s death, remarriage, or cohabitation with another person; (2) respondent would waive her right to any other claim of maintenance; (3) petitioner would have the right to declare the three minor children as exemptions for tax purposes; (4) petitioner would pay all debts of the parties incurred prior to June 1,1980; (5) respondent would transfer to petitioner her interest in the farmland owned by the parties and her interest in Four “H” Farms, Inc., the corporation owned by the parties; (6) each would keep the personal property in their possession; (7) custody of the children would be given to respondent but if petitioner remarried, custody was to be given to him; and (8) petitioner agreed to pay respondent $167 per month per child as child support. The agreement was drafted by petitioner’s attorney.

The record further shows that on June 18,1980, a hearing was held on the petition for dissolution. Petitioner was represented by an attorney. Respondent was not represented by counsel and did not appear but had filed her appearance and consent that immediate default might be taken and entered against her. The petition was granted and the marital settlement agreement was made a part of the judgment of dissolution of marriage.

On January 23,1981, respondent filed the section 72 petition requesting that the judgment be vacated. That petition alleged the settlement was unconscionable and fraudulent. In support of both grounds she alleged that the value of the farming interests of the parties given to petitioner far exceeded the small amount of personalty and monetary award of $1,800 given to her. In support of the fraud charge she also claimed she was induced to sign the petition because petitioner told her they would “start over” as a couple after the dissolution, while at the time he was keeping company with another woman. The section 72 petition set forth that respondent was not represented by counsel during the dissolution proceedings.

After a hearing on the section 72 petition, the court found respondent had carried her burden and determined the settlement agreement should be set aside, not only because it was manifestly unfair and inequitable but also because its procurement was not entirely free from misrepresentation by the petitioner. The judgment of dissolution of marriage was ordered vacated only as to the portion which adopted the settlement agreement. Respondent was represented by counsel throughout the section 72 petition proceedings.

A petition filed under section 72 of the Civil Practice Act may be pursued in order to vacate or modify a judgment of dissolution where one of the party’s interests have been inequitably treated. Although the law looks with favor upon the amicable settlement of property rights between a husband and a wife, a settlement agreement procured by fraud, coercion, or one that is contrary to any rule of law, public policy, or morals, will be set aside and vacated. A settlement agreement will also be evaluated to determine if it is reasonably fair and sufficient, in light of the station in life and circumstances of the parties, and it will be set aside if it is unfair and inequitable. Beck v. Beck (1980), 83 Ill. App. 3d 976, 404 N.E.2d 972; Crawford v. Crawford (1976), 39 Ill. App. 3d 457,350 N.E.2d 103.

The determination of the trial court that the settlement agreement was manifestly unfair and inequitable was not against the manifest weight of the evidence. Respondent was not represented by counsel while petitioner was during the dissolution proceedings, including those involving property distribution. She received the settlement proposal only five days before it was approved by the court. Five months after the entry of judgment on the property settlement, petitioner sold the farming interests of the parties for a net of $158,050. Although we recognize that the farm interests involved the volatile business of breeding and raising hogs, we deem the sales price to have substantial bearing upon the value of those interests at the time of decree. As these interests were marital property, respondent would have been entitled to a substantial interest in this property. This evidence also was enough to support the determination the agreement was grossly unfair. Although respondent did testify she knew she was giving away all this property to petitioner, the evidence also showed she had been receiving letters from petitioner informing her: (1) she would have to pay some of the bills arising from the farming operation; (2) the prognosis for the business was bad; (3) the hog market was bad; and (4) they were losing $4,000 to $5,000 per month. Although we do not deem the foregoing to necessarily show fraud, it does give justification to respondent to now claim the agreement to be unfair even though she entered into it knowing what she was giving up.

We also find that respondent acted with reasonable diligence here. She filed her petition a month after the petitioner sold the farm. Until the farm was sold, she would not have known the true value of the farm property.

Accordingly, the ruling of the circuit court is affirmed.

Affirmed.

LONDRIGAN and TRAPP, JJ, concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL CHUMBLEY, Defendant-Appellant.
    Fourth District
    Nos. 16838,16839 cons.
    Opinion filed May 5,1982.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Hugh Finson, State’s Attorney, of Monticello (Diane Roe, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Following revocation of probation, defendant appeals from concurrent sentences imposed upon two convictions of burglary. He contends that the trial court erred: (1) In sentencing defendant the court considered his placement on supervision for burglary as a juvenile and, (2) the trial court denied credit for nonjail time served on probation.

On September 15, 1978, informations were filed charging the defendant with the burglary and theft of two separate businesses. On October 25,1978, the defendant pleaded guilty to the two charges of burglary, the theft charges were dismissed, and the court, thereupon sentenced the defendant to 30 months’ probation, with a condition that the first 90 days be served in the Piatt County jail. A year later, on March 14, 1980, a petition for revocation of probation was filed alleging as the basis therefor that the defendant, on four separate occasions, committed deceptive practices in violation of section 17 — 1(B) (d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 17 — 1(B) (d)) and further violated the conditions of probation by being in possession of alcohol in violation of section 13a of article VI of the Liquor Control Act (Ill. Rev. Stat. 1979, ch. 43, par. 134a). On May 13, 1980, at a hearing on this petition, the defendant admitted to two acts of deceptive practices and to his possession of alcohol, and the court, after hearing testimony in aggravation and mitigation and considering the presentence report on file, extended the term of probation 12 months, sentenced the defendant to 4 months in the county jail, and required the defendant to perform public service work. The presentence report on file indicated that the defendant, as a juvenile, had been charged with burglary and theft and was placed on supervision for 1 year, after which the case was dismissed.

While the defendant was in the county jail serving the 4 months’ periodic imprisonment imposed as a condition of the modified order of probation, he was found in possession of less than 2.5 grams of cannabis. On September 17, 1980, a second petition to revoke probation was filed, and at a hearing on this motion the defendant admitted to the allegations of the petition. On December 17,1980, a sentencing hearing was held and the defendant was given concurrent terms of 3 years’ imprisonment with credit for time in jail while on probation, but without credit for time “otherwise served on probation.”

At the sentencing hearing held on the second petition for revocation of probation, counsel for the defendant moved that the trial court not consider defendant’s placement on supervision as a juvenile in its sentencing determination. The trial judge, however, stated he would consider the juvenile record in that it was a sentencing alternative under the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, pars. 701 — 1 through 708 — 4). On appeal, the defendant contends the trial court committed error in considering his juvenile supervision in sentencing.

While neither party has referred us to section 2 — 9(2) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 9(2)), we believe that this section precludes a trial judge from considering any juvenile record in sentencing the defendant, short of a juvenile record containing a finding of delinquency. Section 2 — 9(2) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 9(2)) provides:

“(2) Notwithstanding the foregoing provisions of this Section, whenever anyone who has been adjudicated to be a delinquent minor described in Section 2 — 2 is convicted of a crime in any court, the court in which the conviction has been entered may, in passing upon an application for probation or in determining the sentence to be imposed, examine the records of disposition or evidence which were made in proceedings under this Act.” (Emphasis added.)

Placement of a juvenile on supervision under section 4 — 7 of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 704 — 7) is inconsistent with any finding of delinquency since this section provides that placement on supervision shall occur “* # ” before proceeding to findings and adjudication, or after hearing the evidence but before noting in the minutes of proceeding a finding of whether or not the minor is a person described in Section 2 — 1 [e.g., delinquent].” (Cf. In re K. S. Y. (1981), 93 Ill. App. 3d 6, 8,416 N.E.2d 736, 737-38.) Placement of the defendant under supervision would therefore involve no finding of delinquency and would prevent the trial court from considering records of the juvenile disposition. Moreover, our conclusion that juvenile proceedings which do not result in findings of delinquency should not be considered by any court in sentencing hearings growing out of subsequent criminal convictions is supported by recent decisions of this court. In People v. Calvert (1981), 100 Ill. App. 3d 510, 426 N.E.2d 1218, we held that it was error for the trial court in sentencing the defendant for a subsequent criminal conviction to consider the defendant’s placement on supervision under section 5 — 6—3.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—3.1) when the defendant had successfully completed supervision. In so holding we relied upon People v. Wunnenberg (1981), 85 Ill. 2d 188, 421 N.E.2d 905, a supreme court case which dealt with a similar issue under a section of the Federal Youth Corrections Act (18 U.S.C. sec. 5005 et seq. (1964)), which provided for the setting aside of a conviction of a youth offender prior to the expiration of a period of probation when the offender had demonstrated good behavior during the sentence. In that case, the defendant’s youth conviction was set aside by a Federal district court, but in a later sentencing hearing arising from defendant’s subsequent conviction of unlawful delivery of a controlled substance, the trial court considered, over defense counsel’s objection, the set-aside conviction in sentencing the defendant. The supreme court, based on an examination of the legislative history of the Federal Youth Corrections Act, concluded the set-aside order should not have subsequent repercussions either of a criminal or noncriminal nature, and remanded the case for a new sentencing hearing (85 Ill. 2d 188,195, 421 N.E.2d 905, 909). Calvert and Wunnenberg both dealt with similar statutory provisions; in Wunnenberg the statute provided that the conviction could be set aside, and in Calvert, section 5 — 6—3.1(f) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—3.1(f)) provided that completion of a disposition of supervision was to be deemed without adjudication of guilt. While the Juvenile Court Act does not contain a provision for expungement or setting aside of the juvenile disposition, we think defendant’s placement on supervision under section 4 — 7 of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 704 — 7) likewise should not have subsequent criminal or noncriminal repercussions. Under section 4 — 7, a juvenile, in the absence of objection, may be placed on supervision without a formal finding of adjudication. This we think is analogous to a mere arrest, the consideration of which, in sentencing, this court has condemned. People v. Kennedy (1978), 66 Ill. App. 3d 35,40,383 N.E.2d 255, 258-59.

While we believe it was error for the trial judge to have considered the defendant’s placement on, and successful completion of, supervision under section 4 — 7 of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 704 — 7), we think his consideration of such was harmless error. Defendant had previously committed several violations of the court’s original probation order, and the court did not revoke his probation. As a condition of the modified order defendant was sentenced to 4 months’ periodic imprisonment, but was unable to complete this term without a violation of the modified order. Defendant also admitted, during the hearing on the second petition to revoke probation, that he had used cannabis daily, and that he had lied to his probation officer on several occasions. Faced with the defendant’s abysmal performance while on probation, any consideration of the juvenile supervision would have been merely cumulative. Also, during the hearing on the first petition to revoke probation, the presentence report included a notation of defendant’s juvenile supervision, and notwithstanding the probation officer’s recommendation of incarceration, the judge extended defendant’s sentence of probation. It would appear that the juvenile supervision would have had little effect, after the subsequent violations, in the court’s sentencing determination. People v. Blake (1973), 15 Ill. App. 3d 39,44, 303 N.E.2d 419, 421.

Defendant also contends that the trial court abused its discretion in denying him credit for the time he served while on probation. Section 5 — 6—4(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—4(h)) provides:

“(h) Resentencing after revocation of probation, conditional discharge or supervision shall be under Article 4. Time served on probation, conditional discharge or supervision shall be credited by the court against a sentence of imprisonment or periodic imprisonment unless the court orders otherwise.”

Under this section the trial court has broad discretion in choosing to grant or refuse credit for time served while on probation. (People v. Scheib (1978), 59 Ill. App. 3d 104,106, 375 N.E.2d 132,134, revd in part on other grounds (1979), 76 Ill. 2d 244, 390 N.E.2d 872.) The determination of whether the trial judge abused his discretion in denying credit for time served on probation is similar to a review of whether the judge imposed an excessive sentence. (People v. Stevens (1981), 94 Ill. App, 3d 516, 518, 418 N.E.2d 1091, 1093.) The decision rests within the sound discretion of the trial court and will not be disturbed by an appellate court absent an abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 279-80, 412 N.E.2d 541, 547.) In deciding if the trial judge abused his discretion in the case at bar, two factors are of controlling importance. First, the defendant’s conduct during, probation, and secondly, the sentence imposed by the trial judge. (See People v. Stufflebean (1979), 73 Ill. App. 3d 801, 804, 392 N.E.2d 414,417; People v. Willett (1976), 44 Ill. App. 3d 545, 552, 358 N.E.2d 657, 664.) The defendant, as previously indicated, was before the court on the second probation violation, had admitted to lying to his probation officer, and had admitted to using cannabis on a daily basis during his period of probation. Additionally, the trial judge would have been empowered to sentence the defendant to two consecutive sentences of 3 to 7 years, since the underlying burglary charges did not arise out of a single course of conduct (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(a)), but instead sentenced the defendant to concurrent terms and imposed the minimum sentence. We do not feel that the denial of credit for time served while on probation was an abuse of discretion.

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

Affirmed.

GREEN, P. J„ and LONDRIGAN, J., concur.