author: JUSTICE WELCH JUSTICE JONES,

text:
    LISTEMAN, BANDY & HAMILTON ASSOCIATION, Plaintiff, v. ELIZABETH SUE SWAN WILSON, Defendant-Appellee.—(LINDA BARRIGER, Ex’r of the Estate of Charles J. Swan, Deceased, Defendant-Appellant.)
    Fifth District
    No. 81-37
    Opinion filed January 19, 1982.
    Rehearing denied January 29, 1982.

      Churchill, Nester and McDonnell, of Belleville (Joseph B. McDonnell, of counsel), for appellant.
    Walker and Williams, P. C., of Belleville (John B. Gunn and James C. Cook, of counsel), for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

This suit in interpleader was brought by the law firm of Listeman, Bandy and Hamilton as plaintiff against defendant-claimant Linda Barriger, executrix of the estate of Charles J. Swan, and defendant-claimant Elizabeth Sue Swan Wilson, whose marriage to Charles J. Swan had been dissolved. Charles Hamilton of the plaintiff law firm had represented Elizabeth Sue Swan Wilson as plaintiff in a personal injury suit against Venture Stores. In dispute here is a portion of the amount for which that suit was settled.

The lawsuit against Venture Stores was filed on August 18,1978, prior to dissolution of the marriage on September 20,1978. During the dissolution proceedings Charles Swan was not represented by counsel though his wife was. The judgment for dissolution provided in part:

“IT IS FURTHER ORDERED that with reference to the matter of Elizabeth Swan vs. Venture (No. 78-L-645), upon a verdict, settlement and recovery, the proceeds will be divided equally between the petitioner [Elizabeth Sue Swan] and respondent [Charles Swan], if the respondent is living.”

On April 22, 1980, claimant Wilson agreed to accept Venture’s offer of settlement in the amount of $30,000. On Friday, May 2, 1980, her attorney received at his office a draft from Venture’s insurer in the amount of $30,000 together with a release and settlement agreement and a stipulation to dismiss the lawsuit. At approximately 10:30 a.m. on Saturday, May 3,1980, claimant Wilson endorsed the draft for $30,000, signed the release and settlement agreement and authorized her attorney to execute the stipulation to dismiss the lawsuit. About two hours later claimant Wilson learned that at approximately 9:15 that same morning Charles Swan had suffered a gunshot wound accidentally inflicted by another person. At 1:15 p.m. on May 3, 1980, Charles Swan was pronounced dead. On Monday, May 5, 1980, claimant Wilson’s attorney presented the endorsed draft for payment, and it was duly paid. Plaintiff law firm subsequently made distribution to Elizabeth Sue Swan Wilson of half of the amount of the settlement that remained after payment of expenses and deposited with the trial court the amount of the other half, that is, $10,940.48, which represented the portion of the settlement claimed by both Elizabeth Sue Swan Wilson and the executrix of Charles Swan’s estate.

After a hearing the trial court concluded that although a “settlement” had been reached, there had been no “recovery” during the lifetime of Charles Swan. The court reasoned that the money which the draft represented, and not the draft itself, was the object of the settlement and that since claimant Wilson had not actually received prior to Charles Swan’s death the “funds or monies” she sought from the settlement, no “recovery” had been had pursuant to the terms of the judgment for dissolution. Finding that the disputed portion of the settlement belonged to claimant Wilson, he entered judgment in her favor and subsequently denied claimant Barriger’s motion for rehearing to vacate judgment and to enter judgment in her favor. From the order denying that motion claimant Barriger appeals.

Initially, we note that this case does not involve the effect of the acceptance of the draft on the underlying obligation of Venture to claimant Wilson. (Compare Ill. Rev. Stat. 1979, ch. 26, par. 3—802(1); Consolidated Freightways v. Industrial Com. (1971), 48 Ill. 2d 221, 269 N.E.2d 291). It involves an ancillary obligation, one which arose from the 1978 judgment for dissolution. The question is whether “a verdict, settlement and recovery” was obtained by claimant Wilson when Charles Swan was alive.

The phrase which must be interpreted does not provide an obvious answer. It refers to verdict settlement and recovery in a conjunctive sense. But, as noted by claimant Barriger, a verdict is reached after undergoing a jury trial (Ill. Rev. Stat. 1979, ch. 110, par. 65), while a settlement traditionally refers to an out of court agreement to conclude litigation. (Webster’s Third New International Dictionary 2079 (1961) (“settle,” definition 7b).) Certainly it could not have been intended that the Venture litigation must result in a verdict and settlement before Charles Swan became entitled to half of the “proceeds.”

Nor does the use of the word “recovery” hint at a solution of the problem. It is not clear whether the recovery must accompany the “verdict,” the “settlement,” or either procedure. The courts of this State have construed “recovery” to apply only to judicial proceedings (Peavler v. City of Mt. Vernon (1910), 158 Ill. App. 610), but they have also read the term to refer to settlements. (Standidge v. Chicago Rys. Co. (1912), 254 Ill. 524, 93 N.E. 963.) “Recovery” could refer to claimant Wilson’s receipt of proceeds, as opposed to her merely obtaining a judgment (Donoho v. O’Connell’s Inc. (1960), 18 Ill. 2d 432, 164 N.E.2d 52), or, the term may simply be another way to describe a judgment. Peavler.

In the interests of brevity, we will not belabor the point, but it is obvious that the phrase “verdict, settlement and recovery” is too ambiguous to state definitively when Charles Swan would become the owner of half of the proceeds from the Venture litigation. Since the language of the judgment of dissolution contains this significant ambiguity, we may consider extrinsic evidence to determine what was intended by the language in question. La Throp v. Bell Federal Savings & Loan Association (1977), 68 Ill. 2d 375, 370 N.E.2d 188, cert. denied (1978), 436 U.S. 925, 56 L. Ed. 2d 768, 98 S. C. 2818; Maloney v. Maloney (1980), 88 Ill. App. 3d 146, 410 N.E.2d 416.

To us, the most probative extrinsic evidence available was given by claimant Wilson in the 1978 dissolution proceedings. The relevant testimony, which reveals an uncanny prescience, is reproduced below.

Q. “Now, you have agreed with your husband that you will split any verdict, settlement or recovery of that case?
A. [Claimant Wilson]: Right.
Q. And isn’t it also a fact that we have talked about this in my office?
A. Right.
Q. And I advised you against doing this?
A. Right.
Q. And you still told me that you want to do it, is that correct?
A. That is right.
Q. And it was on your initiative that you decided that you would split the proceeds of that lawsuit with your husband?
A. Right. That is in the event that he is living at the time.
Q. Do you think there is some chance he might be dead?
A. No, but it is just the bunch that he lives with. He lives a dangerous life. He really does.
Q. Does he? Okay.
A. And I don’t want it to go into an estate, his estate or something like that. Do you understand what I am saying?”

This testimony shows that, when she requested the inclusion of the provision in question in the judgment of dissolution, claimant Wilson anticipated the situation which ultimately occurred. Clearly, she intended to divide the proceeds of the Venture litigation with Charles Swan only if she could make that division with Swan himself, and not with an estate. Claimant Wilson wanted Swan, and not his heirs, to enjoy the results of the lawsuit. But that was not possible, for, by the time any division could be made, Charles Swan was dead.

Were we to require distribution of half of the Venture settlement to Swan’s estate, we would frustrate the intent of the parties to the order of dissolution, as expressed in open court under oath by one of those parties. It barely needs citation that the guiding principle in the interpretation of contracts is to ascertain the intent of the parties. (United Farm Bureau Mutual Insurance Co. v. Elder (1980), 89 Ill. App. 3d 918, 412 N.E.2d 630). Because the decision of the trial court effectuates that obvious intent, we believe that it was correct and should be affirmed.

Affirmed.

HARRISON, J., concurring.

JUSTICE JONES,

dissenting:

Without expressly so stating, the majority has held that payment of obligations by check or draft is not made until the cash they represent is in hand. Such holding is contrary to provisions of the Illinois Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 1—101 et seq.) and contrary to the supreme court case of Consolidated Freightways v. Industrial Com. (1971), 48 Ill. 2d 221, 269 N.E.2d 291. Therefore, I respectfully dissent.

The opinion of the majority merely begs the question presented by this case; it does not answer it. Not only that, it does not even address the issue presented us by the appeal.

The majority does correctly state the issue to be, and I use their language, “[wjhether a ‘verdict, settlement and recovery’ was obtained by claimant Wilson when Charles Swan was alive.” Following recital of the issue, the majority finds ambiguity in the quoted phrase, determines to use extrinsic evidence to resolve the ambiguity, recites testimony given by the former Mrs. Swan at the hearing on the dissolution case and concludes that it was her intention to share the proceeds of her settlement with Mr. Swan only if he was alive when he received such proceeds. No consideration is given to the question of what is to be considered the proceeds of the settlement and whether Mr. Swan was alive at the time those proceeds were received.

The only testimony of claimant Wilson given during the hearing on the dissolution which bears on the issue of this case, and as quoted by the majority, is:

“Q. And it was on your initiative that you decided that you would split the proceeds of that lawsuit with your husband?
A. Right. That is in the. event that he is living at the time.”

The essence of this testimony is that claimant Wilson wanted to split the “proceeds” of her lawsuit against Venture if her husband “was living at the time.” Thus, the testimony of claimant Wilson is even less clear than the language in the judgment for dissolution. Claimant Wilson’s testimony explains nothing; it merely accounts for the presence of the clause in dispute in the judgment for dissolution.

The question unaddressed by the majority, and the only issue in this case, is whether claimant Wilson received the proceeds of her settlement with Venture while Charles Swan was living.

In her brief claimant Wilson cites Stephens Engineering Co. v. Industrial Com. (1919), 290 Ill. 88, 93, 124 N.E. 869, 870-71, for the proposition, which we quote from the case itself, that “[t]he receipt of a check is not payment of a debt until such check is honored, unless accepted as such.” However, in Consolidated Freightways v. Industrial Com. (1971), 48 Ill. 2d 221, 224, 269 N.E.2d 291, 293, relied upon by claimant Barriger in her brief, in its analysis of the question of what constitutes payment when it is made in the form of a check or draft the supreme court quoted that statement from Stephens and declared it “not 999 erroneous” but “incomplete.” Determining whether the date of payment is the date on which a check is received or the date on which it is cashed, the court continued:

“Although a broader and more complete statement of the principle of law may not have been necessary to the decision in the Stephens casé, it appears that this pronouncement has misled the claimant in the case now before us.
In the absence of an agreement otherwise providing, or the consent of the creditor to receive some other medium, payment may be made only in money. [Citations.] However, by agreement either expressed or implied, or when the creditor so consents, payment may be made by furnishing, transferring or delivering anything of value. [Citations.]
As stated in Stephens, in the absence of such an agreement or consent, the giving of a draft or a check by a debtor to the payee is not a payment or discharge of the debt. However, the same does constitute a conditional payment of the obligation, the condition being its collectibility from the bank on which it was drawn. [Citations.]
The condition that the check be paid on presentation to the bank on which it is drawn is a condition subsequent. (Commissioner of Internal Revenue v. Bradley (6th cir., 1932), 56 F.2d 728; Paris v. Carolina Builders Corp., 244 N.C. 35, 92 S.E.2d 404.) When the check is paid on presentment the condition to which the payment was subject is performed and what had been a conditional payment at the time of the delivery of the check becomes an absolute payment and such payment relates back to the time the check was delivered to the payee. (Duke v. Sun Oil Co. (5th cir., 1963), 320 F.2d 853; Muldrow v. Texas Frozen Foods (1957), 157 Tex. 39, 299 S.W.2d 275; Texas Mutual Life Insurance Association v. Tolbert, 134 Tex. 419, 136 S.W.2d 584; Hooker v. Burr, 137 Cal. 663, 70 P. 778, affirmed in 194 U.S. 415, 48 L. Ed. 1046; Ogier v. Pacific Oil and Gas Development Corp., 135 C.A. 2d 776, 288 P.2d 101; 70 C.J.S., Payment, sec. 24; 40 Am. Jur., Payment, sec. 86.) The date of payment then becomes the date the check was delivered to the payee and not the date that the same was cashed or deposited at the bank or the date that the same was paid by the bank on which it was drawn. Summit Mall, Inc. v. Guran (1966), 7 Ohio App. 2d 53, 218 N.E.2d 637.
This construction is in accord with the provisions of section 2—511 and section 3—802 of the Uniform Commercial Code as reflected in the comments thereto. S.H.A. ch. 26, §2—511, Illinois Code Comment 3, subsection (3), Uniform Commercial Code Comment 3, and §3—802, Illinois Code Comment, subsection (I)(b), Uniform Commercial Code Comment 3.” 48 Ill. 2d 221, 224-25, 269 N.E.2d 291, 293-94.

In the case at bar claimant Wilson’s attorney received the draft from Venture’s insurer on May 2,1980, and as payee claimant Wilson endorsed it the following morning. Thus, prior to Charles Swan’s death later that day the draft had been delivered to claimant Wilson. Conditional payment was made when the draft was delivered to her. Absolute payment was made when the draft was paid upon presentment. The date of payment related back to the date the check was delivered to her with the result that payment was made and, hence, recovery was had prior to Charles Swan’s death. Since Charles Swan was living at the time of recovery, the disputed portion of the settlement belongs to claimant Barriger, and for that reason I would reverse the judgment of the trial court.

As a final ingredient it should be noted that if there was any ambiguity in the language of the judgment of dissolution, it was created by claimant Wilson. It was she who obtained the dissolution and her attorneys who prepared the judgment and selected the language which was used to bring about the sharing of the Venture settlement proceeds. Although Charles Swan entered his appearance in the dissolution proceeding, he was not represented by counsel and did not appear at the hearing.


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT E. FREELAND, Defendant-Appellant.
    Second District
    No. 81-113
    Opinion filed December 21, 1981.

      David R. Jordan, of Oak Park, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Paula R. Johnson, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Scott E. Freeland, was convicted of three counts of burglary and was sentenced to concurrent five year terms of imprisonment. He appeals, contending the trial court erred in denying (1) his motion for discharge for failure to give him a speedy trial; (2) his motion for severance of one of the three burglary charges; and (3) his motion to suppress physical evidence seized in a search of the trunk of his automobile. We affirm.

Defendant was arrested on two charges of burglary on August 9, 1980, and was released on his own recognizance. A complaint for a third burglary was thereafter sworn against defendant and a warrant issued for his arrest; he was again taken into custody and on August 14, 1980, was released on a personal recognizance on that charge. However, while he was still in Du Page County jail defendant was served with a notice of violation of his parole granted after conviction for a previous burglary for which he had been committed to the Department of Corrections for a term of 4 to 12 years on April 25, 1977, and then released on parole in August 1979. Defendant was taken into custody by the Department of Corrections as a parole violator and removed to the State penitentiary in Joliet where he remained until December 16,1980. Just prior to trial of the present charges, defendant moved for discharge, stating he had not been brought to trial within 120 days of August 14, when he had been served with notice of violation of parole. (See Ill. Rev. Stat. 1979, ch. 38, par. 103—5.) The State argued principally that defendant was subject to the terms of the speedy-trial provisions of section 3—8—10 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1003—8—10) and that he never made the demand for trial required by it. The trial court agreed and denied defendant’s motion for discharge.

The factual circumstances necessary for consideration of the other issues raised may be briefly stated. William Cunningham returned home shortly before 2 a.m. on August 9, 1980, and parked his car next to his boat, at which time he noticed two gas cans and some hoses lying on the ground alongside it. He also noticed a gas tank and battery were missing from the boat. Cunningham left the immediate area to see if he could find the thief and saw defendant nearby, but did not then approach him. Cunningham later returned to his boat and found the gas cans were then missing. Defendant was in his own automobile nearby; Cunningham approached and saw gas cans in defendant’s vehicle, one of which he recognized as belonging to his neighbor, William Hushour. He removed the can and defendant from the auto and took him to Hushour’s apartment where he was held while the police were summoned.

When the officers arrived Hushour identified as his property the boat gas can Cunningham had found in defendant’s automobile, and both men advised the officers other items were missing from their watercraft. The officers then observed several gas cans in plain view in the front and back seats of defendant’s automobile. Defendant was arrested and the trunk to his vehicle was opened, with defendant’s key, and found therein were a gas can, a battery and a variety of tools. Charles Voss later identified these tools as his property and testified they had been removed from his automobile sometime after 11:45 p.m. on August 8 when Voss had parked his vehicle in a parking lot which adjoins the lot in which the boats owned by Cunningham and Hushour were located.

The court denied defendant’s motions to suppress evidence and to sever for trial the count charging burglary of the Voss automobile from the other burglaries. The jury returned verdicts of guilty on all three counts, and defendant appeals.

We initially consider whether defendant was deprived of his statutory right to a speedy trial.

The statutory speedy trial scheme in Illinois provides that persons in custody must be tried within 120 days of their being taken into custody (Ill. Rev. Stat. 1979, ch. 38, par. 103—5(a)), and those persons on bail or recognizance shall be tried within 160 days of the date on which they demand trial (Ill. Rev. Stat. 1979, ch. 38, par. 103—5(b)). Section 3—8—10 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1003—8—10), entitled “Intrastate Detainers,” states “subsection (b) * ° * of Section 103—5 of the Code of Criminal Procedure of 1963 shall also apply to persons committed to any institution or facility or program of the Illinois Department of Corrections who have untried complaints, charges or indictments pending in any county of this State 0 ° *.” (See People v. Bivens (1976), 43 Ill. App. 3d 79, 356 N.E.2d 665.) The record reflects defendant made no demand for trial as is required by both sections 3-8-10 and 103—5(b).

Defendant contends that although he was released on his personal recognizance on all three of the burglary charges he was subject to the 120-day speedy trial term of section 103—5(a) because he was being held in custody by the Department of Corrections in Joliet pursuant to the notice of the violation of his parole. The State has argued, however, and the trial court determined, defendant was subject to the provisions of section 3—8—10 (Ill. Rev. Stat. 1979, ch. 38, par. 1003—8—10), which required that he make a demand for trial before the 160-day term would commence to run and that no such demand was made by him. The State contends that as defendant was released on his personal recognizance on all of the Du Page County charges and held in the State penitentiary for a violation of his parole he was then in custody of the Department of Corrections to which he had been committed for burglary in 1977, and section 3—8—10 applies.

Defendant does not assert he was not a person committed to the Department within the meaning of section 3—8—10; instead, he states the statute is not applicable to his circumstances. A plain reading of the Intrastate Detainers Act discloses that the requirement imposed by section 103—5(b), the necessity for demanding trial to initiate the 160-day term, applies to persons in custody of the Department of Corrections; those persons on bail or recognizance, of course, are already subject to the demand requirement. (See People v. Toney (1978), 58 Ill. App. 3d 364, 374 N.E.2d 695, appeal denied (1978), 71 Ill. 2d 605.) Defendant was a person committed to the custody of the Department of Corrections, having three untried burglary charges pending against him in Du Page County. He was, therefore, required to make a demand for trial. As he failed to do so, the 160-day speedy-trial term did not commence, and he was not denied a speedy trial. See People v. Davis (1981), 92 Ill. App. 3d 869, 416 N.E.2d 85; People v. Smith (1976), 42 Ill. App. 3d 731, 356 N.E.2d 656; see also People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 357 N.E.2d 1180; Ill. Rev. Stat. 1979, ch. 38, par. 1003—14—2(a).

As we stated in People v. Davis (1981), 92 Ill. App. 3d 869, 873, 416 N.E.2d 85, 87-88, in rejecting a limited interpretation of the intrastate detainers statute there advanced, it is improper to judicially engraft an exception to it where if the legislature so intended to adopt such a construction it could readily have included a clause to that effect. Defendant has offered no basis which excepts him from the terms of the intrastate detainers statute. The cases relied upon by defendant must be distinguished, as the applicability of the Intrastate Detainers Act was either not urged or considered by the court or was otherwise not applicable because the accused had not been committed to the Department of Corrections. See People v. Burchfield (1978), 62 Ill. App. 3d 754, 379 N.E.2d 375; People v. Powell (1976), 43 Ill. App. 3d 934, 357 N.E.2d 725; see also People v. Patheal (1963), 27 Ill. 2d 269, 189 N.E.2d 309; People v. Manna (1981), 96 Ill. App. 3d 506, 421 N.E.2d 542, appeal denied (1981), 85 Ill. 2d 571; People v. Woodruff (1980), 90 Ill. App. 3d 236, 412 N.E.2d 1171; People v. Kerley (1979), 72 Ill. App. 3d 916, 391 N.E.2d 225; People v. Williams (1973), 10 Ill. App. 3d 428, 294 N.E.2d 61.

Defendant next contends the trial court erred in denying his motion to sever for trial the burglary of the Voss automobile from the other two burglaries.

A defendant may not be placed on trial over his objection on an indictment charging separate offenses when it appears such offenses were not based upon acts which were part of the same comprehensive transaction. (People v. Tomasello (1981), 98 Ill. App. 3d 588, 595, 424 N.E.2d 785, 791; People v. Petitjean (1972), 7 Ill. App. 3d 231, 234, 287 N.E.2d 137, 140; Ill. Rev. Stat. 1979, ch. 38, par. 111—4(a).) The most important factors to consider in determining whether the offenses in question were part of the same comprehensive transaction are their proximity in time and location and the identity of evidence providing a link between the offenses. (E.g., People v. Mikel (1979), 73 Ill. App. 3d 21, 27, 391 N.E.2d 550, 555.) The record discloses the three burglaries were committed, at most, within a two-hour period, and the Voss automobile was parked a few hundred feet from the two burglarized boats. In addition, property stolen from each of the three locations was found nearby in defendant’s automobile when it was searched. These factors serve to distinguish People v. Bricker (1974), 23 Ill. App. 3d 394, 319 N.E.2d 255, and People v. Fleming (1970), 121 Ill. App. 2d 97, 257 N.E.2d 271, relied on by defendant, in terms of time and location between the offenses and in providing an evidentiary link between them. Under these circumstances we cannot say the trial court abused its discretion in viewing the three burglaries as part of the same comprehensive transaction and in denying defendant’s motion for severance. See People v. Van DeVeire (1977), 47 Ill. App. 3d 289, 361 N.E.2d 1180; People v. Daniels (1976), 35 Ill. App. 3d 791, 342 N.E.2d 809; People v. Key (1975), 28 Ill. App. 3d 637, 328 N.E.2d 914.

Defendant’s final contention is that the court erred in denying his motion to suppress evidence seized in the search of the trunk of his automobile. Although he does not seem to argue the officers lacked probable cause for the search, he asserts it was conducted without a warrant and in the absence of exigent circumstances.

Generally, a search warrant is constitutionally required before police are allowed to search an automobile, but a warrantless search will be upheld where it was performed incident to a lawful arrest, under the movable-automobile exception, when the vehicle is impounded or if a valid consent has been obtained. (People v. Bayles (1980), 82 Ill. 2d 128, 135, 411 N.E.2d 1346, 1349, cert. denied (1981),_U.S--, 69 L. Ed. 2d 1005, 101 S. Ct. 3160.) The State relies on the mobile-vehicle exception under which an immediate warrantless search of a stopped but movable automobile may be conducted if based upon probable cause to believe it contains evidence of crime. (See Chambers v. Maroney (1970), 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975; Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280.) This exception is applicable to searches of the trunks of automobiles. (See People v. Carter (1967), 38 Ill. 2d 496, 232 N.E.2d 692, cert. denied (1968), 391 U.S. 965, 20 L. Ed. 2d 877, 88 S. Ct. 2033; People v. Walls (1979), 71 Ill. App. 3d 68, 389 N.E.2d 6, cert. denied (1980), 446 U.S. 919, 64 L. Ed. 2d 274, 100 S. Ct. 1855; People v. Watkins (1974), 23 Ill. App. 3d 1054, 320 N.E.2d 59.) That defendant was held in police custody outside his vehicle and might not have been able to reach into it cannot aid him (e.g., People v. Brown (1967), 38 Ill. 2d 353, 231 N.E.2d 577); nor is the possibility the arresting officers might have been able to immobilize defendant’s vehicle while a warrant was secured of controlling significance (People v. Peter (1973), 55 Ill. 2d 443, 303 N.E.2d 398, cert. denied (1974), 417 U.S. 920, 41 L. Ed. 2d 225, 94 S. Ct. 2627).

In this case the complaining witnesses informed the police they had seen their property which had been stolen from their boats in defendants’ automobile and told them other property was also missing. The officers saw some of the property in plain view in the passenger compartment of defendant’s automobile and thus had probable cause to search the entire vehicle including its trunk.

In addition, certain factors considered in decisions construing the scope of the mobile-automobile exception to the warrant requirement are present here. (See, e.g., Cardwell v. Lewis (1974), 417 U.S. 583, 593, 41L. Ed. 2d 325, 336, 94 S. Ct. 2464, 2471; People v. Davis (1981), 93 Ill. App. 3d 217, 226-31, 416 N.E.2d 1197, 1204-07; People v. Walls (1980), 87 Ill. App. 3d 256, 264, 408 N.E.2d 1056, 1063-64.) They establish a degree of exigency permitting the search of defendant’s vehicle under these circumstances. The automobile was located in a public place when searched, and the police did not intrude onto defendant’s privately owned land to do so. The officers did not know of the necessity of the trunk search until they arrived on the scene and could not have obtained a warrant before learning defendant’s vehicle probably contained stolen property. Furthermore, defendant’s car might not have been completely immobilized as there was a possibility that an accomplice was in the area. We conclude defendant’s motion to suppress was properly denied.

Accordingly, the judgment of the circuit court of Du Page County will be affirmed.

Affirmed.

SEIDENFELD, P. J., and LINDBERG, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    NAGEL-TAYLOR AUTOMOTIVE SUPPLIES, INC., a/k/a Nagel-Taylor, Inc., d/b/a Club Virgo, et al., Plaintiffs-Appellants, v. AETNA CASUALTY & SURETY COMPANY OF ILLINOIS, Defendant-Appellee.
    Fourth District
    No. 17301
    Opinion filed December 30,1981.
    Thomas J. Immel, of Burditt and Immel, of Springfield, for appellants.
    Clausen, Miller, Gorman, Caffrey & Witous, P. C., of Chicago (Norman A. Miller, William J. Schaefle, and Elizabeth J. Whinery, of counsel), for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Prior to the proceedings in issue, plaintiffs, Nagel-Taylor Automotive Supplies, Inc., and Marvin C. Taylor, as owners of certain real estate and personalty, had brought suit in the circuit court of Sangamon County against defendant, Aetna Casualty & Surety Company of Illinois, under a policy of insurance issued by defendant, to recover for a fire loss occurring on May 13,1976. After a trial by jury, a verdict was returned in favor of plaintiffs and against defendant in the sum of $175,000 and the court entered judgment on that verdict but later awarded defendant a judgment n.o.v. On appeal this court reversed, reinstating the judgment on the verdict for plaintiffs. (Nagel-Taylor Automotive Supplies, Inc. v. Aetna Casualty ir Surety Co. (1980), 81 Ill. App. 3d 607, 402 N.E.2d 302.) Subsequently, plaintiffs filed a pleading in the trial court entitled “Motion to Enforce Mandate.” On May 21,1981, acting on the foregoing pleading, that court entered an order finding plaintiffs entitled to certain sums of prejudgment and post-judgment interest for certain periods of time and also providing that defendant was entitled to a credit against the judgment for interest due defendant as assignee of a mortgage which had encumbered the insured property.

On June 19, 1981, plaintiffs filed a notice of appeal which stated it was from:

“[T]hat portion of the judgment of the trial court entered May 21, 1981, to the extent that such order provides, ‘Credit shall be given to the Defendant at the rate of 9% on the amount of the mortgage for the period from March 4,1977 to date of closing.’ ”

No claim is made by defendant that the foregoing does not set forth a properly appealable portion of a judgment. (See 73 Ill. 2d R. 303(c)(2).) Because of the limited issue presented by the notice and because no cross-appeal was filed, the only question before us is the propriety of the credit given the defendant. We hold it to have been improper and reverse.

Defendant claims it was entitled to the setoff because on March 4, 1977, it paid to a mortgagee holding a note and mortgage, encumbering the insured premises and securing the note, the sum of $52,296.79 which was the amount of the then mortgage indebtedness, and secured in exchange an assignment of the mortgage and the indebtedness. Plaintiffs, apparently, do not dispute this occurred. Defendant’s claim is also based upon the existence of the following standard provision in the insurance policy upon which the judgment was obtained:

“If this Company shall claim that no liability existed as to the mortgagor or owner, it shall, to the extent of payment of loss to the mortgagee, be subrogated to all the mortgagee’s rights of recovery, but without impairing mortgagee’s right to sue; or it may pay off the mortgage debt and require an assignment thereof and of the mortgage.”

The record before us is insufficient to determine whether the policy contained such a provision, and plaintiffs do not concede that it did. In any event, even if the policy did so provide, the facts of this case do not support the award of the credit.

In Clark v. Trainor (1925), 237 Ill. App. 269, where a policy of insurance contained a clause similar to that claimed by defendant, the court stated:

“Under the subrogation clause, where the policy has become avoided as to the mortgagor, the insurer, upon paying the mortgagee a loss as to which no liability existed as to the mortgagor, is entitled to be subrogated to the right of the mortgagee and to securities given to secure the mortgage debt.” (Emphasis added.) (237 Ill. App. 269, 276.)

Plaintiffs do not dispute that had the ultimate decision been that defendant was not liable on the policy to them, the existence of the subrogationassignment clause claimed by defendant would have entitled defendant to the rights of the mortgagee and would have made plaintiffs liable to defendant for the principal and interest on the mortgage indebtedness. Plaintiffs deny that any such liability was created here because the ultimate determination was that defendant was liable to them, the mortgagors, on the policy.

Defendant places substantial reliance on Kerber v. Girling (1929), 254 Ill. App. 1. There, a fire caused damage to property resulting in a loss to property listed in a policy containing provisions similar to those claimed by defendant. The property was encumbered by a mortgage. While the insurer and the mortgagor-owner were involved in litigation as to whether coverage was defeated by conduct of the owner, the mortgagee brought a separate suit to require the insurer to pay the mortgagee to the extent of the mortgage indebtedness. On review, the appellate court held the mortgagee was entitled to páyment, whereupon the insurer would be subrogated to the mortgagee’s rights against the mortgagor-owner. The owner was ordered to pay the insurer the mortgage indebtedness, with the insurer being entitled to foreclose upon the owner’s failure to do so. The court stated:

“If the insurance companies are compelled to have their claim of nonliability adjudicated in * * * court before they can be subrogated to the rights of the mortgagee, they will be rendered helpless. This situation would arise from the fact that the notes and mortgage will have been merged in the decree and cannot be assigned; such a situation would thwart justice and is not in harmony with the contract, under which the companies became liable to the mortgagee. It would make them subject to all the liabilities of the contract, but deprive them of all of the advantages of it. To require the insurance companies to litigate the question of the liability with the assured before they can make payment to the mortgagee and be subrogated to his rights, would deprive and prevent the right of subrogation.
* * # -j'kg reasonable interpretation to be given to the subrogation clause found in the policies of insurance is that whenever the insurance companies, in good faith, deny liability to the assured and have reasonable grounds for such claim of nonliability, then and in that case they may take an assignment of the mortgage and be subrogated to the rights of the mortgagee.” 254 Ill. App. 1, 6.

The Kerber court cited with approval and relied upon Traders’ Ins. Co. v. Race (1892), 142 Ill. 338, 31 N.E. 392. There, after a loss occurred, an insurer, under a policy containing similar provisions to that in Kerber, paid the trustee under a trust deed encumbering the insured premises the amount of the secured indebtedness. Then, claiming to be subrogated to the rights of the trustee, the insurer brought suit to foreclose the trust deed. On review, the supreme court held the insurer to have failed to prove that the insured owner’s conduct had caused a forfeiture of the owner’s rights under the policy. It, therefore, held the insurer had not become entitled to the rights of the trustee against the owner either by assignment or subrogation. Rather, it held the payment to the trustee merely to have extinguished the indebtedness of the owner.

The Traders’ Ins. Co. opinion, in noting the existence of the provision for subrogation or assignment, stated:

“The right to subrogation, however, can not be said to depend upon the naked claim of appellants that there is no liability on the policies to appellee, but the facts must warrant such claim. The claim, to entitle them to an assignment and subrogation, must be made in good faith, and be based upon a state of facts which, under the contract of insurance, would entitle them to exemption from liability.” 142 Ill. 338, 345, 31 N.E. 392, 394.

The Kerber court relied on the above language to support its holding that the insurer, who had paid the mortgagee its share of proceeds from a loss but was in good faith disputing its liability to the mortgagor-owner, did not have to await the determination of that dispute before enforcing its rights of assignment or subrogation against the mortgagee-owner. Defendant also relies on that language in support of its theory it was entitled to credit for interest accrued on the mortgage. The quoted language in Traders’ Ins. Co. gives some indication that to claim an assignment or subrogation, an insurer’s claim that it is not liable to the owner-mortgagor need only be in good faith, but the holding was that the insurer was not entitled to foreclose under the assignment of the interest of the mortgagee unless it proved it had no liability to the owner-mortgagor.

The decision in Traders’ Ins. Co. was by the supreme court and is binding precedent for us. Kerber was a decision of an appellate court from another district and to the extent it contradicts Traders’ Ins. Co., it should be disregarded. We conclude that under Traders’ Ins. Co. an insurer assignee of a mortgage covering the insured premises must prove its freedom from liability to the owner-mortgagor in order to enforce its rights under the assignment. Here the liability of the defendant insurer to the plaintiffs-owners-mortgagors had been determined conclusively at the time defendant sought a credit for the interest accrued on the mortgage. Defendant asserts Traders’ Ins. Co. is not' precedent for the instant case because there the proceeding was one in equity seeking foreclosure while here the suit was at law and the proceedings from which appeal was taken involved enforcement of the judgment obtained at law. We do not deem the difference between law and equity to be so great that defendant would be entitled to a substantial credit in satisfying the judgment but not entitled to that credit if it sought to foreclose the mortgage assigned it. Moreover, some equitable principles are applicable in adjudicating the rights between insurer and insured.

Under Traders’ Ins. Co., the payment by defendant of the mortgage debt was for the benefit of plaintiffs and ultimately operated as an extinguishment of that debt. This appeared to be the theory used by the trial court in determining the amount of interest to which plaintiffs were entitled before calculating the credit. It calculated the interest on the full amount of the ultimate judgment from September 17,1976, until March 4, 1977, the date when defendant made payment to the mortgagee. After that date, the court calculated interest only upon the full amount of the judgment minus the payment to the mortgagee, thus indicating that the defendant was getting credit for having extinguished the mortgage debt at that time. To later give the defendant a credit for the interest which would have accrued on the indebtedness until “date of closing” was inconsistent.

For the reasons stated, we reverse the portion of the decree appealed.

Reversed.

WEBBER and MILLS, JJ., concur.


author: JUSTICE MILLS

text:
      In re DANNY WHITE et al., Minors.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. MARY WHITE et al., Respondents-Appellants.)—In re PAUL WHITE, a Minor.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. MARY WHITE et al., Respondents-Appellants.)
    Fourth District
    Nos. 16954, 16956, 17016 cons.
    Opinion filed January 6, 1982.
    Rehearing denied January 28, 1982.

      Gerald G. Kaluzny, of Prairie State Legal Services, Inc., and Robert G. Deneen, both of Bloomington, for appellants.
    Ronald C. Dozier, State’s Attorney, and Alan L. Sternberg, of Pratt, Larkin, Sternberg & Finegan, P. C., both of Bloomington (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Eitan Weltman, of Bloomington, and Gary G. Johnson, of Normal, guardians ad litem.
   JUSTICE MILLS

delivered the opinion of the court:

There are 13 children in the White family and 5 of them are retarded.

We deal here with three of those children: Danny, George, and Paul—all severely ánd profoundly mentally retarded.

They were found to be neglected minors as to their education, were made wards of the court, had their custody placed with the Illinois Department of Mental Health and were placed in private licensed facilities.

We affirm.

Procedural History

In 1978, Danny and George White were found to be neglected minors as to their education and were made wards of the court pursuant to the Juvenile Court Act. (Ill. Rev. Stat. 1979, ch. 37, par. 701—1 et seq.) They were left in the custody and guardianship of their parents, but the court directed that they attend special education programs of School District No. 87. On August 1, 1980, the State filed a supplemental petition alleging that Danny and George had “periodically” attended District 87’s program at MARC Center in Bloomington and that that facility would not accept them for the 1980-81 school year because of lack of support and cooperation from the White family and because of the boys’ extremely poor attendance in the past.

On August 20, 1980, the court filed an order—“approved” by all parties concerned—which provided that the minors would not be required to attend any special education program “at this time,” nor would their mother be required to cooperate with such a program “at this time.” Further, District 87 would not be required to provide a program for the minors “at this time.” The order also stated that the parties were to report to the court immediately upon the termination of certain administrative proceedings that Mrs. White had brought before the United States Department of Education.

On September 23, the State filed another supplemental petition alleging that, pursuant to the August 20 order, Danny and George had not been attending any special education programs but that it was necessary, because of their disabilities and regressive development, that they be in a program. The petition sought dispositional hearings as to Danny and George. In addition, on this date a petition for adjudication of wardship was filed as to Paul White, alleging that he was a neglected minor as to his education. On November 20, an order was entered stating that the September 23d supplemental petition had been proven, and adjudging George a neglected minor and making him a ward of the court. An order was also entered adjudging Paul a neglected minor and making him a ward of the court.

Following dispositional hearings, the court transferred custody of Danny and George to the Department of Mental Health and directed that they be placed at Shroyer House and New Hope Living and Learning Center, respectively (general No. 16954). An order was also entered placing custody of Paul with the Department and directing placement at Chileda (general No. 16956). On February 18, 1981, the State filed a supplemental petition alleging that New Hope had refused to accept George and asking that he be placed at Woodhaven Home. Following a further dispositional hearing, the court entered an order giving the Department authority to place George at New Hope, Woodhaven, or the Institute of Logopedics (general No. 17016).

Summary of Testimony

At the hearing held on the September 23,1980, supplemental petition, witnesses for respondent-parents testified that schooling would not be beneficial to the White boys and that Mrs. White could do a better job of training them. Witnesses for the State testified that during the 1979-80 school year, when the White youngsters were assigned to special education programs at District 87, their attendance was very sporadic. Attendance records indicated that Danny and George had been absent 57% and 58% of the time, respectively, during that year. (Records for 1971 to 1979 indicated only two years when their attendance was any better and showed four years for each of the boys when they were absent 100% of the time.) They were often gone from school for days on end and did not return to school at all following the Easter vacation.

A number of school officials testifying for the State described in detail Mrs. White’s refusal to cooperate with programs the district had planned for the boys. She was never satisfied with anything that the district would try to do, and she claimed that their attendance at school was upsetting them. These officials further testified that during the short time that they were attending regularly, the boys showed a noticeable improvement in their ability to perform basic skills. Witnesses described all three boys as severely and profoundly mentally handicapped. Danny and George, in their mid-teens, were unable to speak at all. Paul, age seven, still wore diapers.

Opinion

I. In all three of these consolidated appeals, respondents have contended that the trial judge exceeded his authority under the Juvenile Court Act in ordering the boys placed at specific privately operated facilities. As authority they cite In re Peak (1978), 59 Ill. App. 3d 548, 376 N.E.2d 862, wherein the trial court had ordered a neglected minor to be placed in a private facility and ordered the Department of Mental Health to pay for that care. The appellate court reversed, stating that the trial court had exceeded its statutory authority, for no provision of the Juvenile Court Act authorized placing a neglected minor in a private psychological hospital or requiring the Department to pay for his care in such a facility.

We, however, are not inclined to follow the Peak case. First, it must be noted that the Department was the appellant in that case. Here, officials from the Department in fact recommended the placement which the trial court directed. Second, unlike the White youngsters, the minor in Peak was not in the custody of the Department. Third, and most importantly, we disagree with the conclusion in Peak that the Juvenile Court Act does not authorize directing placement of a minor in a specific private facility. Section 5—7(1) (c) of the Act. (Ill. Rev. Stat. 1979, ch. 37, par. 705—7(l)(c)) allows a court to commit its ward “to an agency for care or placement, except an institution under the authority of the Department of Corrections or of the Department of Children and Family Services.” It is clear that the facilities in question here were not under the authority of DOC or DCFS. Thus, if each is “an agency for care or placement,” then the court was proper in directing such placement.

Section 1—6 of the Act (Ill. Rev. Stat. 1979, ch. 37, par. 701—6) defines an “agency” as “a public or private child care facility legally authorized or licensed by this State for placement or institutional care or for both placement and institutional care.” The record contains testimony that each facility has been approved by the Department of Mental Health for placement and for funding of that placement. Thus, it is clear that each facility comes within the definition of “agency,” and the trial court was authorized to direct placement at those facilities.

(In their reply brief, respondents argue that the court erred in giving custody to the Department of Mental Health, for the Act authorizes commitment only to an “agency,” and the Department is not an agency. This contention, however, has been made only in their reply brief, and the issue has therefore been waived. 73 Ill. 2d R. 341(e)(7); Donaldson v. Board of Education (1981), 98 Ill. App. 3d 438, 424 N.E.2d 737.)

II. Respondents also contend that the trial court abused its discretion in ordering Danny and George placed in residential schools for periods of time that will follow their 16th birthdays. They argue that section 26—1 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 26—1) requires attendance only up to a minor’s 16th birthday and that the court therefore could not require residential school attendance thereafter.

We see the passing of the minors’ 16th birthdays as having no bearing whatever upon the propriety of the trial court’s dispositional order concerning Danny and George. They were wards of the court, and as such it was the court’s responsibility to make a disposition which would be consistent with their best interests. There was substantial evidence of their intellectual and emotional handicaps, and there clearly was no abuse of discretion in the trial court’s decision that a long-term program of care and education would best serve their needs. Section 26—1 merely has the effect of requiring a minor’s custodian to send the child to school while he is of a certain age. It cannot be construed as a straitjacket that would preclude a court in a juvenile proceeding from making an appropriate dispositional order.

(Respondents also contend that the trial court erred in adjudging Danny a neglected minor as to his education, based upon evidence of his not attending school following his 16th birthday, which occurred November 19, 1979. This argument is wholly without merit, for Danny was adjudged a neglected minor in 1978.)

III. Respondents next argue that the November 20 order, which adjudged George a neglected minor and made him a ward of the court and which found that it was in Danny’s best interests to remain a ward of the court, was inconsistent with the August 20 order, which stated that it was not in the minors’ best interests to attend a special education program “at this time.” The inconsistency between these orders, say respondents, requires the latter order to be reversed. In re Sanders (1980), 81 Ill. App. 3d 843, 401 N.E.2d 1118.

Again, respondents are overlooking the fact that George was actually adjudged a neglected minor and made a ward of the court in 1978. The trial court apparently overlooked the 1978 order when framing its order of November 20. Since George was already a ward of the court, the November 20 order was superfluous and cannot be a ground for error. Although the judge referred to the hearing on the September 23 supplemental petition as “adjudicatory,” the supplemental petition requested a dispositional hearing. Because adjudications of neglect and wardship had already been made, and bécause the State asked for a dispositional hearing, we deem it proper to view this as a dispositional hearing and ignore the superfluous adjudicatory order of November 20.

IV. At the hearing on the September 23 supplemental petition (held November 18 and 19), respondents made a continuing objection to the admission of evidence concerning matters occurring before August 20, when the court had entered the consent decree excusing respondents from sending the boys to special education programs. Respondents argue that the August 20 order was res judicata as to facts that existed at that time and that only evidence of Danny’s and George’s regression following that date was admissible. (In fact, there was virtually no evidence concerning their condition between August 20 and November 19, 1980. Rather, the evidence almost entirely concerned the 1979-80 school year.)

For a number of reasons, we disagree.

First, the authorities are conflicting as to whether a consent decree has the same res judicata effect as an order entered after a matter has been fully contested. (Compare Green v. Hutsonville Township High School District No. 201 (1934), 356 Ill. 216, 190 N.E. 267; People ex rel. Oliver v. Knopf (1902), 198 Ill. 340, 64 N.E. 842; Wadhams v. Gay (1874), 73 Ill. 415; People ex rel. Nelson v. Joliet Trust & Savings Bank (1942), 315 Ill. App. 11, 42 N.E.2d 90, with First National Bank v. Whitlock (1945),.327 Ill. App. 127, 63 N.E.2d 659; Merriam v. Merriam (1917), 207 Ill. App. 474.) Second, the August 20 order makes it abundantly clear that it was entered simply in order to stay these proceedings until respondents’ administrative complaint with the United States Department of Education had been ruled upon. It was clearly not intended as a finding that the minors did not require schooling. Third, section 5—1(1) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 705—1(1)) allows the judge at a dispositional hearing to admit into evidence “[a]ll evidence helpful in determining [the] question [of disposition].” Although this provision was not necessarily enacted to supersede the rules of res judicata, it shows a clear intention that juvenile courts have wide latitude in admitting evidence at dispositional hearings. Fourth, much of the evidence at the November 18 and 19 hearing concerned the fact that people with mental capacity of the White minors regress when they are not participating in a structured educational program. This general testimony was certainly relevant to the minors’ continuing circumstances and to the allegation in the September 23 supplemental petition that they were regressing because of failure to attend school.

Considering all these factors, we conclude that the court did not err in admitting evidence which predated the August 20,1980, order.

V. Respondents also contend that the trial court’s conclusion that the three minors’ best interests would be served by placement in residential facilities was against the manifest weight of the evidence. This argument is wholly without merit. The record indicates that when special education programs have been established for the White boys (at least one of which involved hiring a full time teacher to work only with Danny), the programs have been unsuccessful because of Mrs. White’s refusal to cooperate. At one time, a home tutorial program was set up, but it lasted for only two weeks because Mrs. White thereafter refused to allow it to continue. Numerous witnesses advised the court that placement at home would be inappropriate because of Mrs. White’s refusal to cooperate in having the boys educated. There was testimony that placement in a community facility providing one-on-one attention would be appropriate.. But the only such facility in the community—MARC Center—had already refused to take Danny and George because of their failure to attend in the past.

A DCFS caseworker did recommend leaving the minors at home. However, he conceded that he was not an expert in the area of developmentally disabled youngsters and stated that he had very little background in working with severely and profoundly mentally retarded children. Respondents produced an expert who testified that she would recommend removing mentally handicapped minors from their homes only if there is clear evidence of continual neglect and abuse at home. This witness, however, was almost totally unfamiliar with the White boys themselves, and the trial judge was justified in giving little weight to her testimony.

All this, coupled with the testimony that the boys actually were progressing during the short time they regularly attended special education programs, provides abundant support for the trial court’s decision. The court obviously did not abuse its discretion. In re Ritchie (1978), 58 Ill. App. 3d 1045, 374 N.E.2d 1292.

VI. In the course of the dispositional hearings, respondents’ expert, Sharon Freagon, sought to show certain slides of various mentally handicapped youngsters in a facility in Kentucky. The court correctly denied admission of the slides because of lack of foundation. Freagon’s testimony indicated that she had very little knowledge concerning the specific abilities, handicaps, and conditions of the White youngsters. She was therefore unable to testify that the children in the slides were similar in age and intelligence to the White children. In addition, there was no testimony to the effect that the institutions depicted in the slides were similar to any potential placement facilities in this case. Under these circumstances, the court did not abuse its discretion in deciding that the photographs would not be helpful in deciding the question of disposition. See Ill. Rev. Stat. 1979, ch. 37, par. 705—1(1).

VII. Respondents further argue that a fatal variance exists between the petition for adjudication of wardship as to Paul and the order stating that the petition had been proven and that it was in Paul’s and the public’s best interests that he be adjudged a neglected minor and made a ward of the court. In particular, the petition alleged that Paul had failed to attend MARC Center, but the evidence indicated that Paul was assigned to Raymond School.

Only material variances between allegations and proof are fatal, and a variance is material only if it surprises or prejudices the other party. (Stevenson v. Meyer (1957), 10 Ill. 2d 335, 139 N.E.2d 740.) Respondents do not argue that they were either surprised or prejudiced by this variance, and we can conceive of no way in which they might have been. Early in the hearing, Paul’s school attendance records were admitted, indicating that he had never been assigned to any school other than Raymond. Respondents were obviously aware of the school Paul was assigned to attend. The thrust of the petition is that Paul had not attended school; the mistaken designation of the specific facility was of no consequence.

VIII. On February 24, a further dispositional hearing was held on the State’s February 18 supplemental petition, which alleged that the facility in which the Department of Mental Health had been directed to place George had refused him admission. That petition asked that the Department be given authority to place George at Woodhaven Home. The court in fact authorized placement at Woodhaven, New Hope Living and Learning Center, or Institute of Logopedics. Respondents contend that the evidence at the February 24 hearing was insufficient to allow the trial court to find that it was in George’s best interests to be placed at any of these facilities. They point out that the State produced testimony only as to Woodhaven and that the one witness who testified concerning that facility had never visited it, had no personal knowledge of it, and was unable to answer a number of questions about it on cross-examination.

Respondents err in thinking that the testimony produced at the February 24 hearing was the only evidence upon which the court could base its dispositional order. Section 5—1(1) of the Act (Ill. Rev. Stat. 1979, ch. 37, par. 705—1(1)) allows the court to use any “helpful” evidence in determining disposition. Under that provision, it was proper for the court. to consider evidence produced at prior dispositional hearings in this case. (In re Brown (1978), 71 Ill. 2d 151, 374 N.E.2d 209.) That evidence indicated that each of these facilities has been approved by the Department of Mental Health for placement of mentally retarded Illinois residents. Thus, the trial court had sufficient evidence to find that it was in George’s best interests to authorize the Department to place him at Woodhaven, Institute of Logopedics, or New Hope.

IX. Respondents next charge that all the dispositional orders were improper because the State failed to show that placement in residential facilities was the least restrictive alternative for meeting the minors’ needs. In this regard, they cite Chicago Board of Education v.. Terrile (1977), 47 Ill. App. 3d 75, 361 N.E.2d 778, wherein a minor successfully appealed from a trial court order committing her to a parental school. The appellate court held that she had been denied due process of law by being committed to the school without an affirmative showing that commitment was the least restrictive viable means of providing her with an education.

We reject respondents’ argument for two reasons. First, in Terrile, prosecution was not under the Juvenile Court Act, and respondents have cited no case under the Act which requires application of the “least restrictive alternative” doctrine. In fact, cases dealing with the Act have said that any disposition available under section 5—2 (Ill. Rev. Stat. 1979, ch. 37, par. 705—2) may be used, with no single disposition being preferred over others. (In re C.O. (1979), 73 Ill. App. 3d 369, 391 N.E.2d 1075.) Furthermore, when proceedings are under the Juvenile Court Act, the State is concerned with protecting the best interests of the minor. This standard encompasses concern for the least restrictive viable placement for the minor.

Second, even if the “least restrictive alternative” doctrine were applicable to this case, the State has shown that placement in residential schools was the least restrictive viable alternative for placement of these minors. If the record makes one thing crystal clear, it is that the minors’ mother has constantly frustrated and interrupted all efforts to keep the minors participating in an educational program. There is no reason to think that she would act differently in the future, and placement at home therefore was not a viable alternative.

X. At the February 24 hearing, the court allowed into evidence a number of brochures describing the Woodhaven facility. Respondents argue that these brochures were not admissible under section 5—1(1) of the Act (Ill. Rev. Stat. 1979, ch. 37, par. 705—1(1)), which allows admission of “[a]ll evidence helpful in determining [the] question [of disposition], including oral and written reports * * They contend that the brochures should not be construed as written reports.

This provision, however, does not limit the evidence at dispositional hearings to oral and written reports. Rather, it allows the court to consider all helpful evidence. The witness who testified for the State about Woodhaven was unable to vouch for the accuracy of the statements made in the brochures. However, there is no doubt that the brochures could be helpful to the trial court. The lack of testimony supporting the accuracy of the brochures was merely a factor for the trial court to consider in determining the weight to be given to them.

XI. At the February 24 hearing, Alan Leach, a caseworker with DCFS, who had previously recommended that the minors be placed in their home, was called by respondents. The court refused to hear his testimony concerning Mrs. White’s having begun to cooperate with DCFS by accepting homemaker services during the last two or three weeks. Respondents argue that Leach’s proffered testimony should be regarded as an “oral report” under section 5—1(1) of the Act.

This testimony, however, was not relevant to the question before the court on February 24. At that time the court was no longer concerned with whether George should remain at home. That had been decided. The only issue at that hearing was which residential placement was appropriate. Thus, evidence supporting Leach’s opinion that George should be placed at home was of no help in determining the question before the court. His testimony was properly excluded from evidence.

Ergo, no reversible error occurred at any stage of these proceedings.

In terminating this opinion, we observe that School District 87 made valiant efforts to structure educational programs, individually tailored for these three mentally handicapped boys. In fact, District 87 exceeded minimal good faith efforts by a long shot. Yet those attempts were continually thwarted, circumvented, baffled and, finally, defeated by the mother of these lads. To our view, every step taken by District 87, Department of Mental Health, and the trial court in these cases totally adhered to the goal sought: the best interests of the minors involved.

Affirmed.

GREEN, P. J., and TRAPP, J., concur.


author: JUSTICE WELCH JUSTICE WELCH

text:
    SAHARA COAL COMPANY, INC., Plaintiff-Appellee, v. THE DEPARTMENT OF MINES AND MINERALS, Defendant-Appellant.
    Fifth District
    No. 80-532
    Opinion filed December 30, 1981.
    Rehearing allowed and supplemental opinion filed January 27, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield (Jon E. Tweedt, Assistant Attorney General, of counsel), for appellant.
    Charles R. Jelliffe, of Harrisburg, and Michael Schneiderman and Michael M. Conway, both of Chicago, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

This case presents several fundamental issues in the law of administrative review in Illinois. It arises in the context of the denial of an application for a strip-mining permit under the Surface-Mined Land Conservation and Reclamation Act (Ill. Rev. Stat. 1979, ch. 96½, par. 4501 et seq.) (the Act).

Sahara Coal Company operates several coal mines in Southern Illinois, including its 500-acre No. 6 mine in Saline County. Aware that the supply of coal in the existing mined area was running out, Sahara contemplated expanding its operations to a neighboring 189-acre tract, most of which is owned outright by Sahara. As required by the Act (Ill. Rev. Stat. 1979, ch. 96½, pars. 4504, 4506), Sahara applied to the Illinois Department of Mines and Minerals on March 8, 1979, for a surface-mining permit. Additional information requested by the Department was supplied by Sahara.

The County Hoard of Saline County did not ask that a public hearing be held on Sahara’s application. As the Act does not contemplate a hearing in the absence of the county board’s request, none was held in this case. (Ill. Rev. Stat. 1979, ch. 96½, par. 4506(f).) The Department did, however, solicit and accept expert opinions from its staff, from people associated with the Sahara proposal, and from independent sources. (Ill. Rev. Stat. 1979, ch. 96½, par. 4506(g).) A thick volume of scientific data was amassed, and, acting upon this information, the Department denied Sahara’s application in a letter of October 31, 1979, giving reasons for the decision. Ill. Rev. Stat. 1979, ch. 96½, par. 4506(g).

Sahara brought suit for administrative review in the Circuit Court of Saline County. There, it was held that the Department’s denial of the application was against the manifest weight of the evidence in the administrative record compiled by the Department. The court directed the immediate issuance of a strip-mining permit. An appeal has been taken to this court by the Department, which argues that: (1) the circuit court had no jurisdiction to review the denial of Sahara’s application, (2) the court improperly limited the administrative record which was submitted to it by the Department, (3) the court should not have reversed the decision of the Department, and (4) the court should not have acted to grant the permit. As the arguments presented in the Department’s brief proceed in a logical sequence, we will deal with them in that order.

Section 13a of the Act (Ill. Rev. Stat. 1979, ch. 96½, par. 4516). proclaims that “[a] 11 final administrative decisions of the Department hereunder shall be subject to judicial review pursuant to [the Administrative Review Act, Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.]” An administrative decision is defined in the Administrative Review Act as “any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency.” Ill. Rev. Stat. 1979, ch. 110, par. 264.

The Department argues that “[a]t first blush, it would appear under these statutory provisions that [Sahara] has properly proceeded under the Administrative Review Act. However, an examination of the statutory language and the case law interpreting the statutory language reveals that the Administrative Review Act is not the appropriate remedy in this case. The reason for this is clear, the words in Section 1 of the Administrative Review Act, [Ill. Rev. Stat. 1979, ch. 110, par. 264] ‘which terminates the proceedings before the administrative agency,’ contemplate an administrative process which presents an issue for hearing and disposition by an impartial trial agency.”

Sahara responds by noting that if the General Assembly intended to preclude judicial review in cases such as this, “such intent must be made specifically manifest, and persuasive reason must exist to believe such was the legislative purpose. * * * Only upon a showing of clear and convincing evidence of contrary legislative intent should the courts restrict access to judicial review.” (Klein v. Fair Employment Practices Com. (1975), 31 Ill. App. 3d 473, 478, 334 N.E.2d 370, 374.) Sahara suggests that the provisions of the Administrative Review Act show that a full hearing is not necessary for judicial review.

For example, according to Sahara, section 9(a) of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 272(a)), requires the complaint in administrative review to “specify whether the transcript of evidence, if any, or what portion thereof, shall be filed by the agency as part of the record.” Under section 9(b) (Ill. Rev. Stat. 1979, ch. 110, par. 272(b)), the agency must file an original or copy of “the entire record of proceedings under review, including such evidence as may have been heard by it * * And, sections 12(f) and 12(g) (Ill. Rev. Stat. 1979, ch. 110, pars. 275(1)(f), 275(1)(g)) confer certain powers on the circuit court “where a hearing has been held by the agency.”

The language of the Surface-Mined Land Conservation and Reclamation Act and the Administrative Review Act do not support the Department’s claim that a hearing is a prerequisite to judicial review of its decisions on strip-mining applications. Nor do the cases cited by the Department as authority for that proposition provide such support.

In both People ex rel. Vestuto v. O’Connor (1953), 351 Ill. App. 539, 115 N.E.2d 810, and Roosevelt-Wabash Currency Exchange, Inc. v. Fornelli (1977), 49 Ill. App. 3d 896, 364 N.E.2d 449, a “proceeding” which may be the subject of judicial review was described as “an administrative process which presents an issue for hearing and disposition by an impartial third agency.” In Vestuto, a discharged police officer brought a mandamus action to compel his reinstatement. The court held that the suit was not barred by the officer’s failure to proceed under the Administrative Review Act because the police commissioner’s peremptory order of dismissal was not a “proceeding” which could be reviewed under that act.

In Roosevelt-Wabash, it was held that a neighboring business did not have standing to challenge the issuance of a community currency exchange license to a competitor. The court stated in dicta that even if the neighboring currency exchange had that standing, the act of granting a currency exchange license was not a “proceeding” which could be the subject of judicial review. Under the Community Currency Exchange Act (Ill. Rev. Stat. 1979, ch. 16½, par. 30 et seq.), the Director of the Illinois Department of Financial Institutions is not required to prepare and keep on file a written order pertaining to his initial action on an application for a license. (Ill. Rev. Stat. 1979, ch. 16½, par. 34.1.) If an applicant objects to the denial of his application, or if a license is revoked, then a hearing must be held and findings must be made. (Ill. Rev. Stat. 1979, ch. 16½, pars. 40, 45.) These latter “proceedings” may then be scrutinized under the Administrative Review Act. Ill. Rev. Stat. 1979, ch. 16½, par. 52.1.

In contrast, the Surface-Mined Land Conservation and Reclamation Act requires that the Department’s approval of an application “be based upon the advice of technically trained foresters, agronomists, economists, engineers, planners and other relevant experts having experience in reclaiming surface-mined lands * 0 When no hearing is requested, the Department “shall consider written testimony from county boards” and “shall immediately serve copies of such written testimony on the applicant and give the applicant a reasonable opportunity to respond by written testimony.” If the applicant’s proposals are rejected, the Department “shall issue a statement of its reasons for its determination and shall make such statement public.” Ill. Rev. Stat. 1979, ch. 96½, par. 4506(g).

It is readily seen that, while the Community Currency Exchange Act permits an applicant to act as an advocate only after his initial application is denied, or if his license is revoked, the Surface-Mined Land Conservation and Reclamation Act allows the applicant to assume that role from the beginning. Moreover, the Director of the Department of Mines and Minerals must compile a record to support his decision on the application. No such record need be maintained by the Department of Financial Institutions, and no order to confirm its decision need be made, until the initial application is denied or a license is revoked. The presence of the adversary process and an administrative record at all stages of the strip-mining permit application convinces us that this is an administrative process which “presents an issue for hearing,” even though neither the applicant nor witnesses may appear before the Department. We hold that the decision of the Department of Mines and Minerals to grant or deny a strip-mining permit under the Surface-Mined Land Conservation and Reclamation Act is reviewable under the Administrative Review Act whether or not any type of “hearing” is ever held.

As its second assignment of error, the Department asserts that the circuit court improperly limited the record before it. More than six months after the suit was brought in the Circuit Court of Saline County and approximately six months after it had filed an “Administrative Record,” the Department moved to supplement that record. Some of the material sought to be inserted consisted of memoranda made by Department personnel during the pendency of Sahara’s application. Sahara agreed that this material should be included, and it was.

The Department also wanted to expand the administrative record to include testimony presented at a hearing which resulted in the adoption of the Department’s “Rule 1104,” which establishes standards for the reclamation of certain farmland. It is the application of this rule to Sahara’s proposal which is contested in this case, and the Department alleges that it relied upon this testimony in denying Sahara’s application. The hearing at which this testimony was taken was held on January 8, 1976, more than three years before Sahara applied for the permit in question. The trial court denied the Department’s request to amend the record to include this evidence.

The Department now argues that the trial court should have allowed the amendment of the record, because, in his letter denying Sahara’s application, the Director asserted that he relied upon the 1976 hearing testimony to support his decision. Sahara replies that section 12(1) (b) of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 275(1) (a)), by allowing the circuit court “to make any order that it deems proper for the amendment, completion or filing of the record of proceedings of the Administrative Agency,” Vests it with broad discretion in this type of order.

As noted above, section 5(g) of the Surface-Mined Land Conservation and Reclamation Act (Ill. Rev. Stat. 1979, ch. 96½, par. 4506(g)) provides that if no hearing is held on an application, the Department will make its decision based upon written testimony, a copy of which must be served upon the applicant to allow him to respond. In this case, the circuit court found that “the Department’s failure to indicate in writing the portion of the transcript, if any, relied upon by it and to provide such portion to Sahara for comment evidences that the Department did not, in fact, rely on this data in ruling on Sahara’s application.”

The record in this case supports the trial court’s order, which was not an abuse of discretion. Against the Director’s claim that he relied upon the 1976 testimony must be placed several factors. The hearing occurred three years before Sahara’s application. The Department did not incorporate the testimony into any of the memoranda made during the pendency of that application, and referred to the testimony only briefly, primarily in the Director’s letter of denial. Sahara was never given a copy of the testimony as part of the administrative record on this permit, and was thus not allowed to respond to it. Moreover, even when Sahara brought suit, the Department submitted an administrative record without any of the hearing testimony. It was not until six months after the suit that the Department sought to amend the record. This evidence suggests that the 1976 testimony was not of great importance to the Department in its decision, and the belated offer of amendment was only a retrospective effort to strengthen the record in its favor. The trial court refused to expand the overly lengthy record in this case by including material of slight significance to the decision making process. We cannot condemn its order as an abuse of discretion.

Next, the Department contests the trial court’s ruling on the merits of this controversy. In particular, this case concerns the requirements established by the Department’s Rule 1104 for reclaiming certain strip-mined land. That Rule sets out standards for reclamation when the Director determines that the land to be affected is:

“(1) capable of being reclaimed for row-crop agricultural purposes based on United States Soil Conservation Service soil survey classifications of the affected land prior to mining, and
(2) * * * that the optimum future use of the land affected is for row-crop agricultural purposes.” (Ill. Rev. Stat. 1979, ch. 96½, par. 4507(j)-)

Rule 1104 allows the Director to “alter the slope and texture requirements under this Rule only upon a clear and convincing showing that to vary such requirements would better effectuate the purposes of this Act than would enforcing the standards herein.”

In a letter of October 31, 1979, denying Sahara’s application, the Director stated that

“I have decided that the following soils, located within the proposed permit areas, are suitable for row crop agricultural purposes based on the United States Department of Agriculture’s Soil Conservation Service soil survey classifications, are capable of being reclaimed for such purposes, that the optimum future use of these soils is for row crop agricultural purposes, and should be reclaimed to Rule 1104 standards:
Belknap (382) Hosmer (214C2)
Stoy (164B) Baulic (787)
Hosmer (214B)
In making the above determination, the Department has relied upon the record in this matter, which record includes the testimony and information properly presented at the public hearing held on January 8,1976, in Room C-l, State Office Building in Springfield, Illinois.”

The Director further determined that Sahara’s reclamation proposal was not “clearly and convincingly” superior to one which would conform to Rule 1104. The variance from Rule 1104 sought by Sahara, and therefore its application, were denied.

The Department urges this court to reinstate its decision on the merits. It is alleged that the evidence in the record proves that Rule 1104 applies to Sahara’s land, and that Sahara’s proposal is not better than reclamation under Rule 1104. Sahara agrees with the trial court’s ruling that the Department’s application of the rule to Sahara’s land was contrary to the evidence in the administrative record. Even if this holding is not accepted Sahara argues that its proposal is superior to Rule 1104’s requirements, and that, even if it is not, the Department may not force it to “create a soil condition better than that which existed prior to surface mining.” (Ill. Rev. Stat. 1979, ch. 96½, par. 4507(j).) We do not need to compare Sahara’s proposal with Rule 1104, or with the land sought to be mined, for the Director’s application of Rule 1104 to that land was against the manifest weight of the evidence in the administrative record.

In searching the record for evidence to support the Director’s decision, we have found much testimony which urges that Rule 1104 apply to the land, and that Sahara’s variance from the rule be rejected. However, no authority states that the optimum future use of the land is for row-crop agriculture. What evidence addresses the optimum use of the land generally proclaims that use as pastureland.

The executive director of the Saline County Office of the United States Department of Agriculture’s Agricultural Stabilization and Conservation Service studied the land in question. He wrote that it “is best suited for pasture as most of this land is on C and D slopes and has been severely eroded due to poor land management by past owners. As a result, the topsoil is now very shallow and even non-existent on some areas. For future use, this area of land should be established in permanent vegetative cover of some nature and if pastured should be done so under a high level of pasture management.”

Sahara notes that much of the soil in the area sought to be reclaimed is categorized as “Hosmer silt loam.” In a map prepared by the United States Department of Agriculture’s Soil Conservation Service for the use of the Saline County Board, the Hosmer Soils in Saline County were described as follows:

“Gently sloping to moderately steep, moderately well-drained silty soils with fragipans; on uplands. Best suited for pasture and hay-land in a livestock enterprise. Intensive conservation treatment needed for grain production. This association [of soil types] includes the best soils for residential and urban uses in the county.”

To clarify this description, it should be said that á “fragipan” surface under the topsoil is a hard, relatively dense material which is somewhat difficult for roots and water to pass through. Much of the land which Sahara seeks to mine has a fragipan subsurface, and, according to the map, those Saline County lands with that type of subsurface are best suited for pasture and hayland or for woodland, wildlife and recreational uses.

To counter this evidence, the Department points to the opinions of several experts who urge that the land be reclaimed according to the standards of Rule 1104. However, those experts merely compared the benefits of Rule 1104 with those of Sahara’s proposed reclamation plan. They did not directly address the question of the optimum future use of the land, and therefore provide no evidence to support the Director’s determination that Rule 1104 applies to the land in question.

The only statement which proclaims the optimum future use of the land as row-crop agriculture is that of the Director. His statement is conclusory and uncorroborated by any testimony in the administrative record. Moreover, his evaluation of the future uses of the land seems to be based solely on the types of soils which comprise the land, rather than an assessment of the capability of the specific land in question. In addition to being unsupported by authority, the Director’s conclusions are far outweighed by those of experts who reach the opposite results, as the latter experts have considered such factors as the land’s drainage, slope, past use, subsoil structure, erosion and topsoil depth, which were not weighed by the Director. The Department’s application of Rulé 1104 to this land was contrary to the evidence in the administrative record, as the circuit court held.

Finally, the Department takes issue with the trial court’s order that a permit issue immediately. Section 12(1) (e) of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 275(1) (e)) empowers the trial court “to affirm or reverse the [administrative] decision in whole or in part.” Sahara claims that this provision is broad enough to allow the trial court to order the issuance of a mining permit. Although not mentioned by Sahara, it could also be argued that because the Administrative Review Act authorizes the trial court to remand the case to the agency when a hearing has been held (Ill. Rev. Stat. 1979, ch. 110, pars. 275(1), (f) (g)), then a case may not be remanded to the agency if no hearing has been held. According to this argument, the only alternatives available to the trial court were to affirm the Department or to grant the permit.

The Administrative Review Act was enacted to provide persons aggrieved by administrative decisions judicial review consonant with due process standards without unduly restricting the exercise of administrative judgment and discretion essential to the. effective working of the administrative process. (People ex rel. Goldfarb v. White (1964), 54 Ill. App. 2d 483, 491, 203 N.E.2d 599, 603.) To maintain a proper distribution of power between courts and agencies, administrative review has been limited to consideration of the record to determine whether the action of the agency is supported by the evidence in that record. Young v. Board of Trustees (1978), 57 Ill. App. 3d 689, 373 N.E.2d 708; Taylor v. Civil Service Com. (1961), 33 Ill. App. 2d 48, 178 N.E.2d 200.

This carefully developed system of limited review would be shattered if we would read the Administrative Review Act to prohibit, by implication, the circuit court from remanding a case to an administrative agency when that agency did not hold a formal hearing. The circuit court is not to interfere with the discretion of an administrative agency unless it is abused. (People ex rel. Stephens v. Collins (1966), 35 Ill. 2d 499, 221 N.E.2d 254.) Even then, the function of the court is to review the exercise of discretion, not to exercise that discretion itself. If a trial court were not empowered to remand a case in which an agency issued an invalid order, it would have no choice but to issue a valid order. This would entail the usurpation of the agency’s powers and would destroy the concept of limited judicial review in those cases.

In order to rectify this omission in the Administrative Review Act, we hold that the powers of remandment granted to the circuit court by sections 12(1) (f) and (g) of that Act (Ill. Rev. Stat. 1979, ch. 110, pars. 275(1) (f), (g)), may be exercised even if no hearing has been held by the agency involved in the proceedings. We note that reviewing courts are empowered to grant remandment “[i]n all appeals.” Ill. Rev. Stat. 1979, ch. 110A, par. 366(a)(5).

Deciding that remandment was available to the trial court does not, of course, decide whether the issuance of the mining permit was beyond the authority of the trial court in this case. Here, we must examine the relevant case law, for nothing in the Administrative Review Act expressly authorizes or prohibits a circuit court from issuing a permit of any sort.

In Sanderson v. De Kalb County Zoning Board of Appeals (1974), 24 Ill. App. 3d 107, 320 N.E.2d 54, a landowner requested a zoning variance which would allow light manufacturing in an agricultural area. The zoning board of appeals granted the variance, and a neighboring landowner brought an action in administrative review. The circuit court reversed the decision of the zoning board, but instead of remanding the case to the board, it ordered that the property in question be used for agricultural purposes. The appellate court stated:

“The circuit court, in rendering its decision, apparently gave no thought to the possibility of a nonconforming use existing upon appellant’s property. And while the circuit court had the power to reverse the Board for not making findings of fact under the Administrative Review Act, the Act does not confer authority upon the court to eliminate an existing nonconforming use simply because a zoning board of appeals fails to grant a variance upon proper findings of fact.” (24 Ill. App. 3d 107, 111, 329 N.E.2d 54, 57.)

The case was remanded by the appellate court to the zoning board of appeals for further findings of fact.

The similarities between this case and Sanderson are compelling. In this case, the trial court determined simply that the reclamation requirements of Rule 1104 do not apply to Sahara’s land. This determination is correct. But, from this finding, it does not automatically follow that Sahara is entitled to a mining permit. In denying Sahara’s application, the Department concluded only that Sahara’s proposal did not comply with Rule 1104. It did not need to decide whether the reclamation plan complied with the rules and laws governing land other than row-crop land (Ill. Rev. Stat. 1979, ch. 96½, par. 4507), and thus the circuit court had no power to determine whether the plan met those requirements.

It should be observed that the defect below was that the trial court’s order exceeded the scope of its review. We do not say that a permit of this nature may never be granted under the Administrative Review Act. In fact, in Celotex Corp. v. Pollution Control Board (1977), 53 Ill. App. 3d 662, 368 N.E.2d 1134, the appellate court ordered the Board to issue a permit on remand, from direct administrative review to the court. In Celotex, the owner of a dry roofing felt plant applied to renew his permit to operate that plant. The application was denied on the basis of a sulfur dioxide emission standard which had been invalidated in another case decided before the application was submitted. In the administrative review, the agencies admitted error in applying that standard. The only question before the court in Celotex concerned the proper disposition on remandment to the agencies.

Recognizing that the plant owner could be penalized for his operation without a permit, the court directed the issuance of a permit from the date of expiration until 120 days after the issuance of the appellate court’s mandate, so that the owner could refile an application for renewal. The court noted that its order was a “minimal invasion” of agency discretion and duties.

The Celotex case is distinguishable from the facts presented here. The permit issued in this case was not an extension of an existing permit, it was not intended to be temporary, and it was not based on stipulated error. It was thus more than a “minimal invasion” of the duties and discretion of the Department of Mines and Minerals and may not be upheld under the principles of Celotex.

In conclusion, the circuit court had the authority to review the denial of the application, and did not abuse its discretion in limiting the record on review. It also correctly held that Rule 1104 does not apply to Sahara’s land. However, its issuance of a mining permit exceeded the scope of its administrative review, and must be reversed. This cause is remanded to the Department of Mines and Minerals which is ordered (1) to find that Rule 1104 does not apply to the land sought to be mined, and (2) to render a decision on Sahara’s application, based on the existing record, within 14 days of the issuance of this court’s mandate. The existing permit will, of course, remain in effect until the issuance of our mandate.

Affirmed in part, reversed in part, and remanded.

KASSERMAN and HARRISON, JJ., concur.

SUPPLEMENTAL OPINION ON REHEARING

JUSTICE WELCH

delivered the opinion of the court:

In its petition for rehearing, Sahara requests only that we allow the permit originally granted by the trial court to remain in effect for 60 days after the issuance of our mandate. We have considered Sahara’s petition, and, finding no need for oral argument on it, we hereby grant the request to extend the validity of the permit for 60 days after the issuance of this court’s mandate.

KASSERMAN and HARRISON, JJ., concur.