author: JUSTICE KARNS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH A. GRASS, Defendant-Appellant.
    Fifth District
    No. 5—83—0570
    Opinion filed August 8, 1984.
    Randy E. Blue and Larry R. Wells, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KARNS

delivered the opinion of the court:

Defendant, Joseph A. Grass, was adjudged guilty after a jury trial in the circuit court of St. Clair County of criminal damage to property exceeding $300, a felony, in violation of section 21 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 21 — 1(a)). He contends that the trial court erred in failing to instruct the jury on the lesser included offense of misdemeanor criminal damage to property.

Defendant and his friend, Timothy Joellenbeck, were involved in an altercation with Michael Huber, Jim Brede and Donald Fix. According to the State’s evidence, Huber’s Ford Bronco suffered $419.04 damage. Defendant was alleged to have knowingly caused this damage by breaking out a side window, throwing a hammer into the windshield, throwing a beer can at the windshield and bending the radio antenna.

Brede and Huber were sitting in Brede’s car at the McDonald’s restaurant parking lot. They had returned to McDonald’s to get Huber’s Bronco, which had been parked there earlier. Joellenbeck’s Ford Maverick came into the lot and screeched to a halt within a foot of the front of Brede’s car. Joellenbeck approached Brede’s car and asked for the whereabouts of “Mike White.” Huber testified that he had never seen Joellenbeck or Grass before and that he had no idea what Joellenbeck was talking about. Joellenbeck testified that he was looking for some people that had beat him up at the same location about 15 minutes before. Joellenbeck walked over to the passenger’s side and struck Huber repeatedly in the face because “he wouldn’t shut up.” Grass then got out of the Maverick wielding a hammer, and Fix arrived at the scene in another vehicle. Fix testified that after being threatened by Grass he returned to his vehicle and left to call the police.

Meanwhile, according to Huber, Grass stood in front of Brede’s car with the hammer and Joellenbeck remained on the passenger’s side. Brede and Huber got out on the driver’s side and walked away from the car. Huber entered his Bronco and pulled away. Huber testified that as he was leaving, defendant turned around and smashed the driver’s side window with the hammer. Huber drove around in a semicircle and headed back toward the scene because “I didn’t want to leave [Brede] there alone.” He stopped the Bronco and defendant threw the hammer, smashing the windshield and denting the hood. Approximately 15 seconds later, according to Huber, defendant threw a beer can at the windshield, causing Huber to become startled, and his foot “slipped off the clutch.” The Bronco lunged forward and smashed into Joellenbeck’s Maverick from the rear. Huber testified that he did not intend to ram the Maverick.

Joellenbeck’s testimony was materially different in several respects. He testified that after Huber turned around, “[h]e came heading straight for the corner of my car ***.” Joellenbeck and Grass, he testified, were standing between the Maverick and the approaching Bronco. To avoid being hit, he jumped right and Grass jumped left while hitting the passenger’s side window. Huber then backed up and headed the Bronco directly at Grass. Grass threw the beer can first, then threw the hammer in an effort to stop the Bronco’s advance. He and Grass returned to the Maverick and drove off without further incident.

The State’s witness presented the only evidence of damages. An expert in the auto body business testified that the cost of repair totaled $419.04 for materials and labor, itemized as $211 to install a new windshield, $54.85 for the side window, $33.90 for the antenna, and the remainder to repair the hood dents, painting and sales tax. Cost of repairs is an accurate indication of the damage suffered and is therefore a proper method by which to determine the damage for which a defendant is criminally responsible. People v. Carraro (1979), 77 Ill. 2d 75, 80, 394 N.E.2d 1194, 1196.

At the instructions conference, defendant argued that some evidence established that he acted in self-defense. His tendered instruction, Illinois Pattern Jury Instruction (IPI), Criminal, No. 24-25.06 (2d ed. 1981), on self-defense, was given. He also argued that if the jury were to find that some of the force used was justified, the monetary amount of damage for which he was criminally. responsible would be reduced. Therefore, he concluded he was entitled to an instruction on the lesser included offense of criminal damage to property under $300. This instruction was refused. Defendant repeats this argument here.

The jury was instructed in pertinent part as follows:

“To sustain the charge of criminal damage to property over $300.00, the State must prove the following propositions:
* * *
Third: That the damage to the vehicle exceeds $300.00.
* * * ff

The jury was given two verdict forms supplied by the State: guilty or not guilty of criminal damage to property over $300. Defendant’s lesser offense instruction and two verdict forms were refused. His tendered verdict forms provided: guilty or not guilty of criminal damage to property under $300. His refused instruction reads in pertinent part as follows:

“To sustain the charge of criminal damage to property, the State must prove the following propositions:
* * *
Third: That the damage to the property was less than $300.
* * * ")

By this instruction the defendant would have the jury find him guilty of only misdemeanor criminal damage to property if he were otherwise not acting in complete self-defense and the damage for which he was criminally responsible was less than $300. However, the instructions tendered by the prosecution and the defense do not accurately state the law.

In the recent case of People v. Jackson (1984), 99 Ill. 2d 476, 459 N.E.2d 1362, the supreme court observed that there is only one offense of theft and that the value of the property taken determines whether the offender is punished for felony theft or misdemeanor theft. The court cited with approval People v. Harden (1969), 42 Ill. 2d 301, 247 N.E.2d 404, which held that the jury must fix the value of the property taken where value is in dispute so that the offender may be properly sentenced for felony theft or misdemeanor theft.

The statute defining criminal damage to property parallels the theft statute and defines only one offense. One who knowingly damages property of another without his consent is guilty of criminal damage to property. If the damage exceeds $300, the offender is guilty of a Class 4 felony; if less than $300, a Class A misdemeanor.

Here the damage to the vehicle was caused by four separate acts of defendant which were clearly identified in the evidence. Defendant contended that he acted in self-defense and if not in complete self-defense, then in partial self-defense, so that the value of the damage done for which he could be held criminally responsible was less than $300. The instructions given by the court only allowed the jury to find defendant guilty of criminal damage in excess of $300 or not guilty. The jury was not allowed to fix the value of the property damaged for which defendant was criminally responsible.

We realize that the instructions given were those contained in Illinois Pattern Instructions, Criminal (2d ed. 1981). The definitional instruction, IPI Criminal No. 16.01A, states that a person commits the offense of criminal damage to property over [$300] when he knowingly damages property of another without his consent and the damage exceeds [$300]. The committee note states:

“Because monetary damage to property is a material element in felony criminal damage to property, the trier of fact is required to determine the value element. People v. Dell, 52 Ill. 2d 393, 288 N.E.2d 459 (1972); People v. Cunitz, 45 Ill. App. 3d 165, 359 N.E.2d 1070, 4 Ill. Dec. 118 (5th Dist. 1977). Therefore, when applicable, the value element should be included in the instruction.”

The issues instruction, IPI Criminal No. 16.02A, states:

“To sustain the charge of criminal damage to property over [$300.00], the State must prove the following propositions:
First: That the defendant knowingly damaged the [vehicle] of [Charles Huber]; and
Second: That the defendant did so without the consent of [Charles Huber]; and
Third: That the damage to the [vehicle] exceeds [$300.00];
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

These instructions state that the amount of damage to the property is an essential element of the offense, contrary to the court’s holding in Jackson. Furthermore, they do not allow the jury to fix the value of the property damaged. In People v. Cunitz (1977), 45 Ill. App. 3d 165, 359 N.E.2d 1070, we held that in a prosecution for felony theft, the jury must independently determine the value of the property taken. We noted that the supreme court in People v. Dell (1972), 52 Ill. 2d 393, 288 N.E.2d 459, stated that it was not sufficient that the indictment charged that the property stolen exceeded the then applicable $150 in value and that the instructions refer to this amount. Here again, as in Cunitz, the Illinois Pattern Instructions are not adequate to inform the jury of its critical function to decide the issue of the valuation of the property damaged. Proper instructions would not state the value of the property damaged as a material element of the offense but would only state that a person commits the offense of criminal damage to property when he knowingly damages property of another without his consent; the issues instruction would state these elements only and that the jury in its verdict must fix the value of the property damaged if the jury finds the presence of the two material elements, in any case where value is contested. While value is not a material element of the offense, it is material in the sentencing context and a defendant, as a substantial part of his constitutional right to trial by jury (People v. Dell (1972), 52 Ill. 2d 393, 288 N.E.2d 459), has the right to have value determined by the jury, as it determines the severity of his punishment.

The incidents of damage here were distinct. The State proved that the defendant caused $419.04 worth of damage to the Bronco. Defendant did not contest his involvement, nor did he present contradictory evidence of the value of the damage caused. He did present evidence contesting whether all of the damage was criminally caused. In this regard he tendered an instruction on the use of reasonable force which the court accepted and read to the jury, finding sufficient evidence to allow the jury to consider the affirmative defense of self-defense. When some evidence tends to establish justifiable use of force on the part of defendant which could absolve him from a greater degree of criminal culpability, we think it was error not to include an instruction apprising the jury that it must fix the value of the property damaged for which defendant was criminally responsible in its verdict.

As instructed, the jury could only find defendant guilty or not guilty of felony criminal damage to property. While it is clear that the jury believed the defendant was guilty of criminal damage to property, we cannot say that it independently determined value upon which a proper sentence could be imposed. We are convinced that the trial court preempted the jury’s function by prejudicially suggesting the amount of damage criminally caused.

For the foregoing reasons the judgment of conviction is reversed and the cause remanded for a new trial.

Reversed and remanded.

WELCH, P.J., and KASSERMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    TOMMY WHITAKER, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Maple City Manufacturing, Appellant).
    Third District (Industrial Commission Division)
    No. 3—84—0128WC
    Opinion filed June 8, 1984.
    Rehearing denied September 12, 1984.

      John E. Mitchell, of Henry D. Noetzel & Associates, Ltd., of Peoria," for appellant.
    John Lesaganich, of Goldfine & Bowles, P.C., of Peoria, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Tommy Whitaker filed a claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) for injuries arising out of and in the course of his employment with respondent, Maple City Manufacturing. Following a hearing, an arbitrator awarded Whitaker 184/y weeks of compensation at the rate of $192.80 for temporary total disability and $1,794 for necessary medical expenses. The Industrial Commission modified the decision of the arbitrator by finding that claimant was temporarily totally disabled for 133/7 weeks, affirmed medical expenses in the amount of $1,700.94, and denied causal relationship between the condition of ill-being subsequent to September 15, 1980, and the injuries sustained. The circuit court of Peoria County reversed the decision of the Commission and entered judgment for claimant entitling him to temporary total benefits and medical expenses up to and through October 28, 1981. Respondent appeals.

Since respondent contends that certiorari was improperly issued, we must first consider whether the circuit court acquired jurisdiction of the case. Section 19(f) of the Act provides in relevant part:

“[N]o praecipe for a writ of certiorari may be filed and no writ of certiorari shall issue unless the party seeking to review the decision of the Commission shall exhibit to the clerk of the Circuit Court a receipt showing payment of the sums so determined to the Secretary or Assistant Secretary of the Commission ***.” Ill. Rev. Stat. 1981, ch. 48, par. 138.19(f)(1).

Claimant filed a praecipe for a writ of certiorari and an affidavit regarding payment of the record, and the clerk issued a writ of certiorari. There is nothing in the record to show that the clerk was made aware that the cost of the record had been paid to the Commission except for an affidavit filed by claimant’s counsel. That affidavit recited that counsel had mailed a check in the amount of $175 to the Commission for the writ of certiorari.

In Arrington v. Industrial Com. (1983), 96 Ill. 2d 505, 451 N.E.2d 866, the supreme court held that an affidavit filed by claimant’s attorney which purports to show payment of the probable cost of the record to the secretary of the Commission is unsatisfactory to show substantial compliance with the statute. In language which is dispositive of the issue before us, the court stated:

“The affidavit merely indicates that a check for such payment was mailed to the secretary of the Commission ***. Since the check might have been lost or misplaced in transit by the postal service, this affidavit is inadequate to demonstrate that the Commission had actually received payment of the probable cost of the record before the writ of the circuit court issued.” 96 Ill. 2d 505, 510, 451 N.E.2d 866.

Since claimant’s affidavit failed to provide sufficient evidence that the probable cost of the record had actually been paid and since compliance with the statute must appear within the record, the requirements of section 19(f)(1) of the Act were not met. (Miller v. Industrial Com. (1984), 124 Ill. App. 3d 291; Bemis Co. v. Industrial Com. (1983), 97 Ill. 2d 237, 454 N.E.2d 319; American Steel Foundries v. Industrial Com. (1983), 96 Ill. 2d 513, 451 N.E.2d 883.) Consequently, the writ of certiorari was wrongfully issued by the circuit clerk of Peoria County and the circuit court had no jurisdiction to review the findings of the Industrial Commission.

Accordingly, the motion to remand which was taken with the case is denied, the judgment of the circuit court of Peoria County is vacated, and the writ of certiorari is quashed.

Writ quashed; judgment vacated.

SEIDENFELD, P.J., and McNAMARA, WEBBER, and KASSERMAN, JJ., concur.


author: PRESIDING JUSTICE MEJDA

text:
    JAMES O’DONNELL, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (5th Division)
    No. 83—1828
    Opinion filed July 27, 1984.
    James D. Montgomery, Acting Corporation Counsel, of Chicago (Jerome A. Siegan and Robert J. Dargis, Assistant Corporation Counsel, of counsel), for appellant.
    Philip E. Howard, Ltd., and William J. Harte, Ltd., both of Chicago (William J. Harte, of counsel), for appellee.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Defendant, the city of Chicago, appeals from the denial of its motion to dismiss (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619) and from a judgment for $75,000 entered on a jury verdict for plaintiff in the amount of $150,000, reduced to reflect plaintiff’s contributory negligence. The sole issue on appeal is whether the trial court erred in denying defendant’s motion to dismiss. We reverse the trial court’s order denying the motion to dismiss and the judgment entered in favor of plaintiff.

At 8 a.m. on Saturday, December 8, 1979, the plaintiff reported to the firehouse to which he had been assigned, dressed in his regulation uniform. During the course of that Saturday, as on all Saturdays, the firehouse personnel conducted a scrub-down day. On Saturday the fire equipment and the floor of the area in which the vehicles were stationed were scrubbed with soap and water. While this was being done, several firemen traveled up and down the steps connecting the upper and lower levels of the firehouse. As the lieutenant of this unit, plaintiff had the responsibility of overseeing this clean-up procedure.

Later that afternoon, plaintiff was in the communications center in the upper level of the firehouse. Sometime between 3 and 4 o’clock, plaintiff left the communications room to post an obituary notice which had just come over the speaker. After posting the notice on the bulletin board, he walked downstairs to get a cup of coffee. As he descended the stairs, plaintiff slipped on water which had collected there from the recent washings of fire equipment and vehicles on the lower level of the firehouse. Plaintiff incurred head injuries due to the fall.

Plaintiff thereafter submitted a claim for medical expenses to the defendant pursuant to section 22 — 306 of the Illinois Pension Code and the corresponding city ordinance which authorize such payment for injuries “while in the performance of his duties.” The claim was denied. Although no evidence concerning this was presented at trial, both parties agreed at pretrial proceedings that the Chicago City Council Committee on Finance (Finance Committee) denied plaintiff’s claim for medical expenses based on its finding that plaintiff had not been injured in the line of duty.

Plaintiff then filed a complaint on February 2, 1981, instituting a common law negligence suit against the defendant. The defendant moved to dismiss, contending that the suit was barred by section 22— 307 of the Illinois Pension Code, which provides:

“Whenever any city or village enacts an ordinance pursuant to this Division, no common law or statutory right to recover damages against such city or village for injury or death sustained by any policeman or fireman while engaged in the line of his duty as such policeman or fireman, other than the payment of the allowances of money and of the medical care and hospital treatment provided in such ordinance, shall be available to any policeman or fireman who is covered by the provisions of such ordinance ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 108½, par. 22-307.)

The pertinent provisions of the Chicago city ordinance enacted pursuant to the foregoing statute are as follows:

“Whenever the city council shall appropriate a sum or sums of money for the payment of medical care and hospital treatment in case of an accident resulting in an injury to or death of a policeman or fireman employed by the city while in the performance of his duties, in accordance with the provisions of an act [Ill. Rev. Stat. 1981, ch. 108½, pars. 22 — 301 through 22— 308], the same shall be paid, disbursed and recouped in accordance with the following provisions.
The committee on finance of the city council is hereby authorized, directed and empowered to provide for payment for proper medical care and hospital treatment for accidental injuries sustained by any policeman or fireman, while in the performance of his duties, and to that end may recommend to the city council the authorization for payment of any such necessary expenses. ***
No payment shall be made under the provisions hereof unless satisfactory proof shall have been presented to said committee on finance that such injury was sustained by such policeman or fireman while in the performance of his• duty.” (Emphasis added.) (Chicago Municipal Code, 1983, ch. 22, secs. 18 through 22.)

The trial court denied the defendant’s motion to dismiss. Defendant thereafter filed an answer and also an affirmative defense to plaintiff’s complaint alleging that the suit was barred by section 22 — 307 of the Illinois Pension Code. In reply to defendant’s affirmative defense, plaintiff denied both that the statute was applicable and that the injuries were sustained in the line of duty. Defendant renewed the motion to dismiss prior to trial, and the trial court again denied it. The determining factor in the trial court’s denial of the renewed motion was its perception that the finance committee’s finding was that the plaintiff was not injured in the line of duty and, therefore, his cause of action was not barred. During the pretrial discussion, defendant indicated that plaintiff’s medical bills had been paid by the Blue Cross/ Blue Shield policy maintained by defendant for its employees. A motion in limine granted by the trial court precluded defendant from introducing evidence of the foregoing payment at trial. The case proceeded to trial, resulting in a jury verdict for the plaintiff in the amount of $150,000, which the trial court reduced to $75,000 for plaintiff’s contributory negligence.

Opinion

On appeal, defendant contends that the trial court erred in denying its motion to dismiss because plaintiff’s suit was barred by the Illinois Pension Code. Defendant argues further that plaintiff has already received the same benefits under the Blue Cross/Blue Shield plan that he would have been entitled to under the statute and the ordinance. Plaintiff’s acceptance of these payments, the defendant maintains, constituted an election of remedies and a waiver of common law claims. According to defendant, plaintiff’s recourse was to seek a mandatory injunction or writ of certiorari for a review of the finance committee’s decision.

The plaintiff argues first that defendant has waived any error on appeal by its failure at trial to instruct the jury on the issue of whether plaintiff was in the line of duty when injured, either through submission of a general instruction or of the statute. Second, plaintiff maintains that the finance committee’s decision that plaintiff was not injured in the line of duty estopped defendant from subsequently maintaining that plaintiff was injured in the line of duty, thus depriving him of his negligence suit.

A jury verdict is entitled to respect and deference on review, and we will not substitute our judgment for that of the jury on questions of fact. (See Jardine v. Rubloff (1978), 73 Ill. 2d 31, 43-44, 382 N.E.2d 232.) Nonetheless, a court of review is not bound by the legal conclusions reached by the finder of fact. (See Hindle v. Dillbeck (1977), 68 Ill. 2d 309, 370 N.E.2d 165.) In Hindle, a negligence action, the jury returned a verdict for the plaintiffs and responded in the negative to a special interrogatory asking whether the plaintiffs were engaged in the line of their duties at the time of the incident. The supreme court noted that the bar afforded by the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) is an affirmative defense which the defendant must plead and prove. (68 Ill. 2d 309, 317-18, 370 N.E.2d 165; Ill. Rev. Stat. 1981, ch. 48, par. 138.5.) The supreme court held under the circumstances of that case that the facts led inescapably to the legal conclusion that plaintiffs were within the line of their duties and that the action was barred. (68 Ill. 2d 309, 319-20, 370 N.E.2d 165.) Similarly, in the instant case, accepting plaintiff’s evidence as true and lending every possible favorable inference in support of the verdict, we find as a matter of law that plaintiff was within the line of his duty at the time of his injury and his action is accordingly barred by the statute.

The Workers’ Compensation Act provides that an employee has no common law or statutory right to recover damages from his employer for injuries sustained by the employee while engaged in the line of his duty as an employee. (Ill. Rev. Stat. 1981, ch. 48, par. 138.5.) This same language is used in section 22 — 307 of the Illinois Pension Code, prohibiting common law or statutory damage recovery from the City for injuries sustained by any fireman while engaged in the line of his duty as fireman. Because of the similarity of language and because the Illinois Pension Code was enacted to provide policemen and firemen benefits similar to those provided employees under the Workers’ Compensation Act (Sweeney v. City of Chicago (1971), 131 Ill. App. 2d 537, 266 N.E.2d 689), the standards developed under that Act are applicable here.

Under the Workers’ Compensation Act, a plaintiff’s action is barred if he was engaged in the line of duty when the accident occurred. Whether plaintiff was engaged in the line of duty is tested by whether plaintiff’s activity “arise[s] out of and in the course of employment.” (Hindle v. Dillbeck (1977), 68 Ill. 2d 309, 318, 370 N.E.2d 165.) An injury “arises out of” employment if its origin is in some risk connected with or incident to the employment, so that there is a causal connection between the injury and the employment. (Jewel Cos., Inc. v. Industrial Com. (1974), 57 Ill. 2d 38, 40, 310 N.E.2d 12.) The phrase “in the course of” employment pertains to whether the injury occurs within the period of employment, at a place where the worker may reasonably be in the performance of his duties, and while he is fulfilling those duties or engaged in something incidental thereto. (Scheffler Greenhouses, Inc. v. Industrial Com. (1977), 66 Ill. 2d 361, 367-68, 362 N.E.2d 325.) Acts of personal comfort are generally held incidental to employment duties and in the course of employment. (Segler v. Industrial Com. (1980), 81 Ill. 2d 125, 128, 406 N.E.2d 542; see generally 1A A. Larson, Workmen’s Compensation secs. 21.00 through 21.53, at 5 — 4 through 5 — 36 (1982).) Even though an act is one of personal comfort, where the employee voluntarily and in an unexpected manner exposes himself to a risk outside any reasonable exercise of his duties, the resulting injury will not be considered to have occurred during the course of employment. Eagle Discount Supermarket v. Industrial Com. (1980), 82 Ill. 2d 331, 340, 412 N.E.2d 492.

The record compels the conclusion that the injury arose out of plaintiff’s employment. Plaintiff was in the firehouse, was on duty, and was required to travel up and down the stairs of the firehouse. It can be concluded that plaintiff’s injury arose out of a risk connected with his employment. In addition to arising out of the course of employment, an injury must occur in the course of employment. Plaintiff’s injuries occurred during a time period when he was in uniform, was working in the firehouse, specifically in the communications center, and while he was getting a cup of coffee while in the course of his duties. It cannot be said that the plaintiff exposed himself to a risk outside any reasonable exercise of his duties. We accordingly conclude that defendant’s post-trial motion should have been allowed.

The defendant cites Sweeney v. City of Chicago (1971), 131 Ill. App. 2d 537, 266 N.E.2d 689, in support of its argument that plaintiff’s acceptance of insurance benefits operates as a waiver of common law claims. Sweeney is inapplicable because payments received pursuant to the ordinance, not an employee insurance program, worked as a waiver of common law claims in that case.

Similarly, plaintiff’s contention that defendant waived any error on appeal because it failed to instruct the jury on the issue of whether plaintiff was in the line of duty when injured is unsupported by the case cited, Cratsley v. Commonwealth Edison Co. (1976), 38 Ill. App. 3d 55, 347 N.E.2d 496. In Cratsley, the basis of the appeal was the failure to tender jury instructions when there had been no objection to the failure to tender them at trial. Defendant’s appeal here is not based upon a failure to tender jury instructions and Cratsley is not relevant to this inquiry.

Plaintiff’s second argument is that defendant is estopped by the finance committee’s decision from now asserting that plaintiff was injured in the line of duty. Defendant may be estopped if there is some positive act by municipal officers which induced the action of the adverse party. (New-Mark Builders, Inc. v. City of Aurora (1967), 90 Ill. App. 2d 98, 233 N.E.2d 44.) This doctrine, however, may be applied only to prevent injustice and fraud. (90 Ill. App. 2d 98, 233 N.E.2d 44.) Generally, estoppel applies where the city grants plaintiff certain property rights, plaintiff makes expensive improvements on the property, and then the city attempts to deprive plaintiff of the rights granted. See Kaeding v. Pollution Control Board (1974), 22 Ill. App. 3d 36, 316 N.E.2d 788.

In this case, plaintiff argues that he relied on the decision of the finance committee in bringing his suit. Plaintiff, however, has not incurred any prejudice as a result of the committee’s decision. In fact, the record discloses that plaintiff has recovered all of the medical expenses to which he would have been entitled under the statute and ordinance. For these reasons, estoppel would not apply.

For all of the foregoing reasons, we reverse the order denying defendant’s motion to dismiss and the judgment entered by the trial court.

Reversed.

LORENZ and O’CONNOR, JJ., concur.


author: PRESIDING JUSTICE HARTMAN

text:
    BURTON GILBERG, Plaintiff-Appellant, v. TOYS “R” US, INCORPORATED, Defendant-Appellee.
    First District (2nd Division)
    No. 83—1795
    Opinion filed July 24, 1984.

      Berry & Gore, of Chicago (Alan M. Katz and Gregory R. Sun, of counsel), for appellant.
    E. Garnet Fay, of O’Brien, Hanrahan, Wojcik & Fay, of Chicago, for ap-pellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff slipped and fell on a 1 foot by 2 feet patch of ice in defendant’s parking lot. His complaint claimed that defendant’s tor-tious conduct in allowing ice to accumulate in a depression in the pavement was the proximate cause of his injuries. The circuit court denied plaintiff’s request for a change of venue, found no evidence that the patch was an unnatural accumulation of ice and granted defendant’s motion for summary judgment. Plaintiff appeals, claiming: (1) the change of venue was erroneously denied; (2) summary judgment was erroneously granted; (3) defendant breached its duty to warn plaintiff of the ice; and (4) the natural-accumulation rule should be abolished in light of the adoption of comparative fault.

The pleadings, affidavits, depositions and photographs on file indicate plaintiff noticed no ice in the lot prior to his fall but thereafter noticed 3% to 5% of the lot was covered with ice patches. Defendant’s assistant manager deposed that she noticed no ice during her morning inspection of the lot and may have instructed the patch to be salted after the accident. She received no other complaints about nor knew of any other similar accidents occurring in the lot. The day was bright and clear, and it had not snowed in the previous 24-hour period. No warning signs were posted regarding ice patches.

The only evidence of the source of the ice was plaintiff’s averment that the ice accumulated in a depression and that there were no drains in the area. In defendant’s assistant manager’s deposition, she recalled water drains situated in the parking lot, but not whether any were nearby. She suggested a natural accumulation of melting snow may have formed the quarter-inch thick ice patch. The affidavit of a registered professional engineer stated that the grading plans for defendant’s lot conformed with local engineering standards.

A hearing commenced on June 2, 1983, to consider defendant’s motion for summary judgment. The circuit judge referred the parties to “selected citations,” requested additional research and continued the hearing to June 16, 1983. At the subsequent hearing, plaintiff filed an emergency motion for change of venue, asserting he would not receive a fair trial because of the judge’s prejudice against his attorneys. That motion was denied and the summary judgment motion granted upon finding that there was no evidence regarding the origin of the ice, cause of the depression, defect in the design of the parking lot or notice to defendant that the condition existed.

Plaintiff argues that the circuit court erred in failing to grant a change in venue. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1001.) According to the circuit court’s memorandum of its decision dated June 30, 1983, the summary judgment motion was initially heard on June 2, 1983. At that time the court referred “selected citations” to both counsel, asked them to find case law as to other questions and “made a substantial ruling or made a statement on its position on the merits ***” of the case. For these reasons it considered plaintiff’s petition “untimely.” No transcript of the June 2, 1983, hearing has been submitted as part of the record on appeal and no contradiction of the court’s recollection appears of record. Under these circumstances, the court’s memorandum will be deemed accurate. Investors Shelter Corp. v. Chernick (1978), 58 Ill. App. 3d 446, 374 N.E.2d 786.

Merely granting a continuance from June 2, 1983, to June 16, 1983, without more, could not constitute a substantial ruling in the case. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1001(c).) In denying the motion for the venue change here, however, the court asserted that it had indicated its attitude toward the summary judgment motion during the June 2, 1983, hearing, which is buttressed by its having referred the parties to “selected citations” and having requested additional research by the parties. Among the cases referred to counsel at that hearing was Walker v. Chicago Transit Authority (1980), 92 Ill. App. 3d 120, 416 N.E.2d 10. The circuit court there was affirmed as having properly found as a matter of law that a puddle of water caused by a depression in a CTA station pavement was nonactionable in the absence of an affirmative showing that the subject accumulation of water was due to unnatural causes. An inference may be fairly drawn from the foregoing circumstances that the court did indeed reveal its probable disposition of the case at this hearing. The statute does not contemplate the transfer of venue where a hearing has commenced on a substantive issue in the case, the petitioning litigant had an opportunity to form an opinion that the court might be unfavorably disposed toward his cause, and such litigant thereafter charges the court with prejudice as the ground for a change of venue. (Hildebrand, v. Hildebrand (1968), 41 Ill. 2d 87, 90, 242 N.E.2d 145; Commissioners of Drainage District No. 1 v. Goembel (1943), 383 Ill. 323, 328, 50 N.E.2d 444; In re Marriage of Pruitt (1981), 101 Ill. App. 3d 755, 428 N.E.2d 732.) Under the facts presented in the case sub judice, the denial of plaintiff’s petition was in conformity with law.

Elements necessary to be shown affirmatively in order to recover in slip-and-fall cases are that the accumulation of ice, snow or water is due to unnatural causes and that the property owner had actual or constructive knowledge of the condition. (Lapidus v. Hahn (1983), 115 Ill. App. 3d 795, 450 N.E.2d 824; Wolter v. Chicago Melrose Park Associates (1979), 68 Ill. App. 3d 1011, 386 N.E.2d 495.) A finding of an unnatural or aggravated natural condition must be based upon an identifiable cause of the ice formation. Lapidus v. Hahn (1983), 115 Ill. App. 3d 795, 450 N.E.2d 824 (leaky roof); Linde v. Welch (1981), 95 Ill. App. 3d 581, 420 N.E.2d 490 (leaky overhead structure); McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 400 N.E.2d 16 (slope of parking lot); Wolter v. Chicago Melrose Park Associates (1979), 68 Ill. App. 3d 1011, 386 N.E.2d 495 (surface irregularities in parking lot deviating from specified standards); Fitzsi-mons v. National Tea Co. (1961), 29 Ill. App. 2d 306, 173 N.E.2d 534 (improper drain placement); Stroyeck v. A. E. Staley Manufacturing Co. (1960), 26 Ill. App. 2d 76, 167 N.E.2d 689 (improper sidewalk construction).

In the present case, there is no record evidence showing the origin of the ice, cause of the depression, or defective design of the parking lot. Plaintiff need not prove his case at a summary judgment hearing (Technical Representatives, Inc. v. Richardson-Merrell, Inc. (1982), 107 Ill. App. 3d 830, 833, 438 N.E.2d 599); nevertheless, he must present some facts to show the origin of the ice was unnatural or caused by defendant (Bakeman v. Sears, Roebuck & Co. (1974), 16 Ill. App. 3d 1065, 1070, 307 N.E.2d 449; Byrne v. Catholic Bishop (1971), 131 Ill. App. 2d 356, 358-59, 266 N.E.2d 708). Here, no facts were shown indicating that the ice patch was other than a natural accumulation. There was, therefore, no genuine, triable issue of material fact presented to the circuit court; summary judgment was properly entered. Defendant’s knowledge of the condition is not in issue, therefore.

Plaintiff also maintains defendant had a duty to warn invitees of scattered and unobservable ice patches, citing Kittle v. Liss (1982), 108 Ill. App. 3d 922, 439 N.E.2d 972. Kittle, however, involved a business invitee who slipped on a natural accumulation of snow and ice on an unlighted staircase. The appellate court reversed the entry of summary judgment for the property owner and remanded, identifying a triable issue of fact as to whether the owner provided adequate lighting in accordance with his duty to provide a reasonably safe means of ingress and egress from his place of business. Here, defendant kept the parking lot clear by hiring a snow-removal service; only 3% to 5% of the parking lot’s surface was covered with ice patches; and the incident occurred on a clear day.

We are also urged to abolish the natural accumulation rule just as contributory negligence was abolished. The slip-and-fall cases arising after the adoption of comparative negligence, however, have not explicitly rejected the natural accumulation rule but have required that plaintiff’s conduct be compared to that of defendant in causing the unnatural or aggravated natural condition at issue. (Williams v. Alfred N. Koplin & Co. (1983), 114 Ill. App. 3d 482, 487, 448 N.E.2d 1042; Kittle v. Liss (1982), 108 Ill. App. 3d 922, 439 N.E.2d 972.) Furthermore, unlike the doctrine of contributory negligence, the natural accumulation rule does not exonerate a defendant from liability if there is evidence that his negligence, along with the plaintiff’s negligence, contributed to the plaintiff’s injuries. There is no basis here upon which to abolish the natural accumulation rule.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

DOWNING and O’CONNOR, JJ., concur.


author: JUSTICE STAMOS

text:
    MARK T. CLARK, Plaintiff-Appellee, v. THE BOARD OF REVIEW OF THE ILLINOIS DEPARTMENT OF LABOR et al., Defendants-Appellants.
    First District (2nd Division)
    No. 83—1396
    Opinion filed July 24, 1984.

      Neil F. Hartigan, Attorney General, of Springfield (Edward C. Hurley, Assistant Attorney General, of counsel), for appellants.
    No brief filed for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

The defendant, the Board of Review of the Illinois Department of Labor, denied plaintiff’s claim for extended unemployment benefits because defendant determined that plaintiff had failed to conduct “a systematic and sustained work effort” to obtain work during a certain weekly period. Thereafter plaintiff filed a complaint for administrative review. After a hearing on that complaint, the circuit court reversed defendant’s determination and found that plaintiff was eligible for extended unemployment benefits.

In this appeal, defendant contends that the decision of the circuit court should be reversed because plaintiff did not satisfy the requirements for extended unemployment benefits and its decision to deny such benefits was supported by substantial evidence.

Plaintiff was employed as a painter-laborer until January 1982. At that time, he was laid off from his position due to lack of work. Subsequently, plaintiff filed a claim for unemployment benefits, which was granted. When the unemployment benefits terminated, plaintiff filed a second claim for extended unemployment benefits.

On July 30, 1982, the claims adjudicator for the Bureau of Employment Security made a determination that plaintiff had failed to conduct a “systematic and sustained” effort to obtain work during the period of July 18, 1982, until July 24, 1982. On August 12, 1982, plaintiff filed a notice of appeal from the claims adjudicator’s decision. After a hearing was held on August 29, 1982, the hearing referee affirmed the decision of the claims adjudicator. In doing so, the referee found that plaintiff’s search consisted of three telephone calls as well as three in-person contacts during the aforesaid one-week period, and he concluded that this type of search would not establish compliance with the rigorous search-for-work requirements applicable to an extended period.

Plaintiff filed a notice of appeal to defendant. On December 8, 1982, defendant affirmed the decision of the hearing referee. Thereafter, plaintiff filed a complaint for administrative review. During the hearing on plaintiff’s complaint, plaintiff advised the court that during the week in question he called three out-of-town jobs. Two were in Cleveland and one was in Houston, Texas. Plaintiff further stated that he made three telephone contacts with local area firms, which were unsuccessful. After hearing this evidence, the circuit court held that defendant had sought work in the required manner. The court then reversed defendant’s decision.

As stated above, defendant contends that the decision of the circuit court should be reversed since plaintiff did not satisfy the requirements for extended unemployment benefits, which require a systematic and sustained work search, and because the administrative decision to deny benefits was supported by substantial evidence. We agree.

The purpose of the Illinois Unemployment Insurance Act is to provide compensation benefits for an unemployed individual in order to relieve his economic distress which was caused by involuntary unemployment. (Wadlington v. Mindes (1970), 45 Ill. 2d 447, 452, 259 N.E.2d 257.) In Illinois, the receipt of unemployment insurance benefits is a conditional right and the burden of proving eligibility before the agency rests with the claimant. (See generally Yadro v. Bowling (1980), 91 Ill. App. 3d 889, 893, 414 N.E.2d 1244.) However, in order to be eligible for benefits, claimants must meet certain terms and conditions prescribed by the Act. (See Wadlington v. Mindes (1970), 45 Ill. 2d 447, 454.) Section 409(K) of the Act states that an individual who has applied for extended unemployment benefits will be treated as actively engaged in seeking work during any week if (a) the individual has engaged in a systematic and sustained effort to obtain work during such week, and (b) the individual furnishes tangible evidence that he has engaged in such effort during the week. Ill. Rev. Stat. 1983, ch. 48, par. 409(E)(5)(a), (b).

Plaintiff asserted that he attempted to obtain employment during the week in question by telephoning three potential employers and also by personally going to three businesses. Plaintiff maintained that he was unable to find employment due to a depressed labor market. After having carefully examined the record on appeal, we agree with defendant’s determination that such efforts did not constitute a systematic and sustained work search on the part of plaintiff.

Moreover, pursuant to section 409, an individual must, after failing to find work within his field, make an effort to seek work outside his field. This is due to the more rigorous requirements to qualify for extended unemployment benefits. Although an individual is not required to take an “unsuitable” job, he must relax his personal requirements with respect to the type of hours, rate of pay and travel time to any suitable employment. Suitable work is any work which is within the individual’s capabilities, provided that the gross average weekly remuneration payable for the work must exceed the sum of the individual’s extended weekly benefit amount. (Ill. Rev. Stat. 1983, ch. 48, par. 409(K)(3)(a).) Accordingly, we feel, if plaintiff was convinced that the painting market was severely depressed and was not going to change in the foreseeable future, he should have made an effort to find employment in another related field which was within his abilities. Plaintiff’s failure to try to find any suitable work outside his chosen field is another strong indicator that defendant correctly decided that plaintiff did not make a systematic and sustained work search.

Moreover, we must point out that the referee found that plaintiff did not properly substantiate his work search. Plaintiff failed to provide such information at the hearing before defendant. Because of this, defendant was unable to verify plaintiff’s alleged employment contacts. It is apparent to us, therefore, that plaintiff did not sustain his burden of proof and his statements in the circuit court are not properly considered as evidence in this type of proceeding.

It is well established that an administrative review of an agency’s decision is limited to consideration of the record on appeal to determine whether the action of the agency is supported by the evidence in that record. (See generally Odell v. Village of Hoffman Estates (1982), 110 Ill. App. 3d 974, 979, 443 N.E.2d 247.) A court of review may not reweigh the evidence and substitute its determination of the credibility of the witnesses for that of the agency. (See Dotson v. Bowling (1981), 102 Ill. App. 3d 340, 342, 430 N.E.2d 44.) Accordingly, a court of review may not substitute its own judgment for the defendant’s finding unless there is a lack of substantial evidence in the record to support that finding. See Dotson v. Bowling (1981), 102 Ill. App. 3d 340, 430 N.E.2d 44.

As indicated above, a thorough hearing by the defendant determined that plaintiff had failed to comply with the more rigorous requirements to be eligible for the extended unemployment benefits. For this reason, we feel that defendant’s findings were supported by the evidence. We must conclude that the circuit court erred in reversing defendant’s decision that plaintiff was ineligible for extended unemployment benefits.

The order of the circuit court of Cook County, reversing defendant’s decision that plaintiff was ineligible for extended unemployment benefits, is therefore reversed.

Reversed.

HARTMAN, P.J., and DOWNING, J., concur.

      Plaintiff has not filed a brief in this matter, but we will consider the merits of defendant’s contentions. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

      It was established that in the past plaintiff had telephoned three businesses per week on the average while looking for work. While these actions were sufficient to qualify plaintiff for initial benefits, it is evident that the contacting of three additional firms per week was not enough to warrant the awarding of extended unemployment benefits.

      Plaintiff merely maintained that he had contacted his father, who worked for a Wisconsin construction firm, and that his father had indicated that he would look for a job with that firm for plaintiff.


text:
    PAUL RENARD, Plaintiff-Appellant, v. COLUMBIA BROADCASTING SYSTEM, INC. et al., Defendants-Appellees.
    First District (2nd Division)
    No. 83—1798
    Opinion filed August 7, 1984.

      Arnold Rubin, of Chicago, for appellant.
    Reuben & Proctor, of Chicago (Samuel Fifer and James R. Daly, of counsel), for appellees.
   JUSTICE STAMOS

delivered the opinion of the court:

This is an action for libel, conspiracy to libel, malicious injury to property rights and conspiracy to maliciously injure property rights against all of the defendants, and for fraud and conspiracy to defraud against defendants Columbia Broadcasting System, Inc., CBS Inc., Harry Porterfield and James Hatfield. The trial court granted defendants’ motion to dismiss plaintiff’s amended complaint, finding that plaintiff had failed to state a cause of action under section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1979, ch. 110, par. 2 — 615). Plaintiff appeals.

The instant case arose from the broadcast by defendants on April 13, 1980, of a public interest program entitled “Two on Two,” which contained a segment describing plaintiff’s “Music Dynamics” piano program and a 10-week Northwestern University beginning piano course. Plaintiff’s program differs from the Northwestern program in that plaintiff teaches students to read and play music by responding to the numerical distances between notes, while the Northwestern course teaches through traditional methods. The stated purpose of the “Two on Two” segment was to examine beginning piano courses for adults who wished to attain a moderate level of skill in playing that instrument. Instructors and students from each school were interviewed and students were filmed while practicing. The Northwestern students were shown playing a simplified, rehearsed piece, while plaintiff’s students were shown playing complex pieces at first sight. The television audience was not informed of the different circumstances under which the students from the two schools were performing.

“Two on Two” concluded the segment by showing the tapes of the students to defendant Sally Bauer, an assistant professor of piano from Roosevelt University, and asking her opinion as to which program would be better for an adult who wished to attain a moderate level of skill in playing the piano. Mrs. Bauer responded:

“[fjrom the tapes that we have seen of those two programs, they’re without question, the musical level in the Northwestern program exceeds that of the other program. The people that you have spoken with and heard at Music Dynamics are very enthused about their work. But, I see greater independence musically in the works of the students at Northwestern.”

The “Two on Two” commentator then stated:

“Mrs. Bauer emphasized that the best way to judge any program is by whether it helps the student learn to play as well as he or she wants to learn. While a Music Dynamics student might to some ears sound a bit mechanical and lack complete musicianship, Mrs. Pauline Archias is quite satisfied. She began with Renard twelve years ago at age 68 after another piano instructor told her she was too old for lessons. Today, at 80, her playing brings enjoyment to her and her friends.

The segment concluded with advice on choosing a piano teacher, the commentators stating: •

“Experts we’ve talked with said go to an established college or school and attend a student recital. If the students play well, they probably have good teachers. Our expert said, ‘don’t automatically sign up for lessons at the store where you bought your piano, and don’t pick a teacher just because he or she lives near you.’ If possible, select an instructor who belongs to the Illinois State Music Teachers Association. The membership is usually an assurance of quality.”

Plaintiff filed suit for libel, conspiracy to libel, malicious injury to property rights, conspiracy to injure property rights, fraud and conspiracy to defraud, alleging a conspiracy by defendants CBS and Roosevelt University and their employees and subsidiaries to injure plaintiff’s reputation in order to benefit Roosevelt’s music school and CBS’s subsidiaries’ sales of pianos and electronic organs. Defendants moved to dismiss plaintiff’s original complaint and their motion was granted on October 4, 1982. Plaintiff thereafter filed an amended complaint and amendments thereto. Defendants again moved to dismiss under section 2 — 615 of the Code of Civil Procedure, and the trial court granted the motion with prejudice, finding that plaintiff’s complaint failed to state a cause of action. P-laintiff appeals.

The trial court dismissed plaintiff’s amended complaint because it was insufficient as a matter of law to state a claim for libel and was therefore insufficient to state a claim for malicious injury to property rights, fraud or conspiracy. Plaintiff contends on appeal that his complaint adequately pleads libel per se. Words are considered libelous per se if they are so obviously and naturally hurtful that proof of injury is not necessary. (See Colson v. Stieg (1980), 86 Ill. App. 3d 993, 995, 408 N.E.2d 431, aff’d (1982), 89 Ill. 2d 205, 433 N.E.2d 246.) The four categories of statements considered defamatory per se are set out in Richardson v. Dunbar (1981), 95 Ill. App. 3d 254, 419 N.E.2d 1205. According to plaintiff, the fourth category is applicable here: words that prejudice a particular person in the conduct of his profession or trade. See 95 Ill. App. 3d 254, 259.

Alternatively, plaintiff contends that his complaint sufficiently states a claim of libel per quod, a theory under which the plaintiff must prove an innuendo and allege special damages. (See Bruck v. Cincotta (1977), 56 Ill. App. 3d 260, 264, 371 N.E.2d 874; see also Richardson v. Dunbar (1981), 95 Ill. App. 3d 254, 260, 419 N.E.2d 1205.) We need not decide the question of whether this allegation sufficiently pleads libel per se or per quod because plaintiff’s complaint is deficient on a more fundamental level; the words are not defamatory.

An exhaustive review of the law of defamation, particularly the innocent construction rule, was undertaken by our supreme court in Chapski v. The Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195. There the court concluded:

“[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted *** it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved by the court in the first instance.” (92 Ill. 2d 344, 352.)

It is clear that the circuit court correctly determined as a matter of law that the “Two on Two” segment featuring plaintiff’s music school was not defamatory. The segment merely examined two beginning piano courses and elicited an informal opinion from a third party as to the merits of each; it contained no false statements of fact injurious to plaintiff’s reputation. Furthermore, the trial court correctly held that the comments of Mrs. Bauer were, under any reasonable construction, merely her opinion as to the merits of the two music programs featured in the broadcast and thus were not actionable. See Zaret v. Joliet Park District (1980), 91 Ill. App. 3d 225, 227, 415 N.E.2d 659.

Because the remaining counts of plaintiff’s amended complaint are dependent upon plaintiff’s ability to state a claim for defamation, the trial court correctly held that these counts also failed to state a cause of action. Dismissal of a complaint for failure to state a cause of action is a matter within the discretion of the trial court. This rule applies equally to actions for defamatory damages. Antonelli v. Field Enterprises, Inc. (1983), 115 Ill. App. 3d 432, 436, 450 N.E.2d 876.

Plaintiff argues that Illinois’ innocent construction rule is violative of due process and equal protection under the Federal and Illinois constitutions. This argument is clearly without merit, as the only authority cited by plaintiff in support of this contention is MacLeod v. Tribune Publishing Co. (1959), 52 Cal. 2d 536, 343 P.2d 36, which condemns the same type of hair-splitting innocent construction decisions cited by our supreme court as the reason for its revision of the innocent construction rule in Chapski. Plaintiff’s argument that suitors denied recovery for statements which can reasonably be innocently construed are denied equal protection and due process of law is unsupported by any authority and contradicts our supreme court’s decision in Chapski.

Plaintiff next contends that the trial court erred in finding that his amended complaint failed to state a cause of action for fraud. Plaintiff’s complaint alleged that defendants induced him to allow them to photograph and interview him and his students by fraudulently representing to plaintiff that the “Two on Two” segment would feature his music school exclusively.

Among the elements necessary for recovery for fraud is an injury caused by one party’s reliance on the false representations of another. (See Younger v. Revelle (1979), 78 Ill. App. 3d 1, 4, 397 N.E.2d 221.) We have previously determined that the trial court correctly held that plaintiff has not been defamed in the instant case. Therefore, plaintiff has suffered no injury as the result of any representations made by. defendants and has not stated a cause of action for fraud or for conspiracy to defraud.

Plaintiff finally contends that the simultaneous representation by the same counsel of defendant Bauer and the remaining defendants is a prohibited conflict of interest and that the trial court erred in failing to take action to eliminate this conflict. Absent a complaint by the affected client, a party has no status to object to the representation of an adverse party by an attorney of his choice. “Only a party who sustains a relation of client to an attorney who undertakes to represent conflicting interests may be entitled to object to such representation.” Murchison v. Kirby (S.D.N.Y. 1961), 201 F. Supp. 122, 123-24, quoting 7 C.J.S. Attorney & Client sec. 47, at 827.

For the reasons expressed above, the decision of the circuit court is affirmed.

Affirmed.

HARTMAN, P.J., and DOWNING, J., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN R. CURTISS, Defendant-Appellant.
    Fourth District
    No. 4—83—0842
    Opinion filed August 10, 1984.

      Daniel D. Yuhas and John J. Hanlan, both of State’s Appellate Defenders Office, of Springfield, for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Robert J. Biderman and Linda Welge, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

After a jury trial, the defendant was found guilty of residential burglary (theft), residential burglary (felony arson), and arson (Ill. Rev. Stat. 1981, ch. 38, pars. 19 — 3, 20 — 1). Judgment was entered on the residential burglary (theft) and arson counts. Defendant was sentenced to concurrent terms, 15 years for residential burglary and an extended term of 14 years for arson. He appeals from the judgment of the circuit court of Livingston County. We affirm.

Defendant raises four issues on appeal: (1) whether he was denied a fair trial because his case was not transferred to a judge outside the 11th judicial circuit; (2) whether he was proved guilty beyond a reasonable doubt of arson; and (3) whether the trial judge abused his discretion in sentencing the defendant to an extended term of 14 years for arson by failing to consider defendant’s low level involvement in the offense — particularly where codefendant Turner was charged with but not prosecuted for the arson — and his youthful age; and (4) in sentencing defendant to 15 years for residential burglary by using the damages caused by the arson to aggravate the sentence for both that offense and the residential burglary, thereby punishing him twice for the same offense in violation of the double jeopardy clause of the constitution.

As the parties are familiar with the facts of this cause, they are referred to herein only to the extent necessary to this disposition. The evidence adduced at trial tended to show that on or about March 13, 1983, defendant Curtiss and codefendant Turner (not party to this appeal) entered the residence of Jerome Pearre, which was then consumed by fire that same date. The Pearres are the mother- and father-in-law of Judge Glennon, a circuit judge of the 11th judicial circuit. According to the presentencing report and trial evidence, financial losses resulting from the fire were as follows: $171,000 (dwelling), $5,375 (cost of demolition), $120,000 (contents, books), and $12,000 (silver). The victims’ losses not covered by insurance were $53,500 (dwelling), $66,500 (contents), and $11,000 (silver).

Before trial, defendant filed a motion for substitution for Livingston County Judge William Caisley, alleged to be a friend of Judge Glennon. The motion was heard and allowed by Livingston County Judge Frank, who sent the matter back to chief circuit Judge McCullough for reassignment. Judge Frank’s letter to Judge McCullough mentioned by postscript that defendant’s counsel had requested that the case be assigned to a judge outside the 11th judicial circuit. The matter was set for and heard by Judge William Roberts of the 11th judicial circuit.

Defendant testified at trial that on the night of March 12, 1983, he and codefendant Turner embarked upon a night’s drinking, going to several bars and consuming shots of bourbon and peppermint schnapps with beer chasers. After the bar closed, defendant and Turner proceeded to a 24-hour grocery to purchase beer in addition to the four cans they had. They were unable to buy the beer because it was after 1 a.m. They purchased some cigarettes and hung around the store until an employee called the police to assist them in leaving the premises. Defendant and Turner walked over to a nearby garage, owned by the Pearres, and sat down to drink a beer and watch the police. They then realized that there was no car in the garage and went to the front of the house where they discovered newspapers laying on the porch. They decided to break in. Once inside, they forced the lock on a door in the kitchen and removed the victims’ silver in pillow cases. They discovered cases of liquor in the basement and placed three outside the basement door with the silver. They also removed a television and stereo components. They began relocating items placed at the basement door to an alley about a block away. Defendant recovered his cigarettes and lighter, stashed beneath a birdbath near the Pearres’ house, so as not to lose them if he had to make a speedy escape. According to defendant’s testimony, Turner told him he was going to set the house on fire to get rid of evidence of the burglary. Defendant told Turner not to do that and then took leave of him, going to dump his gloves into a nearby Salvation Army donation box. As he turned back toward the house, he saw Turner running and the house afire. He retired with Turner to a friend’s house, where they slept.

Defendant acknowledged that when questioned by the police on March 13, 1983, he had denied knowledge of the fire or a silver watch, stolen from the residence and recovered by the police. Defendant and his cohorts thereupon proceeded to pawn the silver at various places in Illinois and Iowa. With the funds so gained, they flew to Virginia and then went to Florida, where they ran out of money. They committed another burglary and were apprehended. Defendant then spoke to Illinois authorities by telephone and admitted burglarizing the Pearre residence but denied setting the fire.

Several witnesses testified in defendant’s behalf that, during incarceration with codefendant Turner, Turner told them something to the effect that he had burned the house of a judge or a judge’s relatives. One of the witnesses acknowledged that after he became more acquainted with Turner, Turner told him that defendant had actually set the fire.

Defendant first argues that he was deprived of a fair trial because his request that the case be transferred to a judge outside the 11th judicial circuit was not honored. Defendant’s motion for substitution of judge was heard and granted as an automatic substitution within 10 days of assignment. Defendant thereafter proceeded to trial before Judge Roberts. He now argues that the failure to honor his “request” constitutes reversible error.

Section 114 — 5 of the Code of Criminal Procedure of 1963 provides in pertinent part:

“Substitution of Judge, (a) Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The defendant may name only one judge as prejudiced, pursuant to this subsection; ***
* * *
(c) In addition to the provisions of subsections (a) *** of this Section any defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion a hearing shall be conducted as soon as possible after its filing by a judge not named in the motion; provided, however, that the judge named in the motion need not testify, but may submit an affidavit if the judge wishes. If the motion is allowed, the case shall be assigned to a judge not named in the motion. If the motion is denied the case shall be assigned back to the judge named in the motion.” (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 5.)

In examining the record, we find no motion or affidavit as to the prejudice of any judge but Judge Caisley. If any record was made of the hearing of September 19, 1983, on defendant’s motion for substitution of a judge, it has not been made part of the record on appeal. Neither has the defendant provided a bystander’s report of the hearing as provided by Supreme Court Rule 323(c) (87 Ill. 2d R. 323(c)). We are therefore unable to determine whether the “request” was supported by specific allegations of prejudice as to each judge in the circuit — as opposed to a general allegation of prejudice (People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 364 N.E.2d 50, cert. denied (1978), 434 U.S. 1023, 54 L. Ed. 2d 771, 98 S. Ct. 750) — or whether the prosecutor had opportunity to address such a request. It is the duty of the appellant to insure a sufficient record of proceedings so as to show any error on which he wishes to appeal. We note that a previous defense motion for substitution of judge had been heard by Judge Caisley on September 1, 1983, whereupon defendant inquired whether Judge Roberts had been hearing some cases and was advised that the chief judge had assigned Judge Roberts cases when a motion for substitution had been granted. Further, as defendant was willing to proceed to trial before Judge Roberts, we may regard this issue as waived. (People v. Bach (1979), 74 Ill. App. 3d 893, 393 N.E.2d 563.) In any event, upon our reading of the record we conclude that defendant received a fair and impartial trial.

Defendant next urges that he was not proved guilty beyond a reasonable doubt of arson — on a theory that the arson was an offense separate and distinct from the burglary in which he was involved— and that he had sufficiently withdrawn from that offense so as to preclude his conviction under a theory of accountability.

The arson appears to have been in furtherance of the burglary, to which defendant concedes common design with Turner, and directed at preventing its discovery. Section 5 — 2 of the Criminal Code of 1961 provides in pertinent part:

“A person is legally accountable for the conduct of another when:
* * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. However, a person is not so accountable *** if:
* * *
(3) Before the commission of the offense, he terminates his effort to promote or facilitate such commission, and does one of the following: wholly deprives his prior efforts of effectiveness in such commission, or gives timely warning to the proper law enforcement authorities, or otherwise makes proper effort to prevent the commission of the offense.”

(Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2.) Generally, a defendant may be held liable for the commission of acts in furtherance of the offense which is the subject of common design. See People v. Cvetich (1979), 73 Ill. App. 3d 580, 391 N.E.2d 1101 (guilt of burglary which led to arson supports conviction for arson under accountability theory).

Given common design, accountability may be proved by circumstantial evidence. (People v. Stevens (1981), 98 Ill. App. 3d 158, 423 N.E.2d 1340.) In its deliberations, the trier of fact is not compelled to accept the defendant’s version of the facts of the offense and may consider the surrounding circumstances and the probability or improbability of the defendant’s account. (People v. Olmos (1978), 67 Ill. App. 3d 281, 384 N.E.2d 853.) Herein defendant took the stand in his own defense. He acknowledged both his prior convictions and the fact that he lied to the police on the morning of the burglary and fire. We conclude that there was sufficient evidence from which the jury could infer defendant’s guilt of arson under an accountability theory.

As to the defendant’s withdrawal from the conduct which constituted the arson, it does not appear that he timely deprived his prior efforts of effectiveness or gave warning to the proper authorities. (People v. Brown (1962), 26 Ill. 2d 308, 186 N.E.2d 321 (withdrawal may not effectively be made from felony murder when transaction which begets it has actually been commenced); People v. Lacey (1964), 49 Ill. App. 2d 301, 200 N.E.2d 11 (nonparticipation in rape does not preclude conviction of that offense when defendant did not sufficiently oppose it).) There were many actions which the defendant could have taken. The fact finder could disbelieve defendant’s testimony or consider his alleged comment to Turner a perfunctory effort, totally without effect, and not a “proper effort” so as to preclude his responsibility for the conduct which followed. (See In re Weigler (1976), 37 Ill. App. 3d 478, 346 N.E.2d 171; see generally 4 Wharton, Criminal Law sec. 734, at 555-57 (14th ed. 1981).) In this case, the defendant admits his part in the burglary and theft of the Pearre residence, as well as certain acts to prevent his detection or the recovery of the stolen items, and his expenditure of monies obtained by pawning the stolen items. He only claims withdrawal from his course of the common scheme for purposes of one act — the arson. We conclude there was sufficient evidence in the record from which the jury could conclude that the defendant had not sufficiently withdrawn from the course of conduct so as to preclude his connection with the arson under the accountability theory.

Defendant’s third argument on appeal is that the trial court abused its discretion in sentencing him to the extended maximum term for arson, 14 years, by failing to consider his youthful age and limited involvement in the arson — given that codefendant Turner was charged but not prosecuted for the arson. Defendant has filed a motion in this court to supplement the record on appeal with copies of the docket sheets, indictments and mittimus in the case of People v. Timothy L. Turner, Livingston County No. 83 — CF—36. We hereby allow that motion in order to address the issue raised by the defendant.

Under section 5 — 5—3.2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(a)) the trial court is required to weigh the harm caused by a defendant’s conduct, as well as his history of delinquency or criminal activity, as factors in aggravation for purposes of fashioning the sentence appropriate to the cause. The trial judge is not, however, required to list for the record each and every reason for a particular sentence, nor is he required to assign a value to each fact presented as evidence of the sentencing hearing. (People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9.) Defendant’s birth date and criminal history were before the trial judge in the presentencing report — to which no corrections were made at the sentencing hearing — which the judge stated he had read. In mitigation, the defendant took the stand to deny his involvement in the arson and explain his criminal history. Although it is correct that the degree of activity or participation in a crime should receive attention in passing sentence (People v. Morris (1969), 43 Ill. 2d 124, 251 N.E.2d 202), the fact that the record contains no reference by the court to this matter may not be equated with its failure to consider this factor in sentencing. Similarly, the fact that the trial judge did not specifically comment upon the defendant’s age is not indicative of the court’s failure to consider this as a factor in determining sentence.

With regard to defendant’s sentence for the arson offense as grossly disparate from that of codefendant Turner, who was charged with but not prosecuted for the arson, we need only look to the record in this case and in that. Turner pleaded guilty to one count of residential burglary (theft) as part of a plea agreement under which the arson count was nol pressed. He was sentenced to 15 years’ imprisonment for the residential burglary and a consecutive term of 5 years for an escape offense.

Defendant’s final argument is that the trial court abused its discretion in sentencing him by using damages caused by the arson to aggravate the sentence for both arson and residential burglary, thereby punishing him twice for the same offense in violation of the double jeopardy clause. Arson is a Class 2 felony for which the sentencing range is not less than 3 nor more than 7 years’ imprisonment and for which an extended term of not less than 7 years nor more than 14 years may be imposed. (Ill. Rev. Stat. 1981, ch. 38, pars. 20— 1, 1005 — 8—1(a)(5), 1005 — 8—2(a)(4).) Residential burglary (theft) is a Class 1 felony with a sentencing range of not less than 4 nor more than 15 years’ imprisonment. (Ill. Rev. Stat. 1981, ch. 38, pars. 19 — 3, 1005 — 8—1(a)(4).) Defendant was sentenced to concurrent terms of imprisonment.

In People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45, our supreme court stated:

“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. ‘Act,’ when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered. “

Applying this test to the facts before us, we observe that the offenses of residential burglary (theft) and arson are based on separate but related acts, each requiring proof of different elements. As sentences for both offenses were proper, we conclude that consideration of the damages resulting from the conduct comprising the offenses is likewise proper in determining the sentence appropriate to each offense-even though a portion of the damages may thus be considered toward the sentence in more than one offense. Section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5— 3.2) requires such consideration when more than one offense arises from a series of incidental or closely related acts which are not included offenses.

Defendant urges that the trial court used the damages caused by the arson as the sole aggravating factor for both offenses, thereby punishing him twice for the same offense, and he cites as comparable the “double enhancement” cases of People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, and People v. Meyer (1982), 110 Ill. App. 3d 673, 442 N.E.2d 957. We do not consider the double enhancement cases to be comparable to the case at bar. In Meyer, this court interpreted People v. Hobbs (1981), 86 Ill. 2d 242, 427 N.E.2d 558 (accord, People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627) as holding that a trial court could not use one prior conviction both to enhance a misdemeanor to a felony and to impose an extended term. Once a prior conviction has been used to turn a misdemeanor into a felony or impose an extended term, its usefulness for sentencing purposes is exhausted. Herein the defendant was sentenced for two separate but related offenses. The maximum extended term of 14 years was imposed on the arson conviction, a Class 2 felony, because of defendant’s two prior Class 2 felonies, consistent with section 5 — 8—2 of the Unified Code of Corrections. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2.) These prior felonies were used only once, to enhance the sentence for arson. No error.

Affirmed.

MILLER and WEBBER, JJ., concur.


text:
    FIRST STATE BANK OF ROUND LAKE, Plaintiff-Appellee, v. NORMAN BUSSE, Defendant-Appellant.
    First District (5th Division)
    No. 83—1832
    Opinion filed August 3, 1984.
    Rehearing denied August 29, 1984.

      John G. Sommesi, of Burfeind & Schlickman, Ltd., of Arlington Heights, for appellant.
    Charles W. Siragusa, of Crowley, Barrett & Karaba, of Chicago, for ap-pellee.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff, First State Bank of Round Lake .(the Bank), brought action on a promissory note executed by Busse Chevrolet, Inc. (the dealer), as principal, against defendant Norman Busse as guarantor thereon. On June 30, 1983, the court granted plaintiff’s motion for summary judgment for $31,832.54 based on the principal amount of $25,000. Thereafter, on July 8, 1983, the court awarded plaintiff $2,685 as attorney fees. Defendant appeals from the summary judgment and the order. We reverse and remand with directions.

This case arose out of various financing agreements between the Bank and Busse Chevrolet, Inc., an automobile dealer. As pertinent to this appeal, the dealer executed two notes in favor of the Bank. One was in the principal amount of $45,000 and was not guaranteed by any third party. The other note was in the principal amount of $25,000 and was personally guaranteed by defendant. The dealer apparently defaulted on both notes and the Bank set off against the amounts due under the notes funds which had been deposited in the dealer’s checking account with the Bank. The notes gave the Bank the right to set off funds which the dealer had deposited with it, and to apply the setoffs in any order.

The funds which the Bank used to set off the notes were allegedly the proceeds from the sale of cars which were subject to security interests of General Motors Acceptance Corporation (GMAC). On April 19, 1980, the Bank set off $45,000 against the $45,000 dealer’s un-guaranteed note and also set off $8,641.25 against the dealer’s $25,000 note, personally guaranteed by defendant. On April 21, 1980, the Bank set off an additional $11,678.10 against the $25,000 note, leaving a balance of $4,680.65.

On April 21, 1980, the dealer filed for bankruptcy. In that proceeding GMAC made a demand against the funds which the Bank had used to set off the amounts due under the notes. GMAC asserted that the funds were proceeds from the sale of automobiles to which it held perfected security interests and that GMAC was therefore entitled to the amount of the funds. In an “Agreed Order” signed by counsel for the Bank and GMAC, the bankruptcy court ordered that “First National Bank of Round Lake *** may retain $65,319.35 set off by the Bank against the balance in Busse Chevrolet, Inc.’s Account No. 1108110. *** The Bank is hereby authorized to pay, pursuant to the attached settlement agreement, to General Motors Acceptance Corporation the sum of $45,000 in settlement of its claim.”

Subsequently, the Bank reversed the credits against the $25,000 note personally guaranteed by defendant and purported to deduct from the setoff to the $45,000 note the $45,000 which it had paid to GMAC. The Bank then applied the $20,319.35 which had just been reversed from the setoff against the $25,000 note and applied that amount to the $45,000 note. The Bank then sued defendant for the full $25,000 which it claimed was then due under the $25,000 note. The trial court granted the Bank’s motion for summary judgment and in a subsequent order awarded the Bank attorney fees of $2,685. Defendant thereafter appealed.

Opinion

The Bank’s claim that it properly set off various deposits and reversed the credit previously applied to the $25,000 note is based on its assertion that the setoffs were inherently conditional on the finality of the Bank’s right to the amounts deposited. (See Baxter v. Continental Illinois National Bank & Trust Co. (1940), 304 Ill. App. 117, 125-26, 26 N.E.2d 179; see also Annot., 21 A.L.R. 704, 712-13 (1922).) The Bank’s right to set off is based on its contract with Busse Chevrolet, Inc., and was memorialized in the notes securing the loans. Each note allowed the Bank to apply any of the dealer’s deposits or other funds toward the payment of the liabilities represented by the notes. The contracts also gave the Bank the right to apply the setoffs in any order. We therefore conclude that the setoffs of April 19 and 21,1980, were proper.

The issue thus becomes whether the Bank’s subsequent deduction of $45,000 from the setoff to the note in that amount and the Bank’s reversal of the $20,319.35 credit against the $25,000 note were proper.

The Bank contends that it acted properly because it would have been required to surrender the full amounts of the setoffs because GMAC had a superior right to the funds as proceeds of the sale of items in which GMAC had security interests and, alternatively, because the setoffs would have constituted impermissible preferences. While these assertions may or may not be true, the record reflects that the Bank was in fact allowed to retain the full $65,319.35 which had been in the dealer’s checking account and that the $45,000 settlement with GMAC was derived from some other source. The Bank has not challenged the propriety of the bankruptcy court’s order and indeed has relied on it in support of its motion for summary judgment. Consequently, the Bank’s right to the funds in the checking account was established by the bankruptcy court’s order and accordingly there was no basis for reversing any of the credits.

We therefore hold that the obligations of defendant, as guarantor of the $25,000 note, were extinguished to the extent of the set-offs. (See Miller v. Montgomery (1863), 31 Ill. 350, 352; Du Quoin State Bank v. Daulby (1983), 115 Ill. App. 3d 183, 185, 450 N.E.2d 347; Mazur v. Stein (1942), 314 Ill. App. 529, 532, 41 N.E.2d 979.) Because the Bank’s right to the funds used to set off the balance due under the note was finally established by the bankruptcy court’s order, the setoffs were final insofar as the rights of defendant are concerned. Miller v. Montgomery (1863), 31 Ill. 350, 352; compare Baxter v. Continental Illinois National Bank & Trust Co. (1940), 304 Ill. App. 117, 26 N.E.2d 179.

The $45,000 settlement with GMAC may arguably have given the Bank certain rights of recovery against the dealer; however, defendant never contracted to undertake such an obligation. (Cf. Annot., 21 A.L.R. 704, 713 (1922).) We recognize that the Bank will be unable to collect anything from the bankrupt corporation, but such a situation does not form a proper basis for imposing liability on defendant.

Inasmuch as there is no dispute as to any material fact, but only as to the legal effect of the facts, summary judgment is appropriate. (See generally Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005(c); Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 272 N.E.2d 497.) We therefore reverse the order of the trial court and remand with directions to enter summary judgment for plaintiff for $4,680.65, which represents the undisputed principal balance due on the note, together with interest computed thereon as provided in the note.

The trial court’s order of July 8, 1983, awarded the Bank $2,685 as attorney fees based on a provision in the note by which defendant obligated to “pay all expenses of the Bank of collection of this Note, *** including reasonable attorneys’ fees and legal expenses ***.” Because we have held that the Bank did not have the right to collect on the note to the extent claimed, we reverse the order of attorney fees and remand for the determination of reasonable fees and expenses, limited and payable as to the balance of $4,680.65 and interest, admittedly not discharged by the setoffs. However, the Bank is only entitled to the reasonable fees and legal expenses incurred in recovery on the note itself, not in pursuing the entire litigation. Main Bank v. Baker (1980), 88 Ill. App. 3d 28, 35-36, 410 N.E.2d 681, aff'd in part, rev’d in part on other grounds (1981), 86 Ill. 2d 188, 427 N.E.2d 94.

Accordingly, the summary judgment entered June 30, 1983, and the order awarding attorney fees entered July 8, 1983, are reversed and the cause remanded with directions.

Reversed and remanded with directions.

LORENZ and SULLIVAN, JJ., concur.


author: JUSTICE WHITE

text:
    NORTH COMMUNITY BANK, a/k/a North Community State Bank, Plaintiff-Appellant, v. NORTHWEST NATIONAL BANK OF CHICAGO, Trustee, et al., Defendants-Appellees.
    First District (3rd Division)
    No. 83-1764
    Opinion filed August 8, 1984.

      Martin & Karcazes, Ltd., of Chicago (George D. Karcazes and Michael S. Holzman, of counsel), for appellant.
    Ruben, Kaplan & Rosen, of Skokie (Bernard M. Kaplan, of counsel), for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, North Community Bank, an Illinois banking corporation, appeals from an order of the circuit court of Cook County granting the motion of defendants, Wilton and Helen Tidwell, to dismiss plaintiff’s complaint to foreclose mortgage.

On October 20, 1978, defendants borrowed the sum of $116,000 from plaintiff in connection with the purchase of a condominium unit in Northbrook, Illinois. Defendants executed in favor of plaintiff an installment note in the amount borrowed and a trust deed to the condominium unit. The installment note and the trust deed each contained the following provision:

“The undersigned will not transfer, assign or in any way hy-pothecate or attempt to transfer, assign or hypothecate his right, title or interest in the property securing this Note, without first obtaining the written consent of the holder. Upon any transfer, assignment or hypothecation of undersigned’s right, title or interest to the property securing this Note, without the previous written consent of holder, the principal balance remaining at the time of such transfer, assignment or hypothecation shall immediately become due and payable. The acceptance of any payment after such transfer, assignment or hypothecation shall not be construed as a consent of the holder to such assignment, transfer or hypothecation nor shall it affect his right to proceed with such action as the holder shall deem necessary.”

On October 25, 1979, defendants created a land trust at the Northwest National Bank of Chicago (Northwest), identified as Land Trust No. 5618, by executing a trust agreement which named defendants as the beneficiaries with rights of survivorship. Defendants conveyed legal title to the condominium unit to Northwest as trustee under Trust No. 5618. That same day, defendants borrowed the sum of $100,000 from Northwest in order to purchase a second condominium unit. Defendants executed in favor of Northwest an installment note, and, as collateral for the note, a document which provided:

“[The Tidwells assign to Northwest] all of the interest of the assignor [the Tidwells] under the Trust Agreement (Trust No. 5618) and in the property described in the Trust Agreement and to any and all proceeds of the property or any part thereof, including without limitation all proceeds from rentals, mortgages, sales, conveyances or other dispositions or realizations of any kind of or from said property or any part thereof, including the right to manage, direct and control the property and the acts and doings of the Trustee in respect to such property.”

By letter dated June 5, 1982, plaintiff informed defendants that it had learned of the transfer of legal title to the Northbrook condominium unit to Northwest, and that such transfer was in violation of the due-on-sale provision of the installment note and the trust deed. Plaintiff further informed defendants that the principal balance of the note, $109,101.94, was due and payable. Defendants refused to pay the balance of the note, and on July 13, 1982, plaintiff commenced the present mortgage foreclosure action.

Plaintiff argues on appeal that due-on-sale provisions are enforceable in Illinois and operative upon transfer of real estate title into a land trust. In Damen Savings & Loan Association v. Heritage Standard Bank & Trust Co. (1982), 103 Ill. App. 3d 301, 431 N.E.2d 34, this court addressed the issue whether a due-on-sale clause is applicable to a conveyance from an individual mortgagor to a trustee under an Illinois land trust. The court first noted that under Baker v. Loves Park Savings & Loan Association (1975), 61 Ill. 2d 119, 333 N.E.2d 1, a mortgagee may enforce a due-on-sale clause upon the outright sale of the mortgaged properties. The court then held that a due-on-sale clause is also triggered by transfer of real estate title into a land trust. The court noted that a transfer of legal title into a trust leaves the lender defenseless against future actions by the borrower that could impair the lender’s interest in the security. The court concluded that since a transfer of beneficial interest in a land trust is not a conveyance of an interest in real property, and thus would not violate the due-on-transfer clause, if a mortgagor were able to transfer title to property to a trustee without triggering a due-on-transfer clause, the mortgagor would be able to effect a sale of the property by first transferring title to a trustee, then transferring the beneficial interest in the land trust to the trustee, or any other third party without the consent or even knowledge of the mortgagee. The mortgagor would thus do in two steps what the mortgagee under Baker has the right to prevent him from doing in one step. We agree with the reasoning and conclusion of the court in Damen. Accordingly, we hold that the due-on-sale provision of the installment note and trust deed were operative and enforceable upon transfer of legal title to the Northbrook condominium unit to Northwest as trustee under Trust No. 5618.

Defendants in turn argue that enforcement of the due-on-sale provision is barred by the federally enacted Garn-St. Germain Depository Institutions Act of 1982 (12 U.S.C. sec. 1701j — 3 (1982)). Defendants urge us to hold that Illinois is a window-period State as defined by the Act; that their financial arrangements with plaintiff involved a window-period loan; and that due-on-sale clauses are invalid when applied to window-period loans. The Garn-St. Germain Act preempts State restrictions on the enforcement of due-on-sale clauses. Subsection (b) of the Act provides in relevant part:

“(1) Notwithstanding any provision of the constitution or laws (including the judicial decisions) of any State to the contrary, a lender may, subject to subsection (c) of this section, enter into or enforce a contract containing a due-on-sale clause with respect to a real property loan.”

Subsection (b), however, is expressly inapplicable to loans made or assumed during a window period which is defined as the period beginning on the date State law prohibited the exercise of due-on-sale clauses and ending on the date of enactment of the Garn-St. Germain Act, October 15, 1982. (12 U.S.C. sec. 1701j — 3(c)(1) (1982).) Subsection (c) of the Act provides:

“(2)(B) A lender may not exercise its option pursuant to a due-on-sale clause in the case of a transfer of a real property loan which is subject to this subsection where the transfer occurred prior to October 15, 1982.” 12 U.S.C. sec. 1701j— 3(c)(2)(B) (1982).

Defendants here argue that plaintiff could not exercise its option pursuant to the due-on-sale clause because subsection (c)(2)(B) flatly prohibits the enforcement of due-on-sale clauses where the transfer occurred prior to October 15, 1982. Subsection (c) applies only to window-period States. We must therefore decide whether Illinois is a window-period State, and if so, what statute or judicial decision triggered the beginning of the period. In Baker v. Loves Park Savings & Loan Association (1975), 61 Ill. 2d 119, 333 N.E.2d 1, our supreme court addressed the issue whether a due-on-sale clause is valid and enforceable. The clause in question required the written permission or consent of the mortgagee before any sale, assignment or transfer of any right, title or interest in and to the property. The court noted that the restraint sought to be enforced was one imposed primarily for the protection of the security interest of the vendor. (61 Ill. 2d 119, 124.) The court opined that the reasonableness of this form of protection of the vendor is sufficient to overcome the considerations otherwise favoring unrestricted freedom of alienation. (61 Ill. 2d 119, 125-26.) Most importantly, the court rejected a case-by-case test of the reasonableness of the due-on-sale clause, finding that the valid and accepted purpose sought to be achieved by the restraint must determine the validity of the restraint and not the circumstances of each particular case. 61 Ill. 2d 119, 126.

We reject defendants’ contention that Baker constitutes a decision prohibiting the exercise of due-on-sale clauses. The court in Baker expressly permitted the enforcement of such clauses. Although the court gave as reason for enforcing due-on-sale clauses the protection of the security interest of the vendor, the court did not limit enforcement to instances where the lender’s security interest in the property collateralizing the loan was in fact impaired. (See Scappaticci v. Southwest Savings & Loan Association (1983), 135 Ariz. 456, 662 P.2d 131.) Moreover, we are aware that under Baker, courts may relieve a borrower from unconscionable or inequitable conduct of the lender. (Baker v. Loves Park Savings & Loan Association (1975), 61 Ill. 2d 119, 127.) However, we do not believe that these restrictions can be construed as prohibiting the exercise of due-on-sale clauses. They are not sufficient to qualify Illinois as a window-period State under the Garn-St. Germain Act.

Alternatively, defendants contend that the transfer to Northwest falls within one of the exceptions in the Garn-St. Germain Act to enforcement of due-on-sale clauses. We find it unnecessary to determine whether the transfer falls within the exceptions to the Act as we hold that the Act is inapplicable. The transfer at issue occurred in 1979. The Gam-St. Germain Act became effective October 15, 1982. It is well settled that a statute has only prospective effect unless Congress clearly manifests an intent for the statute to have retroactive effect. (United States v. Security Industrial Bank (1982), 459 U.S. 70, 79, 74 L. Ed. 2d 235, 243, 103 S. Ct. 407, 413.) Since the Act contains no such clear manifestation of intent, we conclude that the Act does not apply to those transfers which, as here, occurred before the effective date of the Act. Home Savings Bank v. Baer Properties, Ltd. (1983), 92 App. Div. 2d 98, 460 N.Y.S.2d 833.

For the aforementioned reasons we reverse the order of the trial court granting defendants’ motion to dismiss plaintiff’s complaint to foreclose mortgage. We remand the cause to the trial court to determine the validity of the equitable defenses raised by defendants. Baker v. Loves Park Savings & Loan Association (1975), 61 Ill. 2d 119, 127.

Reversed and remanded.

RIZZI, RJ., and McNAMARA, J., concur.