text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BETTE SOLZAK, Defendant-Appellee.
    First District (3rd Division)
    No. 82—1724.
    Opinion filed June 29, 1984.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and James F. Sullivan, Assistant State’s Attorneys, of counsel), for the People.
    Katz, Hirsch, Wise & Colky, Ltd., of Chicago, for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

On January 31, 1982, Bette Solzak was arrested for driving while under the influence of alcohol. At a hearing to determine whether her driver’s license should be suspended, pursuant to Illinois’ implied consent statute (Ill. Rev. Stat., 1982 Supp., ch. 95 Va, par. 11 — 501.1), Ward Rhentgen, the arresting officer, testified that Solzak had refused his request that she submit to a chemical test to determine the alcohol content of her blood. Solzak testified that she did not remember anything. The trial court ruled that Solzak had not knowingly refused the request and, accordingly, there was no probable cause to suspend her driver’s license. The People appeal. The issue presented for review is whether a refusal to take a chemical test for blood alcohol content by a person under arrest for driving while under the influence of alcohol must be knowing in order to be the basis for a suspension of the person’s driver’s license within the provisions of section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat., 1982 Supp., ch. 95 x/2, par. 11-501.1).

Officer Ward Rhentgen of the Northfield police department testified that on January 31, 1982, at about 1:56 p.m., he was notified of an automobile accident at 300 Waukegan Road, Northfield. He arrived at that address to find Solzak seated behind the steering wheel of an automobile with the key in the ignition and the motor running. The car was on top of the remains of a Regional Transportation Authority wind shelter. He smelled a strong alcoholic odor on Solzak’s breath. After an ambulance arrived and provided medical treatment, Officer Rhentgen informed Solzak that she was under arrest for driving un-’ der the influence of alcohol. He repeatedly asked her if she was all right. Solzak did not respond to the questions. She was speaking, not making any sense, and moving in a “combative” manner.

Solzak was transported by ambulance to Glenbrook Hospital emergency room. Officer Rhentgen arrived there at about 3:30 p.m. and again advised her that she was under arrest for driving under the influence of alcohol. He asked her to submit to a test to determine the alcohol content of her blood, adding that failure to so submit would cause a six-month suspension of her driver’s license. Solzak replied, “Nobody’s going to take any blood from me.” At this time, Solzak appeared coherent, not hysterical, and not in any pain. She subsequently was taken to the Northfield police station, where she was cited for driving under the influence of alcohol and released on bond.

Solzak testified that she did not recall a conversation with Officer Rhentgen or anything else prior to being at the police station.

The trial court found that there was no probable cause to suspend Solzak’s license because she did not knowingly refuse to submit to the blood test. This appeal followed.

The People contend that the trial court based its decision on the erroneous assumption that a refusal to take a blood test must be knowing, and, therefore, its judgment should be reversed. The applicable statute provides, in pertinent part, as follows:

“(a) Any person who drives *** a motor vehicle upon the public highways of this State shall be deemed to have given consent *** to a chemical test or tests of blood, breath, or urine for the purpose of determining the alcohol *** content of such person’s blood if arrested [for driving while under the influence of alcohol]. ***
(b) Any person who is dead, unconscious or who is otherwise in a condition rendering such person incapable of refusal, shall be deemed not to have withdrawn the consent provided by *** this Section ***.” (Emphasis added.) (Ill. Rev. Stat., 1982 Supp., ch. 95 V2, pars. 11 — -501.1(a), 11 — 501.1(b).)

This statute, which became effective on January 1, 1982, replaced an earlier statute which stated that any person who was unconscious or otherwise incapable of refusal was deemed to have withdrawn the implied consent presumed by the statute. (Ill. Rev. Stat. 1979, ch. 95 Vz, par. 11 — 501.1(e).) Refusal to submit to the test results in suspension of the individual’s driver’s license. Ill. Rev. Stat., 1982 Supp., ch. 95 Vz, par. 11 — 501.1(c).

The question whether a refusal to take a chemical test for blood alcohol content must be knowingly made under the current implied consent statute has not, to our knowledge, been decided by a reviewing court in Illinois. Other jurisdictions which have considered this issue under identical statutes have determined that such a refusal need not be knowing to invoke suspension of the driver’s license. In Hoban v. Rice (1971), 25 Ohio St. 2d 111, 267 N.E.2d 311, a motorist appealed the suspension of his driver’s license, contending that since he did not remember anything, he did not refuse to take the test, because the refusal must be knowingly and intentionally made. The Supreme Court of Ohio refused to consider such a subjective standard as the state of mind of the motorist, since requiring a determination whether he understood his refusal would place an impossible burden on the arresting officer. In affirming the order suspending the license, the court stated:

“Appellant’s lack of recollection is not inconsistent with his refusal to take the sobriety test. It is possible for a licensee to be in such a state of intoxication that he does not understand what is happening, and, at the same time, by words, acts and general conduct to manifest an unwillingness or outright refusal to take the test. Although he may later have no memory of what occurred, his mere statement that he does not remember anything that happened is insufficient to show that he did not refuse to take the test.
If we were to adopt appellant’s theory, a licensee could refuse the test *** and then, at a *** hearing [on the suspension of his license], testify that he does not remember anything. The result could be to nullify the effect of the statute.” 25 Ohio St. 2d 111, 117-18, 267 N.E.2d 311, 315-16.

In State of Minnesota Department of Highways v. Normandin (1969), 284 Minn. 24, 169 N.W.2d 222, the Supreme Court of Minnesota reversed a municipal court order which rescinded an order of the commissioner of highways which directed revocation of the driving license of an individual who refused to submit to a chemical test upon being arrested for driving under the influence of alcohol. The court concluded that a driver of an automobile who refuses to take the required chemical tests is subject to the suspension of his license regardless of the degree of voluntary intoxication or lack of understanding resulting therefrom. The court also stated:

“The legislature never intended the ‘implied consent’ statute to excuse one so intoxicated as to be incapable of refusing to submit to chemical tests. This construction would lead to an absurd result — the greater the degree of intoxication of an automobile driver, the less the degree of his accountability ***.” 284 Minn. 24, 27, 169 N.W.2d 222, 224.

Kaufman v. State of Louisiana Department of Public Safety (La. App. 1973), 286 So. 2d 723, involved a motorist whose driver’s license was suspended as a result of his refusal to submit to an intoximeter test. He appealed the suspension, defending his refusal on the ground that he was so intoxicated he was unable to knowingly refuse to take the test. The Court of Appeal of Louisiana held that voluntary intoxication to such a degree as to deprive a driver of the capacity to knowingly refuse the test is not a defense to the action for revocation of his license. The court stated:

“Nowhere can we find in the statute any provision which indicates that a person subject to its provisions must knowingly refuse to take the test. We think that the contrary is indicated.
* * *
[I]f the test may be performed on a person subject to the statute whose condition is such as to render him incapable of refusal, we would be hard pressed to judicially interpret the statute so as to require that a person must knowingly refuse the test before the sanctions of the statute may be applied to him.
* * *
Adopting plaintiff’s argument would have the *** effect of excusing the most dangerous class of drivers on the highway, i.e., those who are not too drunk to drive but too drunk to know what is going on around them.” 286 So. 2d 723, 725.

In the instant case, Officer Rhentgen testified that at the hospital he asked Solzak to submit to a test to determine the alcohol content of her blood. She refused his request by stating: “Nobody’s going to take any blood from me.” Solzak testified that she did not remember any conversation with Officer Rhentgen prior to when she was at the police station. The trial court determined that her refusal was not, therefore, a knowing refusal. Based on this finding, the trial court decided that her license would not be suspended.

It is clear to us that the purpose of Illinois’ implied consent statute is to make the streets and highways safer for its citizens by making prosecution of intoxicated drivers easier. Allowing an individual who is too intoxicated to knowingly refuse a blood test to escape the deterrent and retributive effects of the statute would not serve to further that purpose. Furthermore, such a result would circumvent the plain meaning of the statute, which calls for suspension of one’s driver’s license upon refusing to take the blood test. Noticeably absent from the statute is any exception to the rule for lack of knowing refusal, and we will not create such an exception by judicial fiat. Therefore, we hold that refusal to take a chemical test by a person under arrest for driving while under the influence of alcohol, other drug, or combination thereof, need not be a knowing refusal to be the basis for a suspension of driving privileges within the provisions of Ill. Rev. Stat., 1982 Supp., ch. 95 ½, par. 11 — 501.1.

Solzak argues that the trial court determined that there was no response to the blood test request and that this was a finding of fact that there was no refusal. This finding, she contends, was not manifestly contrary to the evidence (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65) and, therefore, must be affirmed. The record indicates that the trial court found as follows:

“*** I’m going to find that there was no knowing refusal ***.
* * *
This is the finding of fact. The evidence showed that the defendant was unable to respond to the police officer’s question, ‘How do you feel,’ quote, unquote, which he asked at the scene, and that her condition remained in that state until after she was transported to the police station.”

Contrary to Solzak’s assertion, the trial court made no finding that she did not respond to the blood test request. Moreover, the trial court did not find that there was no refusal, but that there was no knowing refusal. As we have discussed, refusal to take a chemical test need not be knowing to serve as a basis for suspension of driving privileges under the implied consent statute.

Solzak contends that to penalize one incapable of consenting or objecting to a blood test request for reasons of incoherence, incapacity or unconsciousness would be absurd. As for incoherence, in our view, to allow one who is too intoxicated to understand the request to escape penalty would be absurd. Any person who has voluntarily become so intoxicated as to be incoherent and has then driven an automobile, thereby seriously jeopardizing the health and lives of other motorists and pedestrians, falls squarely within the purview of the implied consent statute.

Finally, Solzak argues that the implied consent statute was designed to allow the admission into evidence of blood test results when that blood is drawn from physically incapacitated persons. Solzak asserts that she should not be penalized merely because Officer Rhentgen failed to proceed with a blood test, the results of which would have been admissible. Implicit in this argument is the notion that the arresting officer should disregard the refusal of a person to submit to a test requested by a law enforcement officer. On the contrary, section 11 — 501.1(c) provides that if a person under arrest refuses the test request, none shall be given. Ill. Rev. Stat., 1982 Supp., ch. 95 xk, par. 11 — 501.1(c).

For the foregoing reasons, the order of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

RIZZI, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    FORD MOTOR CREDIT COMPANY, Plaintiff-Appellee, v. DENNIS E. JACKSON, Defendant-Appellant.
    Third District
    No. 3-83-0756
    Opinion filed July 25, 1984.

      James E. Swanson, of Peoria, for appellant.
    Richard N. Molchan, Timothy L. Bertschy, and D. Kevin Sommer, all of Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Dennis E. Jackson, appeals from an order awarding damages to the plaintiff, Ford Motor Credit Company. The instant case arises from the sale of a semitractor. The defendant purchased the truck for $13,500 from Bush-Holloway Ford (hereafter Bush). Bush assigned the contract to the plaintiff. The unpaid balance on the truck was $11,108.

In November of 1980, the defendant was unable to make further payments on the truck. He voluntarily returned the truck to Bush. Bush was insolvent at the time. On November 12, 1980, the plaintiff sent a notice to the defendant that if the truck was not redeemed, it would be sold at a private sale on or after November 22,1980.

The truck remained on Bush’s premises until it was sold on June 24, 1981, to Don’s Truck Sales. Don’s Truck Sales, one of three bidders for the truck, submitted the highest bid at $4,500. No additional notice was given the defendant of the June 24 sale. At the time of the sale, Bush’s inventory was being liquidated.

The plaintiff then filed an action for damages, seeking to recover the deficiency between the amount owed by the defendant and the amount realized from the sale of the truck. Following a bench trial, the court entered judgment for the plaintiff in the sum of $8,939.10 plus costs. The defendant appeals from this judgment, arguing that the sale of the semitractor did not comply with the statutory requirements of the Uniform Commercial Code (hereafter the Code).

The sale of collateral following default on a secured loan is governed by section 9 — 504 of the Uniform Commercial Code — Secured Transactions. (Ill. Rev. Stat. 1983, ch. 26, par. 9 — 504.) Section 9— 504(3) provides that except under conditions not relevant here, where collateral is sold in a private sale, the secured party must give the debtor “reasonable notification of the time after which any private sale *** is to be made.” This section further provides that every aspect of the sale must be commercially reasonable.

The defendant asserts initially that the notice of sale was insufficient under section 9 — 504(3) because it did not inform him of the sale on June 24. The defendant argues that the statutory language “any private sale” means that notice must be given of each and every sale. In support of his argument the defendant relies on the decisions in Spillers v. First National Bank (1980), 81 Ill. App. 3d 199, 400 N.E.2d 1057, and Staley Employee Credit Union v. Christie (1982), 111 Ill. App. 3d 165, 443 N.E.2d 731. The court in Spillers and Staley interpreted “any private sale” to mean “all and every sale.”

However, the decisions in both Staley and Spillers are distinguishable on the facts. In Staley, the collateral was originally offered at a public sale for which the debtor received notice. The debtor did not receive notice of the subsequent private sale at which the collateral was actually sold. In Spillers, the two items held for collateral were sold at two separate private sales. Additionally, the debtor made an offer on one of the items after the date of the notice but before the actual sale. In interpreting the Spillers decision, the Staley court stated: “We held the notice to be faulty, reasoning that the sale finally made was not the same one originally contemplated.” Staley Employee Credit Union v. Christie (1982), 111 Ill. App. 3d 165, 167, 443 N.E.2d 731, 733, citing Spillers v. First National Bank (1980), 81 Ill. App. 3d 199, 204, 400 N.E.2d 1057, 1060.

In the instant case, the sale, although held six months after the notice, was the same one originally contemplated. There was not a second sale of collateral or an intervening offer by the defendant. In the absence of these factors, we interpret section 9 — 504(3) as requiring only one notice of the date after which one private sale of collateral will be held. We therefore find, on the facts of the instant case, that the notice to the defendant was sufficient.

The defendant also contends that the sale was not commercially reasonable as required by section 9 — 504(3). We agree.

Section 9 — 504(3) requires that every aspect of the sale be commercially reasonable, including the method, manner, time, place and terms. Whether a sale is commercially reasonable is a question for the trier of fact, and its decision will not be reversed unless contrary to the manifest weight of the evidence. Spillers v. First National Bank (1980), 81 Ill. App. 3d 199, 400 N.E.2d 1057.

The defendant argues that it was not commercially reasonable for the plaintiff to sell the truck at wholesale level when the defendant purchased it at retail level. The defendant relies on the decision in the second appeal of Spillers v. First National Bank (1982), 109 Ill. App. 3d 1100, 441 N.E.2d 872. This Spillers’ court was required to determine the reasonableness of a sale at wholesale level. The court concluded that the relevant factors were the methods of sale available to the creditor, the condition of the collateral, and the price the creditor should have obtained under all the circumstances.

In the instant case, the creditor, Ford Motor Credit Company, had retail and wholesale outlets available to it through its various dealers. The evidence at trial demonstrated that no repairs were necessary to the truck before its sale. The price the creditor obtained by selling wholesale was less than half of the amount still owed by the defendant on the truck. Finally, the truck was sold through a dealership which was in the process of liquidating its entire inventory.

We find that the trial court’s decision that the method of sale was commercially reasonable is contrary to the manifest weight of the evidence.

Having determined that the sale was commercially unreasonable, we next address the issue of what remedy is available to the defendant. The only remedy provided a debtor under the Code is an action for damages under section 9 — 507. (Ill. Rev. Stat 1983, ch. 26, par. 9 — 507.) Every Illinois court which has found a commercially unreasonable sale has also found inadequate notice. Thus, the question of a debtor’s remedy in an action by a creditor for a deficiency judgment where commercial unreasonableness only is shown is one of first impression in Illinois.

In resolving this question, we first consider whether the remedy for commercial unreasonableness should be the same as the remedy for inadequate notice. The courts of Illinois are split as to the proper remedy where a creditor seeking a deficiency judgment fails to show adequate notice. Several courts follow the rebuttable presumption approach, in which the failure to provide adequate notice raises the presumption that the value of the collateral is equal to the remaining debt. (National Boulevard Bank v. Jackson (1981), 92 Ill. App. 3d 928, 416 N.E.2d 358.) This court, on the other hand, recently held that a failure to provide notice results in an absolute bar to recovery of the deficiency judgment. First Galesburg National Bank & Trust Co. v. Joannides (1983), 116 Ill. App. 3d 810, 452 N.E.2d 787, appeal allowed (1983), 96 Ill. 2d 559.

Thus, by analogy to lack of notice, one remedy for failure to conduct a commercially reasonable sale would be a bar to the creditor’s recovery of the deficiency. However, as we noted in Joannides, the lack of notice necessitates an absolute bar because it places a debtor in the position of challenging the creditor’s evidence of commercial reasonableness of the sale without ever attending the sale.

The same dilemma is not created where the creditor fails to conduct a commercially reasonable sale. A debtor who knows of the sale has the opportunity to observe the sale, thereby enabling the debtor to challenge its reasonableness in an action for the deficiency. We conclude, therefore, that where a sale of collateral is found commercially unreasonable, a better result follows from the rebuttable presumption approach. Under this approach, a creditor’s failure to conduct a commercially reasonable sale creates a rebuttable presumption that the value of the collateral is equal to the amount of the debt which the creditor seeks to recover in the deficiency action. A creditor is then required to prove that the value of the collateral is equivalent to its sale price before the creditor may recover damages. A debtor may present evidence demonstrating that the value of the collateral is equal to the debt he still owes and that, but for the commercial unreasonableness of the sale, the proceeds from the collateral would have satisfied the debt remaining after the sale.

Having found that the sale of the defendant’s semitractor was commercially unreasonable, we accordingly reverse the judgment of the circuit court of Peoria County and remand the cause for further proceedings consistent with this decision.

Reversed and remanded.

SCOTT and BARRY, JJ., concur.


author: JUSTICE McNAMARA

text:
    RICHARD SIVULICH, Plaintiff-Appellant, v. HOWARD PUBLICATIONS, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 83—1472
    Opinion filed June 29, 1984.
    Edward L. Osowski, of Chicago, for appellant.
    Reuben & Proctor, of Chicago (Samuel Fifer and Mark Sableman, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Richard Sivulich, brought this action seeking to recover damages for an allegedly libelous article written and published by defendants Ron Brow and Howard Publications, Inc. The trial court granted defendants’ motion for summary judgment, finding that the article was substantially true and that plaintiff was a public figure who had not demonstrated actual malice. Since we agree that the article was substantially true, we need not reach the question of whether plaintiff was a public figure. The pertinent facts are undisputed.

Plaintiff was head wrestling coach, assistant football coach and a physical education teacher at Thornton North High School. On August 28, 1978, while drilling some of the football players before their season opening game, plaintiff noticed a car parked on a road bordering the football field. He sent one of his players to find out who was in the car and what the man was doing. When the man refused to identify himself, plaintiff went over to the car.

The man in the car, Joseph NeCastro, was the 69-year-old grandfather of one of the players. He refused to identify himself and continued watching practice with his binoculars. According to plaintiff, NeCastro said he did not like the way plaintiff and the head coach yelled at the players and that he was scouting their plays. Plaintiff had noticed a Lansing city sticker on the vehicle and was worried that NeCastro was scouting for their opponents. He attempted to obstruct NeCastro’s view or grab the binoculars. As plaintiff did so, NeCastro fell back and was struck in the mouth by the binoculars. NeCastro’s grandson came over and identified his grandfather, and plaintiff apologized. As a result of the incident, plaintiff was suspended from coaching for four days. NeCastro filed a report with the police the next day.

During the following September, plaintiff announced a meeting for students interested in joining the wrestling team. School Superintendent Verchota thereupon telephoned and advised plaintiff that he was no longer the head wrestling coach.

When he lost the coaching position, plaintiff telephoned Brow and another sportswriter for one of the local newspapers, hoping to arouse some community support. Plaintiff told the writer that he believed he was not rehired for the coaching position because of the NeCastro incident.

Brow had already heard of the incident from NeCastro’s son, who had asked Brow if he could do something. Brow told him he did not have both sides of the story, and Brow did not immediately investigate further. Following plaintiff’s call, Brow interviewed the school principal and others to learn why plaintiff had lost his wrestling coach position. Brow was also informed by NeCastro’s son that they were filing charges for aggravated battery against plaintiff.

On October 19, 1978, NeCastro filed a civil suit alleging that plaintiff violently assaulted and intentionally struck NeCastro, and that plaintiff’s actions were wilful, malicious, and caused severe injuries. That suit was ultimately settled and dismissed.

The next day Brow’s article appeared. In it he wrote that plaintiff had lost his wrestling coach position and that his dismissal might be related to an altercation he had with the grandfather of one of the football players. In describing the event Brow wrote:

“It seems the 32-year-old Sivulich was involved in an altercation prior to the season opener with the grandfather of one of North’s players. The altercation resulted in the loss of a tooth and more than $500 worth of personal damages to the 70-year-old man.
Charges of aggravated battery have been filed against Sivu-lich. Final papers were signed Wednesday, served in court Thursday and are expected to be handed to Sivulich today.
Sivulich will have until Nov. 9 to respond to the charges.”

The remainder of the article discussed the controversy surrounding the wrestling coach position. It pointed out that the new head coach was not as qualified as plaintiff and that the school district had not handled the situation very well.

Plaintiff filed this suit alleging that the statement in the article that “Charges of aggravated battery have been filed against Sivu-lich” is libelous per se.

A false statement is libelous per se if it imputes to the plaintiff the commission of a crime. (Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 395 N.E.2d 1185.) To determine whether the statement is libelous it must be considered in context, giving the words their natural and ordinary meaning. (Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195.) Plaintiff has the burden of proving the falsity of the statements. (Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed 789, 94 S. Ct. 2997.) Truth is a defense and a showing of the truth of the gist or sting of the statement is sufficient to avoid liability. Kilbane v. Sabonjian (1976), 38 Ill. App. 3d 172, 347 N.E.2d 757.

Plaintiff asserts that there is but one meaning for the statement that “[cjharges of aggravated battery have been filed.” Relying on a technical, legal definition, he maintains that the only interpretation is that criminal felony charges were filed. We do not agree.

The natural and ordinary meaning of the word “charged” is broad enough to encompass civil as well as criminal charges. In a generic sense, it includes any assertion against an individual, including averments in a civil complaint. Similarly, while aggravated battery is a defined felony and a term of art, the adjective “aggravated” is commonly understood to describe a more severe act. In light of Ne'Castro’s complaint alleging a violent and malicious battery, the gist or sting of the word “aggravated” was not false.

Furthermore, when the statement is read in the context of the whole article, it is clear that Brow was reporting on civil charges. In the preceding paragraph he referred to personal damages and a loss of $500. The succeeding statements referred to papers being signed and served as well as the time which plaintiff had to respond. None of these terms indicate a criminal proceeding had begun and there were no references to arrests, indictments or criminal sanctions. In fact, the article did not mention that NeCastro had reported the incident to the police.

With the exception of an immaterial error as to the date that the complaint was filed, the article is substantially true. There being no genuine issue of material fact, the trial court properly granted defendants’ motion for summary judgment. Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.

For the reasons stated, the judgment of the circuit court of Cook County granting defendants’ motion for summary judgment is affirmed.

Judgment affirmed.

RIZZI, P.J., and WHITE, J.J., concur.


author: JUSTICE JOHNSON

text:
      In re MARRIAGE OF DELORES HOMAN, Petitioner-Appellee, and JERRY L. HOMAN, Respondent-Appellant.
    First District (4th Division)
    No. 83—1730
    Opinion filed July 19, 1984.

      Jeffery M. Leving, of Chicago, for appellant.
    James R. Donnelly, of Armstrong & Donnelly, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Respondent, Jerry Homan, appeals an order of the trial court granting to petitioner, Delores Homan, child support arrearages in the amount of $19,450. On appeal, respondent (1) attacks the trial court’s jurisdiction to hear petitioner’s request for arrearages; (2) claims certain equitable defenses to payment; and (3) alleges that the trial court improperly granted judgment in petitioner’s favor.

We affirm.

Jerry and Delores Homan were divorced on March 13, 1973. The judgment provided that respondent pay $50 weekly child support to petitioner and that he pay certain other obligations. On October 14, 1982, Delores filed a petition alleging that since their divorce respondent had paid her only about $800 in child support. She asked for $19,450 in child support and $2,500 for other obligations.

At a hearing on March 8, 1983, the trial court rejected respondent’s post-judgment challenge to the divorce judgment. The hearing began on April 22, 1983, on the petition for child support arrearages. Respondent testified that he offered support to his ex-wife but she refused it. She told him that if he would forego visiting the children she wanted no money. Respondent claimed that he visited a psychiatrist who prescribed Valium for his nerves. His condition was attributable to years of not seeing his children. Respondent never consulted an attorney with regard to this agreement.

Petitioner denied that any such agreement existed. She denied that she ever had a conversation in which she said she wanted no financial support from respondent. She also stated that she never prevented respondent from visiting their children.

The trial court granted judgment to petitioner of child support ar-rearages of $19,450. In the court’s opinion, petitioner did not prove her other claim of $2,500. Respondent appeals.

Respondent raises three jurisdictional arguments. First, he claims that the divorce judgment of March 13, 1973, was unenforceable after seven years under Illinois law. Next, he claims that the action to enforce the support order was an action for a sum of money and thus did not fall within the jurisdiction of the divorce court. Thirdly, respondent claims that the trial court could not enforce the original order of child support because by 1983 the children had either attained majority or were emancipated.

Respondent’s arguments are wholly without merit. The Illinois Marriage and Dissolution of Marriage Act provides that the court has jurisdiction to modify provisions of a judgment respecting support. (Ill. Rev. Stat. 1981, ch. 40, par. 510.) Thus, the court’s jurisdiction is continuing and does not terminate with the entry of the divorce judgment. (Hoos v. Hoos (1980), 86 Ill. App. 3d 817, 821, 408 N.E.2d 752, 755.) Although section 510(c) of the Act provides that the obligation to pay child support generally terminates upon emancipation, this does not mean that after emancipation the custodial parent is not entitled to child support arrearages. Further, past-due installments of child support are the vested right of the designated recipient and child support payments cannot be terminated unilaterally. Hoos v. Hoos (1980), 86 Ill. App. 3d 817, 821.

Next, respondent asserts that the trial court should have applied the equitable defenses of estoppel and laches and erred in ruling that he had not shown injury sufficient to uphold those defenses. Respondent contends that he met his burden of proving injury and detrimental reliance.

In the proper case, courts have given effect to either an agreement between the parties or the doctrine of equitable estoppel to reduce the amount of child support arrearages. Either defense must be proved by clear and unequivocal evidence. (Hoos v. Hoos (1980), 86 Ill. App. 3d 817, 821, 408 N.E.2d 752, 755.) Equitable estoppel arises where the voluntary conduct of one party results in good faith reliance and detrimental change of position by the other party. Where such circumstances exist, estoppel may act to bar the assertion of rights by the party whose voluntary acts led to the reliance. The test of equitable estoppel in the child support context generally focuses on conduct of the petitioner and change of position by the respondent. Cases which have found a change of position for the worse have involved egregious circumstances where the respondent has acted in good faith and the petitioner has received an unwarranted benefit. Hoos v. Hoos (1980), 86 Ill. App. 3d 817, 823.

In the instant case, respondent’s testimony of an oral agreement was contradicted by petitioner, who also denied that she ever prevented respondent from visiting their children. In the absence of a clear demonstration that there was an enforceable agreement, the trial court did not err in awarding child support arrearages.

With regard to the doctrine of equitable estoppel, we hold that respondent did not establish that he changed his position in reliance on petitioner’s alleged agreement not to enforce the order of child support. Respondent testified to having tranquilizers prescribed for his “nerves,” which he attributed to years of not seeing his children. Respondent’s proper course for the reduction of child support was by way of the courts and not his own unilateral action. Hoos v. Hoos (1980), 86 Ill. App. 3d 817, 823-24.

Respondent argues that the trial court erred in ruling that child support is a vested right and that the custodial parent is under no obligation to remind the noncustodial parent that payments are due. He claims that this holding is unsupported by case law, and he repeats the arguments made above in support of equitable defenses.

In our opinion, respondent’s contention is meritless. As stated above, it is a well-established rule that past-due installments of child support are the vested right of the designated recipient. (Hoos v. Hoos (1980), 86 Ill. App. 3d 817, 821, 408 N.E.2d 752, 755.) This rule has not been abandoned.

Next, respondent contends that he was entitled to a ruling specifically absolving him of contempt. When the trial court stated that it would order respondent to pay child support arrearages of $19,450, it also stated that other claims against him had not been proved. At the time, respondent made no effort to make the ruling more specific. Therefore, he has waived the issue. Further, petitioner, although she originally requested the relief of contempt, did not pursue that remedy in subsequent proceedings. Therefore, it was unnecessary and premature for the trial court to even consider the contempt issue.

Finally, respondent argues that the trial court’s decision in favor of petitioner is against the manifest weight of the evidence. Again, we reject respondent’s contentions. In nonjury cases, the credibility of the witnesses and the weight afforded their testimony are questions to be determined by the trial court. A reviewing court will not substitute its judgment as to the credibility of witnesses unless the findings of the court are against the manifest weight of the evidence. (In re Estate of Stuhlfauth (1980), 88 Ill. App. 3d 974, 980, 410 N.E.2d 1063, 1067.) We hold that it was not against the manifest weight of the evidence to find that no agreement existed between the parties to forego child support.

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

Affirmed.

LINN, P.J., and ROMITI, J., concur.


author: JUSTICE SULLIVAN

text:
    BRL CARPENTERS, LTD., et al., Plaintiffs-Appellants, v. AMERICAN NATIONAL BANK & TRUST CO. et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—894
    Opinion filed June 29, 1984.

      Alan E. Richards and Mary Hylton, both of Richards & Ralph, Chartered, of Libertyville, for appellants.
    Ronald R. Peterson and Larry M. Wolfson, both of Jenner & Block, Chicago, for appellees American National Bank & Trust Co. and The Loop Hospital Partnership.
    Cooper & Cooper, Ltd., of Chicago, for appellee Judith A. Kelsey.
   JUSTICE SULLIVAN

delivered the opinion of the court:

In this appeal, plaintiff contends that the trial court erred in finding for defendants at the close of plaintiff’s case as to a count in plaintiff’s complaint seeking foreclosure of a mechanic’s lien claim on the basis that it had not established a prima facie case on that count.

Plaintiff, BRL Carpenters, Ltd. (BRL), filed a two-count complaint against American National Bank & Trust Co., as trustee of the Chicago Eye, Ear, Nose and Throat Hospital (the Hospital), Loop Hospital partnership (Loop), as beneficial owner thereof, and the individual Loop partners seeking (a) foreclosure of its mechanic’s lien for construction management services and carpentry labor totalling $116,354.38, and (b) damages for breach of contract in the same amount.

It appears from the extensive record that Loop was formed to purchase and renovate the Hospital and to thereafter reopen and operate it as the Chicago Specialty Hospital. Brace Larson (Larson), president of BRL, and David Walsh (Walsh), managing general partner of Loop, executed a standard American Institute of Architects (AIA) written contract (the Loop contract), which was prepared by Larson and contained the following pertinent articles:

“1.1 The Contractor shall perform all the Work required by the Contract Documents for [:] Plans and specifications as submitted to owner.
* * *
2.1 *** The Contractor agrees to furnish efficient business administration and superintendence ***.
* * *
5.1 In consideration of the performance of the Contract, the Owner agrees to pay the Contractor ***:
$50,000.00 at time of closing for consulting and preconstruction work $50,000.00
$15,000.00 each month for 7 following months 105,000.00
$155,000.00
* * *
6.1 The term Cost of the Work shall include ***:
6.1.1 Wages paid for labor in the direct employ of the Contractor in the performance of the Work ***.
* * *
14.1. The Contractor shall supervise and direct the Work ***.”

At trial, Larson was the only witness called. He testified that under this contract, BRL was to provide construction management services for Loop in connection with the renovation of the Hospital. The “consulting and preconstruction work” referred to in article 5 consisted essentially of conferring with the partners and architects to develop the overall plans for the project prior to July 7, 1980, the date Loop’s purchase of the Hospital was finalized. The post-closing services for which the lien is sought included continual coordination and planning of the project, preparation of budgets and estimates, bidding out and entering into subcontracts for the work, overseeing the work progress of the subcontractors, and preparation of statements submitted to the mortgagor for payment as portions of the work were completed.

Describing the performance of these services in chronological sequence, Larson testified that in the first month after closing he met with Walsh either at Walsh’s office or at the Hospital on a daily basis and frequently consulted with the partners, architects, and Hospital administrative personnel to determine their requirements for utilization of the space within the Hospital, drew up estimates and budgets for the improvements, and began bidding out the subcontracts. In the second month, he continued meeting with the principals to plan and budget the renovation, entered into the subcontracts, and supervised the workmen on the job. During the third month, he was still meeting with Walsh almost daily to discuss and make changes in the plans and was also monitoring the construction taking place. Throughout the following months, as the amount of actual remodeling work increased, he became more involved with monitoring the construction, but he also continued to plan the project and to meet with the partners to advise them of its progress and to discuss the plan changes. During this period, he repeatedly requested payment from Walsh of the $50,000 fee for preconstruction consulting work and the $15,000 monthly payments for post-closing services, but was paid a total of only $10,000.

In addition to the planning and construction-monitoring services rendered after July 1980, BRL also supplied carpentry labor for the renovation project. A weekly time book containing the workmen’s time sheets, which were compiled by the superintendent on the job, and check-request forms for construction payroll, which were approved by a Loop executive, were admitted into evidence. Larson testified that under the contract, BRL was to be reimbursed on a weekly basis for carpenters’ wages it paid in accordance with the time sheets but that Loop failed to reimburse $34,485.16 in wages paid by BRL for carpentry labor performed between March 6, 1981, and April 17, 1981, when BRL left the job. Upon conclusion of Larson’s testimony, BRL rested its case and defendants moved for judgment in their favor. The trial court granted defendants’ motion for a finding on the mechanic’s lien count and entered judgment in favor of all defendants as to that count, but it denied the motion as to the breach of contract count. Plaintiff’s subsequent motion for reconsideration as to the judgment on the mechanics’ lien count was denied, and this appeal followed.

Opinion

Plaintiff contends that the trial court erred in its finding on the mechanics’ lien count, arguing that Larson’s uncontroverted testimony considered with the AIA contract provisions as well as the time sheets and check requests were sufficient to make out a prima facie case on its lien claim.

Initially, we note that the standard to be applied by the trial court in ruling on the motion to find for defendants at the close of plaintiff’s case in a bench trial, pursuant to section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1110) was set out in Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43. There, our supreme court held that the trial court must first determine, as a legal matter, whether the plaintiff has established a prima facie case by presenting at least some evidence on every element essential to the action. If plaintiff has not, defendant is entitled to judgment as a matter of law. Only if the trial court finds that plaintiff has made out such a prima facie case must it, as the finder of fact, then weigh all of the evidence including any favorable to defendant — which may result in the negation of some of the evidence necessary to plaintiff’s case — to determine if a prima facie case still exists. Kokinis v. Ko-trich (1980), 81 Ill. 2d 151, 407 N.E.2d 43; Dearborn Construction Co. v. Goodman (1982), 112 Ill. App. 3d 170, 445 N.E.2d 340; Wheeling Trust & Savings Bank v. City of Highland Park (1981), 97 Ill. App. 3d 519, 423 N.E.2d 245; Chicago Title & Trust Co. v. Ceco Corp. (1980), 92 Ill. App. 3d 58, 415 N.E.2d 668.

Here, in granting defendants’ motion for judgment, the court found that the Loop contract “fails to sufficiently describe the work contemplated by the parties to be done by BRL [plaintiff] as and for contractor’s services, and the testimony of Larson failed to sufficiently establish what work was in fact done by BRL or Larson under Article 5 [of the Loop contract].” The court also found that “[t]he testimony [of Larson] described both lienable and non-lienable services without establishing an apportionment of costs of each and, accordingly, plaintiff has failed to establish a prima facie case for a mechanic’s lien under Article 5.” We think it is clear therefrom that the court made this finding as a matter of law and thus never reached the second step of the Kokinis analysis which would have required it to evaluate Larson’s credibility, weigh all of the evidence, and then determine whether plaintiff’s prima facie case for a lien right still existed. Indeed, inasmuch as defendants did not attempt to negate any of plaintiff’s evidence or to discredit Larson’s testimony through cross-examination, we fail to see what evidence favorable to them the trial court could have considered to accomplish the second Kokinis step. Consequently, in reviewing the propriety of the judgment for defendants, we will determine only whether, as a matter of law, plaintiff presented a prima facie case for its mechanic’s lien claim. See Chi cago Title & Trust Co. v. Ceco Corp. (1980), 92 Ill. App. 3d 58, 415 N.E.2d 668.

The Mechanics’ Liens Act (the Act) provides in pertinent part that “[a]ny person who shall by contract *** with the owner of a lot or tract of land *** furnish or perform labor or services as superintendent *** in the building, alteration, repairing or ornamenting of the same [the lot or tract of land] *** has a lien upon the whole of such lot or tract of land *** for the amount due him for such *** services or labor ***.’’ (Ill. Rev. Stat. 1981, ch. 82, par. 1.) Thus, under the Kokinis reasoning, to make out a prima facie case plaintiff here was required to, and we believe did, present some evidence that it contracted with defendants for and did perform services as superintendent in connection with the renovation of the Hospital. However, defendant correctly points out that in those cases involving contracts for performance of both lienable and nonlienable services, the lienable work must be separable and the total amount due under the contract must be apportionable between the lienable and nonlienable items; otherwise, the entire lien claim will fail. Adler v. World’s Pastime Exposition Co. (1888), 126 Ill. 373, 18 N.E. 809; Verplank Concrete & Supply, Inc. v. Marsh (1976), 40 Ill. App. 3d 742, 353 N.E.2d 27.

In the instant case, as noted above, the trial court specifically noted that neither the written contract nor Larson’s testimony adequately described the work contemplated by the parties or performed by BRL, and that Larson’s testimony described both lienable and non-lienable services without establishing an apportionment of costs as to each.

A reading of the AIA document prepared and submitted by plaintiff reveals that it is a standardized form contract lacking any specificity concerning the nature of the post-closing services for which BRL was to be paid $15,000 each month as provided in article 5. We note also that under article 1, captioned “The Work,” in lieu of a description thereof, plaintiff inserted “[p]lans and specifications as submitted to owner”; however, no such documents were introduced at trial or otherwise included in the record. Absent a description of the work contracted for, it cannot be determined whether plaintiff’s duties under article 2 — “to furnish efficient business administration and superintendence” and under article 14 — “to supervise and direct the Work” consisted of lienable services under the Act. Thus, we conclude that the trial court was correct in its finding that the written contract, standing alone, does not constitute prima facie evidence that plaintiff is entitled to a lien against the Hospital.

Although plaintiff conceded in arguments before us that the AIA contract “did not explicitly define” what work was to be performed thereunder, it nevertheless maintains that Larson’s testimony concerning the post-closing services rendered in accordance therewith established the existence of a contract for “construction superintendence” which qualifies as lienable labor under that provision of the Act entitling anyone who contracts to “furnish or perform services as a superintendent *** in the building, altering, repairing or ornamenting” of the subject property to a lien thereon. Ill. Rev. Stat. 1981, ch. 82, par. 1.

Applying the common usage of the word “superintendent” as “[o]ne who *** has the oversight and charge of something with the power of direction” (Black’s Law Dictionary 1288 (5th ed. 1979)), it would appear that the construction supervision and monitoring services Larson testified he performed qualify as lienable labor under the Act. However, Larson also testified that in the first month after closing he met with Walsh nearly every day to develop the renovation plans, and that throughout the remaining eight months BRL was on the job, in addition to monitoring the construction, he performed other tasks and continued to consult with Walsh, the architects, and the partners to plan and budget the renovation project. Plaintiff argues that these services were “incidental, ancillary and necessary” to the performance of construction superintendence; however, while it may be inherent in the function of a construction superintendent to meet with the owners of the property for the purpose of receiving instructions concerning construction tasks or reporting on the progress of the work, we agree with the trial court that the consulting, planning, and budgeting described by Larson do not come within the customary responsibilities of a construction superintendent as that term is defined above, and finding nothing in the record or other provision in the Act which would indicate such services to be lienable, we believe — as did the trial court — that they were not.

Having determined that there was a contract pursuant to which both lienable and nonlienable services were performed, the remaining question is whether the total amount due thereunder can be apportioned among those items.

In this regard, we have reviewed Larson’s testimony enumerating the various tasks he allegedly performed over the course of the nine months following closing and find no allocation therein of the time he spent at each or the costs he ascribed thereto. Consequently, the amount claimed by plaintiff to be due cannot be apportioned between lienable and nonlienable services, and the entire lien claim for superintendent services must fail. Adler v. World’s Pastime Exposition Co. (1888), 126 Ill. 373, 18 N.E. 809; Verplank Concrete & Supply, Inc. v. Marsh (1976), 40 Ill. App. 3d 742, 353 N.E.2d 27.

The trial court also ruled that plaintiff had failed to present a prima facie case as to its lien claim for the costs of carpentry labor it furnished for the renovation project, on the ground that neither the exhibits proffered by plaintiff nor Larson’s testimony contained a description of what carpentry labor was performed or what improvements to the Hospital resulted therefrom. Defendants assert that the trial court’s ruling was correct because, unless it is shown that the labor was performed in the actual construction of the building, it is not lienable. (See, e.g., Hoier v. Kaplan (1924), 313 Ill. 448, 145 N.E. 243.) The record reveals, however, that when examined as to the type of labor furnished by BRL for the renovation of the Hospital, Larson responded, “carpentry labor.” He also identified the carpenter’s time sheets which were certified by the foreman and check-request forms which had been approved by an executive of the Hospital authorizing payment for the “construction payroll.” Noting once again that, in determining the propriety of the judgment for defendants in this case, we are not to consider the weight of the evidence but must confine our review to the singular question of whether plaintiff presented at least some evidence of a contract for lienable services, it is our opinion that Larson’s testimony, the time sheets, the construction payroll authorizations by Loop, and the language of article 6 of the AIA document obligating defendants to reimburse plaintiff for wages paid to laborers, when taken together, constitute prima facie evidence of a contract for lienable carpentry labor.

Accordingly, and for the reasons stated, we affirm that portion of the court’s order granting judgment for defendants on plaintiff’s count for foreclosure of a mechanic’s lien claim; but we reverse that portion of the order granting judgment for defendants on plaintiff’s claim for a mechanic’s lien for the costs of the carpentry labor, and we remand for further proceedings not inconsistent with this opinion.

Affirmed in part; reversed in part and remanded for further proceedings.

MEJDA, P.J., and LORENZ, J., concur.

      One of the partners, Dr. Judith A. Kelsey, has adopted plaintiff’s brief and argument as her response in this appeal.

      The breach of contract count remains pending in the trial court.

      In this appeal, plaintiff has excluded the preclosing services without altering the total amount of the lien sought. It maintains that the value of the post-closing services exceeds its lien claim.


text:
    THE VILLAGE OF NORTHBROOK et al., Plaintiffs-Appellants, v. THE COUNTY OF COOK et al., Defendants-Appellees.
    First District (3rd Division)
    No. 83—804
    Rule 23 order entered January 11, 1984.
    Opinion filed and rehearing denied June 29, 1984.
    Clifford L. Weaver and Piper Wentz Rothschild, both of Burke, Bos-selman, Freivogel, Weaver, Claves & Ryan, and Pedersen & Houpt, both of Chicago (Richard V. Houpt and Arthur Sternberg, of counsel), for appellant Village of Northbrook.
    Richard M. Daley, State’s Attorney, of Chicago (Henry Hauser and Matthew Klein, Assistant State’s Attorneys, of counsel), for appellee Cook County Building Commissioner.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, the village of Northbrook and certain individuals, brought this action seeking to enjoin the issuance of a building permit by defendants Cook County and William Harris to defendants Edward Schwartz and Equity Associates for the construction of two 10-story office buildings on property adjacent to the village. The subject property, a 20-acre parcel in unincorporated Cook County, is located near the Tri-State Tollway and Lake Cook Road. In their complaint, plaintiffs alleged that the height of the proposed buildings was unreasonable and that the village would be injured in its corporate capacity by the proposed development. The trial court found that the village had standing to bring the suit but that the complaint was barred by laches because the village failed to object to the zoning classification of the property in 1976 when Cook County amended its zoning ordinance. Only the village appeals from the dismissal of count I of the amended complaint.

When Cook County adopted a comprehensive amendment to its zoning ordinance in 1976, the subject property was zoned C-7 office/ research park district. The height of any developments was governed by a floor-to-area ratio. The county conducted hearings prior to the adoption of its amendment, and pursuant to its rights under sections 2 and 5 of “An Act in relation to county zoning” (Ill. Rev. Stat. 1975, ch. 34, pars. 3152, 3158), the village filed objections to the proposed zoning of several parcels of land within l1!2 miles of its borders. The village, however, made no objections to the C-7 zoning of the subject property.

In July 1977, Schwartz purchased 16.5 acres of the 20-acre parcel. He entered into an agreement with Equity Associates to jointly develop the property with two seven-story office buildings. In May 1981, they petitioned the village to annex the property and to provide water and sewer facilities. The village refused to grant the petition because the plans called for office buildings in excess of 65 feet. Schwartz and Equity Associates contracted to purchase the remaining 3.5 acres from defendants William and Kathleen Sellas and then submitted a second development proposal. The developer had reduced the number of stories but had added a third building to the plan.

When it appeared that the village plan commission would deny the second petition for annexation, Schwartz and Equity Associates arranged for a direct connection to the metropolitan sanitary district interceptor sewer. They withdrew their annexation petition on April 16, 1982, and they applied for a Cook County building permit on May 19, 1982. On June 8, 1982, the village filed this action seeking to enjoin the issuance of a permit and requesting the court to find that the Cook County zoning ordinances were void insofar as they allow buildings over 65 feet on the subject property.

While defendants urge that the trial court correctly found that the village’s cause of action was barred by laches, they also maintain that the village lacks standing to challenge Cook County’s zoning ordinance. Defendants argue that the village does not have standing under the test established in Village of Barrington Hills v. Village of Hoffman Estates (1980), 81 Ill. 2d 392, 410 N.E.2d 37, cert. denied (1981), 449 U.S. 1126, 67 L. Ed. 2d 112, 101 S. Ct. 943. There, the court required a clear demonstration that a municipality “would be substantially, directly and adversely affected in its corporate capacity” before it had standing to challenge the zoning laws of another governmental entity. (81 Ill. 2d 392, 398.) Defendants contend that the village’s allegations of injury are conclusory and reflect injury not to itself, but to other persons not parties to this action. Furthermore, defendants urge that the village has not alleged any injury due to the lack of an absolute height limitation in the zoning ordinance.

The village’s complaint alleges that the proposed development is inconsistent with the residential character of the adjoining area; that property values in the village will diminish; that roads will be more congested, resulting in safety hazards; that the development will place an increased burden on well water supplies; and that there is insufficient storm water drainage on the subject property. Although several of these allegations represent possible injury to individual property owners, the village’s complaint also alleges injury to itself. The decreasing property values will directly affect the village’s tax revenues, and the road congestion and increased water use will affect its ability to provide police and fire protection. The complaint sufficiently alleges injury to the village in its corporate capacity to meet the Barrington Hills test.

Defendants also contend that the village is alleging a substantive due process claim which it has no standing to raise because a village is not a “person” under the Illinois and United States constitutions. A municipality cannot assert a constitutional claim against the State or its statutes (Franciscan Hospital v. Town of Canoe Creek (1979), 79 Ill. App. 3d 490, 398 N.E.2d 413; Village of North Pekin v. Riviere (1979), 73 Ill. App. 3d 1032, 392 N.E.2d 439) by a direct claim against the State or by a claim against one of its municipalities. (City of South Lake Tahoe v. California Tahoe Regional Planning Agency (9th Cir. 1980), 625 E2d 231, cert. denied (1980), 449 U.S. 1039, 66 L. Ed. 2d 502, 101 S. Ct. 619; Village of Arlington Heights v. Regional Transportation Authority (7th Cir. 1981), 653 F.2d 1149.) The rationale for this denial of due process is the protection of the sovereignty of the State from the subdivisions it has created. People v. Valentine (1977), 50 Ill. App. 3d 447, 365 N.E.2d 1082.

In the Barrington Hills case, the claims of the plaintiffs were un-distinguishable from those presented here. Our supreme court held that the plaintiffs were aggrieved parties with standing to sue and did not reach the due process issue. Similarly, we do not decide here whether the village has a right to due process since we have already determined it has standing to bring this action. (See also City of Hickory Hills v. Village of Bridgeview (1977), 67 Ill. 2d 399, 367 N.E.2d 1305; City of West Chicago v. County of Du Page (1979), 67 Ill. App. 3d 924, 385 N.E.2d 826.) Having decided that the village has standing to assert its claim, we now consider the trial court’s finding that the village’s cause of action was barred by laches.

Laches will act as a bar where plaintiff unreasonably delays in bringing his action and the delay prejudices defendant. (Hippert v. O’Grady (1981), 97 Ill. App. 3d 310, 423 N.E.2d 228.) Laches may be asserted against a municipal corporation. Lincoln-Way Community High School District 210 v. Village of Frankfort (1977), 51 Ill. App. 3d 602, 367 N.E.2d 318.

The village asserts that it filed its suit to challenge the zoning ordinance within one month of the application by Schwartz and Equity Associates for a Cook County building permit and contends that this was not an unreasonable delay. Defendants’ position, adopted by the trial court, is that the village should have contested the zoning amendments prior to their adoption, as it did with other amendments. Since the village did not challenge the ordinance until 1982, defendants argue that the village’s claim must be barred.

A challenge to the zoning ordinance in 1976 was proper only if a justiciable controversy existed at that time. (Exchange National Bank v. County of Cook (1955), 6 Ill. 2d 419, 129 N.E.2d 1.) Since the village’s claim is not against the C-7 zoning classification, but against the specifically proposed development, any claim the village could have asserted in 1976 would have been based on a future possibility. Until the village had notice of defendants’ plans, there was a possibility the parcel would be developed in accordance with the C-7 zoning and in a manner which the village would find reasonable. In 1976, there was no justiciable controversy requiring the village to file suit or be barred forever. Greene v. Village of Reynolds (1976), 35 Ill. App. 3d 998, 342 N.E.2d 834.

Additionally, at least part of the time, the village was negotiating with Schwartz and Equity Associates to annex the property. The village also points out that a sign was erected on the subject property reciting that the village would provide water and sewer lines. The village’s delay in filing until after the breakdown in negotiations and after the application for a Cook County building permit was not unreasonable.

Defendants’ contention that they have been injured and prejudiced by the village’s delay is without merit. Cook County maintains that it has expended funds to enforce its zoning ordinance and that it has relied on the constitutionality of the ordinance in the development of unincorporated areas. The village, however, is not challenging the entire zoning ordinance, but merely its application to the subject property. Therefore, Cook County’s expenditures to enforce the zoning ordinance were necessary and proper. Schwartz and Equity Associates maintain that they have been prejudiced by their expenditure of considerable sums to develop the subject property. These expenditures did not occur, however, until after they had knowledge that the village did not want tall office buildings on the subject property. These costs were incurred at defendants’ risk, not as a result of the village’s delay in bringing this action.

For the reasons stated, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with the holdings of this decision.

Reversed and remanded.

WHITE and O’CONNOR, JJ., concur.


author: PRESIDING JUSTICE HARTMAN

text:
    MARYLAND CASUALTY COMPANY, Plaintiff-Appellant, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY et al., Defendants-Appellees.
    First District (2nd Division)
    No. 83—1474
    Opinion filed June 26, 1984.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Kevin R. Sido, and Joshua G. Vincent, of counsel), for appellant.
    Ronald J. Cuchna and John S. Bishof, Jr., both of Chicago, for appellee Chicago and North Western Transportation Company.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff Maryland Casualty Co. (Maryland) appeals from a summary judgment granted to defendant Chicago and North Western Transportation Co. (C&NW) in a declaratory judgment action, whereby Maryland was found obligated to both defend and indemnify C&NW in a separate negligence action brought against C&NW by an employee of C&NW’s lessee, Demos News, Inc. (Demos).

This appeal raises as issues whether: (1) Maryland has a duty to defend C&NW in the negligence action under the terms of its general liability insurance policy issued to Demos; (2) Maryland has a duty to defend C&NW under the terms of an excess coverage policy issued to Demos; and (3) the circuit court erred by prematurely determining Maryland’s duty to indemnify C&NW.

Under a five-year lease dated July 1, 1978, Demos leased from C&NW three separate newsstand sites and other storage and office areas located in C&NW’s Chicago passenger terminal. Demos obtained from Maryland a comprehensive general liability policy (CGL), revised effective March 1, 1979, to include C&NW as “additional insured.” The excess coverage policy, called “Checkmate,” named only Demos as the insured.

Shortly after 5 a.m. on October 19, 1979, a Demos newsstand employee arrived at the passenger terminal to begin work. When she got to about 10 feet from her employer’s office door, a man grabbed her around the neck from behind and led her back to a stairwell, where they both fell down the stairs. She was knocked unconscious. She regained consciousness and discovered that she was naked from the waist down, had been raped, and was covered with blood. The victim suffered lacerations of the chin and lip, a fractured nose and cheekbone, numerous bruises and numbness in her teeth. She experienced deafness in her left ear for a period of six months. Her attacker was never apprehended.

The victim subsequently initiated an action against C&NW, alleging that her attack and resulting injuries had been proximately caused by C&NW’s negligence in controlling and maintaining the passenger terminal. C&NW tendered the defense of this suit to Maryland, which assumed the defense under a reservation of rights.

Maryland initiated the instant declaratory judgment action on April 26, 1982, seeking a determination of its rights and obligations with respect to the defense and indemnification of C&NW in the underlying action. Maryland filed a motion for summary judgment followed by C&NW’s cross-motion for the same relief. On March 1, 1983, the circuit court granted C&NW’s and denied Maryland’s motion, “finding the *** [CGL] policy covers the defense and potential indemnification” of C&NW as to the underlying action. Maryland’s motion for rehearing and stay were denied, and this appeal followed.

I

Maryland contends that the provisions of the CGL policy preclude any defense obligations to C&NW. Where the complaint alleges facts suggesting that coverage potentially exists, the duty to defend arises. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 193, 355 N.E.2d 24.) The complaint must be liberally construed, and all doubts resolved in favor of the insured. (Sentry Insurance Co. v. S&L Home Heating Co. (1980), 91 Ill. App. 3d 687, 689, 414 N.E.2d 1218.) Only where it is clearly apparent on the face of the complaint that the claim is beyond policy coverage can the insurer justifiably refuse to defend. (La Rotunda v. Royal Globe Insurance Co. (1980), 87 Ill. App. 3d 446, 451, 408 N.E.2d 928.) The victim’s complaint here attributes no culpability to Demos nor mentions that plaintiff’s injury was related to her employment, but alleges only the C&NW’s negligence proximately caused her injuries. Maryland argues that these facts alone should preclude any obligation it might have to defend C&NW. C&NW, however, is an additional insured under the CGL policy and claims coverage for the entire terminal. Therefore, a determination of Maryland’s duty to defend C&NW necessitates a closer examination of the CGL policy.

Insurance policy terms must be read according to their plain and ordinary meanings; any ambiguities arising when several provisions of the policy are read together will be construed in favor of the insured. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 4-5, 429 N.E.2d 1203; Sentry Insurance Co. v. S&L Home Heating Co. (1980), 91 Ill. App. 3d 687, 691.) The intent of the parties to an insurance contract is ascertained by considering the policy itself as well as the circumstances surrounding its issuance, such as the situation of the parties and the purpose for which the policy was obtained. (Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376, 378, 400 N.E.2d 921; Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 336, 312 N.E.2d 247.) Here, the CGL policy named Demos as the insured and C&NW as an additional insured, “but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises designated below leased to the named insured ***.” The premises designated are “500 W. Madison.” The policy limits coverage to “that part” of the premises leased to Demos; C&NW’s argument that the policy expressly covers the entire passenger terminal therefore must be rejected.

C&NW also relies on an endorsement (G222) to the policy which defines “insured premises” to include “the ways immediately adjoining on land.” This provision appears in the “additional definitions” portion of the policy designated “premises medical payments coverage,” for which the limit of liability is $1,000; by contrast, the “additional definitions” section of the “personal injury and advertising injury liability coverage,” for which the liability limit is $300,000, contains no such language. Clearly, the subject definition applies only to coverage for specific medical expenses. At the hearing on the cross-motions for summary judgment, the circuit court requested this language be read into the record. In ruling on the motions, the court stated: “Specifically, I find the occurrence in question took place 'on the ways immediately adjoining the land’ leased to [Demos] ***.” The principal basis for the circuit court’s decision is therefore misplaced.

The propriety of granting summary judgment to C&NW, in our opinion, turns on whether the attack on the victim arose “out of the ownership, maintenance or use” of the designated leased premises. Maryland maintains that the attack, occurring before the victim had begun work, did not arise from her employer’s use of the premises but from her mere presence in the terminal, which was open to the public. The phrase “arising out of” is both broad and vague, and must be liberally construed in favor of the insured; accordingly, “but for” causation, not necessarily proximate causation, satisfies this language. (Consolidated Rail Corp. v. Liberty Mutual Insurance Co. (1981), 92 Ill. App. 3d 1066, 1069, 416 N.E.2d 758, quoting Aetna Casualty & Surety Co. v. Ocean Accident & Guarantee Corp. (3d Cir. 1967), 386 F.2d 413, 415.) “Arising out of” has been held to mean “originating from,” “having its origin in,” “growing out of” and “flowing from.” Western Casualty & Surety Co. v. Branon (E.D. Ill. 1979), 463 F. Supp. 1208, 1210.

The parties each cite cases construing the “arising out of” language in analogous contexts. Maryland relies principally upon National Hills Shopping Center, Inc. v. Liberty Mutual Insurance Co. (5th Cir. 1977), 551 F.2d 655, decided under Georgia law; however, that policy, unlike the one here, contained a clause excluding the particular losses suffered from coverage. (551 F.2d 655, 658.) Maryland also cites cases restricting the geographic scope of liability arising from the use of certain insured premises. (Cobbins v. General Accident Fire & Life Assurance Corp. (1972), 53 Ill. 2d 285, 290 N.E.2d 873; United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 429 N.E.2d 1203.) The instant leased premises, however, include three separate newsstand sites as well as separate office and storage areas, all within the confines of the “designated premises,” the passenger terminal. It is foreseeable, therefore, that employees of Demos would necessarily and customarily use the nonleased portions of the terminal in order to go about their employer’s business. Extending coverage here to areas of the terminal nearby Demos’ leased premises in the terminal would not create potentially unlimited geographic liability.

C&NW cites Consolidated Rail Corp. v. Liberty Mutual Insurance Co. (1981), 92 Ill. App. 3d 1066, 416 N.E.2d 758, but there the named insured, lessee trucking company, provided various services to the additional insured, lessor owner of certain railroad yards, and required its employees to work outside the confines of the leased premises; moreover, the trucking company was a wholly owned subsidiary of the yard owner, which, by virtue of its financial control of the named insured, was provided additional coverage under the policy. 92 Ill. App. 3d 1066, 1069.

None of the cases cited thus involved a situation closely paralleling that presented here: injuries caused by the alleged negligence of an additional insured under a liability policy and sustained by the employee of the named insured, immediately outside the leased premises as she was about to begin her daily employment. Nevertheless, by construing the policy liberally in favor of the insured — a procedure necessitated by the ambiguity of the “arising out of” language — the instant injuries appear to have arisen from the operation and use of the leased premises, since they would not have been sustained “but for” the victim’s employment on those premises. She was about to commence her employer’s operation when she was assaulted. She, in fact, was holding keys to open the office. Her presence in the terminal at that hour was not a fortuitous happenstance, but a regular and foreseeable occurrence. The policy, therefore, reasonably must be construed to cover any risks attendant upon her presence there resulting from C&NW’s negligence and thereby activates Maryland’s duty to defend C&NW.

Finally, although generally considered an unambiguous word referring to a fixed situs, “premises” has also been held to include “private approaches and other areas necessary or incidental to an insured’s operations.” Allstate Insurance Co. v. Gutenkauf (1981), 103 Ill. App. 3d 889, 894, 431 N.E.2d 1282. See also General Casualty Co. of Illinois v. Olsen (1977), 56 Ill. App. 3d 986, 372 N.E.2d 846; Davis v. Sheehan (1976), 43 Ill. App. 3d 449, 357 N.E.2d 690. See generally 7A J. Appleman, Insurance Law & Practice, sec. 4500.02, at 191-92 (Berdal ed. 1979).

The construction of an insurance policy is a matter of law. Summary judgment is an appropriate disposition where such construction is at issue, as here. (State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 1063, 419 N.E.2d 601.) The circuit court did not err in granting summary judgment to C&NW on the basis of the provisions of the CGL policy.

II

Maryland next argues that the excess coverage Checkmate policy does not cover C&NW for its liability in the instant occurrence. That policy provides in part, under section 3.1, that Maryland “will indemnify the Insured [Demos] for ultimate net loss in excess of the retained limit which the Insured *** shall become legally obligated to pay as damages because of Personal Injury Liability ***.” The retained limit in the instant policy under section 1.4 is $10,000. Although the Checkmate policy does not designate an additional insured, section 4.2(d) in relevant part extends coverage to “any additional Insured included in the underlying insurance but only to the extent that insurance is provided to such additional Insured thereunder.” C&NW is such an additional insured in the CGL policy. Coverage under this provision, however, attaches only after the predetermined $10,000 retained limit has been exhausted. (Whitehead v. Fleet Towing Co. (1982), 110 Ill. App. 3d 759, 764, 442 N.E.2d 1362; Checkmate Policy sec. 2.12.) Under the foregoing, C&NW must expend an amount in defense or settlement of the case equal to the retained limit before the excess insurance provided by Checkmate can be applied, assuming Maryland is not able later to assert a defense to its indemnification of C&NW.

III

Maryland lastly characterizes as premature the circuit court’s ruling that Maryland must ultimately indemnify C&NW. An insurer’s duty to defend is broader than its duty to pay. (Murphy v. Urso (1981), 88 Ill. 2d 444, 451, 430 N.E.2d 1079.) The duty to defend is determined by the allegations of the complaint; however, the duty to pay “will not be defined until the adjudication of the very action which it [the insurer] should have defended.” (Centennial Insurance Co. v. Applied Health Care Systems, Inc. (7th Cir. 1983), 710 F.2d 1288, 1291 n.6, quoting Gray v. Zurich Insurance Co. (1966), 65 Cal. 2d 263, 272, 419 P.2d 168, 173, 54 Cal. Rptr. 104, 109.) A declaratory judgment action to determine an insurer’s duty to indemnify its insured, brought prior to a determination of the insured’s liability, is premature since the question to be determined is not then ripe for adjudication. (Solo Cup Co. v. Federal Insurance Co. (7th Cir. 1980), 619 F.2d 1178, 1189. See also Centennial Insurance Co. v. Applied Health Care Systems, Inc. (7th Cir. 1983), 710 F.2d 1288, 1292, n.9 (applying California law).) Our supreme court, in Murphy v. Urso (1981), 88 Ill. 2d 444, 455-57, has carved out an exception for declaratory judgment actions brought to determine insurance coverage where the issues are separable from those in the underlying action, the primary concern being that an untimely determination in the declaratory judgment action could subsequently prejudice a party in the underlying action through application of collateral estoppel. In the case sub judice, circumstances could arise which would permit Maryland to contest its duty to pay. The circuit court’s finding that Maryland must indemnify C&NW could, through collateral estoppel, prevent Maryland from raising a defense to indemnification in such a proceeding. To avoid any possible prejudice to Maryland through the operation of collateral estoppel, the circuit court’s finding as to indemnification must be vacated, without prejudice to the ultimate rights of the parties should any question arise with respect to them.

Accordingly, we affirm the finding as to Maryland’s duty to defend C&NW under its comprehensive general liability and excess coverage policies to the extent indicated in this opinion; and reverse and vacate as to Maryland’s present duty to indemnify C&NW.

Affirmed in part; reversed and vacated in part.

STAMOS and PERLIN, JJ., concur.

      Although the order granting summary judgment refers to “potential indemnification,” the court’s oral riding refers to “ultimately indemnify” and “ultimately pay.” For purposes of certainty and clarity, the order will be treated here as imposing upon Maryland the “ultimate” duty to indemnify.