text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR DEAN ANDERSON, Defendant-Appellant.
    Fourth District
    No. 4—82—0112
    Opinion filed January 26, 1983.

      S. John Muller, of Charleston, for appellant.
    Nancy Owen, State’s Attorney, of Charleston (Robert J. Biderman and Michael W. Hogan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LEWIS

delivered the opinion of the court:

Following a jury trial, defendant was convicted of burglary in violation of section 19 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a)). He was sentenced to eight years in the Department of Corrections with credit for 246 days which he spent in custody prior to sentencing.

Defendant’s first contention on appeal is that he was not brought to trial within 120 days of the beginning of his incarceration as required by section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(a)). The defendant was arrested on May 29, 1981, and was charged with burglary by means of an information filed on June 2, 1981. His jury trial was originally set for August 4, 1981. On July 27, 1981, defendant filed a motion for a change of judge, which was granted on July 29, 1981. Defendant filed his motion for discharge pursuant to section 103 — 5(d) of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(d)) on September 25, 1981, alleging that he had been incarcerated for a period in excess of 120 days without having been brought to trial. This motion was denied on September 29, 1981, the day that defendant’s jury trial began. In his oral ruling on the motion for discharge, the trial judge attributed at least one week’s delay to defendant’s request for a change of judge.

Section 103 — 5(a) and (f) of the Code provides in pertinent part:

“Speedy trial, (a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.
* * *
(f) Delay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed by subparagraphs (a), (b), or (e) of this Section and on the day of expiration of the delay the said period shall continue at the point at which it was suspended.” (111. Rev. Stat. 1981, ch. 38, par. 103 — 5(a), (f).)

A motion for a substitution of judges constitutes a delay occasioned by a defendant for purposes of the above statutory provision. (People v. Zuniga (1973), 53 Ill. 2d 550, 293 N.E.2d 595.) In determining whether a defendant who filed a motion for a change of judge was tried within the time limit prescribed by section 103 — 5(a), it is obviously necessary to determine the length of the delay attributable to the defendant. This determination is best made by the trial judge, who possesses knowledge of the conditions and circumstances of his circuit and is thus in the best position to evaluate the time necessary to complete the administrative steps involved in a reassignment of judges. The trial judge’s determination as to the length of delay occasioned by such a motion should be sustained unless it is apparent that the court abused its discretion in making that decision. People v. McClure (1979), 75 Ill. App. 3d 566, 394 N.E.2d 833.

When a case is reassigned from one judge to another, it loses whatever seniority it had on the original judge’s calendar; it must be returned to the chief judge for reassignment; and it probably assumes a place at the bottom of the new judge’s list of pending cases. In other words “reassignment start[s] anew the administrative procedure of bringing the defendant’s [case] to trial.” (People v. Zuniga (1973), 53 Ill. 2d 550, 554, 293 N.E.2d 595, 597.) In view of the above considerations and the generally prevalent congestion existing in the courts of even comparatively small counties such as. Coles, we cannot say that the trial court abused its discretion in allocating a delay of one week to defendant’s motion for a change of judge. Thus for purposes of section 103 — 5(a) of the Code of Criminal Procedure of 1963 defendant was brought to trial within 116 days of his initial incarceration (see People v. Woodruff (1980), 90 Ill. App. 3d 236, 412 N.E.2d 1171 (time elapsed for purposes of section 103 — 5(a) is computed by skipping day when custody begins and counting the day when trial begins)). It follows that the trial court did not err in denying his motion for discharge.

Defendant also asserts that the evidence which the State presented at his preliminary hearing was insufficient to establish probable cause that he had committed a burglary (see Ill. Rev. Stat. 1981, ch. 38, par. 109 — 3(a)), and that the court therefore erred in denying his motion to dismiss the burglary charge at the conclusion of the hearing. The State’s sole witness at the preliminary hearing was Captain David O’Dell of the Mattoon police department, who testified that he interviewed defendant on April 4, 1981, after receiving information from two persons that defendant had been involved in a burglary at the Patricia Messick residence. The defendant told O’Dell that he went to the Messick residence with Joe Horath and Bud Zyke with the intent of stealing an HBO unit. The defendant broke a back window of the home, but the three were chased, away by a neighbor. A day or two later, Horath came to defendant’s residence with an HBO unit, which he said was from the Messick residence. Horath wanted to sell the unit, and defendant accompanied him to Albert Hite's garage where they sold it for $20 cash, which they divided between them.

The above evidence, which consists of an account of defendant’s confession to the effect that he was involved in the burglary with which he was charged, falls under the exception to the hearsay rule pertaining to admissions. (Gillson v. Gulf, Mobile & Ohio R.R. Co. (1969), 42 Ill. 2d 193, 246 N.E.2d 269; People v. Howell (1977), 53 Ill. App. 3d 465, 368 N.E.2d 689.) Even if Captain O’Dell’s hearsay account of defendant’s confession was not subject to one of the hearsay rule exceptions, however, it would nevertheless have been admissible at the preliminary hearing. (People v. Velez (1966), 72 Ill. App. 2d 324, 219 N.E.2d 675.) In our view, defendant’s statement, as related by Officer O’Dell, that he broke a window at the Messick residence after he and two companions arrived there with the intent of committing a burglary, was in itself sufficient to establish probable cause that defendant had participated in the commission of a burglary. Cf. People v. Bonner (1967), 37 Ill. 2d 553, 229 N.E.2d 527 (preliminary hearing may be terminated once probable cause is established).

Defendant cites only two cases, People v. Williams (1975), 28 Ill. App. 3d 402, 328 N.E.2d 682, and People v. Davis (1972), 3 Ill. App. 3d 738, 279 N.E.2d 179, in support of his position on the probable cause issue. He emphasizes the statement of the Davis court that the mere breaking of a hole in a wall does not constitute burglary and the statement in Williams that the throwing of a brick through a window is not an entry for purposes of establishing a defendant’s guilt of burglary. The question of whether defendant’s breaking the window constituted an entry sufficient to establish that he committed a burglary is, however, irrelevant to the issue of whether he is responsible for the burglary on the basis of the accountability theory, which is an alternative to the nature of proof required to convict one of a substantive offense. (Williams.) Evidence was presented that defendant broke the window with the intent of facilitating the burglary of the Messick residence which Horath later completed. This was all that was necessary to establish probable cause that defendant was accountable for the burglary.

The defendant’s remaining allegations of error require an account of the evidence presented at his trial. Patricia Messick testified that in early April 1981, she noticed a broken window in her home. Two or three days later, she noticed that the HBO unit on her television was missing. At the time she noticed the missing unit, she observed that the same window which had previously been broken had been broken a second time. There was a larger hole in it than when she first noticed it broken.

Officer Carl Smith of the Mattoon police department stated that at approximately 10:25 p.m. on April 4, 1981, he was called to the Messick home to investigate the theft of an HBO unit. When he arrived at the residence, he noticed a broken window in the southeast bedroom.

The State’s next witness was Joseph C. Horath, who testified that on the evening of April 1, 1981, he, defendant, and Lonnie Zykes were attending a birthday party for defendant’s brother at defendant’s mother’s home. (Bud Zykes and Lonnie Zykes are apparently the same person; during his testimony, Horath used the two names interchangeably to refer to the third person who accompanied him and the defendant to the Messick home.) At defendant’s urging, he and Zykes accompanied defendant to the Messick home, where defendant broke a window. Someone then chased them off, but defendant and Horath later returned to the Messick home. While defendant waited outside “watching for neighbors or somebody,” Horath opened the broken window and took the HBO unit off of the TV. They then split up and Horath hid the unit in some weeds. About two days later, defendant and Horath went to Albert Hite’s garage where they met George Stewart. Stewart said that he was interested in the HBO unit. Horath then went to get the unit, and upon his return, Stewart paid him $20 for it. Horath subsequently rejoined defendant, who had been talking to Hite, and they each bought a six-pack of beer, dividing the remainder of the money between them.

On cross-examination, Horath admitted that he had on prior occasions stated that defendant had nothing to do with the burglary. He said this because he felt threatened by his and defendant’s friends. Horath further testified that the authorities promised to try to get him three years’ probation on a burglary charge arising out of the break-in at the Messick home if he would testify and cooperate in the investigation of the case.

Albert Hite, who had a prior burglary and theft conviction, testified that in the spring of 1981, Horath and defendant came to his place of business, carrying something in a sack. Defendant stated that the contents of the sack were “kind of warm” (meaning that the contents were stolen), whereupon Hite said that he did not even want to talk about it, and turned around and walked away. Both defendant and Horath then had a conversation with George and John Stewart. Hite had no idea as to what happened after the beginning of Horath’s and defendant’s conversation with the Stewarts.

Officer O’Dell of the Mattoon Police Department recounted his interview with defendant. His testimony as to the contents of defendant’s confession was substantially the same as at the preliminary hearing, except that he stated that according to defendant, Horath came to defendant’s home with an HBO unit on the evening of the burglary, as opposed to a day or two after the burglary. O’Dell also described a conversation that he had with Horath in which Horath initially stated that defendant was not involved in the burglary. Horath later changed his story and said that he made the initial statement because of threats from defendant’s family. O’Dell also testified that to his knowledge, no promises of leniency had been made to Horath in connection with his testimony at defendant’s trial.

The defendant presented two alibi witnesses. The first, Albert Smith, testified that he was at a party with defendant from approximately 5 p.m. until midnight on April 4, 1981. The second alibi witness, defendant’s mother, maintained that on the same evening, defendant was at a party at a trailer next door to the trailer in which she lived, and that he returned to her trailer about 12 or 12:30 a.m. where he remained the rest of the night.

Defendant’s next witness was Lonnie Zykes. His testimony generally corroborated that of the earlier witnesses as to events on the evening of April 1, 1981. He also testified that defendant did not break the window by putting his fist through it, but caused the glass to break by hitting the edge or side of the window which apparently caused the glass to shatter. This contradicted an earlier statement which Zykes made to the police to the effect that defendant put a fist through the window pane.

Defendant next testified on his own behalf. He stated that on the evening of April 1, 1981, he broke a window at the Messick residence “with my fist,” but that he did not otherwise assist Horath in the commission of the burglary. After he and his companions were chased off, he returned to his mother’s home and went to bed within a half hour. He further testified that on April 4, 1981, he was at a party in the vicinity of his mother’s home from about 5 p.m. until about 1 a.m. After the party, he returned home where he remained for the rest of the night. Defendant denied making a statement to Officer O’Dell to the effect that he broke the window or was in any other way involved with the burglary of the Messick home.

Officer O’Dell, recalled on rebuttal, testified that defendant had three prior felony convictions. He also reaffirmed his earlier testimony as to defendant’s confession. Defendant apparently changed his mind often and made somewhat contradictory statements during his interview with O’Dell. Officer Plummer of the Mattoon police department, also called on rebuttal, stated that he was present during the first 5 to 10 minutes of O’Dell’s interview with defendant. During that time, defendant maintained that he was not at the Messick residence when the burglary occurred.

Defendant asserts that evidence of the sale of the stolen HBO unit at Hite’s garage should not have been admitted because complicity after an offense is not proof of complicity in the initial offense itself, and because proof that one is an accessory after the fact is proof of an independent offense. On the basis of the defendant’s own testimony at trial, it is readily apparent, however, that defendant participated in the burglary from its inception in that he broke a window in order to assist Horath in gaining entry to the burglarized premises. Therefore, the trial court acted properly in admitting evidence of the sale of the HBO unit, for defendant’s statement that the contents of the bag containing the HBO unit were “warm” was probative of defendant’s knowledge of the burglary, and the evidence of defendant’s sharing in the proceeds of the sale of the stolen property was relevant to defendant’s design and motive in committing an act which facilitated Horath’s entry to the burglarized premises. See People v. Tranowski (1960), 20 Ill. 2d 11, 169 N.E.2d 347, cert. denied (1960), 364 U.S. 923, 5 L. Ed. 2d 262, 81 S. Ct. 290.

Defendant also asserts that the trial court improperly refused to instruct the jury with reference to the evidence of sale of the stolen HBO unit, that “[pjroof that a person is an accessory after the fact is proof of an independent offense.” The short answer to this contention is that the defendant was charged only with burglary; he was not charged with any other offense. Moreover, there was unrefuted evidence that defendant was involved in the burglary from its very beginning, and the evidence concerning the sale of the HBO unit was probative of defendant’s knowledge, motive, and design in assisting Horath in the burglary. Since defendant’s proposed instruction would have only confused the jury, the trial court did not err in rejecting it.

The issue presented in defendant’s final argument on appeal is described in the points and authorities section of defendant’s brief as whether he was proved guilty beyond a reasonable doubt. An examination of the rather garbled argument in support of this point and the authorities cited therein reveals that defendant actually advances three separate arguments under this heading. We first consider defendant’s contention that he was not proved guilty of burglary beyond a reasonable doubt. Defendant cites no authority in support of this argument, but simply points to various inconsistencies and conflicts in the testimony of some of the witnesses. A description of the testimony to which defendant refers would unnecessarily lengthen this opinion. It is sufficient to state that we have carefully examined the record, and find that the evidence presented at trial, particularly defendant’s admission that he broke the window after he and his companions made sure that Ms. Messick was not at home, Officer O’Dell’s testimony as to defendant’s confession, and Hite’s and Horath’s account of the circumstances surrounding the sale of the HBO unit, is more than sufficient to establish that defendant is beyond a reasonable doubt guilty of burglary on the basis of the accountability theory. That some of the evidence which supports defendant’s guilt was contradicted by other evidence is of no consequence, for the jury, as sole judge of the witness’ credibility, was justified in believing the credible evidence which supported defendant’s guilt and in disregarding conflicting evidence. See People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.

Defendant further asserts that he effectively withdrew from the burglary prior to its consummation, since several days elapsed between the time that he broke the window and the time that Horath took the HBO unit. The relevant portion of the accountability statute provides as follows:

“(c) *** However, a person is not so accountable, unless the statute defining the offense provides otherwise, if:
* * *
(3) Before the commission of the offense, he terminates his effort to promote or facilitate such commission, and does one of the following: wholly deprives his prior efforts of effectiveness in such commission, or gives timely warning to the proper law enforcement authorities, or otherwise makes proper effort to prevent the commission of the offense.” (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2.)

Even assuming the defendant’s allegation as to the time gap between the breaking of the window and the theft of the HBO unit to be true, the record contains no affirmative evidence that the defendant made any effort to deprive the assistance which he rendered Horath by breaking the window of its effectiveness, or that he otherwise tried to prevent Horath’s effectuation of the burglary. It is manifest that defendant did not withdraw from the burglary within the meaning of the accountability provision of the Criminal Code of 1961.

Finally, defendant maintains that he was improperly tried and convicted of burglarizing the Messick home because at the time of defendant’s trial, Horath had not been convicted of an offense on the basis of his role in the burglary. As support for this argument, defendant relies solely on United States v. Stevison (7th Cir. 1972), 471 F.2d 143. Stevison holds that an aider and abetter may not be convicted of a crime absent the conviction of the principal. This rule is strictly a rule of Federal criminal procedure, which is not binding on this court, since the Stevison court did not premise its holding on constitutional grounds. The rule that an accomplice in crime may not be convicted prior to the conviction of the principal has not previously been adopted by Illinois courts, and defendant suggests no sound policy reasons for our embracing such a rule. We therefore hold that the court did not err in trying defendant before Horath had been convicted of any offenses arising out of the theft of the HBO unit from the Messick home.

For all of the foregoing reasons, we affirm defendant’s burglary conviction.

Affirmed.

MILLS and TRAPP, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE ROMITI

license: Public Domain

text:
    AZTECA CURRENCY EXCHANGE, INC., et al, Plaintiffs-Appellees, v. THE DEPARTMENT OF FINANCIAL INSTITUTIONS et al., Defendants-Appellants.
    First District (4th Division)
    No. 81—3041
    Opinion filed January 20, 1983.
    Tyrone C. Fahner, Attorney General, of Chicago (Imelda R. Terrazino, Assistant Attorney General, of counsel), for appellants.
    Bossov, Lipsehültz & Associates, of Chicago (Michael Sorokas, of counsel), for appellees.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Appellees applied for a license to operate a currency exchange. The hearing examiner, believing that it was petitioners’ burden to prove that the community was not at that time being adequately served and that therefore the granting of a new license would promote the community’s convenience and advantage which was not being met, held that the applicants, although completely qualified, should be denied a license since the single licensee in the area was adequately serving the community. On appeal, the circuit court reversed and ordered the commissioner to issue a license. We affirm, holding that: (1) the hearing officer applied an improper standard; and, (2) applying the proper standard, there is no evidence in the record on which the commission could deny a license.

Ninfa Martinez and Carmen Moreno (the applicants) filed an application with the Illinois Department of Financial Institutions to operate the Azteca Currency Exchange, Inc., located at 4327 West 26th Street, Chicago, Illinois. There is another existing currency exchange about six blocks east at Pulaski and 26th Street. Two others, also on Pulaski, are about a mile away. There apparently are no other currency exchanges in the entire area. There had been an additional exchange but it was voluntarily closed after being cited for various violations of Department regulations. (The hearing examiner’s finding that it was closed for lack of community support is totally unsupported by any evidence in the record.) This exchange has not been replaced.

A currency exchange cannot be operated without a license granted by the Department of Financial Institutions. (Ill. Rev. Stat. 1979, ch. I6V2, par. 32.) When an application is received for a license of a community currency exchange, the Director is required to investigate the needs of the community. The application is to be denied “[i]f the issuance of a license *** will not promote the convenience and advantage of the community in which the business of the applicant is proposed to be conducted.” Ill. Rev. Stat. 1979, ch. I6V2, par. 34.1.

At the hearing, the hearing examiner stated that the Department had stipulated all of the “routine characterizations” of the applicants were favorable. They had the financial ability, the business competence, and the character to run it. The sole question was whether it would promote the convenience and advantage of the community. The officer ruled that it was “the petitioner’s burden in this case to prove that the community is not being served adequately and, therefore, the granting of a new license will promote the convenience and advantage of that community which is not now being met. If that cannot be demonstrated, the burden being on the applicant, then the Director has no course but to deny the request. That’s mandatory language. *** It is the petitioner’s burden to prove it is not being served and that, therefore, they meet the requirement for a new currency exchange. *** [T]he burden of going forward is really on the petitioner to show the community is not advantaged, is not being met, and therefore there is a need for a new one.” In his opinion, the hearing officer stated that the only issue was whether the community needed an additional currency exchange. He found, in effect, that since the existing currency exchange adequately served the community, the application should be denied. He also ruled that the fact that the community was now Spanish and the applicants were Spanish and could serve a Spanish-speaking community was irrelevant and should not be considered. The hearing officer made no findings that the granting of the license would in some way be injurious to the community or even to the existing currency exchange. The Director affirmed the ruling, specifically finding that the applicants had not refuted the Department’s finding of no community need and advantage being demonstrated for the creation of a new license.

Prior to 1977 the Currency Exchange Act in section .01 (Ill Rev. Stat. 1975, ch. lGVz, par. 30), provided that the number of community currency exchange licenses should be limited in accordance with the needs of the communities they are to serve. This section was repealed in 1977. In so doing the legislature expressly and at length found that the declaration and findings of that section had been made without any investigation and provided for preferential treatment of community currency exchanges; that the people of Illinois do not need to assure the financial stability of any business. (80th Ill. General Assembly, Report of Senate Proceedings, Third Reading of Senate Bill 447, May 26, 1977, at 102-06; Report of House Proceedings, Third Reading of Senate Bill 447, June 20, 1977, at 75.) Since the repeal of that section of the Act, it appears that the only reason for the denial of a license for a community currency exchange is to establish that its issuance would not promote the convenience and advantage of the community. The hearing examiner cannot change or modify these criteria. (Gadlin v. Auditor of Public Accounts (1953), 414 Ill. 89, 110 N.E.2d 234.) The needs of the community as opposed to its convenience are no longer the issue. The fact that the essential needs of a community are served, that people can, however inconveniently, get to a currency exchange does not show that an additional exchange would not be a convenience and advantage to its community. Thus it is clear that the hearing officer, throughout, applied an incorrect standard.

Normally, when an incorrect standard is applied, this court would remand the case to the administrative agency for reconsideration applying the proper standard. However, in this case there is no evidence in the record tending to show that the granting of a license to the applicants, admittedly totally qualified, would not serve the convenience and advantage of the community. Accordingly under our authority to give any judgment and make any order that should have been given (87 Ill. 2d R. 366), we affirm the judgment of the circuit court.

It is admitted and undisputed that the applicants were thoroughly qualified. There is only one other currency exchange in the near vicinity. There had been one other but that had closed after being charged with violations of the regulations. Yet the population has not decreased; to the contrary, all agreed the population had increased in the last few years although the witnesses were in disagreement as to whether this increase was only slight or about 20%. One of the Department’s witnesses admitted that a new exchange would convenience some of the people in the community. A glance at the map included in the record discloses that many of the people supposedly “serviced” by the existing exchange and forced to use it for lack of another live well over eight to ten blocks from that exchange. The applicants obtained about 507 signatures of persons in the community wanting the new exchange; one of the applicants testified that everyone they approached for signatures used a currency exchange on a regular basis. On the other hand, the only objector was the owner of the other exchange; his objections were based on the contentions he adequately served the community and the population had not significantly increased.

The Department contends that the examiner was entitled to deny the application because a new exchange would impair the financial stability of the existing one, citing Gadlin v. Auditor of Public Accounts (1953), 414 Ill. 89, 110 N.E.2d 234, Durchslag v. Smith (1958), 14 Ill. 2d 549, 152 N.E.2d 828, and Cohn v. Smith (1958), 14 Ill. 2d 388, 153 N.E.2d 83. These cases, however, relied on section .01, which was part of the Act when they were decided and which required the limitation of licenses in accordance with the needs of the community. As already noted, this section has been repealed by a legislature which found there was no need to give preferential and protectionistic treatment to community currency exchanges. Furthermore, there was absolutely no evidence tending to show that the existing exchange could not survive or even would be seriously injured if the new license was granted. The sole evidence as to alleged financial injury was that of one of the Department’s employees who testified that the licensing of a new currency exchange “could possibly have an effect on the existing currency exchange.” What kind of effect was not specified. This testimony which was purely a conclusion of the witness was not substantiated by any factual evidence. The owner of the existing currency exchange appeared as a witness but made no claim that another exchange would impair the financial stability of his exchange. And the hearing examiner, despite the Department’s contentions, did not in fact find, unlike the auditor in Cohn, that a new exchange would impair the financial stability of existing exchanges. Thus, even if we were to apply the standards applicable before the repeal of section .01, there was no evidence from which the examiner could conclude either that a new exchange would impair the financial stability of the existing exchange, unlike Cohn, or that an area in which there were no exchanges west of Pulaski for at least a couple of miles was oversaturated with currency exchanges, unlike Gadlin where there were five licensed currency exchanges, a United States post office and a national bank located within one-fourth mile of the proposed location and 14 currency exchanges within one-half mile, and unlike Durchslag where there were four existing currency exchanges within one-quarter mile of the proposed location.

It follows from the foregoing that there is no evidence in the record from which the Director on remand could conclude that issuance of the new license would not promote the convenience and advantage of the community. Accordingly, there is no need to remand the case to the Director for reconsideration of the evidence, and we affirm the trial court’s judgment ordering the Director to issue the license.

Judgment affirmed.

JOHNSON and JIGANTI, JJ., concur.


text:
    DIANE HOUSEKNECHT, Plaintiff-Appellee, v. JAMES B. ZAGEL, Director, Illinois Department of Law Enforcement, et al., Defendants.—(The Department of Law Enforcement, Defendant-Appellant; Midwest Steel Erection Company, Inc., et al., Intervening Appellees.)
    First District (4th Division)
    No. 82—412
    Opinion filed January 20, 1983.
    Rehearing denied March 3, 1983.

      Tyrone C. Fahner, Attorney General, of Chicago (Rosalyn B. Kaplan, Assistant Attorney General, of counsel), for appellant.
    I. Peter Polansky and Andra Gomberg, both of Baum, Sigman and Gold, Ltd., of Chicago, for appellee.
    Phelan, Pope & John, Ltd., of Chicago (John M. Christian and Bradley B. Falkof, of counsel), for intervenors-appellees.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Defendant-appellant State of Illinois Department of Law Enforcement (appellant) appeals from an order of the circuit court denying appellant’s motion to dismiss complaints for preliminary injunction and a temporary restraining order filed by plaintiffs-appellees Diane Houseknecht and Midwest Steel Erection Company (appellees) and granting appellee Houseknecht’s motion for a temporary restraining order. The latter order temporarily restrained appellant from conducting any destructive testing on an aerial platform and steel rods involved in a construction accident. Appellant was also ordered not to remove those materials from the jurisdiction of the court and appellees were given the right to inspect those materials.

The principal issue raised by appellant is whether the circuit court had jurisdiction to enjoin appellant’s investigatory activities in the manner requested by appellees and as actually ordered by the circuit court. Appellant also contends that under equitable principles the court should not have interfered with the exercise of discretion by public officials and that in any event there was an insufficient basis for granting the temporary restraining order.

We affirm.

Appellee Houseknecht’s verified amended complaint for preliminary injunction alleged the following. Houseknecht is the widow of a construction worker killed on December 11, 1981, at the Illinois Center construction project when an aerial platform gave way. On December 14, 1981, Houseknecht filed a complaint in the circuit court of Cook County for damages arising out of that incident. On the same day Houseknecht obtained a temporary restraining order in that action which ordered those defendants (the defendants in this action were not a party to that action) to give Houseknecht immediate access to the platform and the steel rods for inspection and photographing and further ordering those defendants not to remove those materials from the jurisdiction of the court and not to perform any destructive testing on them. However at some time after December 11, 1981, the defendants in this cause, the State of Illinois Department of Law Enforcement and its director, James B. Zagel, seized those materials. According to the complaint since that time those defendants have limited Houseknecht’s access to those materials, have informed her of their intent to take the materials to Champaign, Illinois, in order to conduct destructive testing on them, have refused to advise her of the exact nature of those proposed tests and have refused to permit her representatives to control those tests in any manner. Houseknecht further alleged that the proposed destructive testing would alter and destroy the condition of those materials and would thus destroy evidence of vital importance to her civil lawsuit. She alleged that this testing and the failure to notify her representatives of it so as to allow their presence would irreparably harm her. She also alleged that the defendants were acting beyond their authority in seizing these materials and attempting to conduct destructive testing on them. On these grounds she sought a preliminary injunction which would enjoin the defendants from removing the materials from the jurisdiction of the circuit court of Cook County, enjoin them from performing any destructive testing until further order of court, order them to provide Houseknecht with a list of all proposed tests on those materials fourteen days prior to testing, and bar any testing unless all parties to the suit agreed to the testing or until further order of court.

On January 6, 1982, Midwest was given leave to intervene after it filed a petition for leave to intervene stating that it was the owner of the aerial platform at issue and that it reasonably believed it would be a party to one or more of the lawsuits arising out of that occurrence. In its complaint for temporary restraining order Midwest alleged that on December 11, 1981, following the occurrence, appellant had forcibly removed the aerial platform from the site without a proper warrant or other legal process. Midwest further alleged that appellant had proposed to conduct certain destructive testing on the platform some time after January 5, 1982. Included in that testing, according to a letter from appellant appended to the complaint, would be procedures involving cutting off the fracture tips on the platform and/or the steel rods, and removal of portions of the surface of the fracture tips. Midwest alleged that its expert consultants had not had an opportunity to inspect the materials held by appellant. Midwest further alleged, on information and belief, that: some of the testing would be conducted outside of Illinois where Midwest’s experts would be unable to monitor it; certain of the proposed tests were unnecessary and needlessly destructive of critical portions of the fracture surfaces; certain of the proposed tests were unclear and vague in their nature and scope making it virtually impossible for Midwest and its experts to adequately determine the necessity and appropriateness of those tests; before destructive testing was undertaken certain preliminary nondestructive observations and measurements were necessary; and there were tests better able to generate the information and data sought by appellant. On these grounds Midwest sought an order granting it immediate access to the materials, enjoining appellant from performing destructive testing until Midwest met with it to develop and schedule a systematic testing plan, permitting Midwest to be present during all testing by appellant, and requiring that all testing by appellant be conducted in Illinois.

Also granted leave to intervene in this action were the following individuals and businesses, all parties to various actions arising out of the occurrence: Philip Rios, Gust K. Newberg Construction Company, Paschen Contractors, Incorporated, Murphy/Knight, a joint venture, and Carol Tyson.

Appellant filed a motion to dismiss the complaints of Midwest and Houseknecht on the grounds, inter alia, that the relief sought was barred by sovereign immunity. Attached to that motion was the affidavit of defendant Zagel. He stated that on December 11, 1981, he was directed by the Governor of Illinois to investigate the incident that occurred at the construction site. Zagel then directed Commander Thomas Schumpp of the Division of Criminal Investigation to conduct that investigation and further directed him to take custody of the aerial platform and to conduct engineering and metallurgical testing on it in order to determine the cause or causes of the fall of that platform. Zagel further stated that it was his “belief and opinion” that the investigation could not properly be completed without the performance of additional tests upon the platform and other items. Also attached to the motion was the affidavit of Edward Cisowski, a special agent of the Illinois Department of Law Enforcement, Division of Criminal Investigations. He stated that the materials in question were received from the Chicago Police Department and the Cook County Medical Examiner’s Office on December 14, 1981, with the permission of the appropriate officials of those offices. He denied that any employee of the Department of Criminal Investigations had seized or taken possession of any materials from the construction site.

The circuit court scheduled and held a hearing restricted solely to the issue of the court’s jurisdiction to enjoin the activities of the defendants. However at that hearing counsel for appellee Houseknecht also moved for the entry of a temporary restraining order. The hearing consisted only of legal argument on the question of the jurisdiction of the court to enjoin the defendants; no evidence was presented. In announcing its determination of this issue the court indicated that it had found that defendants lacked the authority to investigate the accident at issue and for that reason the court had jurisdiction to enjoin elements of that investigation. In a written order dated February 5, 1982, the court denied the motion to dismiss. It also entered a temporary restraining order which: temporarily restrained appellant from conducting any destructive testing on the aerial platform and steel rods; temporarily restrained appellant from removing those materials from the jurisdiction of the court; gave appellees the right to inspect those materials; and gave appellees the right to move for a “permanent injunction” after the expiration of the temporary restraining order. The order specified that it was to remain in force for 10 days. However on February 10, 1982, an agreed order was entered stating that the order of February 5 was to remain in full force and effect until further order of the court.

I

As we have noted the circuit court found that appellant lacked the authority to investigate the accident at issue and for that reason found that the court had jurisdiction to enjoin elements of that investigation. Appellant contends the court erred in finding this lack of investigatory authority and thus the court’s orders must be vacated.

We agree that the court erroneously found a lack of investigatory authority in the appellant. Among the powers and duties given by statute to the Department of Law Enforcement are the following:

“4. To (a) investigate the origins, activities, personnel and incidents of crime *** (c) employ skilled experts, scientists, technicians, investigators or otherwise specially qualified persons to aid in preventing or detecting crime, apprehending criminals, or preparing and presenting evidence of violations of the criminal laws of the State, (d) cooperate with the police of cities *** in enforcing the laws of the State *** (f) conduct such other investigations as may be provided by law. ***.
5. *** (h) employ *** laboratory technicians and other specially qualified persons to aid in the identification of criminal activity ***.” (Ill. Rev. Stat. 1979, ch. 127, par. 55a.)

One of appellant’s departmental divisions, the Division of Criminal Investigations, is mandated:

“2. to investigate the origins, activities, personnel and incidents of crime and enforce the criminal laws of this State related thereto;
* * *
7. to conduct such other investigations as may be provided by law;
8. to exercise other duties which may be assigned by the Director in order to fulfill the responsibilities and achieve the purposes of the Department.” Ill. Rev. Stat. 1979, ch. 127, par. 55a — 3.

Defendant Zagel’s affidavit established that the Governor had directed him to investigate the accident at issue and pursuant to that investigation he had ordered testing on the aerial platform in order to determine the cause or causes of its fall. As appellant notes although it is premature to state whether or not a crime occurred in connection with the fall of the platform the possibility exists that this investigation may disclose evidence of involuntary manslaughter (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 3), or of criminal violations under the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 69).

Clearly appellant had the statutory authority to conduct this investigation, and defendant Zagel’s affidavit establishes that appellant’s proposed testing is an attempt to act in furtherance of that investigation. But contrary to appellant’s suggestion on appeal, the trial court’s erroneous finding in this regard does not necessarily require a finding that the relief granted by the circuit court was barred by the doctrine of sovereign immunity. A reviewing court will affirm the judgment of a lower court if it finds that judgment to be correct on any ground even though the lower court may have based that judgment on an erroneous ground. Hunt v. Mitchell (1951), 409 Ill. 321, 99 N.E.2d 347; Hintz v. Lazarus (1978), 58 Ill. App. 3d 64, 373 N.E.2d 1018.

The 1970 Illinois Constitution abolished sovereign immunity but permitted the legislature to reenact it. (Ill. Const. 1970, art. XIII, sec. 4.) The legislature utilized this power to reinstate sovereign immunity by enacting “An Act in relation to immunity for the State of Illinois” (Ill. Rev. Stat. 1979, ch. 127, par. 801), which provided:

“Except as provided in ‘AN ACT to create the Court of Claims, to prescribe its powers and duties, and to repeal AN ACT herein named’, filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court.”

In determining whether an action is against the State of Illinois and thus prohibited by law the courts will not only look to the identity of the formal parties but also will consider the issues involved and the relief sought. (City of Springfield v. Allphin (1978), 74 Ill. 2d 117, 384 N.E.2d 310; Betts v. Department of Revenue (1979), 78 Ill. App. 3d 102, 396 N.E.2d 1150.) Thus, when a suit brought against a State officer alleges that the officer has performed acts which are illegal or beyond his authority or has acted under the authority of an unconstitutional statute, that suit will not be considered to be against the State and will not be barred by sovereign immunity. (Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975.) It has also been held that a suit against a State officer alleging that he has abused his discretion or his authority will not be barred by sovereign immunity. Joos v. Illinois National Guard (1912), 257 Ill. 138, 100 N.E. 505; Hanson v. Mosser (1967), 247 Or. 1, 427 P.2d 97; 72 Am. Jur. 2d States, Territories, & Dependencies sec. 115 (1974).

In Hanson the plaintiffs, unsuccessful bidders for a State contract, had sought a declaratory judgment stating that the contract at issue was illegal and void because it had been awarded to a bidder other than the lowest bidder. They also sought to enjoin certain State officers from entering into the contract or paying out State funds under it. The State had successfully moved to quash service of summons on the ground of sovereign immunity. In reversing this order the Oregon Supreme Court acknowledged that under Oregon law the responsible State official had broad discretion in determining who was the lowest responsible bidder, but held that if, as alleged in the complaint, the official was shown to have abused his discretion by not awarding the contract to the lowest responsible bidder, then the official’s acts would not be authorized by the State and the court would have jurisdiction to enjoin the awarding of the contract.

In Joos the plaintiff had obtained an injunction barring the Illinois National Guard and certain Guard officers from using a Guard camp for rifle practice. The plaintiff was an adjoining farmer who had established that the firing was in the direction of his home. In affirming the Illinois Supreme Court did not find sovereign immunity to be a bar to the action despite a finding that the establishment of a rifle range and target shooting on that range were lawful exercises of the Guard’s authority. The court held that by the manner in which this authority was exercised, endangering life and property, the officials had exceeded their authority and thus the suit was not actually against the State.

In this cause we have found that the appellant has the authority to investigate the accident at issue and to conduct testing in furtherance of that investigation. But the allegations of the appellees, if proven, are sufficient to establish that the appellant and its director have abused that authority by arbitrarily denying the appellees access to the material to be tested and information about the tests to be performed. Appellant has provided no reason for its total refusal to cooperate with appellees and intervenors even though the proposed destructive testing may impair the ability of these parties to fully prepare for their own civil cases arising out of that accident. We find that these allegations sufficiently set out a showing of arbitrary abuse of authority sufficient to vest the circuit court with the jurisdiction to enjoin any testing pending an evidentiary hearing on these allegations.

II

Appellant also seeks to rely on the equitable principle that the courts should not ordinarily interfere with the exercise of discretion by public officials. However, where the official has acted arbitrarily and capriciously and has thus abused his discretion a court of equity-may act to prevent such abuse. (Rocke v. County of Cook (1978), 60 Ill. App. 3d 874, 377 N.E.2d 287; Mullen v. Board of School Directors (1969), 436 Pa. 211, 259 A.2d 877; 42 Am. Jur. 2d Injunctions sec. 176 (1969).) Thus our finding of sufficient allegations of the arbitrary abuse of discretion by appellant and its director to vest the court with jurisdiction also establishes a basis for the exercise of its equitable powers to prevent that abuse.

III

Finally appellant contends that there was an insufficient basis in the pleadings to warrant any preliminary injunctive relief. Whether the circuit court’s order is considered to be a temporary restraining order issued with notice or preliminary injunction it amounts to the same type of relief and requires the same elements of proof. (See Kable Printing Co. v. Mount Morris Bookbinders Union Local 65—B (1976), 63 Ill. 2d 514, 349 N.E.2d 36.) The party seeking relief must establish that it has a protectible right, that it will suffer irreparable injury if injunctive relief is not granted, that its remedy at law is inadequate, and that there is a likelihood that it will succeed on the merits. (Allstate Amusement Co. of Illinois, Inc. v. Pasinato (1981), 96 Ill. App. 3d 306, 421 N.E.2d 374.) In evaluating these factors we also note that the trial court has broad discretion to issue an injunction and its determination to do so will not be set aside absent a manifest abuse of that discretion. Board of Education v. Peoria Education Association (1975), 29 Ill. App. 3d 411, 330 N.E.2d 235.

It is undisputed that appellee Houseknecht and all intervenors except appellee Midwest are parties to civil actions arising out of the collapse of the aerial platform on which appellant proposed to perform destructive testing. Appellee Midwest is the owner of that platform and reasonably anticipates that it will become a party to one or more of those civil actions. In the context of a civil lawsuit our supreme court has recognized that destructive testing may be a proper part of discovery, but in so doing it also found that the court had a duty to protect the rights of the litigants to not have their presentation of the case unreasonably impaired by such testing. (Sarver v. Barrett Ace Hardware, Inc. (1976), 63 Ill. 2d 454, 349 N.E.2d 28.) We find that such a right must also be recognized where the destructive testing is to be performed by one who is not a party to the underlying civil actions. Thus we find that appellees and intervenors do have a protectible right subject to equitable protection.

The irreparable nature of the injury threatened here is evident from the fact that appellant admits it intends to perform testing which will destroy part of the platform and supporting rods. Despite the nature of this testing it is alleged that appellant even refuses to allow appellees or intervenors to observe this testing or to determine its exact nature.

It is clear that only injunctive relief can prevent this unmonitored destructive testing pending resolution of the issues; thus the remaining question concerns the likelihood of success on the merits. Appellant asserts that appellees cannot establish this likelihood because they have not alleged facts sufficient to entitle them to an injunction against the actions of the State. This contention we have already answered in our determination that the circuit court had the jurisdiction and the authority to order injunctive relief. Appellees were required only to establish that they would probably be entitled to the relief requested if the proof sustained their allegations. (Donald McElroy, Inc. v. Delaney (1979), 72 Ill. App. 3d 285, 387 N.E.2d 1300.) Our earlier findings on the issues of jurisdiction and the appropriateness of injunctive relief establish that appellees have met this burden.

Accordingly, for the reasons set forth in this opinion, the orders of the trial court are affirmed.

Affirmed.

JIGANTI and LINN, JJ., concur.


author: JUSTICE GOLDBERG

text:
    LINDA WILLIAMSON et al., Plaintiffs-Appellants, v. EUGENE DOYLE, Mayor of Northlake, et al., Defendants-Appellees.
    First District (1st Division)
    No. 82—1000
    Opinion filed January 17, 1983.
    Rehearing denied February 22, 1983.

      Thomas S. Moore, of Chicago (McCarthy, Duffy, Neidhart & Snakard, of counsel), for appellants.
    Serpico, Novelle, Dvorak & Navigato, Ltd., of Chicago (Robert A. Novelle and Vincent E DiPiero, of counsel), for appellees.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Linda Williamson, Dana Kiesling, James Wagner, and Leroy Kilb (plaintiffs) brought this class action on behalf of themselves and all others similarly situated against Eugene Doyle, mayor of Northlake, the city council of Northlake, the city of Northlake, Commonwealth Edison Company, Northern Illinois Gas Company, and Illinois Bell Telephone Company (defendants). The first seven counts of the complaint allege various wrongful practices of the city of Northlake, its city council and its mayor. Counts VIII and IX have reference to council meetings of May 2, 1981, and June 9, 1981, respectively. By amendment, a 10th count was added on August 3, 1981, with reference to the council meeting of July 9, 1981. The trial court granted the plaintiffs’ request to certify the class. The trial court also ordered all funds collected from the assailed tax were to be retained at interest until further order of the court. The trial court granted defendants’ motion for summary judgment with respect to counts VIII, IX and X and denied plaintiffs’ petition for attorney fees. Plaintiffs appeal.

In this court plaintiffs contend the trial court should not have proceeded to hear the motion of defendants for summary judgment because discovery had not been completed; the trial court had inherent authority to void the ordinance because of violations of Illinois law; subsequent amendments to the Illinois Act on open meetings were remedial and were therefore available to plaintiffs; attorneys for plaintiffs should be granted fees and the city of Northlake has denied plaintiffs due process of law.

I

The ordinance (referred to as No. 0 — 8—81) for a five percent tax on gross receipts of defendants’ utilities was passed at a regular council meeting on May 12, 1981. The vote on the ordinance was four aldermen in favor, three against, and one abstention. “Many hundreds of citizens” were present at the meeting.

At a meeting of the council sitting as a committee of the whole, on June 2, 1981, one alderman suggested that rescission of this ordinance be considered at the regular city council meeting on June 9, 1981. This ordinance for rescission (No. 0 — 11—81) was defeated. Plaintiffs’ complaint was filed on June 26,1981.

At the committee of the whole meeting of July 7, 1981, the attorney for the city of Northlake suggested that the utility tax ordinance be reconsidered due to the possibility of defects in the procedure of passage. It was suggested the ordinance be “repassed” at either a regular or a special council meeting.

The special meeting of the Northlake city council was held on July 9, 1981, at 7:30 p.m. All aldermen and less than a dozen citizens were present. The council voted five to four in favor of the rescission ordinance. The council also effectively repassed the utility tax ordinance of May 12, 1981, numbered as 0 — 12—81. The ordinance adopted May 12, 1981 (No. 0 — 8—81), is identical to this later ordinance adopted July 9,1981 (No. 0-12-81).

The pertinent statute here, section 2.02(a) of the Open Meetings Act (Ill. Rev. Stat. 1979, ch. 102, par. 42.02(a)), provides for public notice of any special meeting “at least 24 hours before such meeting.” The statute also provides (Ill. Rev. Stat. 1979, ch. 102, par. 42.02(b)):

“Public notice shall be given by posting a copy of the notice at the principal office of the body holding the meeting or, if no such office exists, at the building in which the meeting is to be held. The body shall supply copies of the notice of its regular meetings, and of the notice of any special, rescheduled or reconvened meeting, to any local newspaper of general circulation or any local radio or television station that has filed an annual request for such notice. Any such news media shall also be given the same notice of all special, rescheduled or reconvened meetings in the same manner as is given to members of the body provided such news medium has given the public body an address within the territorial jurisdiction of the public body at which such notice may be given.”

The municipal code of Northlake (Northlake, Ill., Code, ch. 2, art. 2, sec. 3(c)) provides:

“Special meetings may be called by the Mayor or by any three (3) members of the Council in writing filed with the Clerk at least thirty-six (36) hours prior to the time specified for such meeting. At least twenty-four (24) hours written notice of such special meeting shall be given by the Clerk, which notice shall specify the time of such meeting and the specific subject matter to be acted upon at such special meeting, and shall be delivered to each member of the Council personally, ***. The Clerk shall cause an Affidavit showing service of such notice as herein provided to be filed in his office prior to the time fixed for such special meeting.”

The record shows that the mayor of Northlake issued a written request for a special meeting to be held July 9, 1981, at 7 p.m. in the city hall of Northlake. This call is dated July 7, 1981, and is addressed to the city clerk. The city clerk prepared notices to each one of the eight aldermen advising them of the time and place of the special meeting pursuant to the call by the mayor. The city clerk certified that these notices were delivered by the Northlake police department on July 8, 1981, 24 hours before the meeting. All of the aldermen and the mayor were present in person.

The city clerk certified a copy of the ordinance in question adopted July 9, 1981 (No. 0 — 12—81), and also certified that four aldermen and the mayor voted “Aye” and four aldermen voted “Nay.” The tie was broken by the affirmative vote of the mayor.

As above shown, the pertinent statute provides (Ill. Rev. Stat. 1979, ch. 102, par. 42.02(b)) that copies of the notice of any special meeting are to be furnished to any local newspaper of general circulation or any local radio or television station which has “filed an annual request” for such notice. The city of Northlake, during 1981, did not receive such request for notice of meetings by any of the news media. An affidavit by the city clerk to that effect is appended to the motion. However, on the morning of July 8, 1981, the city notified the three newspapers circulated in Northlake that the special meeting had been scheduled for July 9, 1981, at 7 p.m. Although plaintiffs’ reply brief insists that “this was done long after those newspapers’ deadlines” the reply contains no reference to the record in this regard.

Plaintiffs contend the city code of Northlake, above quoted, provides that the call for a special meeting by the mayor is to be filed with the city clerk “at least thirty-six (36) hours prior to the time specified for such meeting.” The city clerk is directed to file an affidavit showing service of such notices upon the aldermen. The record shows the call for special meeting was given to the city clerk by the mayor on July 8, 1981. The Northlake police department served notices upon all aldermen at least 24 hours before the meeting. All parties agree that the mayor and all eight aldermen did in fact appear at the special meeting on July 9, 1981. Assuming this was a violation of the ordinance because the clerk did not receive the call for this meeting 36 hours before the meeting, this fact must necessarily be classified as technical and entirely immaterial.

Plaintiffs point to a provision in the Northlake code requiring previous discussion of ordinances at a meeting of the city council sitting as a committee of the whole. There was no such prior discussion regarding the ordinance passed July 9, 1981 (No. 0 — 12—81). However, as defendants urge, this portion of the city code provides for previous discussion at a meeting of the committee of the whole with reference to ordinances “appearing on the agenda of each regular meeting of the City Council ***.” Consequently since the meeting of July 9, 1981, was a special meeting, that code provision is inapplicable. Defendants also correctly point out that a meeting of the committee of the whole was held on July 7, 1981, at which time the ordinance in question was discussed.

Section 2.02 of the Open Meetings Act above quoted (Ill. Rev. Stat. 1979, ch. 102, par. 42.02) also provides that public notice shall be given by posting a copy of the notice at the principal office of the body holding the meeting or “at the building in which the meeting is to be held.” However, the first portion of this quoted section provides that public notice of a special meeting “shall be given at least 24 hours before such meeting.”

The record regarding the posting of this type of notice is not clear. The city clerk was quite uncertain regarding posting of notices at the city hall. The same applies to the mayor of Northlake. Plaintiffs have presented affidavits by six persons to the effect that they attended the meeting of July 9, 1981, and they did not see notices of the special meeting posted at the city hall. As against this, the city clerk testified that the posting of notices posed a problem since on some occasions notices had been removed without authority.

However in the case at bar, even if it be assumed that the notices were not posted, we cannot regard this fact as a materially substantial violation of the statute. As shown, the ordinance adopted at the special meeting of July 9, 1981 (No. 0 — 12—81), is identical to and was in effect a reenactment of the previous ordinance adopted at the regular meeting on May 12, 1981 (No. 0 — 8—81). It is undisputed that hundreds of citizens were present at the meeting on May 13, 1981. Therefore we cannot conclude that this was a substantial violation of the law. In view of this legislative history of ordinance No. 0 — 12—81, we are impelled to classify this type of violation as inconsequential and strictly technical. In our opinion, the law was substantially complied with.

In Ciacco v. City of Elgin (1980), 85 Ill. App. 3d 507, 407 N.E.2d 108, an error was made in the published notice regarding the description of the affected property. Furthermore, no notice of the meeting was posted on the door of the building where the meeting was held, precisely as in the instant case. This court held that “the procedural requirements of the enabling legislation were substantially complied with.” (85 Ill. App. 3d 507, 513.) Immediately prior to reaching this conclusion, this court stated:

“The plaintiffs also contend that the Open Meetings Act (111. Rev. Stat. 1977, ch. 102, par. 41 et seq.) was violated in that a notice of the meeting establishing a special service area and the meeting at which the ordinance was actually adopted, was not posted on the door of the building where the meeting was to be held (presumably the city hall), which is required by the Open Meetings Act, in addition to the publication in the local news media. There is no evidence indicating that such notice of these meetings was posted on the door of the city hall. However, this omission does not invalidate the legislation enacted at such meeting if otherwise regularly enacted in all respects. In Board of Education v. County Board of School Trustees (1978), 60 Ill. App. 3d 415, [376 N.E.2d 1054], and In re Organization of Byron Park District (1978), 67 Ill. App. 3d 61, [385 N.E.2d 67], the court held that a violation of the Open Meetings Act did not per se invalidate the legislative action taken at such meeting. We again adhere to that view.
We believe, therefore, that the procedural requirements of the enabling legislation were substantially complied with in establishing the special service area in this case.” (85 Ill. App. 3d 507, 513.)

The doctrine of stare decisis requires us to follow the decision in Ciacco.

Plaintiffs rely heavily on Toyah Independent School District v. Pecos-Barstow Independent School District (Tex. Civ. App. 1971), 466 S.W.2d 377, for the proposition that invalidation is a proper remedy for actions taken in violation of the Open Meetings Act. We do not find this authority convincing. Although the Toyah court found the requirements of the open meetings statute to be mandatory, actions taken in violation of the act were not found to be voidable per se. Rather, the court held “[t]he effect of holding a statute to be mandatory *** is to require at least substantial compliance with its provisions in order to uphold proceedings to which the statute is applicable” (466 S.W.2d 377, 380). The application of the “substantial compliance” standard to such situations has been subsequently confirmed by the courts of Texas. See Burton v. Ferrill (Tex. Civ. App. 1975), 531 S.W.2d 197, 200, and Stelzer v. Huddleston (Tex. Civ. App. 1975), 526 S.W.2d 710, 713, and cases there cited.

Furthermore, Toyah is far different on its facts from the instant case. In Toyah, the action complained of was a total exclusion of all outside parties from a School Board of Trustees meeting on orders of the Board itself. In the case at bar, aside from the pertinent ordinances themselves, the alleged violations were merely of a technical nature with respect to the posting of the proper notices.

A good part of plaintiffs’ brief is devoted to a consideration of alleged violations in connection with other meetings of the Northlake city council. In this regard, the trial court filed a written opinion in which he stated that the proceedings at these meetings held prior to July 9, 1981, were legally immaterial or moot because the crucial issue is the question of substantial compliance with the statute with reference to the meeting of July 9,1981.

Plaintiffs’ complaint was filed on June 26, 1981. As regards the three counts involved in the summary judgment proceeding, count VIII refers only to the passage on May 12, 1981, at a regular meeting of the council, of ordinance No. 0 — 8—81; identical to the ordinance of July 9, 1981. No allegations are made regarding the code of Northlake or the Open Meetings Act. Also, that count is rendered moot by the rescission and repassage of the ordinance on July 9, 1981. Similarly, count IX contains allegations concerning the regular city council meeting of June 9, 1981. This meeting involved discussion regarding ordinance No. 0 — 11—81 which is simply an ordinance providing for rescission of the previously passed ordinance of May 12, 1981 (No. 0 — 8—81). The allegations of count IX have no relevance to the code of Northlake or the Open Meetings Act.

Count X was filed on August 3, 1981, as an amendment to the complaint. That count cites the Open Meetings Act and also portions of the Northlake code. Count X alleges simply that on July 9, 1981, the city council passed a utility tax ordinance (No. 0 — 12—81) identical to the previous act passed on May 12, 1981 (No. 0 — 8—81). Count X alleges that this was done “without having first complied with the spirit, intent, or dictates” of either the statute or the city code. This allegation is a pure conclusion and count X states no cause of action. See Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426-27, 430 N.E.2d 976.

A motion for summary judgment should be granted if the pleadings and evidence of record reveal no “genuine issue as to any material fact” as to entitle the moving party to judgment as a matter of law. Ill. Rev. Stat. 1981, ch. 110, par. 57, now known as Illinois Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, par. 2—1005; Murphy v. Urso (1981), 88 Ill. 2d 444, 464, 430 N.E.2d 1079.

We conclude the ordinance here involved passed July 9, 1981, does not violate the code of the city of Northlake in any manner and passage of the ordinance was accomplished in substantial compliance with the provisions of the Open Meetings Act. Thus, it follows there is no genuine issue here as to any material fact.

II

In their complaint as amended, plaintiffs pray that the court declare the utility tax ordinance void. It is correct that the statute in its present form permits the court to declare “null and void any final action taken at a closed session in violation of this Act.” (Ill. Rev. Stat. 1981, ch. 102, par. 43(c).) This portion of the statute did not become effective until July 1, 1982. In view of the position above taken by us that any violation of the Act before us is not substantial but merely formal, it is unnecessary for us to consider this contention. However, relative thereto we will add:

(1) The statute permitting the court to declare the action void refers by its terms only tó a “closed session.” For example, in Toy ah Independent School District, the court dealt with a situation involving a truly closed meeting. There, the doors to the meeting place were barred and no other person was admitted. Thus, “[a]ll interested citizens who desired to be present at the meeting were excluded from the meeting room and were required to wait outside in the corridors.” 466 S.W.2d 377, 378 n.l.

(2) This amendment to the statute should be given prospective and not retroactive effect. The amendment is not concerned with simply a “remedy or law of procedure.” (See Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390-91, 415 N.E.2d 1034, cert. denied (1981), 451 U.S. 921, 68 L. Ed. 2d 312, 101 S. Ct. 2000.) The Act creates for the court a substantive right and power in dealing with a “closed” meeting. “Without an express statutory provision stating an act is to have retroactive effect, it can only be applied prospectively.” Village of Wilsonville v. SCA Services, Inc. (1981), 86 Ill. 2d 1, 18, 426 N.E.2d 824, and authorities there cited.

Ill

Plaintiffs contend summary judgment was premature because discovery had not been completed. Plaintiffs argue a tape recording of the May 12, 1981, city council meeting was never produced despite repeated requests. Plaintiffs also contend discovery had not been completed as to the first seven counts of the complaint.

As above shown, the proceedings of May 12, 1981, are completely immaterial in determination of the validity of the ordinance passed on July 9, 1981. Thus, discovery regarding the meeting of May 12, 1981, and production of the tape recording would appear superfluous. Further, plaintiffs desired the tape to be produced to substantiate their charge that defendant Doyle had altered it.. Defendants took the position the tape had been inadvertently erased. Plaintiffs countered with the charge the tape had been intentionally destroyed. We see no relevance to the case before us in either of these various charges or in the tape itself.

In our opinion, the able trial judge correctly severed counts VIII, IX and X which, as shown, had no factual or legal relation to the subject matter of the first seven counts of the complaint.

Finally, it has been frequently held that “[a] reviewing court will not interfere with a trial court’s ruling on discovery matters unless there is a manifest abuse of discretion.” (Dobbs v. Safeway Insurance Co. (1978), 66 Ill. App. 3d 400, 402, 384 N.E.2d 34, and cases there cited.) The record contains large numbers of interrogatories answered by both municipal and utility defendants. It is also evident from the record defendant Doyle and two other Northlake employees were twice deposed by plaintiffs. We find no breach of discretion here.

IV

Plaintiffs charge the passage of the utility tax ordinance constitutes a denial of their right to due process under the United States Constitution. No authority of any kind is cited by plaintiffs in this regard. The argument is therefore “deemed waived.” Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 386, 385 N.E.2d 664.

V

Plaintiffs’ attorneys filed a petition for fees in the trial court on the theory that their efforts resulted in a benefit to the class here involved. The trial judge denied the petition. We are in accord with that order. In view of the holding by the trial judge, that the tax ordinance herein involved is valid, plaintiffs are not successful litigants. Therefore they would not be entitled to the allowance of attorney fees at this time. (Saltiel v. Olsen (1981), 85 Ill. 2d 484, 488-89, 426 N.E.2d 1204.) However, since various counts of the complaint remain to be tried, we believe the petition for fees may become proper in event of future success by the plaintiffs. Consequently, although we affirm the denial of fees with reference to the last three counts of plaintiffs’ complaint, we wish it understood that this denial is without prejudice to the right of plaintiffs to renew their prayer for fees in event they have future success in this litigation.

This record shows a complete rift and hostility between the elected officials of the municipality and a number of citizens. The controversy before us is in good part political. In our opinion, the proper method of disposing of these grievances is a resort to the process of election and the potency of the ballot box. We respectfully suggest a prompt trial on the merits of the remaining counts of the complaint.

The orders appealed from are accordingly affirmed.

CAMPBELL and McGLOON, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES HICKS, JR., Defendant-Appellant.
    Third District
    No. 82—83
    Original opinion filed January 11, 1983.
    — Rehearing denied March 2, 1983.— Modified opinion filed March 2,1983.
    Robert Agostinelli and Gary Hicks, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of cousnel), for the People.
   PRESIDING JUSTICE BARRY

Defendant appeals from convictions and sentences imposed by the circuit court of Will County upon jury verdicts finding him guilty of rape, devious sexual assault and heinous battery. (Ill. Rev. Stat. 1979, ch. 38, pars. 11 — 1, 11 — 3, 12 — 4.1.) At the time of the offenses defendant was 15 years old. The case was transferred from the juvenile division to the adult division after a hearing conducted pursuant to section 2 — 7(3) of the Juvenile Court Act. Ill. Rev. Stat. 1979, ch. 37, par. 702— 7(3).

In the afternoon of March 19, 1981, nine-year-old Erica Smith was home alone practicing her violin. She was hungry, so she put a couple of hot dogs and water in a “Coming Ware” pan on the stove to cook. Erica returned to her violin and then heard a knock on the apartment door. When there was no response to her inquiry about who was there, Erica opened the door a few inches and observed the defendant.

The defendant first asked if Erica’s parents were home and then whether she had brothers and sisters. Erica said “no” to both ques-. tions. Then the defendant pushed the door open, took a steak knife and scraped it across Erica’s neck, and pushed her into her bedroom. There, he made her pull down her pants and tried to force his penis into her vagina. It wouldn’t fit, so he put it in her mouth.

Erica’s next recollection was awakening on her parents’ bed in pain and her sweater wet. Erica phoned the police and tried to reach her mother at work. Her mother showed up in a few minutes and Erica was taken to the hospital.

The hot dogs and pan were found on the floor of Erica’s room near the bed. Erica’s body was severely burned, primarily on her chest, abdomen and upper right arm. Her right breast bud was destroyed by burning. Her face and eyes were swollen and braised, as were the insides of her mouth and throat. Swelling and irritation also were noted in the genitalia area.

The defendant was apprehended by the police on April 1 and subsequently formally charged by indictment on July 22, 1981. The indictment was in six counts — home invasion, deviate sexual assault (two counts), rape, heinous battery and armed violence.

The defendant’s two-week trial, including jury selection, began on October 14, 1981. One count of deviate sexual assault and the armed violence charge were dismissed with prejudice on the State’s motion at the close of its case-in-chief for lack of supporting evidence. At the close of all evidence and arguments of counsel, the jury deliberated and returned verdicts of guilty on each of the four remaining counts.

Convictions were entered accordingly. The State then moved to nolle prosequi the home invasion count for failure to allege in the charging instrument “that the defendant had acted without authority.” The motion was granted and the court proceeded to a sentencing hearing on the remaining convictions. Upon consideration of testimony, psychologists’ reports and the recommendations of counsel, the court imposed prison sentences of 20 years each for heinous battery, deviate sexual assault and rape, the latter two sentences to be served consecutively with each other and concurrently with the sentence for heinous battery.

On appeal, the defendant raises two issues: (1) whether boiling water is a “caustic substance” as that expression is used in the heinous battery statute; and (2) whether the trial court erred in failing to express its opinion at the sentencing hearing that consecutive sentences were necessary for the protection of the public.

The sole evidence of the cause of Erica Smith’s severe body burns was the fact that the pan of hot dogs, which Erica had earlier placed in water on the stove to cook, was found with only the hot dogs remaining beside her bed, and Erica’s sweater was wet when she awoke after the incident. Clearly, the inference was that boiling hot dog water had been poured on the little girl’s body.

Erica’s physician testified that in his professional opinion boiling water is a caustic substance and such could have caused her bum injuries. The defendant contends that whether or not boiling water is a caustic substance is not an appropriate issue for which expert opinion is admissible. Rather, it is a question of law to be determined by the court by applying rules of statutory construction. We agree.

In the absence of evidence to the contrary, words used in a statute are to be given their ordinary and popularly understood meanings. (Winks v. Board of Education (1979), 78 Ill. 2d 128, 398 N.E.2d 823.) The word “caustic” is defined in Webster’s Third New International Dictionary as “capable of destroying the texture of anything or eating away its substance by chemical action: CORROSIVE.” Webster’s Third New International Dictionary 356 (1971).

The properties of water cannot be said to fit within the dictionary definition of “caustic.” While certainly water is capable of burning by thermal — as opposed to chemical — action when heated to the boiling point, this is true as well of a wide range of noncaustic substances which require a certain amount of heat to alter their physical state from liquid to gas or, indeed, from solid to liquid.

We do not find that the legislative intent was to include all such substances within the heinous battery statute. The fact that our statute is restricted to “caustic substances” indicates to us that the legislators intended that the enhanced penalty be applied only to cases wherein the battery is performed with the use of lye, hydrochloric acid and such similar substances. This construction incorporates the dictionary definition of “caustic” and comports with the “ordinary meaning” rule of statutory construction. Moreover, if the legislature had intended to include “boiling or scalding liquid” within the meaning of the statute, we believe that that body was capable of doing so, by incorporating such language into the statute.

In the instant case the State did not attempt to establish that any corrosive chemicals, as such, were to be found either in the hot dog pan or on Erica’s sweater. The sole evidence that Erica’s burns were caused by a “caustic substance” was presented by the State’s expert witness who stated that boiling water was a caustic substance. We hold that boiling water is not a caustic substance, as a matter of law. Accordingly; the State failed to prove an element of the heinous battery statute and the defendant’s conviction therefor must be vacated. However, since each element of aggravated battery, a lesser-included offense of heinous battery, was proved beyond a reasonable doubt, we exercise our supervisory power (87 Ill. 2d R. 615(b)(3)) to reduce the degree of the offense to aggravated battery (People v. Coleman (1979), 78 Ill. App. 3d 989, 398 N.E.2d 185) and remand this cause for sentencing on the reduced offense.

The defendant’s second issue on appeal concerns the validity of the trial court’s imposition of consecutive sentences for rape and deviate sexual assault.

At the sentencing hearing, Erica’s mother testified about her daughter’s injuries. She stated that Erica had exhibited signs of emotional disturbance following the incident. Erica was unable to look at her body with its grotesque scarring. She cried excessively and dreaded the prospect of having to disrobe to shower in junior high school physical education classes. Erica had to wear special burn garments covering her torso and arms to protect the skin grafts and scar tissue as it formed. Erica had not been told that her right breast would never develop, and the extent of damage to her left breast bud had not been medically determined.

Also admitted into evidence at the sentencing hearing was a psychological report prepared by Dr. William Hilger in connection with the hearing to determine whether the defendant should be tried as a juvenile or as an adult. The report revealed that the defendant had a history of bizarre sexual behavior, exposing himself at school and to strangers, and soliciting others to participate in various sex acts with him. His episode of antisocial conduct had led to inpatient hospitalization for psychiatric treatment and had caused his family to change residences from time to time. The defendant refused to acknowledge his problems and the doctor was of the opinion that “long-term confinement and intensive psychotherapeutic treatment” would be necessary before the defendant could anticipate being sufficiently rehabilitated to reenter society.

At the conclusion of all evidence and arguments of counsel, the trial court summarized the evidence and imposed sentence, stating for the record:

“The court believes-I am not Soloman [sic], but we do have to have more than the minimum for this offense because it would have been then a useless transfer act to consider a long time therapy if he were to be convicted for this court to say all he deserves is six because that would have been the approximate length of time that he would have been in the juvenile department.
So, somewhere between the six and thirty is a figure which this court must arrive at, recognizing that the defendant according to our present sentencing provisions is going to be able to earn good time credits on a day for day basis, therefore upon this court considering all the evidence which was presented at the trial, the evidence presented at this sentencing hearing, the presentence investigation report including the report of Dr. Hilger, as well as the statement dated February 3rd from the Youth Counselor of Kane County Youth Home where the defendant has been confined for approximately the past ten months, taking into account the factors in aggravation and mitigation, the age of the defendant and the nature of the offense or offenses that were committed, this court sentences the defendant, James Hicks, Jr. on the conviction of rape to a term of 20 years in the Department of Corrections; for the offense of deviate sexual assault, the defendant is sentenced to a 20 year sentence in the department of corrections said sentence in view of the heinous battery and injury that was inflicted upon the victim Erica Smith is to be consecutive to the rape sentence and on the conviction of heinous battery, the defendant is to be sentenced to serve a period of 20 years, said sentence to be consecutive-strike that, to be concurrent with prior consecutive sentences.”

It is defendant’s position on appeal that his sentences cannot stand because the trial court failed to recite its opinion “that consecutive sentences were necessary to protect the public.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(b).) Specifically the section at issue reads:

“This court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.”

The defendant’s argument is premised on a finding that the sentencing statute contains mandatory, rather than permissive language.

In People v. Davis (1982), 93 Ill. 2d 155, an analogous issue was raised on grounds that the sentencing court had failed to specify the factors in aggravation and mitigation which led to its sentencing determination. (Ill. Rev. Stat. 1979, ch. 38, pars. 1005 — 4—1(c), 1005 — 8— 1(b).) Our supreme court stated that “the pronouncement of sentence is at the heart of the judicial function. A construction which would hold sections 5 — 4—1(c) and 5 — 8—1(b) [of the sentencing act] to constitute a mandatory requirement would clearly render the provisions an unconstitutional invasion of the inherent power of the judiciary.” In order to find the statute constitutionally valid, the court read “shall,” in the context of the two sections there at issue, as permissive rather than mandatory. People v. Davis (1982), 93 Ill. 2d 155, 162.

Accordingly, because the defendants in Davis had not requested that the sentencing court specify its reasons for the sentences given, the reviewing court held that defendants had waived their rights to such statements.

Similarly, in the present case the defendant failed to request that the trial court express its opinion for the record that the defendant’s consecutive sentences were required for the protection of the public, as provided in section 5 — 8—4(b). The Davis court’s reasoning applies ■with equal force here. We hold that section 5 — 8—4(b) is directory, rather than mandatory, and is not, therefore, an unconstitutional invasion by the legislature of the judiciary power. Accordingly, we conclude, as did the Davis court, that the defendant herein has waived his right to the sentencing court’s pronouncement as provided by that section.

For the foregoing reasons, the defendant’s conviction for heinous battery is reduced to aggravated battery and the cause is remanded for resentencing on that offense. In all other respects, the defendant’s convictions and sentences are affirmed.

Affirmed in part, reversed in part, and remanded.

ALLOY and HEIPLE, JJ., concur.


text:
    PRECISION COMPONENTS, INC., Plaintiff-Appellant, v. ESTATE OF DONALD KUNTZ et al., Defendants-Appellees.
    First District (4th Division)
    No. 82—1160
    Opinion filed January 27, 1983.
    Patrick J. Mazza, of Chicago (Patrick Mazza & Associates, P.C., of counsel), for appellant.
    Robert W. Singer, of Chicago (McNeill, McElroy, Fick & Singer, of counsel), for appellee.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff, Precision Components, Inc., filed a declaratory action against an estate and its executor to determine its rights under a contract with decedent. The suit was filed in the circuit court of Cook County, the county of the executor’s residence. The estate is being probated in Kane County. Upon motion of defendant the suit was transferred to the circuit court of Kane County. This court granted leave to appeal under Supreme Court Rule 306 (73 Ill. 2d R. 306). We reverse.

In its motion for change of venue the defendant contended that the court probating the estate had exclusive jurisdiction. This contention has properly been dropped on appeal since it is without legal foundation. (Hull v. Continental Illinois National Bank & Trust Co. (7th Cir. 1949), 177 F.2d 217.) Defendant on appeal defends the order on two grounds: (1) the real defendant is the estate and its residence is Kane County; and (2) it is more convenient to litigate the matter in Kane County.

Under section 5 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 5), now section 2 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 101), every action, with certain exceptions not applicable here, must be commenced in the county of residence of the defendant, or where there are multiple defendants, in the county of residence of one of the defendants. It is well established that estates are not natural or artificial persons and lack capacity to sue or be sued. (Wisemantle v. Hull Enterprises, Inc. (1981), 103 Ill. App. 3d 878, 432 N.E.2d 613; Estate of Godair v. Case (1920), 220 Ill. App. 348.) For this reason an action against the estate must be brought against the administrator or executor as representative of the estate and not against the estate itself. (Wisemantle.) It follows that the only proper defendant here is the executor, Northern Trust Company, and its place of residence determines venue.

There is no statutory provision in this State fixing the official residence of administrators and executors. (People’s Bank v. Wood (1914), 193 Ill. App. 442.) Venue is not fixed by the place of probate; rather, the executor may be sued where he resides or is found. (People’s Bank.) It is undisputed that Northern Trust does its principal business in Cook County; thus, it is a resident of Cook County. (Ill. Rev. Stat. 1981, ch. 110, par. 6, now Ill. Rev. Stat. 1981, ch. 110, par. 2 — 102.) It is possible that it is also doing sufficient business in Kane County so that it could be sued there as well but, if so, plaintiff is entitled to elect in which county it will file suit. Horn v. Rincker (1981), 84 Ill. 2d 139, 417 N.E.2d 1329.

In general, unless suit is filed in the wrong venue, the action must be tried in the county in which it is commenced. (Ill. Rev. Stat. 1981, ch. 110, par. 12, now Ill. Rev. Stat. 1981, ch. 110, par. 2 — 108.) It is true that the Illinois Supreme Court in Horn did, after discussing the doctrine of forum non conveniens, transfer two of the three actions there involved to the county of the third and order their consolidation, but this was done only because of the unusual circumstances involved. As noted by that court, maintenance of the three separate actions in three separate counties would have frustrated the efficient administration of justice and required unnecessary duplication of effort and expense. But even if we are not bound by section 12 of the Civil Practice Act to require the action to be tried where it is filed, there is no reason to transfer the suit to Kane County. Unlike Horn, the witnesses, proofs and incidents leading up to the litigation are not local to Kane County. Indeed, it is not clear that any of the witnesses, except the widow who possibly might be a witness, are residents of Kane County; the defendant admits that the principal witness is not. Neither is the plaintiff. Furthermore, according to the defendant’s own representations in its brief, the incidents leading to the agreements occurred in Du Page, not Kane County.

For the foregoing reasons, we reverse and vacate the order transferring venue and remand the cause for further proceedings in the circuit court of Cook County.

Judgment reversed and case remanded for proceedings in the circuit court of Cook County.

JOHNSON and JIGANTI, JJ., concur.