text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER AMFT, Defendant-Appellant.
    First District (1st Division)
    No. 81—735
    Opinion filed September 20, 1982.

      Julius Lucius Echeles and Caroline Jaffe, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Martin D. Reggi, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

After a bench trial, defendant Peter Amft was found guilty of delivery of more than 30 grams of a substance containing cocaine and of possession of the same with intent to deliver. He was sentenced to six years in the Illinois Department of Corrections on the conviction for delivery only. Defendant appeals.

On appeal, defendant contends (1) the trial court erred in denying his motion to dismiss the indictment; (2) the trial court erred in denying his motion to suppress oral and written statements made after his arrest; (3) he was not proved guilty beyond a reasonable doubt; and (4) cocaine is not a narcotic substance and his sentence is therefore improper.

We affirm.

Prior to trial, a hearing was held on defendant’s motion to dismiss the indictment and suppress oral and written statements. At the hearing on the motion to suppress, defendant testified that on August 7, 1979, at 11:30 p.m., he was apprehended in his apartment by Robert Johnson and other law enforcement agents. Johnson told defendant that if he cooperated, he would not be arrested. Defendant agreed to phone Donald Wilson and ask Wilson to deliver a large quantity of cocaine. When Wilson arrived at defendant’s apartment, Wilson was arrested. To defendant’s knowledge, Wilson possessed narcotics.

Thereafter, defendant was taken to a police station for questioning. He was left in the custody of agent Robert Cerceo, who advised defendant that he was under arrest. Defendant told Cerceo of the promises made by Johnson. Cerceo responded that Johnson had no authority to make promises of that nature. However, Cerceo promised defendant he would be released in the morning if he cooperated. Defendant then told Cerceo of people he knew from the past who were undoubtedly still actively involved in smuggling, buying, and selling drugs. Cerceo promised that charges against defendant and Wilson would be dropped if defendant gave Cerceo information on these people. Cerceo also agreed to arrange for defendant’s release on his own recognizance. Defendant was placed in a cell alone.

At approximately 3 a.m. on August 8, 1979, defendant was led to a room to speak with Johnson and Cerceo. Defendant explained his past association with Louis Azurduy, a Miami resident, and Antol Garcia, a Minneapolis resident. The agents stated charges against defendant and Wilson would be withdrawn if defendant assisted in an investigation leading to the arrest of Azurduy and Garcia for a “multi-kilo” drug sale. The agents advised defendant of his right to counsel, but advised defendant not to retain an attorney because the attorney would advise defendant not to cooperate with the agents.

On the afternoon of August 8, defendant appeared in court for a bond hearing. He was not represented by counsel. The assistant State’s Attorney requested that defendant be released on an “I” bond of $25,000. After the hearing, Johnson, Cerceo and defendant discussed getting Azurduy and Garcia to Chicago with large quantities of cocaine which defendant would buy with money supplied by the agents. The agents would pose as defendant’s partners.

Thereafter, defendant arranged to meet Azurduy in Chicago. Defendant also traveled to Miami to meet Azurduy. All transportation charges for both Azurduy and defendant were paid by the agents. All phone calls and conversations were monitored by the agents with defendant’s permission.

Defendant further testified that he appeared in court three or four times between September and November, 1979. Each time, an agent was present and requested a continuance. In November, he spoke with Agent Popadowski, who told defendant he had been indicted. Defendant was notified by letter to appear for arraignment on January 10,1980. Defendant retained an attorney in January 1980.

Defendant identified a form which he signed at the police station at 2:45 a.m. on August 8, 1979. The document advised defendant of his rights, including the right to counsel and stated that defendant waived these rights. Defendant also wrote a statement at 1:10 p.m. on August 8. In this statement, defendant described conversations he had with Lowell Murray regarding the sale of cocaine and admitted delivering cocaine to Murray on August 7, 1979. Defendant also stated that he had been advised of his rights and that the statement was made voluntarily. A supplementary statement was written by defendant on August 8 at 3:30 p.m. Again, defendant acknowledged each constitutional right and stated that no threats, promises, or coercion were used to force him to prepare the statement. Defendant testified that the agents told him to ignore these rights. Defendant also admitted reading and signing another document which stated, in part, that no agent could make promises or predictions to informants regarding the disposition of a case. Defendant testified that the agents told him this was a form the agents were forced to complete if defendant was to cooperate with them.

Agent Robert Johnson, called during the pretrial hearing as a witness by the State, testified that he read defendant his rights after he entered defendant’s apartment. He arrested defendant and advised him that he was being charged with delivery of 500 grams of cocaine to Lowell Murray. Johnson never promised to drop this charge against defendant. He only advised defendant that if Don Wilson delivered more cocaine to defendant, defendant would not be charged with any crime pertaining to that specific delivery. Defendant was again advised of his rights at the police station. Defendant read the form and signed it. On the afternoon of August 8, defendant made a written statement after being advised of his rights. Johnson advised the assistant State’s Attorney of defendant’s cooperation in obtaining 1500 grams of cocaine from Lowell Murray. At the bond hearing, defendant asked for an “I” bond and the assistant State’s Attorney did not object. Johnson denied offering defendant immunity or advising defendant against retaining an attorney.

Agent Cerceo testified that after defendant was brought to the police station, he gave defendant an advisement of rights form. Defendant read the form, stated he understood his rights, and signed the form. Defendant said he wanted to cooperate. Cerceo made no promises to defendant regarding prosecution of the offense, but only advised defendant that he would bring defendant’s cooperation to the attention of the assistant State’s Attorney for his consideration. Defendant provided two written statements. Cerceo witnessed defendant sign the form registering him as a cooperator with the department.

A hearing was also held on defendant’s motion to suppress statements given after his arrest. Defendant adopted his testimony given at the aforementioned hearing. On brief direct and cross-examination, facts similar to those introduced at the prior hearing were adduced. Agents Johnson and Cerceo also testified during this hearing. Their testimony was also similar to that given at the prior hearing. In ruling on this motion to suppress, the trial court considered their prior testimony.

At trial, Tom Rogers, a regional Department of Public Safety narcotics agent, testified that on the afternoon of August 7, 1979, he flew from Phoenix, Arizona, to Chicago with Lowell Murray and Agent Randy Oden. When they arrived in Chicago, he and Oden went to Room 569 at the O’Hare Sheraton Hotel, where they met three other narcotics agents. Murray left the agents at the airport and arrived at the hotel at 10:30 p.m. Murray was carrying a brown camera case. He did not have the case on the airplane. Murray removed from the case a brown bag containing a mason jar. The jar was filled with white powder. A field test indicated the powder contained cocaine. Rogers phoned Agent John Popadowski who brought approximately $30,000 to Murray. Popadowski gave Murray the money and Murray was arrested. Agent Oden testified to substantially similar facts.

Agent Popadowski identified the camera case, the brown bag and the mason jar. He testified that on August 7, 1979, he met Murray in Room 569 of the O’Hare Sheraton Hotel. He tested the substance in the mason jar. The substance reacted positively for cocaine. Popadowski gave Murray $33,000. Thereafter Murray was arrested.

Robert Johnson testified that on August 7, 1979, he was assigned to a surveillance detail and attended a meeting with other agents on this evening. He was told that agents had arranged for the purchase of two kilograms of cocaine. Lowell Murray was to pick it up, return to a hotel room, and sell the cocaine to the agents. Johnson also received a description of Murray and the agents with whom he was traveling.

Johnson went to the airport and followed Murray and the agents from the gate to the baggage area. Murray, carrying only a cane, left the baggage area alone and entered a cab. Johnson followed the cab. When Murray left the cab, Johnson parked his car and followed Murray on foot. Murray stopped at 1523 North Dearborn where a man whom Johnson identified as defendant came onto the porch and sat with Murray. Later, Johnson followed a cab to the O’Hare Sheraton and saw Murray exit the cab carrying a brown camera case. He was notified by police radio that Murray had been arrested in the hotel for delivery of 500 grams of cocaine and that the cocaine had been carried in a jar in a camera case.

At approximately 12:40 a.m. on August 8, 1979, Johnson returned to 1523 North Dearborn. Another agent rang the doorbell and defendant came to the door. Johnson identified himself as a narcotics agent and asked to speak to defendant. Defendant invited Johnson into his apartment. When Johnson was in the apartment, he read defendant his rights. The remainder of Johnson’s testimony was similar to that adduced during the hearing on the motion to dismiss.

Defendant presented the testimony of Donald Wilson. Wilson corroborated defendant’s testimony as to defendant’s call to Wilson about delivering more cocaine. Wilson also testified that the charges against him were dismissed on motion of the State because of defendant’s cooperation.

After trial, additional evidence was introduced on defendant’s second motion to quash the arrest and suppress statements. Defendant’s motion alleged that the arrest was not based on probable cause and that the statements were the fruits of an illegal arrest. Defendant testified that he lived in the apartment with his girlfriend. His name did not appear on the mailbox or doorbell. He answered the door when he heard banging. He opened the door and several men entered the hallway.

The trial court denied defendant’s motion to quash the arrest and suppress statements. Defendant was found guilty of delivery of more than 30 grams of a substance containing cocaine and of possession of this amount with intent to deliver. He was sentenced to the minimum term of six years for delivery.

First, defendant contends that the promises not to prosecute made by the agents resulted in a denial of his right to counsel. He alternatively argues that for this reason the indictment should have been dismissed or that the oral and written statements made after his arrest should have been suppressed.

The dismissal of an indictment is generally not the remedy for infringement of the right to counsel since the accused’s rights must be balanced with society’s interest in the administration of criminal justice. (United States v. Morrison (1981), 449 U.S. 361, 66 L. Ed. 2d 564, 101 S. Ct. 665.) Normally the remedy is to suppress evidence obtained in violation of the right or to order a new trial if evidence is wrongfully admitted. (Morrison, citing Gilbert v. California (1967), 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951; United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926; and Massiah v. United States (1964), 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199.) Therefore, we find no error in the denial of defendant’s motion to dismiss the indictment.

We now turn to the question of whether defendant’s oral and written statements should have been suppressed. Defendant maintains that the incriminating statements were made in reliance on the agents’ promises not to prosecute if defendant cooperated in other drug investigations and that the agents’ promises induced him to forego representation by counsel. He cites the three-month delay between his arrest and indictment to support his contention that promises were made to him.

Defendant’s statements were made in the course of custodial interrogation and therefore the right to counsel had attached. (Escobedo v. Illinois (1964), 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758.) Statements made by a suspect during custodial interrogation are admissible only if the suspect voluntarily waived his Miranda rights prior to making the statements. (People v. Krueger (1980), 82 Ill. 2d 305, 412 N.E.2d 537, cert denied (1981), 451 U.S. 1019, 69 L. Ed. 2d 390, 101 S. Ct. 3008.) If defendant is adequately advised of his rights yet fails to request counsel, no right is violated. (People v. Redmond (1980), 85 Ill. App. 3d 599, 407 N.E.2d 132.) Whether there has been a waiver of rights is a matter to be determined by the trial court whose decision will not be reversed absent an abuse of discretion. People v. Burbank (1972), 53 Ill. 2d 261, 291 N.E.2d 161.

The record contains considerable evidence that defendant was adequately advised of his rights on a number of occasions. The agents testified that defendant was read his rights at his residence at the time of his arrest and at the police station. Each time defendant acknowledged and stated he understood his rights. Also, defendant identified the waiver of rights form signed by him and the handwritten statements wherein he acknowledged his rights. Absent from the record is any evidence that defendant asked to confer with counsel at any stage of the interrogation. From these facts, we find that defendant voluntarily waived his right to counsel.

Additionally, we cannot say with much certainty that the waiver was induced by alleged promises made by the agents. Undeniably, the evidence in this case conflicts on this point. In such circumstances, it is the duty of the trial court to assess the credibility of the witnesses.

There is sufficient evidence in the record supporting the conclusion that no promises were made by the agents. Not only did agents Johnson and Cerceo deny this fact, but defendant signed a document advising him that the agents had no authority to make predictions regarding the outcome of a case. We add that the delay between defendant’s arrest and indictment does not, in this case, indicate that promises were made. In narcotics cases, a certain amount of preindictment delay is reasonable and sometimes necessary to effectively investigate and break the chain of narcotics distribution. (People v. Allen (1967), 38 Ill. 2d 26, 230 N.E.2d 170.) In conclusion, we find that the trial court did not err in denying defendant’s motion to suppress.

Second, defendant contends his fourth amendment rights were violated when the agents arrested him without probable cause, had no warrant, and forcibly entered his home.

Probable cause to arrest exists if a reasonable and prudent person in possession of knowledge which the arresting officer has would believe that the person arrested had committed a crime. (People v. Walls (1980), 87 Ill. App. 3d 256, 408 N.E.2d 1056.) Whether probable cause exists depend on the totality of facts and circumstances known to the officers when the arrest is made. (Walls, citing People v. Robinson (1976), 62 Ill. 2d 273, 342 N.E.2d 356, and People v. Clay (1973), 55 Ill. 2d 501, 304 N.E.2d 280.) The trial court’s finding regarding probable cause will not be disturbed unless manifestly erroneous. People v. Thompson (1981), 93 Ill. App. 3d 995, 418 N.E.2d 112.

Our review of the record indicates that the agents had probable cause to arrest defendant. Murray had been under surveillance from the time he left the airport until he arrived at defendant’s residence. Murray was carrying only a cane, but when he returned to the hotel, he carried a camera case. The arresting agents learned that the case contained a jar of cocaine. The reasonable conclusion was that defendant delivered the cocaine to Murray. Thus, probable cause was established.

Furthermore, the entry into defendant’s residence was consensual. Agent Johnson testified that defendant voluntarily admitted the agents into the building and offered to speak to the agents in his apartment. Because defendant’s arrest was based on probable cause and the agents’ entry was consensual, defendant’s rights were not violated and the trial court did not err in denying the motion to suppress.

Third, defendant contends he was not proved guilty of possession or delivery of a controlled substance beyond a reasonable doubt. We have reviewed the record thoroughly and find that the evidence, including defendant’s admissions in his written statements, that he delivered 500 grams of cocaine to Lowell Murray, supports the trial court’s findings of guilt.

Fourth, defendant contends that cocaine is not a narcotic drug and that, therefore, the sentence imposed under section 401(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56½, par. 1401(a)(2)) may not constitutionally stand. However, in People v. McCarty (1981), 86 Ill. 2d 247, 427 N.E.2d 147, the Supreme Court held that cocaine may be classified as a Schedule II narcotic drug for penalty purposes even though it is not botanicaily, medically, or pharmacologically defined as such. The court found that the classification scheme served a legitimate legislative purpose of penalizing delivery of substances according to their potential for abuse and harm to society. We, therefore, find no error in sentencing.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

GOLDBERG and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE JOHNSON

license: Public Domain

text:
    ETHEL E. YAW, Plaintiff-Appellee, v. LESTER BEEGHLY et al., Defendants-Appellants.—(Lester Beeghly et al., Plaintiffs-Appellants, v. Stuart W. Kaiserman, Defendant-Appellee.)
    First District (4th Division)
    No. 81—1963
    Opinion filed September 30, 1982.

      Vincent C. Lopez, of Chicago (Richard P. Glasser, of counsel), for appellants.
    Camillo F. Volini, of Chicago (J. Colleen Lyman and John W. Spoeri, of counsel), for appellees.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Lester Beeghly and Martha Beeghly (hereinafter appellants) appeal from three orders of the Circuit Court of Cook County, Chancery Division: (1) an order approving the final report of the court-appointed receiver granting the receiver fees of $8,597.50 and discharging the receiver from further duties; (2) an order denying appellants’ motion to vacate an earlier order discharging the receiver and granting the receiver’s motion to dismiss appellants’ complaint at law; and (3) an order denying appellants’ motion for a change of venue and motion to vacate the order of April 8, 1981, which dismissed a negligence suit against the receiver.

The original cause of action has been settled by agreement of the parties. The trial court held hearings on several related issues and entered several orders. It is from three of those orders that this appeal is taken.

The following issues are presented on review: (1) whether appellants’ action at law was properly consolidated with the chancery action by order of the trial court, and assuming it was not, whether this court has appellate jurisdiction to review the trial court’s order since it was not raised by appellants in their notice of appeal; (2) whether appellants’ motion for change of venue was timely filed; (3) whether the trial court abused its discretion in dismissing ex parte appellants’ action in negligence; and (4) whether discharge of the receiver bars subsequent tort claims against him.

We affirm.

In June 1961, Ethel Yaw, plaintiff in the chancery action, and appellants entered into an installment contract for the sale of an apartment building owned by Yaw for $210,000. Under the terms of the contract, appellants were to pay for the building in monthly installments of $1,620 each beginning August 1, 1961, until December 15, 1970, at which time either of the parties could secure a mortgage for the balance due to Yaw. If no mortgage could be secured, then appellants were to continue the monthly payments. The agreement also provided that appellants were to live on the premises rent free from August 1961 to December 1970. A later agreement provided that appellant Lester Beeghly would be paid a salary in return for performing janitorial services for the building. Yaw lived in the building from 1961 until 1967.

Sometime in 1967, Yaw executed a power of attorney, naming Milton Chamberlain her attorney in fact. From that point on, Chamberlain administered all of Yaw’s business affairs, including institution of this lawsuit. On March 8, 1978, Chamberlain, on behalf of Yaw, filed an action in the Chancery Division of the Circuit Court of Cook County seeking rescission and cancellation of the 1961 sales contract quieting title to the property, and seeking forcible entry and detainer. The complaint charged that appellants failed to make proper payments under the contract during 1977.

On April 13, 1978, Yaw filed a motion for summary judgment and other injunctive relief. Appellants did not respond and, on May 26, 1978, Yaw’s motion for a default judgment was granted.

On June 26, 1978, appellants filed a motion to vacate the default judgment and a motion to strike portions of the complaint. On August 16, 1978, Yaw filed a motion for summary judgment. Chamberlain, the attorney in fact, filed an affidavit stating that Yaw was confined to a nursing home and dependent on the income from the property. On October 5, 1978, appellants filed an affirmative defense and counterclaim seeking partition or sale of the property and attorney fees. On October 27, 1978, the trial court heard Yaw’s motion to appoint a receiver which it granted on November 15, 1978. On November 30, 1978, appellants filed their first motion for change of venue, which was denied. On January 19, 1979, the court ordered appellants to present themselves for depositions by Yaw’s attorney, but they did not appear. On March 6, 1979, appellants filed their second motion for change of venue, which was denied. On that same day, the trial court continued the case after being informed that Yaw had died on February 16, 1979. On March 6, 1979, appellants also made a motion for a jury trial.

On March 7, 1979, Chamberlain, the executor of Yaw’s estate, was substituted as plaintiff in the then pending cause. The court granted Yaw’s motion to strike appellants’ jury demand. The case was continued throughout the remaining months of 1979. On May 28, 1980, the court granted the parties’ motion for dismissal of the cause by agreement and a motion for approval of the receiver’s final report. On June 30, 1980, appellants filed an action at law against the receiver charging negligence in his handling of the property. Appellants also filed a motion to vacate the court’s order of May 28, 1980. These motions were continued throughout the remainder of 1980.

On March 4, 1981, a trial judge of the law division granted the receiver’s motion to consolidate the law action with the chancery action. All pending matters were set for hearing on April 8, 1981. On that date, neither appellants nor their attorney appeared. The court proceeded with the hearing and entered an order denying appellants’ motion to vacate the order of May 28, 1980, and dismissing their negligence complaint.

On May 8, 1981, appellants filed a motion to vacate the order of April 8, 1981. On June 24, 1981, the court denied that motion to vacate. On July 23, 1981, appellants filed notice of appeal of the following orders: (1) order of May 28, 1980, which approved the receiver’s final report, granted receiver a fee of $8,597.50, and discharged receiver; (2) order of April 8, 1981, denying appellants’ motion to vacate the order of May 28, 1980, and granting receiver’s motion to dismiss appellants’ complaint in negligence; and (3) the order of June 24, 1981, denying appellants’ motion to vacate the order of April 8, 1981, and denying appellants’ motion seeking a change of venue.

Appellants contend the consolidation of the law and equity actions was improper since the chancery action was dismissed on May 28, 1980, and the consolidation order was issued on March 4, 1981. At issue in the instant case is whether this court has jurisdiction even if consolidation was proper.

After the law and chancery actions were consolidated on March 4, 1981, appellants did not object. Neither did they object in their notice of appeal filed July 23, 1981. The issue was first raised in appellants’ brief. An appellate court has jurisdiction of only those matters raised in the notice of appeal. (Wells v. Kern (1975), 25 Ill. App. 3d 93, 322 N.E.2d 496.) Since the propriety of the consolidation order was not raised in the notice of appeal, we hold that this court lacks jurisdiction to consider whether that order was improper. Wells v. Kern (1975), 25 Ill. App. 3d 93, 99.

Appellants next contend they were entitled to change of venue as of right and that the trial court erred in denying their motions. Appellants moved for a change of venue on November 30, 1978, and March 6, 1979.

The right to a change of venue on account of prejudice of the trial judge is absolute where the motion is timely filed. (Lebovitz v. Cahill (1979), 69 Ill. App. 3d 614, 617, 387 N.E.2d 943, 945.) A petition for a change of venue must be made at the earliest practicable moment. Once the judge has ruled on any substantial issue, the right to a change is no longer absolute but is a matter of discretion. Lebovitz v. Cahill (1979), 69 Ill. App. 3d 614, 617-18.

Appellants argue that their motions were timely filed and that no substantial issue had been ruled on by the court. We disagree. Prior to appellants’ first motion, the trial court ruled on motions for summary judgment and appointed a receiver for the property. These are substantial issues.

However, if after the trial judge has ruled on a substantial issue, a party has legitimate reason to believe the judge is prejudiced, he may yet petition for change of venue. He must set forth in his petition the specific allegations to support his charge of prejudice and the petition will be granted only in the sound discretion of the court. (Lebovitz v. Cahill (1979), 69 Ill. App. 3d 614, 618, 387 N.E.2d 943, 945.) Neither of the petitions for change of venue stated any specific allegations of prejudice. Instead, appellants stated in a general way that they would not receive an impartial trial. We hold that under these facts the appellants did not meet the criteria for mandatory nor discretionary change of venue. Therefore, the trial judge did not abuse his discretion in denying appellants’ motions for change of venue.

Appellants’ next contention is that the trial court abused its discretion in proceeding ex parte and dismissing the negligence action against the receiver. Appellants argue that a continuance should have been granted because their counsel was before another court at the time. At the hearing, the opposing counsel told the trial judge that he had learned through a telephone call to his secretary that appellants’ counsel was “at 26th Street and would send someone over to request a continuance.” The opposing counsel also stated: “I am not requesting a continuance for myself.” No one appeared on behalf of appellants or their counsel to request a continuance.

No duty is imposed upon a trial court to continue a case when no request for continuance has been made. The trial court has broad discretion in granting a continuance. (Thihnan & Co. v. Esposito (1980), 87 Ill. App. 3d 289, 293, 408 N.E.2d 1014, 1018.) Absence of counsel is just one factor to be considered in granting a continuance. A more important factor is whether the party seeking a continuance had acted with diligence. (Thilman & Co. v. Esposito (1980), 87 Ill. App. 3d 289, 294.) The very fact that no one appeared to seek a continuance can be construed as lack of diligence. We hold, therefore, that the trial judge did not abuse his discretion by proceeding ex parte.

Appellants’ final contention is that discharge of the receiver and acceptance of his final report does not bar a subsequent negligence action against him. We disagree. Appellants’ negligence suit was dismissed on April 8, 1981. They moved to vacate on May 8, 1981. On June 24, 1981, the trial court denied the motion and on July 23, 1981, appellants filed their notice of appeal.

At the hearing to approve the receiver’s final report and fees, all parties were present and, thus, had an opportunity to argue before the court entered its order.

The doctrine of res judicata acts as a bar to a second adjudication where there exists identity of parties, subject matter and cause of action, if there was a former adjudication on the merits by a court of competent jurisdiction. (Bass v. Scott (1979), 79 Ill. App. 3d 224, 225, 398 N.E.2d 236, 238.) The doctrine extends not only to questions actually litigated in former adjudicaton but also to matters which could have been decided in that suit. Bass v. Scott (1979), 79 Ill. App. 3d 224, 225.

Although a new suit in negligence was brought against the receiver, it was clearly based on his conduct in executing his duties as receiver. At the hearing to approve the receiver’s final report, appellants objected generally to approval of the receiver’s report but did not develop the basis for their objection, nor did they appeal the trial court’s order on that basis once it was entered. To allow appellants to avoid the doctrine of res judicata simply by bringing a new suit would undermine its very purpose. We hold, therefore, that the doctrine of res judicata bars appellants from bringing a negligence suit against the receiver.

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

Affirmed.

LINN and ROMITT, JJ., concur.


author: JUSTICE WILSON

text:
    CHARLES HUGHEY, Plaintiff-Appellant, v. HOFFMAN ROSNER CORPORATION et al., Defendants-Appellees.
    First District (5th Division)
    No. 81—2417
    Opinion filed September 29, 1982.

      Cooney and Stenn, of Chicago (Kevin J. Conway, of counsel), for appellant.
    French, Rogers, Kezelis & Kominiarek, P. C., of Chicago (Algimantas Kezelis and Lew J. Campione, of counsel), for appellees.
   JUSTICE WILSON

delivered the opinion of the court:

Plaintiff, Charles Hughey, appeals from the trial court’s order granting defendant’s motion to dismiss. On appeal, plaintiff contends that: (1) The Hoffman Group, Inc. (Hoffman), is a distinct and separate corporate entity from the Western Construction Company (Western); (2) Western Construction Company and not Hoffman should be considered plaintiff’s employer as a matter of law; and (3) since Western is a subsidiary of The Hoffman Group, Inc., it is not immune by virtue of the Workmen’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a)) to an action for damages sustained in the course of plaintiff’s employment. We affirm the trial court’s decision.

The Hoffman Group, Inc., is a holding company and general contractor engaged in the business of developing, building and selling residential properties. It has a number of subsidiaries that do development work.

Western Construction Company, Inc., handles carpentry and concrete projects. Incorporated in January 1977, it was a wholly owned subsidiary of Hoffman Enterprises. Hoffman Enterprises is a wholly owned holding company of The Hoffman Group, Inc.

In June 1977, The Hoffman Group, Inc., merged Western and TriCo Builders Supply Company, another wholly owned subsidiary, into itself. All of Western’s and Tri-Co Builders’ stock was retired and cancelled to form a new corporation bearing the same name as the old one, Western Construction Company. Except for its president, the divisional officials of Western were elected to hold the same respective offices in the new corporation. All of the shares of the new corporation were owned by The Hoffman Group, Inc.

Plaintiff was hired as a carpenter by Western Construction Company prior to its merger in 1977. He was injured on October 10, 1978, while working on a scaffold. He subsequently filed a claim under the Workmen’s Compensation Act as well as a cause of action for his injury in the circuit court of Cook County against The Hoffman Group. Although plaintiff received a lump sum settlement from the Workmen’s Compensation Board, his action in the circuit court was dismissed.

In reaching its decision, the trial court stated that plaintiff had failed to present any counteraffidavits to rebut defendant’s evidence that (1) at the time of plaintiff’s injury, Western was no longer a subsidiary but had been merged to become a wholly owned division of The Hoffman Group, Inc., (2) that the sole purpose of the newly formed corporation was to protect the name of Western in Illinois, (3) that by virtue of the merger, The Hoffman Group and not Western was plaintiff’s employer, and (4) plaintiff’s cause of action against Hoffman was therefore barred by the workmen’s compensation statute.

Plaintiff filed a motion for rehearing, which was granted. Upon rehearing, the trial court affirmed its earlier decision and denied plaintiff’s motion to vacate the order of dismissal. Plaintiff appealed.

Opinion

Plaintiff’s main argument is that The Hoffman Group is a distinct and separate corporation from Western Construction Company and that it should not be considered plaintiff’s employer as a matter of law. This factual determination rests with the trial court since it is well established in Illinois that section 5(a) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a)) serves as a bar to all other remedies of an employee against his employer (Walker v. Berkshire Foods, Inc. (1976), 41 Ill. App. 3d 595, 354 N.E.2d 626). We believe that the trial court correctly reached its decision that at the time of the injury Hoffman and Western were not separate corporate entities and that plaintiff is therefore barred by the workmen’s compensation statute from bringing this cause of action.

There is ample evidence in the record to support the trial court’s decision. A significant fact is that the merger changing Western’s status from a subsidiary to a division occurred the year prior to plaintiff’s injury, not during the aftermath of his workmen’s compensation or circuit court claim for damages. The reason for the merger, aside from “protecting the name of Western Construction Company in Illinois,” is not clear in the record, but, nonetheless, defendant’s argument that the merger produced a new division was uncontradicted by counter affidavits. Also, as the court pointed out upon rehearing, plaintiff did not present any persuasive information concerning the relationship between Hoffman and Western.

Except for its president, Western has the same officers as The Hoffman Group. Hoffman’s treasurer, James K. Baumann, testified in a deposition that Western’s payroll checks are issued with The Hoffman Group’s name printed on them. These payroll funds are drawn under The Hoffman Group account. In addition, financial returns for Western were not filed separately after the merger with The Hoffman Group, Inc. The trial court properly relied on these unchallenged facts in reaching its decision to dismiss plaintiff’s cause of action.

Plaintiff next contends that defendant should not be allowed to pierce its own corporate veil in order to disregard the separate entities of Western and Hoffman.

Defendants have uniformly been denied the opportunity to pierce their own corporate veil in order to avoid liability (see Thomas v. Hycon, Inc. (D.D.C. 1965), 244 F. Supp. 151). Moreover, the equitable doctrine of piercing the corporate veil has been used in Illinois as a remedy in instances where the facts establish that the existence of separate corporations is a mere fiction and the observance of this fiction would, in effect, sanction a fraud (Edwards v. Chicago & Northwestern Ry. Co. (1967), 79 Ill. App. 2d 48, 233 N.E.2d 163). An allegation of fraud was not made in the instant case, however. Plaintiff merely states that nonrecognition of Hoffman and Western as separate entities would present an obstacle to his cause of action. This statement, without more, is unpersuasive. Plaintiff failed to show how or in what way Hoffman, the principal corporation, treated Western as a separate, albeit wholly owned entity. See C M Corp. v. Oberer Development Co. (7th Cir. 1980), 631 F.2d 536, 538, wherein the court of appeals held that there must be proof of the prerequisites to piercing the corporate veil in order for the doctrine to be invoked.

In the absence of proof that Western retained its corporate status as a separate entity from The Hoffman Group after its merger on June 10,1977, we must affirm the trial court’s decision.

Plaintiff relies on cases which hold that employees of a subsidiary corporation may sue a parent corporation despite the existence of a workmen’s compensation statute. This reliance is inappropriate because they are distinguishable from the present case.

In Thomas v. Hycon, Inc. (D.D.C. 1965), 244 F. Supp. 151, the defendant was a wholly owned subsidiary with business interests different and distinct from the parent company. The two entities maintained separate accounts, did not share profits and losses and had no joint proprietary interest or right of mutual control over the subject matter of the enterprise. These facts are inapplicable to the case at bar. James K. Baumann, treasurer of The Hoffman Group, Inc., stated in a discovery deposition that Western’s payroll is drawn from the Hoffman account and that a consequence of the merger was that Hoffman assumed Western’s financial liabilities. He further testified that The Hoffman Group filed one Federal income tax return, one State income tax return and one unemployment and social security return for itself and Western. Baumann’s testimony strengthens defendant’s argument that Western is a wholly owned division and not a subsidiary, as it once was.

In Index Drilling Co. v. Williams (1962), 242 Miss. 775, 137 So. 2d 525, a case also cited by plaintiff, the court held that an employee of one of five wholly owned, separate corporations could bring an action for injuries against the parent. The Mississippi Supreme Court upheld a lower court’s decision that the parent conducted its business through separate corporations and not, as Index Drilling argued, as five departments or divisions. (242 Miss. 775, 785, 137 So. 2d 525, 528.) A decisive factor in the court’s opinion which was addressed at length was that the injured employee had never been hired by and had always worked for only one of the five corporations. The court said that since the employee had not been expressly or impliedly “loaned” as a worker to the parent corporation, he retained his status as an employee of one of the corporation’s subsidiaries. (242 Miss. 775, 788, 137 So. 2d 525, 529-30.) The court held that the employee could bring his cause of action against the parent corporation despite his workmen’s compensation lump sum settlement.

In the case at bar, however, plaintiff’s focus is on the relationship between two corporations, Western and Hoffman, and not, as in Index Drilling Co., on the “lent servant doctrine” which addresses the employment status of an employee. Index Drilling is therefore unpersuasive on the issue of Western’s relationship to The Hoffman Group.

Plaintiff cites additional cases, including Phillips v. Stowe Mills, Inc. (1969), 5 N.C. App. 150, 167 S.E.2d 817. The court held in Phillips that the plaintiff’s employer was a wholly owned subsidiary and not immune by virtue of the workmen’s compensation statute from a common-law action. In Phillips, however, the subsidiary and parent were separate entities for all tax and accounting purposes, each charged the other for services actually rendered, and on the day of the injury the employee was performing work under the supervision and control of her employer. The distinctions between corporate entities in Phillips are not present in the facts of the instant case. There is no evidence that Hoffman or Western charged the other for jobs that were performed; the unitary accounting and tax reporting methods Hoffman used were verified by its treasurer and remained uncontested. Again, we are unpersuaded by Phillips as well as plaintiffs remaining cases.

We recognize the general rule that holding companies and subsidiaries are separate legal entities. (Divco-Wayne Sales Financial Corp. v. Martin Vehicle Sales (1963), 45 Ill. App. 2d 192, 195 N.E.2d 287.) Before this rule can be applied to the case at bar, however, there must be evidence to support the allegation that a parent-subsidiary relationship exists. Such evidence is absent here.

Further, the record does not show whether plaintiff raised a question in the hearing before the Industrial Commission as to whether Hoffman or Western was responsible for payment of the award for his injury, although the record does disclose that plaintiff told the trial court that defendant’s attorneys had prepared the workmen’s compensation claim form. Apparently, nothing more was said about Hoffman’s name remaining on this form. We can only assume that plaintiff acquiesced to Hoffman’s acceptance of liability. Failure to address this point by counter affidavit weakens plaintiff’s argument that Hoffman and Western are distinctly separate corporate entities.

Additionally, the trial court found nothing to rebut the affidavits of Karen Meehan or Hoffman treasurer, James K. Baumann. Both affidavits state that Western was incorporated solely to protect its name in Illinois.

Upon rehearing, the court’s primary concern was whether plaintiff had any new evidence. Plaintiff presented excerpts of James K. Baumann’s earlier deposition and his affidavit and again relied on Karen Meehan’s affidavit. Defendant argued, as before, that Western was a division and not a subsidiary of The Hoffman Group, Inc., that it functions solely as a name-holder corporation and that Hoffman and Western are one and the same legal entity for the purposes of the workmen’s compensation statute. The trial court held that defendant’s evidence remained essentially uncontradicted and denied plaintiff’s motion to vacate the order of dismissal.

Accordingly, we hold that the trial court did not err in dismissing the complaint against The Hoffman Group, Inc., as barred by section 5(a) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138 — 5(a)).

The order of dismissal entered by the circuit court of Cook County is affirmed.

Affirmed.

LORENZ and MEJDA, JJ., concur.


author: PRESIDING JUSTICE SULLIVAN

text:
    NATIONAL PRIDE EQUIPMENT, INC., Plaintiff-Appellee, v. THE VILLAGE OF NILES, Defendant-Appellant.
    First District (5th Division)
    No. 81—2484
    Opinion filed September 29, 1982.

      Sneider and Troy, of Chicago (Richard J. Troy and Randy G. Black, of counsel), for appellant.
    Jack Guthman, Gerald L. Angst, and Sara J. Gourley, all of Sidley & Austin, of Chicago, for appellee.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant appeals from an order in a declaratory judgment action granting plaintiff’s request for a special use permit to construct and operate a self-service car wash and declaring the zoning ordinance of defendant unconstitutional as applied to plaintiff’s property.

It appears that plaintiff applied for a special use in a B-l (retail business) zoning district for the purpose of constructing and operating a self-service car wash. The property involved has a frontage of 250 feet on Dempster Avenue and a depth of approximately 130 feet. To the immediate east of the property is a Ponderosa restaurant and adjoining thereto is a small shopping center; to the west of the site is a one-story brick building used as a construction office, next to which are an appliance store and a medical clinic; adjacent to the south are several three-flat apartment buildings; across Dempster to the northeast is a commercial center, and to the northwest is an area of single-family residences. Plaintiff’s plan called for a one-story, self-service car wash facility with 14 washing bays and space for three cars in a “stack” or waiting position behind each bay. The 26-foot-long building was to be located approximately 62 feet from the north lot line on Dempster and 42 feet from the south lot line. Outdoor vacuum equipment was to be provided in the stacking area and, directly south of the facility, a driveway exit from the bays and angle parking for a drying area. The plans also called for a 5-foot-wide row of shrubbery along the south and west boundaries, to separate the site from the residential property. The facility was to be operated from 7 a.m. to 11 p.m., 7 days a week, 52 weeks a year.

After the board of trustees of defendant denied the special use permit, plaintiff brought this action for a declaration that the ordinance was illegal and void as applied to it and to enjoin defendant from interfering with its use of the property.

At trial, Steven Hirsch, plaintiff’s chief executive officer, testified that there are currently 16 facilities of plaintiff in the Chicago metropolitan area and 7 in the Rockford area; that the Niles operation will involve a “fully manned self-service operation” including coin-operated vacuum and washing facilities; that according to market research studies, 90% of plaintiff’s customers will not use a tunnel-type automatic car wash as an alternate method of washing their cars; that prior to leasing the subject site, he determined that there was no self-service car wash within 10 miles of the site; that if he is unable to proceed with the use, there will be an investment loss to plaintiff of $42,000; and that, at the time he leased the property, he was aware that he needed a special use permit from defendant.

Neil Kenig, a transportation consultant, testified for plaintiff that based upon his familiarity with the operations and traffic flow at other facilities and his investigation of their traffic patterns, that “National Pride is a very low traffic generator”; that the proposed facility “would have minimal impact on the traffic and on the adjacent street system”; that many of the permitted uses in the district zoned B-l “would generate significantly higher traffic volumes than the National Pride car wash”; that plaintiff’s peak hours occur on weekends, when the adjacent street traffic is at a reduced level; that 70% of the customers are expected to come from within three miles of the site; that during peak traffic hours, 40% of the vehicles using the facility would be drawn from the existing traffic flow on adjacent streets; and that the stacking provided for at the site would be more than adequate to accommodate the projected number of vehicles using the facility during peak periods.

James Bates, a civil engineer, testified for plaintiff that if the use is approved, all village ordinances will be adhered to; that the sewage and water facilities are adequate to serve the subject property; and that the proposed facility from a civil engineering standpoint would have no adverse impact on the surrounding area and would be beneficial in all drainage, environmental, and civil engineering aspects.

Terrence O’Brien, a professional real estate appraiser, testified for plaintiff that if the property were put to the proposed use, there would be no adverse impact on the value of surrounding real estate based on the location of the site, primary uses of the surrounding properties, physical characteristics, design and landscaping of the project, and the need and demand for car wash facilities around the subject area; that there are more intense uses permitted in B-l-zoned areas which would have a greater impact upon the values or the area in general; that regardless of the type of development on the site, the fact that the subject site and adjacent areas are zoned B-l will impact on land values in adjoining residential zones; and that plaintiff has done a good job of minimizing the impact by placing the facility as far as possible from the south boundary and in providing buffers such as green areas. On cross-examination, O’Brien stated that the operations of all other uses permitted in B-l-zoned areas would be completely contained within each building except shipping and receiving; that he would question whether another use the same as already provided in the area would develop the site to its highest and best use; and that the “unique thing about the proposed use is there are none in the area, there is a need and a demand.”

Rolf Campbell, a city planning and zoning consultant who in the past had rendered services for Niles, testified for plaintiff that the site involved is zoned B-l, which permits a car wash by means of a special use; that he found the proposed car wash can operate in accord with the requirements of the ordinance in question; that the impact of the facility would be no different than the other uses allowed within the B-l-zoned district under the ordinance; that it would be compatible with the existing commercial uses to the north, east, and west; and that it provides sufficient screening to the residential area to the south. On cross-examination, he stated that the ordinance does require stacking space for five cars in connection with car washing, but it was designed for drive-through tunnel-type facilities through which cars pass more quickly; that the proposed facility provided 36 spaces for stacking, which was adequate; that while permitted uses in the B-l zone must be conducted within a fully enclosed building, only vacuuming and drying would be outside the facility; and that, although in a B-l zone there must be a rear yard depth of at least 20 feet to act as a buffer to the contiguous residential property, it is not uncommon to have a yard for drying or parking at the rear or side areas.

Rudolph Valadez testified for defendant that he had observed a car wash of plaintiff in Schaumburg and seven or eight times has seen cars in the middle of the adjacent road waiting to enter the facility, and that he has seen cars backed up 10 or 15 deep coming from the entrance which tied up two out of three lanes of traffic.

Joseph Salerno, director of building and zoning for defendant, testified that the proposed car wash does not comply with the space restrictions in the Code for a B-l use with respect to the use of the rear yard; that it did have adequate stacking space for vehicles entering the facility from the street; and that the wash bays are parking spaces and, because cars are parked in them at a 90-degree angle to a driveway, the building was not in compliance because the Code requires a distance of 27 feet for the automobile to safely exit the site. He stated, however, on cross-examination, that if the bays are classified as “wash areas” rather than parking spaces,, the building would be in compliance with the Code, and that a Niles police captain had stated at a village meeting concerning the facility in question that he saw no problem with cars backing up on the street to get into the facility.

Several nearby property owners testified that they objected to the proposed use for the reasons that the facility would create a traffic hazard, devalue property, and cause air pollution and noise, but they admitted that they had not hired an appraiser or traffic consultant to assess the potential impact of the facility.

Theodore Kowalski, a professional real estate appraiser, testified for defendant that the property can be developed in accordance with permitted uses in a B-l zone, and that the development of the plaintiff car wash on the subject site would not be the highest and best use of the land and would cause a depreciatory effect on the apartment buildings to the south and on the commercial and residential uses to the west. He stated on cross-examination, however, that he had not studied any sales of residential property adjacent to other facilities of plaintiff to determine their effect on sales prices; that he had not spent any appreciable length of time observing the facility operations; that he was unaware of when the area was zoned B-l; and that, because the residences were located next to a B-l zone, their value had already been affected. •

Steven Hirsch, testifying in rebuttal, stated that plaintiff has a mechanical device for monitoring volume of use which disclosed that on June 20, 1981, the Schaumburg facility ran 1,816 4-minute cycles; that it ran 744 cycles on June 13 — one of the days that Valadez said he had seen traffic congestion; and that on May 31, another day Valadez said he might have driven past the car wash, it ran 912 cycles. He also said that on June 20, 1981, he had taken hourly photographs and, while he was there, only on one occasion had he seen a second car in line at three of the bays; that on that day, he saw no cars backed up on the adjacent road; that approximately 25 to 35% of persons using the facility dry their cars; that “No Radio Playing” signs will be posted at the proposed car wash; and that he knew of no operation of plaintiff that had ever been abandoned.

Opinion

The seminal issue presented for review is whether the trial court’s finding that defendant’s denial of the requested special use was arbitrary and unreasonable and bore no substantial relation to the public health, safety, or welfare was against the manifest weight of the evidence.

The fact that a special use was denied does not impair plaintiff’s right to test the effect of the denial by the traditional standards of reasonableness which govern review of zoning ordinances. (Pioneer Trust & Savings Bank v. County of McHenry (1968), 41 Ill. 2d 77, 241 N.E.2d 454; LaSalle National Bank v. County of Lake (1975), 27 Ill. App. 3d 10, 325 N.E.2d 105.) However, zoning is a legislative function (LaGrange State Bank v. County of Cook (1979), 75 Ill. 2d 301, 388 N.E.2d 388), and there is a presumption of validity in favor of the action taken by the legislative body (Copley Memorial Hospital, Inc. v. City of Aurora (1981), 99 Ill. App. 3d 217, 425 N.E.2d 493) which is not overcome unless a property owner shows by clear and convincing evidence that the ordinance as applied to him is unreasonable and bears no substantial relation to the public health, moral's, safety, or welfare (County of Cook v. Priester (1976), 62 Ill. 2d 357, 342 N.E.2d 41).

While no one factor controls in determining the validity of the legislative decision (La Grange State Bank v. County of Cook), the traditional tests to review zoning decisions in the special use context are summarized as follows:

“The general factors considered *** include the uses and zoning of nearby properties, the extent to which existing zoning diminishes the property’s value and the proposed zoning enhances it, the suitability of the property for the purposes permitted under the existing zoning, and the relative gain to the public as compared to the hardship imposed upon the property owner by the existing and the proposed zoning uses.” (Duggan v. County of Cook (1975), 60 Ill. 2d 107, 111-12, 324 N.E.2d 406, 409; see also La Grange State Bank v. County of Cook.)

In addition, the court may take into account any and all standards for special uses established by the legislative body (see La Salle National Bank v. County of Lake) and, thus, the trial court here could properly have considered that, under the ordinance a special use can be granted when the proposed use “(a) [i]s deemed necessary for the public convenience at that location; (b) [i]s so designed, located, and proposed to be operated that the public health, safety, and welfare will be protected; and (c) [w]ill not cause substantial injury to the value of other property in the neighborhood in which it is located.” (Village of Niles, Ill., Code of Ordinances, appendix B, at 1298.63 (Nov. 9, 1965).) However, compliance with all the criteria may be an indication but does not necessarily mean that the denial of special use is arbitrary and unreasonable. As explained in LaSalle National Bank v. County of Lake:

“The nature of a special use does not make the issuance of a permit mandatory upon compliance with the county standards. [Citation.] The granting of a special-use permit is not merely a ministerial function of a legislative body. Rather, whenever a special use is proposed a legislative body must make an independent determination that the particular use in the proposed location is designed in such a way as to be compatible with the surrounding area. Whether a special use is compatible depends upon the circumstances of each case. In certain situations it is entirely possible for a special use to have no adverse effect despite its failure to comply with all standards. [Citation.] In others, the special use may have adverse effects even though it complies with all of these standards. Therefore, any standards which a legislative body has passed beforehand can only serve as guidelines. To hold that prior standards are absolute requirements which must rigidly be adhered to would rob the special-use technique of its much needed flexibility. We must note again, however, that while strict adherence to the legislative body’s own standards is not required of that body in passing on special uses, a legislative body must exercise its power in a reasonable way and adherence to these standards is a strong indication of reasonableness.” (27 Ill. App. 3d 10, 16-17, 325 N.E.2d 105, 111.)

Furthermore, in cases of this nature where there is often a conflict of testimony, the trial court is in a superior position to assess the credibility of witnesses and to determine the weight to be accorded the evidence, and the findings of the court will not be disturbed on review unless against the manifest weight of the evidence. La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65; Cornell v. County of Du Page (1977), 58 Ill. App. 3d 230, 374 N.E.2d 1.

Turning then to the factors as stated above in Duggan v. County of Cook, we first look to the existing uses and zoning of nearby property. This factor has been held to be of paramount importance in zoning determinations (Amalgamated Trust & Savings Bank v. County of Cook (1980), 82 Ill. App. 3d 370, 402 N.E.2d 719) and, in the instant case, defendant acknowledges that the subject site should be developed with a commercial use, and thus an extensive discussion of nearby and adjacent properties is unnecessary.

Secondly, concerning the extent to which the value of the subject property would be diminished or enhanced by the proposed use, O’Brien testified that he “would have to question whether another use that would be the same as already provided in the area, whether it would develop the subject site to its highest and best use.” While Kowalski testified that in his opinion the development of the car wash would not be the highest and best use of the property because of its depreciatory effect on the surrounding uses, he admitted that he had not studied the effect of other facilities of plaintiff on sales prices; that he did not know whether the site was zoned B-l prior to the time the adjacent residences were constructed; and that, because the residences were located next to a B-l zone there had already been some impact on their value.

Next, defendant posits that the facility is unsuitable for the proposed use in failing to comply with rear yard, parking, and stacking requirements of the Code. In this regard, Campbell testified that the proposed facility could be operated in accordance with the site plan to protect the public health, welfare, and safety; that it could be operated in accordance with the ordinance and with the site plan as developed; that the facility met the special use standards of Niles; that the five-car stacking requirement was designed and intended for a drive-through tunnel-type car wash, and the 36 stacking spaces provided for in the proposed facility were adequate; that although the ordinance requires a rear depth of not less than 20 feet to provide air and open space to the contiguous property owner, “it is not uncommon to have a yard for drying and parking within a rear or side yard area”; and further, that under the special use provisions, defendant has the right to allow drying or parking within the rear yard area. There was also testimony to the effect that only 25 to 35% of patrons dry their automobiles; that an attendant would always be present; and that “No Radio Playing” signs would be posted in the drying area to curtail noise.

The sole testimony of defendant in this regard came from Salerno, its director of building and zoning, who stated in substance that the washing bays in the facility should be considered as 90-degree parking spaces which, under the Code, required 27 feet of exit space, and because this was not provided the plan was not in compliance with the Code. We note, however, that Salerno did not cite any section of the ordinance to support his view that the washing bays should be considered as parking spaces, and he stated his agreement with Campbell that parking consisted of persons leaving their cars and distancing themselves from the cars. It appears clear that those using the washing bays would not come within that definition, and defendant has referred us to nothing other than the testimony of Salerno that the wash bays should be considered as parking spaces. Since we have found no support thereof in the record, we reject his conclusion in this regard. Significantly, Salerno testified that if the wash bays were not considered as parking spaces, the building would be in compliance with the requirements of.the Code.

Salerno also testified that there was a 20-foot rear yard requirement in a B-l zone and that the rear yard could be used for parking “but not for part of the use.” He was not asked to explain what he meant by “part of the use,” but it appears that it could only be the drying of the vehicles. We note, however, that defendant did not, through Salerno or any other witness, negate the testimony of Campbell (a) that the facility met the special use standards of Niles; (b) that it was not uncommon to use the rear yard for drying vehicles; and (c) that the five-car stacking requirement applied to a drive-through car wash, and the 36 stacking spaces provided for in the instant facility were adequate.

Finally, although the only evidence as to a hardship on plaintiff relative to the public benefit if the use were denied was the possibility of investment loss, there was ample evidence presented that the proposed use, as designed and located, would be operated as to protect the public health, safety, and welfare.

In this regard, the testimony indicated that the proposed facility would minimally impact upon Dempster and the adjacent street systems insofar as generating traffic volumes and causing traffic congestion due to entering and exiting traffic. Kenig observed that peak hours for the car wash occur on weekends, when street traffic is reduced, and that three stacking positions behind each wash bay would be adequate during peak activity periods. A Niles police captain stated that he saw no problem with cars backing up on the street to enter the facility. While Valadez testified that he had observed traffic congestion at a car wash of plaintiff in Schaumburg, Hirsch stated, in rebuttal, that on a day when twice as many 4-minute cycles were run than on the day Valadez was there, on only one occasion did he observe a second car in line at three of the bays at the Schaumburg facility. Evidence pertaining to sewage and water facilities was to the effect that existent facilities will adequately serve the proposed facilities and will not adversely affect the surrounding area from an environmental standpoint. Further, it was the opinion of O’Brien and Campbell that the 5-foot-wide green areas south of the operation will minimize any impact and provide sufficient screening, and Hirsch also stated that an attendant will be on duty at all times; that “No Radio Playing” signs will be posted on the premises; and that, as far as he knew, none of the other operations of plaintiff had ever been abandoned.

Further, plaintiff’s appraiser testified that in his opinion the value of surrounding properties would not be adversely affected and that an area zoned B-l, in itself, impacts on the values of adjoining residential areas. While defendant’s appraiser testified that the operation of a car wash would have a depreciatory effect on the surrounding land values, he admitted on cross-examination that in forming his opinion he had not studied the effect of other facilities of plaintiff on sales of adjacent residential property; that he had not spent a great deal of time observing the operations of such facilities; that he did not know when the property was zoned B-l; and that there has already been an impact on the value of the residential properties due to their location adjacent to the B-l zones. Further, while nearby property owners opposed the car wash in the belief that it would devalue their property, it was developed on cross-examination that their statements were conjectural.

Also relevant to determining the gain or detriment to the public in permitting the proposed use is the aspect of public necessity. (La Salle National Bank v. County of Lake.) Although the lack thereof does not, in itself, require denial of the permit, a finding of public necessity may outweigh certain adverse aspects on the community. (La Salle National Bank v. County of Lake.) Here, there was evidence presented by Kirsch and corroborated by Kenig that according to demographic and market research studies, 75% of the potential customers of plaintiff live within three miles of the facility; that there was no self-service car wash within 10 miles of the subject site; and that 90% of its customers will not use an automatic tunnel car wash as an alternative to a self-wash facility. In addition, O’Brien testified that there was a need and demand for the facility, since there was no other car wash in the area. No contrary evidence was presented by defendant.

In the light of the above and from our consideration of the totality of the evidence, we are left with the belief that the record supports a finding that plaintiff overcame the presumption of validity of the legislative determination by establishing through clear and convincing evidence that defendant’s denial of the special use permit to it bore no substantial relationship to the public health, safety, or welfare and, in view thereof, we find no abuse of discretion in the grant of the special use in question. As stated in Duggan v. County of Cook (1975), 60 Ill. 2d 107, 116, 324 N.E.2d 406, 411:

“If a court determines that the denial of a special use permit, including the conditions and restrictions suggested by the zoning procedures and record as a part of such permit, does not bear a real and substantial relation to the public health, safety, morals or general welfare, judicial relief must be granted.”

In the light of the foregoing, we cannot say that the judgment appealed from was against the manifest weight of the evidence and, accordingly, it is affirmed.

Affirmed.

MEJDA and WILSON, JJ., concur.


author: JUSTICE ROMITI

text:
    CHARLES L. PEARSON, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    First District (4th Division)
    No. 81—2734
    Opinion filed September 30, 1982.

      Victor J. Piekarski and Glen E. Amundsen, both of Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, for appellant.
    Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Miles N. Beermann, Lawrence R. Barezky, and Howard A. London, of counsel), for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

The plaintiff is a police officer who, while temporarily disabled from an automobile accident, continued to receive his salary under a city ordinance so providing; the city is not entitled to recover this amount even if the plaintiff should recover from the motorist. The sole issue in this case is whether plaintiff’s uninsured motorist insurer can set off this payment from the amount plaintiff would otherwise be entitled to recover under the policy. We hold that any set-off of the salary payments from the amount plaintiff is otherwise entitled to receive would be contrary to the statute requiring uninsured motorist coverage since the purpose of the statute is to place the policyholder in substantially the same position he would have occupied if the wrongful driver had obtained the minimum liability insurance.

On January 8, 1979, the plaintiff, Charles L. Pearson, while on duty as a city of Chicago policeman, was injured by an uninsured motorist. As a result of his injuries, he allegedly was unable to work for nearly two months. The State of Illinois requires a city to pay 75% of an injured policeman’s salary during the period of his disability. (Ill. Rev. Stat. 1979, ch. 108½, par. 5 — 154.) Chicago has, however, elected to provide that “such member of the police department, shall, for the space of twelve months, provided his disability shall last that time, or for such portion of twelve months as such disability shall continue, receive his usual salary.” (Municipal Code of Chicago 1979, ch. 11, sec. 11 — 45.) There is nothing in the ordinance giving the city the right to recoup this amount should the policeman recover from the tortfeasor. Pursuant to the ordinance, plaintiff received $2,732.22 which was his usual salary for the period he was unable to work. The city also paid $2,279.65 for medical expenses; this, in the event of a recovery from a tortfeasor, the city was entitled to recoup. Municipal Code of Chicago 1979, ch. 22, sec. 22 — 21.

Prior to the injury, plaintiff had obtained an automobile liability policy from defendant State Farm Mutual Insurance Company. As required by law (Ill. Rev. Stat. 1977, ch. 73, par. 755a), the policy provided uninsured motorist benefits. The policy also contained the following provision attempting to limit the insurer’s motorist coverage:

“(b) Any amount payable under the terms of this Part because of bodily injury sustained in an accident by a person who is an insured under this Part shall be reduced by *** (2) the amount paid and the present value of all amounts payable on account of such bodily injury under any workmen’s compensation law, disability benefits law or any similar law.”

When plaintiff made a claim for uninsured benefits, State Farm claimed the applicable policy limits were reduced by $5,012.87 (the sum of $2,733.22 and $2,279.65); in other words, that the maximum plaintiff could recover was $4,987.13 regardless of the actual amount of damages he suffered. Plaintiff thereupon filed this action seeking a declaration that the limitation either was inapplicable or void. The trial court held that the insurer was entitled to set off the sum of $2,279.65 but not the amount of the salary paid during the disability. Plaintiff has conceded the correctness of the trial court’s ruling, and only State Farm appeals.

Plaintiff contends that the salary payments were not amounts paid under any disability benefits law even though paid pursuant to ordinance while plaintiff was disabled arguing (1) that the payments were payments which would have been made irrespective of any injury and (2) the ordinance was not a disability benefits law but merely a voluntary act by the city in its capacity as an employer rather than as a lawmaker. We need not consider this contention since we agree with plaintiff that if the provision is otherwise applicable, it is invalid as applied to the facts here.

The purpose of the uninsured motorist coverage required by statute is to place the policyholder in substantially the same position he or she would have occupied if the wrongful driver had obtained the minimum liability insurance required by the financial responsibility law. (Stryker v. State Farm Mutual Automobile Insurance Co. (1978), 74 Ill. 2d 507, 386 N.E.2d 36; Ullman v. Wolverine Insurance Co. (1970), 48 Ill. 2d 1, 269 N.E.2d 295; Harper v. City Mutual Insurance Co. (1978), 67 Ill. App. 3d 694, 385 N.E.2d 75, appeal denied (1979), 74 Ill. 2d 586.) Consequently the pivotal issue before this court is whether the exclusionary clause places the plaintiff in the same position he would have occupied if the wrongful driver had obtained the minimum liability coverage of $10,000, and since an examination discloses that it does not, the clause is void. Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247; Harper; 8D Appleman, Insurance Law & Practice sec. 5131 (1981).

If the tortfeasor had been insured in the minimum amount, plaintiff could have received from him the amount of his loss up to $10,000. Of that sum, he could keep all except the $2,279.65 he is required to return to the city. If defendant’s contention were followed, his recovery would be reduced not by the $2,279.65 but by $5,012.87. Thus he obviously would not be in substantially the same position he would have occupied if the tortfeasor had been insured. Accordingly, the provision is in contravention of the statute and is void as against public policy. Harper.

Defendant’s reliance on Ullman v. Wolverine Insurance Co. (1970), 48 Ill. 2d 1, 269 N.E.2d 295, and Stryker v. State Farm Mutual Automobile Insurance Co. (1978), 74 Ill. 2d 507, 386 N.E.2d 36, is misplaced. In Ullman, the insured had received $14,000 in workmen’s compensation benefits. As the supreme court pointed out, if Ullman had recovered $10,000 from the tortfeasor her employer would have been entitled to the entire amount. For this reason the Illinois Supreme Court upheld the provision in Wolverine’s policy reducing the amount of uninsured motorist benefits by the amount of workmen’s compensation benefits paid; pointing out (48 Ill. 2d 1, 7-8, 269 N.E.2d 298):

“In Illinois, if the deduction challenged here is permitted, the employee’s position is the same under the uninsured motorist’s coverage as it would be had the tortfeasor carried the minimum insurance. Where the tortfeasor is insured, the employee reimburses his employer in full from the recovery from the tortfeasor. Where the tortfeasor is uninsured, the benefits paid by the employer are deducted from the- recovery. If the benefits paid by the employer exceed the amount payable under the coverage, as here, the insurance carrier is without liability. In neither instance does the employee retain both compensation from the employer and identical damages from the tortfeasor. The deduction provision does not cause the employee with uninsured motorist’s coverage to have less financial protection than he would have had if the tortfeasor had carried insurance in the minimal amount. Were we to hold it is contrary to public policy, it would mean that an injured employee’s extent of recovery, under circumstances such as exist here, would hinge on the fortuitous circumstance that the tortfeasor was uninsured and was not otherwise financially responsible.”

Precisely the converse is true here.

Stryker also involved the validity of a provision reducing recovery by the amount of workmen’s compensation benefits paid. The compensation insurer in that case had waived any right it might have to recover under the uninsured motorist coverage, an illusory waiver since it is nearly universally recognized that there is no such right. (8B Appleman, Insurance Law & Practice sec. 4960 (1981); 8D Appleman, Insurance Law & Practice sec. 5128.35 (1981).) The insurer had not, as defendant appears to believe, waived its subrogation rights against any tortfeasor. The Illinois Supreme Court pointed out, as it had in Ullman, that the issue was whether the insured would be in a worse position if the tortfeasor had been minimally insured and that the compensation insurer’s supposed waiver of any rights against uninsured motorist proceeds was irrelevant.

Defendant contends, despite the express statements of the Illinois Supreme Court to the contrary, that in fact Ullman and Stryker would have been better off if the tortfeasor had been insured since under the fund doctrine (Baier v. State Farm Insurance Co. (1977), 66 Ill. 2d 119, 361 N.E.2d 1100), the insurer would not have received 100% of the compensation payments made. Defendant overlooks the fact that while under Baier the insurer does not always receive 100% of the compensation payments made, that is only because a portion of that amount may under certain circumstances be used to pay an equitable portion of the attorney fees, court costs and other expenses incurred in creating the fund; none of this amount is retained by the tort plaintiff. His recovery is still reduced by 100% of the compensation payments made.

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

Affirmed.

JOHNSON, P. J., and JIGANTI, J., concur.