author: JUSTICE ALLOY

text:
    R. C. SPIELMAN, Plaintiff-Appellee, v. THE COUNTY OF ROCK ISLAND, Defendant.—(DEERE & COMPANY et al., Intervening Defendants-Appellants.)
    Third District
    No. 81-364
    Opinion filed February 10, 1982.
    Hubbard B. Neighbour, of Bozeman, Neighbour, Patton & Noe, of Moline, for appellants.
    F. Jack Nathan, of Spector, Tappa, Kopp & Nathan, of Rock Island, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal by intervenors and defendants Deere & Company, the Saelens, and the Vande Geests (hereinafter intervenors) from the decision of the circuit court in plaintiff R. C. Spielman’s declaratory judgment action concerning the zoning of certain Rock Island County property owned by him.

The county, though a defendant, took no appeal from the court’s action. The circuit court ruled that Spielman’s property had been validly and properly zoned to a C-3 (commercial) classification by the Rock Island Board of Supervisors in October 1973! It also ruled that no subsequent action taken by the board had validly altered the rezoning taken in October 1973, and therefore it found that the property was zoned C-3 (commercial).

The intervenors, who are adjoining property owners, appeal from the decision of the circuit court and argue (1) that the action of the county board in October 1973 was invalid and void because the zoning board of appeals had issued its findings of fact four days after the time limit set for such findings by zoning ordinance and (2) that the plaintiff is barred by the doctrine of laches from challenging other county board action, taken in December 1974, which sought to declare the property’s zoning classification as AG-1 (agriculture).

The record reveals that the controversy began on July 2, 1973, when George Yeager and John Fitzgerald filed a petition with the Rock Island County Zoning Board of Appeals (hereinafter ZBA). They sought to rezone a 19.35-acre tract of farmland in Hampton Township from AG-1 (rural agricultural) classification to C-3 (heavy commercial). Their petition was accompanied by a plat prepared by plaintiff Spielman indicating plans to construct an auto auction business and a recreational facility with pool and tennis courts. The petition was set for hearing on August 16, 1973, and adjoining property owners were duly notified. The proposed rezoning petition was met with unanimous disapproval by all the adjoining property owners, being the intervenors herein. Intervenor Deere & Company owned considerable acreage to the west of the Spielman tract. The objections were based upon the fact that the usage of the entire area was agricultural, with no commercial development. The larger segment of property, however, owned by Deere & Co., was zoned “manufacturing.” The objectors feared that an auto auction business would be out of keeping with the character of the area.

At the ZBA hearing, some question was raised with respect to Deere’s objections, since their adjoining property had an M-l (manufacturing) classification. At the close of the hearing, Deere & Co. requested that the zoning administrator notify them of any action taken by the ZBA on the petition. Thereafter, on September 21, 1973, the objectors filed written objections to the proposed rezoning with the county clerk, as the county board of supervisors had final authority to decide the petitioner’s request.

Thereafter, on September 27, 1973, the ZBA voted to grant the rezoning request, but no notice of such decision was sent to Deere. A little more than a week later, on October 4,1973, the ZBA adopted its findings of fact on the petition, emphasizing the fact that adjoining property carried the M-l classification and that the proposed change would show a logical progression. The issuance of the findings of fact came 49 days after the ZBA hearing, in violation of the county zoning ordinance calling for such findings within 45 days after the hearing.

The petition, with ZBA recommendation, then went before the county board on October 16, 1973, and the board voted unanimously to adopt a resolution granting the rezoning request. There was no indication in the minutes of the meeting that the board had been made aware of any objections to the proposed change in zoning. Spielman attended the meeting and Yeager, still the owner, was notified by letter of the action. No notice was given to the objectors. Evidence in the record indicated that Spielman thereafter, on November 3, 1973, purchased the land from Yeager and Fitzgerald. Later, he sold back to them the north five acres of the property.

Sometime in the late winter of 1974, after the north five acres had been offered for sale as commercial property, the objectors first became aware of the zoning change adopted by the county board on October 16, 1973. They vigorously voiced their protest with the county board. On March 20,1974, the county board met and considered what action to take with respect to the Spielman property and the Yeager and Fitzgerald property. Board members at the time were extremely upset that the zoning administrator had not informed them before of the unanimous objection to the zoning change. At the March 20,1974, meeting the board voted unanimously to rescind their October 16, 1973, action adopting the rezoning for the 19-acre tract of land. The board also at that meeting terminated the services of the zoning administrator who had failed to inform them fully concerning the petition and the objections.

Thereafter, on the advice of counsel that its prior rescission was ineffective without notice and public hearing, the county board filed its own petition to rezone the Spielman tract (including the five acres in the north) from C-3 back to AG-1. Notice was given on the petition, and a ZBA hearing was held on July 18, 1974. Spielman attended the hearing and testified.

The same summer, on August 19, 1974, while the county board’s petition with respect to the Spielman property was pending, Deere & Company petitioned to rezone its adjoining property (557 acres) from M-l (manufacturing) to AG-1. Along with its own petition, Deere filed a motion to consolidate the county-initiated Spielman petition with its own petition and to reopen hearings in the former. The ZBA refused to reopen the Spielman property hearing. Thereafter, public hearing was held in the Deere petition case. That same day the ZBA voted to retain a C-3 classification for the Spielman property. Subsequent to that action, the ZBA voted to grant Deere’s petition to rezone its property.

Thereafter, the State’s Attorney injected his opinion concerning the matters as to plaintiff’s property that had taken place. He made a full review of the matter and indicated, in a written letter to the board, his conclusions. Such conclusions were: (1) that the initial board action that changed the zoning to C-3 was void because of the late findings of fact by the ZBA, and (2) that the rescission action of March 20,1974, was valid as a reconsideration of the board’s earlier action. He advised the board that the Spielman property was and at all times remained AG-1, as there had been no valid and effective change. He recommended that action on the pending petition to rezone to AG-1 be tabled.

On December 17, 1974, the board met and considered all pending zoning matters. It followed the State’s Attorney’s recommendations to the letter. The meeting was attended by Spielman’s wife and by representatives of Deere & Company. The board tabled its own petition to rezone the Spielman property, declaring that the property had been, and remained, zoned AG-1. The board then voted to grant the petition of Deere & Company to rezone its adjoining acreage from M-l to AG-1. Spielman received no formal notice of the action taken by the board in its meeting on December 17,1974. He testified at trial that his attorney had informed him that he need not do anything until he received official notice of any board action.

Thereafter, according to evidence presented at the hearing in the declaratory judgment action and accepted by the trial court, Spielman expended about $5,000 in creating a commercial use of the property. He did not seek, nor was he denied a building permit for that use. Testimony at the hearing indicated that Spielman convinced county authorities that his commercial use was consistent with AG-1 zoning and did not require a building permit. It is undisputed that the county took no action with respect to the property from that time.

Almost five years later, in October 1979, Spielman filed the instant declaratory judgment action, seeking a determination of the zoning classification of his property. Two persons testified at the hearing on the merits, Spielman and Norman Neely, county zoning administrator. Neely was called as a witness on behalf of the intervenor-defendants.

After hearing and arguments the circuit court entered its decision and order, declaring that the Spielman property was validly rezoned to a C-3 classification in 1973 and that it had remained in that classification since 1973. The trial court found that proper notice and hearing had been accomplished in 1973, prior to the initial county board action on the property. The court also found that there was substantial compliance with the zoning ordinance requirements concerning ZBA findings of fact and that their late filing, by four days, did not invalidate the county board’s action. It concluded, as noted, that the action of the county board on October 16, 1973, was valid and that the property had been rezoned to C-3. It made a finding that Spielman had purchased the property only after the county board had granted the former owners’ petition to rezone. As to subsequent board action, the circuit court found that the attempted rescission action on March 20, 1974, was ineffectual, having been taken without necessary prior notice and ZBA hearing. The court also concluded that the declaration of classification on December 17, 1974, was similarly ineffectual to make any change in zoning on the property. In its written findings the circuit court also addressed the question of laches.

“The third determinative issue is whether the plaintiff was barred by laches in filing this action. The evidence indicates that the plaintiff expended about $5,000 towards creating a commercial use of the property in 1974 but that he did not seek and was not denied any building permit. Accordingly, the plaintiff did not have any time of commencement of a Statute of Limitations period from which to compute a time lapse that could bar him for laches. The record also does not indicate that the Intervenor changed its position in reliance upon any action of the plaintiff or any forbearance of the plaintiff, nor that the public or any other party has been prejudiced by any delay in the commencement of this action. It is not apparent that the plaintiff needed to file this suit until he was denied a commercial building permit or otherwise hindered in his development of the real estate and apparently would not yet be required to file it unless he chose to do so.”

From the court’s decision and judgment that the Spielman property was properly rezoned C-3 in 1973 and retained that classification thereafter, the intervenor Deere files this appeal.

Deere & Company has conceded that the rescission action on March 20, 1974, was ineffectual to change the zoning back to AG-1. Two issues are raised on this appeal.

The first issue raised is whether the initial county board action on October 16, 1973, which changed the zoning to C-3, was invalid because the ZBA’s findings of fact had not been issued within the 45-day limit set down in the zoning ordinance. The ZBA findings of fact were issued 49 days after the hearing, four days after the limit set by the ordinance. They were also available to the county board at the time it considered the request in the petition. Deere & Company argues that the county board action must be held invalid because of the technical violation of the zoning ordinance in not issuing findings of fact within 45 days. It is not asserted that there was any substantive error with the findings of fact, nor that there was any prejudice to anyone in their issuance four days after the limit set by ordinance. We find no merit in Deere’s position on this issue. Several courts have considered similar factual situations and have determined that though there may be technical violations with respect to ZBA findings of fact, that nevertheless zoning action by a county board remains valid. Schroeder v. County of Winnebago (1978), 58 Ill. App. 3d 207, 209, 374 N.E.2d 24; Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App. 3d 561, 421 N.E.2d 285.

In Thompson there was an allegation that the ZBA findings were improper. In Schroder the ZBA had not made any findings. In both cases, county board action was upheld, despite the inadequacies with respect to ZBA findings of fact. The courts reasoned that the ZBA findings were advisory only, since the county board, and not the ZBA, had final decision-making authority over the zoning petitions. The ZBA findings had no binding effect on the county boards. Under such circumstances, the courts refused to invalidate otherwise valid county board action due to defects in ZBA findings. In the instant case, there is not any allegation that improper findings were made, nor was there any failure to make the required findings. In fact, the county board had the benefit of the ZBA findings when it considered the petition. The only defect is that the findings were issued four days after the 45-day limit set forth in the ordinance. We find no basis in that delay upon which to invalidate the board’s action. Schroeder v. County of Winnebago (1978), 58 Ill. App. 3d 207, 374 N.E.2d 24; Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App. 3d 561, 421 N.E.2d 285.

The other issue raised by intervenor Deere & Company, and the one most heavily relied upon in argument, is the question of laches. Deere argues that Spielman should be barred by the doctrine of laches from challenging, by way of declaratory judgment action, the admittedly void action of the county board on December 17, 1974, in which the board concluded that Spielman’s property was in fact zoned AG-1 and entered its declaration to that effect. As noted by the court in Murphy v. Rochford (1977), 55 Ill. App. 3d 695, 701-02, 371 N.E.2d 260:

“Our supreme court has defined laches as ° * such neglect or omission to assert a right, taken in conjunction with a lapse of time of more or less duration and other circumstances causing prejudice to an adverse party, as will operate to bar relief in equity.’ [Citations.] To assert the defense a party must show both that there was unreasonable delay in bringing the action [citation], and that the delay materially prejudiced him. [Citation.]”

The court therein also noted that application of the doctrine of laches depends upon the particular circumstances of each case. 55 Ill. App. 3d 695, 702. .

It is evident from the findings of the circuit court that it found no prejudice to Deere & Company from the delay in bringing suit and no unreasonable delay by the plaintiff. Those findings of fact will not be disturbed unless found to be contrary to the manifest weight of the evidence. (Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App. 3d 561, 421 N.E.2d 285.) While we may not have viewed the laches question in the same manner as the circuit court, its findings are supported in the evidence. The court noted that Spielman had spent money in 1974 for the development of a commercial use on his property. In so doing, he neither sought nor was he denied a building permit. Additionally, it must be noted that the whole matter had taken a rather tortuous path from the start, and had concluded in a somewhat confusing manner. There was evidence that Spielman had been advised by counsel to do nothing until given official notice of board action, and there was evidence that he never received official notice of the December 1974 action by the board. The court found that Spielman had no obligation in 1974 or thereafter to assert a right to commercial zoning, or to challenge the December 1974 action, where he was not denied a permit or otherwise hindered in his development and use of the property. Under all the circumstances, the trial court found that Spielman’s delay in seeking clarification of the zoning classification was not unreasonable. We find that conclusion supported in the record.

As to any prejudice to Deere & Company, the court found that the record did not indicate any change of position by Deere in reliance upon action or forbearance by the plaintiff. It further found that neither the public, nor any other party had been prejudiced in the delay before commencement of the instant action. Deere counters these findings, arguing that they were prejudiced in that (1) the county board membership has changed in the interim to the detriment of Deere, and (2) that they proceeded with their petition to change their adjoining property’s classification from M-l to C-3. As to the change in membership on the county board, there is nothing in the record to indicate how any current board would approach and decide a request by Deere & Company to rezone its property back to M-l. Any speculation about their response to such a petition is just that, speculation. So far as the record shows, Deere has not attempted to make any change in its zoning of that parcel. That the membership of the county board has changed is evident, but the mere change in membership will not be presumed to be prejudicial to Deere. Nor will we draw inferences from the fact that the county chose not to proceed with the appeal in this case. The asserted prejudice arising from the change in board membership has not been shown in record. Secondly, concerning Deere’s own.petition to rezone its adjoining property to AG-1, it is clear that while that action was related to the Spielman petition and controversy, nevertheless the petition was filed at a time when all concerned thought the Spielman property was zoned C-3. It must also be noted that there was no showing that Deere’s own petition was conditioned upon rezoning of the Spielman property back to AG-1. In fact, both matters were considered by the county board at the same meeting, that of December 17, 1974. Thus, it is evidence that Deere’s petition was filed and decided at a time before the plaintiff could have taken action he is alleged to have omitted to take. Deere’s action, taken before the December 17, 1974, meeting, can hardly be said to have been in reliance upon the lack of action by the plaintiff after the December 17, 1974, meeting. Nor can their change in zoning be said to be in reliance upon the declaration of zoning made by the board on December 17,1974. As a final note, there is nothing to indicate that Deere has attempted to rezone its property back to M-l or that it desires such change.

Those cases cited by Deere & Company as supporting their claim of laches are distinguishable in that in them unreasonable delay and reliance were demonstrated. As already noted, each case must be determined on its own facts and circumstances. In the instant case we have determined that the trial court’s findings.on the issue of laches are not against the manifest weight of the evidence.

In summary, we have determined that the actions of the county board in October 1973, which approved the rezoning of the Spielman property to C-3 (commercial), was valid and proper action. There is no dispute among the parties that the subsequent action by the county board was legally ineffective to change that original rezoning action. Finally, as to whether laches should operate to bar plaintiff Spielman from challenging subsequent, invalid board action, we have determined that the lower court’s findings were not contrary to the manifest weight of the evidence and will not be disturbed. Accordingly, we affirm the trial court’s declaratory judgment holding that the Spielman property was rezoned C-3 in October 1973 and has remained in that classification to the time of this action and judgment.

For the reasons stated, the circuit court of Rock Island County is affirmed.

Affirmed.

SCOTT, P. J., and BARRY, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SCOTT JUSTICE STOUDER,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD D. KERANS, Defendant-Appellant.
    Third District
    No. 81-184
    Opinion filed January 29, 1982.

      Robert Agostinelli, Stephen Omolecki, and Michael Filipovic, all of State Appellate Defender’s Office, of Ottawa, for appellant.
    Thomas J. Homer, State’s Attorney, of Lewistown (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Ronald D. Kerans, was found guilty following a jury trial of four counts of armed violence, two counts of aggravated battery, two counts of aggravated assault and one count of unlawful use of weapons. Judgments of conviction and concurrent nine-year sentences of imprisonment were imposed on each of the four counts of armed violence, two counts involving criminal damage to property in excess of $150, while armed with a dangerous weapon, and two counts of aggravated battery (great bodily harm) while armed with a dangerous weapon.

The defendant raises several issues on appeal. Prior to reviewing each of the issues presented for review, it is necessary to briefly summarize the factual context from which the defendant’s convictions occurred and this appeal is taken.

On September 19, 1980, the defendant and his girlfriend, Becky Willard, attended a party held at the residence of Harry Stufflebeam. Later in the evening, after extensive drinking, the defendant discovered his girlfriend in the arms of his best friend, Stufflebeam, as they embraced in the bathroom with the lights turned out. The defendant retrieved a revolver from his automobile, entered the bathroom and proceeded to strike the startled couple with the weapon. Stufflebeam was knocked into the bathtub, and Willard fell behind the toilet. A scuffle ensued in which several shots were fired. As the fight between the defendant and Stufflebeam continued, the defendant managed to grab his girlfriend by the hair, knock her to the floor and kick her in the stomach. The defendant then reloaded his weapon and shot up the living room, its furnishings, including a television set, before he left for home on his motorcycle. When the defendant arrived at his residence he reloaded his gun a third time, drove his girlfriend’s car into the country and proceeded to shoot it full of holes.

Testimony was presented which established that the gunshot damage to Stufflebeam’s residence and contents was in excess of $1,100 and the cost of repairing Becky Willard’s car exceeded $700.

Defendant contends his two convictions for armed violence based on the offense of criminal damage to property over $150 must be reversed because the legislature did not intend armed violence to include such a felony. Defendant also argues in the alternative that the penalty is unconstitutional.

The primary rule in the interpretation and construction of statutes is that the intention of the legislature should be ascertained and given effect. Legislative intent is derived primarily from the language used in the statute. (Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 256 N.E.2d 758.) Where the language is certain and unambiguous, there is no need for judicial interpretation or construction (Illinois Racing Board v. Arlington Park Thoroughbred Race Track Corp. (1979), 76 Ill. App. 3d 289, 395 N.E.2d 93), and the only legitimate function of the courts is to enforce the law as enacted (Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 84, 256 N.E.2d 758, 764.) As the supreme court has recently stated in People v. Haron (1981), 85 Ill. 2d 261, 268, 422 N.E.2d 627, 630:

* * it is not our function to declare that the General Assembly
did not mean what the plain language of. the statute imports <* * <* »

It is a reviewing court’s duty to interpret the statute as it is, regardless of the court’s own opinion as to the desirability of the result from that interpretation. People v. McCoy (1975), 29 Ill. App. 3d 601, 332 N.E.2d 690.

The legislature has defined armed violence as follows:

“A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois law.” Ill. Rev. Stat. 1979, ch. 38, par. 33A—2.

The language of the armed violence statute is clear and unambiguous. It applies to “any felony.” Since criminal damage to property in excess of $150 is plainly a felony, it can serve as a predicate felony for armed violence.

This court pointed out in People v. Lenhart (1980), 90 Ill. App. 3d 502, 506, 413 N.E.2d 220, 223-24, appeal denied (1981), 85 Ill. 2d 56.

“It is clearly within the State’s power to maintain a distinction between misdemeanors and felonies [citation], and such a distinction may be based upon monetary value [citation]. The legislature’s decision to severely punish an armed individual who shows his disrespect for the law by committing a felony is not rendered irrational by its declining to similarly punish an armed misdemeanant.”

Defendant’s alternative argument is that the minimum penalty of six years’ imprisonment for armed violence based on the use of a dangerous weapon during the commission of criminal damage to property in excess of $150 is unconstitutional.

The supreme court in People v. Haron (1981), 85 Ill. 2d 261, 279-80, 422 N.E.2d 627, 635, citing People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029,.recently restated the applicable standard in this regard:

‘It is the general rule that the legislature, under the State’s policy power, has wide discretion to prescribe penalties for defined offenses. (People v. Dixon (1948), 400 Ill. 449, 453.) * * *
“We have consistently stated that the standard of a proper exercise of the police power is whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare.” (Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 159, 128 N.E.2d 691.)
The test, thus, focuses on the purposes and objectives of the enactment in question.’ ”

In light of the purposes and objectives of the legislature in enacting the armed-violence statute, as already discussed, it cannot be said that the application of the statute to criminal damage to property over $150 is not reasonably designed to correct the danger to people due to the existence of dangerous weapons during the commission of a crime which the legislature has determined exists.

Defendant further contends that the trial court erroneously granted the People’s motion to have Becky Willard declared a hostile witness pursuant to Supreme Court Rule 238 (Ill. Rev. Stat. 1979, ch. 110A, par. 238). Defendant maintains that the court erred for two reasons, namely, that Ms. Willard’s testimony did not make the People’s case weaker in any respect and that it was not “surprising” as required under Rule 238. Defendant further contends that the State’s Attorney used Ms. Willard’s prior statements not for impeachment purposes but rather as substantive evidence and that she was improperly cross-examined on collateral matters.

We believe the trial court’s declaration of Becky Willard as a hostile witness was proper and within its discretion and that her prior inconsistent statements were properly used for impeachment purposes and not as substantive evidence.

Supreme Court Rule 238 provides:

“If the court determines that a witness is hostile or unwilling, he may be examined by the party calling him as if under cross-examination. The party calling an occurrence witness, upon the showing that he called the witness in good faith and is surprised by his testimony, may impeach the witness by proof of prior inconsistent statements.” Ill. Rev. Stat. 1979, ch. 110A, par. 238.

A proper foundation for the declaration of the witness as hostile is a showing that the witness’ veracity or integrity is doubtful, that neither side will vouch for her testimony, that her testimony relates to direct issues and is necessary to prevent a miscarriage of justice. People v. Robinson (1977), 46 Ill. App. 3d 713, 717-18, 361 N.E.2d 138, 141-42.

The decision to call a witness as a court’s witness is within the sound discretion of the trial court (People v. Boyle (1979), 78 Ill. App. 3d 791, 396 N.E.2d 1347; People v. Henson (1963), 29 Ill. 2d 210, 193 N.E.2d 777), unless its decision is clearly abused. People v. Robinson (1974), 21 Ill. App. 3d 343, 315 N.E.2d 95.

Defendant maintains that the People failed to demonstrate “surprise” and that they were “forewarned” of Ms. Willard’s intention to change her testimony as evidenced by their pretrial motion, which requested that Ms. Willard be declared a hostile witness. The defendant’s contention that there was insufficient compliance with the “surprise” requirement as it relates to declaring a witness hostile is without merit.

The filing of the pretrial motion by the State’s Attorney which sought to declare Ms. Willard a hostile witness did not negate the element of surprise required by Supreme Court Rule 238. In fact it was the surprise turnabout in the witness’ attitude towards the defendant and her hostility to the prosecution of the case which prompted the filing of the motion in the first place.

In a similar context, it has been held that knowledge of the existence of prior inconsistent statements of a witness does not negate the element of surprise required by Supreme Court Rule 238. (People v. Norris (1969), 118 Ill. App. 2d 406, 409, 254 N.E.2d 304, 306.) We are also aware of authority to the contrary, i.e., Seibutis v. Smith (1980), 83 Ill. App. 3d 1010, 1014, 404 N.E.2d 950, 953. However, a review of the record in the case at bar indicates that the prosecutor had no prior knowledge of an actual change in the testimony of the witness regarding the facts of the occurrence itself, but only that he was made aware prior to trial that the witness had undergone an apparent change of attitude regarding her willingness to cooperate in the prosecution of the case against her boyfriend.

It is established that the ultimate decision as to when cross-examination of a witness on the ground of surprise should be permitted is left to the sound discretion of the trial judge. People v. Wesley (1959), 18 Ill. 2d 138, 151, 163 N.E.2d 500, 507; People v. Kurena (1980), 87 Ill. App. 3d 771, 779, 410 N.E.2d 277, 284.

In the case at bar, the State’s Attorney filed a pretrial motion to have Ms. Willard declared a hostile witness. He stated that he intended to call the victim, Ms. Willard, as a witness and that her testimony would relate to direct issues in the case and would be necessary to prevent a miscarriage of justice, but that he could not vouch for her veracity. In the accompanying affidavit, the State’s Attorney informed the court that Linda Merrick, another witness for the People, received a telephone call from Ms. Willard advising her to tell the State’s Attorney “to stay away from” Ms. Willard. Ms. Merrick was further instructed to inform the State’s Attorney that if he called her (Ms. Willard) to testify, Ms. Willard would “let everything backfire.” Ms. Willard personally called the State’s Attorney at the latter’s request and expressed open hostility to him. She refused to discuss the case with him and told him that anything he would like to ask her he should do so in court. The State’s Attorney was informed that Ms. Willard and the defendant were seen together and “appeared to be back together.”

The court stated that any ruling on the hostility issue would be premature and reserved its ruling until Ms. Willard testified. After Ms. Willard testified that as far as she knew defendant did not fire his gun, hit her, etc., the court granted the People’s motion to have her declared a hostile witness.

The trial court’s ruling that it would have been premature to have declared Ms. Willard a hostile witness until she testified was correct. (People v. Norris (1969), 118 Ill. App. 2d 406, 254 N.E.2d 304.) Until such time, the State’s Attorney’s feeling that she would not testify truthfully based on the facts set forth in the affidavit was an insufficient basis to grant the motion.

In addition to the foundation errors claimed by the defendant, two further errors are asserted. First, defendant claims that the State’s Attorney used Ms. Willard’s prior inconsistent statement substantively.

Supreme Court Rule 238 expressly allows a hostile witness to be impeached “by proof of prior inconsistent statements.” This court has recognized that both sides may cross-examine and impeach a hostile witness (People v. Robinson (1977), 46 Ill. App. 3d 713, 718, 361 N.E.2d 138, 142; accord, People v. Mostafa (1971), 5 Ill. App. 3d 158, 166, 274 N.E.2d 846, 851), although the record must not show that the purpose was not only to impeach the witness, but to use the prior statements as substantive evidence of defendant’s guilt. (People v. Robinson (1977), 46 Ill. App. 3d 713, 718, 361 N.E.2d 138, 142.) This court has followed the general rule stated in People v. Michaels (1929), 335 Ill. 590, 592, 167 N.E. 857, 858, that:

“ * * when a witness unexpectedly gives testimony against the party calling him, such party has the right to examine him and by such examination show that the witness is giving unexpected testimony, and to specifically call the attention of the witness to former statements made by him for the purpose of refreshing his memory or awakening his conscience and cause him to relent and speak the truth if he was lying.’ ” (People v. Grant (1976), 38 Ill. App. 3d 62, 347 N.E.2d 244, 248.)

See People v. Neukom (1959), 16 Ill. 2d 340, 158 N.E.2d 53.

In the instant case, the State’s Attorney was properly allowed to impeach Ms. Willard by calling her attention to her former statements.

Defendant contends the State’s Attorney’s closing argument indicated he used the prior statements as substantive evidence and thereby exceeded the limits of impeachment under Supreme Court Rule 238. However, a close examination of the record discloses that the State’s Attorney properly used Ms. Willard’s prior statements for impeachment purposes only.

After Ms. Willard was declared a hostile witness, defense counsel called her as a witness for the defense. As a defense witness, Ms. Willard was thereafter cross-examined by the State’s Attorney and was asked if she had previously given a taped statement in which she stated that defendant had struck her with a gun and shot the gun. She admitted having done so. Such cross-examination as to prior inconsistent statements was proper since the inconsistency between the prior statement and her testimony at trial was substantial and related to a material issue. People v. Thomas (1979), 72 Ill. App. 3d 186, 198, 389 N.E.2d 1330, 1339.

The State’s Attorney contrasted Ms. Willard’s prior statements with her trial testimony in order to impeach her credibility after she had taken the stand as a defense witness. The State’s Attorney did riot use it as substantive evidence outside the limits of impeachment under Rule 238. Furthermore, the jury was properly instructed as to the proper use by them of a prior inconsistent statement by a witness.

Defendant contends that the trial court committed reversible error in allowing the State’s Attorney to cross-examine Becky Willard after she was declared a hostile witness concerning her sudden decision just prior to trial not to cooperate with the State’s Attorney.

The widest latitude is allowed in cross-examination for the purpose of establishing a witness' bias, prejudice, or motive to testify falsely. (People v. Mason (1963), 28 Ill. 2d 396, 192 N.E.2d 835.) It is proper to cross-examine a witness about her acts or conduct which are inconsistent with what would have been the natural or probable course of conduct if the witness has testified truthfully. (People v. Rainford (1965), 58 Ill. App. 2d 312, 319, 208 N.E.2d 314, 318.) Furthermore, the wide latitude rests largely within the discretion of the trial court, and absent a clear abuse of that discretion resulting in manifest injustice to the defendant, a reviewing court will not interfere. People v. Halteman (1956), 10 Ill. 2d 74, 139 N.E.2d 286.

Defendant next contends that he should be granted a new trial because at one point during the State’s Attorney’s cross-examination of him he was asked if the contrary testimony of various witnesses meant they were lying. The People respond that the question, although improper, did not create substantial prejudice warranting a new trial. We agree. Although the questions were objectionable, in the context of the complexity of the case and of all the testimony adduced at trial, they were not so decisive as to warrant a new trial. People v. Moore (1980), 80 Ill. App. 3d 996, 400 N.E.2d 525; People v. Hainline (1979), 77 Ill. App. 3d 30, 395 N.E.2d 1224.

Defendant contends his conviction should be reversed and the cause remanded for a new trial because of the purported misconduct of the State’s Attorney.

Defendant’s first allegation of prosecutorial misconduct concerned a suggestion made by the State’s Attorney during the cross-examination of Linda Merrick by defense counsel. Defense counsel was attempting to impeach Mrs. Merrick with a prior statement which the State’s Attorney objected to on the basis of relevancy. When the court was attempting to discern what the prior statement was, the State’s Attorney suggested that the entire statement be read. The trial court ruled that Mrs. Merrick answer defense counsel’s question about the prior statement.

Defendant cites People v. Hovanec (1976), 40 Ill. App. 3d 15, 351 N.E.2d 402, as support for his assertion that this suggestion constituted prosecutorial misconduct which requires a new trial. However, the situation in Hovanec, upon which prosecutorial misconduct was found, is sufficiently distinguishable from the instant factual situation that reliance upon it is misplaced. In Hovanec, prosecutorial misconduct necessitating a new trial was found based on the fact that the prosecutor made repeated and deliberate offers (a total of five instances) in front of the jury to stipulate to a pretrial statement by a witness. This was done even though objections to the questions had been repeatedly sustained. Additionally, the prosecutor further emphasized the impression that defendant was attempting to hide something from the jury when, during closing argument, he essentially said so four different times.

In the case at bar, the single and isolated instance of the State’s Attorney’s suggestion that Mrs. Merrick’s entire statement be read does not amount to the blatant and repeated misconduct of the prosecutor in Hovanec.

Defendant also contends reversible error occurred because of a comment by the State’s Attorney in closing argument which purportedly penalized defendant for exercising his sixth amendment right to counsel. The relevant statement is as follows:

“And yet, as you watched him [defendant] over here, any time something came up, he was right in the attorney’s ear. And, he was able to sit back and listen to all the other testimony and then weave a story as best he could, navigated through the evidence, to steer a course that he hoped would be persuasive to you.”

Defendant cites People v. Meredith (1980), 84 Ill. App. 3d 1065, 405 N.E.2d 1306, and also cites two cases cited within the Meredith opinion, United States ex reL Macon v. Yeager (3d Cir. 1973), 476 F.2d 613, cert. denied (1973), 414 U.S. 855, 38 L. Ed. 2d 104, 99 S. Ct. 154, and Zemina v. Solem (D.S.D. 1977), 438 F. Supp. 455, aff'd (8th Cir. 1978), 573 F.2d 1027, as support for his contention that the complained-of comment penalized defendant for exercising his right to counsel.

The People contend the State’s Attorney’s comment did not create an inference which resulted in penalizing the defendant for exercising his right to counsel. We believe the cases cited by defendant are distinguishable because the prosecutor explicitly inferred, if not stated outright, that the defendant contacted his attorney because he was guilty. In Meredith, the prosecutor stated: “Well, I submit he [defendant] knew that he had shot those people that is why he went to go call his lawyer.” (84 Ill. App. 3d 1065, 1071, 405 N.E.2d 1306, 1311.) Likewise, in Macon it was asserted in closing argument: “ ‘He [defendant] goes home and puts his shirt down in the chest, a torn shirt. Then he goes to bed. He says he had trouble sleeping. He gets up the next morning and lo and behold, what does he do? He called his lawyer. These are acts of innocence? I say, ladies and gentlemen, his story is implausible, impossible and you can judge by his own conduct, unbelievable.’ ” (476 F.2d 613, 614.) Finally, inZemina, the prosecutor stated in closing argument that defendant’s call to his lawyer was “a telling sign” of his guilt.

The obvious inference in all three cases was that only a person who is guilty would contact an attorney. In each case the court held that it was prejudicial error to equate the exercise of the constitutional privilege of one’s right to counsel with an admission of guilt. This was not the situation in the case at bar. The gist of the State’s Attorney’s comment, although improper, was that defendant, during trial, talked with his attorney. The remark was unnecessary but harmless error for it merely called attention to the obvious, i.e., it is common with all clients and their counsel to confer during the course of a trial.

Defendant finally contends his four concurrent nine-year terms of imprisonment on the four counts of armed violence should be reduced to the minimum six-year terms. Defendant argues that the nine-year terms are excessive considering his potential for rehabilitation and the nature and circumstances of the offenses.

The trial court has a considerable amount of discretion in sentencing a defendant because it is in a superior position to evaluate the myriad factors which comprise the sentencing determination. Absent an abuse of discretion, a reviewing court will not substitute its judgment for that of the trial court, even though the reviewing court would have imposed a different sentence had that function been delegated to it. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

In the case at bar, the trial court acted within its discretion in imposing four concurrent nine-year terms of imprisonment on the armed violence convictions. A nine-year sentence is well within the applicable range of six to 30 years for armed violence.

Defendant’s contention that his rehabilitative potential mandates an imposition of the minimum sentence is not well founded. The trial court considered defendant’s rehabilitative potential and obviously found differently. The court, in examining defendant’s long list of prior offenses evidencing a disrespect for the law, noted that defendant, who was 32 years of age at the time of sentencing, started committing these albeit minor offenses when barely at the age of 16 years. The court also noted that defendant incurred a number of traffic offenses which involved alcohol consumption and that there was a “reasonably serious” conviction in California of receiving stolen property. The court concluded that it was obvious that defendant’s alcoholic consumption had played a significant part in his trouble with the law. It cannot be overlooked that consumption of alcohol by the defendant was also involved in his commission of the instant offenses. Defendant’s marked and continuing inability to control his drinking and conform to the requirements of the law negates the likelihood of good rehabilitative potential.

In this regard, defendant’s disrespect for the law and his drinking problem was evident at the time that the jury verdict came in in the case at bar. According to the State’s Attorney, when defendant was advised that the verdict had been returned and wax' requested to return to the courtroom, defendant instead remained drinking at the tavern and made the court wait. When defendant eventually returned he appeared to be in an inebriated state.

Defendant’s conduct subsequent to the commission of the instant offenses also demonstrates his lack of potential rehabilitation. It was brought out at trial that defendant had threatened potential witnesses for the People not to testify.

Consideration of the nature and circumstances of the offenses also does not warrant sentence reduction. The trial court stated that it had considered the evidence received at trial. Defendant’s brief version of what happened was not what the jury obviously believed. Defendant’s attacks on Harry Stufflebeam and Becky Willard were calculated and not done “in the heat of passion.” According to the People’s evidence, when defendant saw Stufflebeam and Willard in the bathroom with the door open, he did not become suddenly enraged but rather returned to his car, removed a gun, and parked the car three or four blocks away. He then returned to the house, pistol-whipped and kicked both Stufflebeam and Willard, fired his gun several times while inside the small bathroom, and placed the gun on Stufflebeam’s forehead while asking him if he wanted to die.

Finally, defendant argues that a more-than-minimum term of imprisonment is improper essentially because the minimum sentence itself for armed violence is too high under the circumstances of the case at bar. However, once again defendant is arguing that the legislature should not have intended what it obviously did intend. The legislature increased the penalty for the acts of armed violence committed by defendants because such acts were seen by the legislature as creating a high potential of danger to people. The legislature recognized the likelihood of violence to people by the mere possession of a dangerous weapon while committing a felony. Here, the defendant not only possessed a dangerous weapon but used it repeatedly to inflict serious injury and extensive property damage upon his victims.

The defendant has failed to demonstrate that the trial court abused its discretion in sentencing him to four concurrent nine-year terms of imprisonment for his armed violence convictions. The sentence was properly arrived at and was reasonable in view of the applicable aggravating and mitigating factors. In mitigation it was shown that in the interim between the trial and the sentencing hearing, the defendant and Becky Willard were married. It was also shown that the defendant was a widower (having been previously acquitted of his first wife’s murder). The aggravating factor of infliction of serious bodily harm alone warrants a greater than minimum term. Defendant’s rehabilitative potential and the nature and circumstances of the offenses were properly considered and do not warrant a lesser sentence.

For the foregoing reasons the defendant’s convictions and sentences for armed violence are hereby affirmed.

Affirmed.

ALLOY, J., concurs.

JUSTICE STOUDER,

specially concurring:

The majority, in its analysis of Supreme Court Rule 238 (Ill. Rev. Stat. 1979, ch. 110A, par. 238), has confused the concepts of hostile, occurrence and court’s witnesses. This is understandable since the authorities cited by the majority are contradictory in defining and applying these concepts. Because of the confusion, I disclaim any agreement with the majority’s reasoning and I believe no useful purpose would be served in attempting to clarify the issues. Any error which the trial court might have committed in the application of Rule 238 was harmless due to the fact that Ms. Willard, after being declared a hostile witness, was called as a defense witness and thereafter properly cross-examined by the State’s Attorney as to her prior inconsistent statements.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE MALLEY, Defendant-Appellant.
    Third District
    No. 80-610
    Opinion filed January 28, 1982.

      Robert Agostinelli and Stephen Omolecki, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Carl E. Hawkinson, State’s Attorney, of Galesburg (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, George Malley, was convicted of the offense of criminal trespass to a motor vehicle after a bench trial in the circuit court of Knox County. He was sentenced to a 180-day term of imprisonment. The defendant was represented by counsel, waived a jury trial and did not request a court reporter during any of the proceedings. The issue presented for review is whether the defendant is entitled to a verbatim transcript when he failed to request one at trial. We affirm.

It is the practice in Knox County, as in many circuit courts throughout Illinois, riot to have a court reporter present during traffic and misdemeanor matters. The facilities or personnel for preparation of a transcript of record in minor criminal cases are simply not available. Nor has this court found it necessary to require that a verbatim transcript be made. (People v. Kline (1974), 16 Ill. App. 3d 1017, 307 N.E.2d 398, aff'd (1975), 60 Ill. 2d 246, 326 N.E.2d 395, appeal dismissed (1975), 423 U.S. 907, 46 L. Ed. 2d 136, 96 S. Ct. 209.) The Illinois Supreme Court under Rule 323(c) and (d) (Ill. Rev. Stat. 1979, ch. 110A, par. 323) has made available adequate alternatives to a verbatim transcript such as an agreed statement of facts or a bystander’s report. (People v. Gold (1981), 99 Ill. App. 3d 468, 425 N.E.2d 1337; People v. Gregorich (1979), 71 Ill. App. 3d 251, 389 N.E.2d 619; People v. McCalla (1976), 44 Ill. App. 3d 42, 357 N.E.2d 857.) The defendant.in the present case has filed an agreed statement of facts.

A State must afford an indigent with a record of sufficient completeness to permit proper consideration of specific claims made by a defendant. This requirement, however, does not translate into a verbatim transcript in each and every case. The United States Supreme Court has recognized alternate means such as an agreed statement of facts or a bystander’s report. Mayer v. City of Chicago (1971), 404 U.S. 189, 30 L. Ed. 2d 372, 92 S. Ct. 410; People v. Hopping (1975), 60 Ill. 2d 246, 326 N.E.2d 395.

The responsibility for the proper preservation of the record before the trial court rests on the defendant. (People v. Smith (1969), 42 Ill. 2d 479, 248 N.E.2d 68; People v. Brown (1980), 90 Ill. App. 3d 742, 414 N.E.2d 475; People v. Oelschlager (1980), 85 Ill. App. 3d 695, 407 N.E.2d 222; People v. Summers (1977), 49 Ill. App. 3d 70, 362 N.E.2d 1347.) Where the record on appeal is incomplete, the court will indulge in every reasonable presumption favorable to the judgment or order appealed from. (People v. Bruhn (1977), 51 Ill. App. 3d 269, 366 N.E.2d 932.) Absent an adequate presentation of the record by the appellant, every reasonable intendment against the defendant is presumed on appeal. People v. Oelschlager (1980), 85 Ill. App. 3d 695, 407 N.E.2d 222.

If a defendant fails to preserve the record for appeal, he waives his right to that record. The defendant must also take advantage of the other methods available if there is no verbatim transcript. (People v. Gregorich (1979), 71 Ill. App. 3d 251, 389 N.E.2d 619; People v. Bruhn (1977), 51 Ill. App. 3d 269, 366 N.E.2d 932; People v. McCalla (1976), 44 Ill. App. 3d 42, 357 N.E.2d 857.) Nor does this duty rest on the trial judge or the court reporter if the defendant does not preserve the record. People v. David (1981), 96 Ill. App. 3d 419, 421 N.E.2d 312; People v. Wilson (1975), 32 Ill. App. 3d 57, 335 N.E.2d 499, rev’d on other grounds (1977), 66 Ill. 2d 346, 362 N.E.2d 291; People v. Palmeri (1971), 1 Ill. App. 3d 1033, 275 N.E.2d 486.

In the case at bar, the defendant failed to request either that a court reporter be present or that a tape recording be made of his trial. He has filed an agreed statement of facts but now claims it is insufficent to allege error or prejudice. The defendant has not made any specific allegations but merely claims he does not have appeal rights because he does not have a transcript. Where a defendant shows a colorable need for a verbatim transcript as grounds for an appeal, then the burden is on the State to show that only a portion of the record or an alternative, such as a bystander’s report, will suffice. (Mayer v. City of Chicago (1971), 404 U.S. 189, 30 L. Ed. 2d 372, 92 S. Ct. 410; People v. Smith (1989), 42 Ill. 2d 479, 248 N.E.2d 68; People v. Brown (1980), 90 Ill. App. 3d 742, 414 N.E.2d 475; People v. Seals (1973), 14 Ill. App. 3d 413, 302 N.E.2d 701.) However, that is not the case here, wherein the defendant has failed to carry out his duty to preserve the record. Nor can he claim that any efforts on his part to preserve the record were futile as he did not request a reporter or recording.

Finally, the defendant contends that if the burden to preserve the record for appeal rests upon the defendant, then the failure of defense counsel to request that either a court reporter be present or that a recording be made at trial constitutes ineffective assistance of counsel. In order to show ineffective assistance of counsel, the defendant must demonstrate that counsel neglected to do something he should have done and that the defendant was thereby prejudiced. (People v. Gold (1981), 99 Ill. App. 3d 468, 425 N.E.2d 1337; People v. Brown (1980), 90 Ill. App. 3d 742, 414 N.E.2d 475.) Waiving transcription of closing arguments is not ineffective assistance of counsel (People v. David (1981), 96 Ill. App. 3d 419, 421 N.E.2d 312; People v. Morgan (1981), 93 Ill. App. 3d 12, 416 N.E.2d 740; People v. Brown (1980), 90 Ill. App. 3d 742, 414 N.E.2d 475), nor is waiving transcription of voir dire (People v. Gordon (1980), 82 Ill. App. 3d 906, 403 N.E.2d 570), or of sentencing hearings (People v. Gold (1981), 99 Ill. App. 3d 468, 425 N.E.2d 1337). Since the defendant in the. case at bar is not entitled to a verbatim transcript and he has shown no prejudice by the lack of a transcript, his argument fails.

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

Affirmed.

ALLOY and HEIPLE, JJ., concur.


author: JUSTICE HEIPLE JUSTICE RARRY,

text:
    S. J. GROVES & SONS COMPANY, Plaintiff-Appellant, v. THE STATE OF ILLINOIS, Defendant-Appellee.
    Third District
    No. 81-349
    Opinion filed January 28, 1982.
    Theodore T. Davis and Thomas C. Clark, both of S. J. Groves & Sons Company, of Minneapolis, Minnesota, for appellant.
    Tyrone C. Fahner, Attorney General, of Chicago (Patricia Rosen, Assistant Attorney General, of counsel), for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

Plaintiff Groves, a road contractor, brought suit against the State of Illinois in the circuit court of Peoria County for breach of contract. The State moved to dismiss on the grounds of sovereign immunity, claiming that Groves’ sole recourse is in the State Court of Claims. The trial judge granted the State’s motion and dismissed the complaint. This appeal resulted. We reverse.

The question is not: Does sovereign immunity exist in the abstract? Of course it does. The concept of sovereign immunity in its various aspects has existed for hundreds of years. Neither the trial judge nor this court has been asked to overturn the doctrine as a legal concept. Rather, the question presented is: Does sovereign immunity exist in this concrete situation? It is Groves’ claim that the doctrine does not bar suit in this instance because the State has consented to be sued by entering into a validly authorized contract with plaintiff. We agree.

In order for a contract to exist at all, there must be mutuality. That means the contract must be enforceable by both contracting parties. The State’s claim that they can sue on a contract but not be sued in return is untenable. Such assertion negates the existence of a contract since it posits a situation that would be utterly lacking in mutuality.

Statutory law authorizes the State to enter into contracts for the construction of highways. (Ill. Rev. Stat. 1979, ch. 121, par. 4—201.4.) That means binding contracts, not mere nudum pactums unenforceable by either party. When the State enters into a contract with a private party, it is acting in a business or proprietary capacity. In so doing, it lays aside whatever privilege of sovereign immunity it otherwise possesses and binds itself to performance, just as any private citizen would do by so contracting. Just as certainly as the State expects faithful performance and fair dealing from the other contracting party, so too must the State meet its obligations. The State can and does seek redress in the courts to enforce contracts against others. That recourse is mutual. To hold otherwise would be to ascribe bad faith and shoddy dealing to the State.

As was so cogently put by the Supreme Court of Indiana in 1891:

“In entering into the contract it (the state) laid aside its attributes as a sovereign, and bound itself substantially as one of its citizens does when he enters into a contract. Its contracts are interpreted as the contracts of individuals are, and the law which measures individual rights and responsibilities measures, with few exceptions, those of a state whenever it enters into an ordinary business contract “ * ®. The principal that a state, in entering into a contract, binds itself substantially as an individual does under similar circumstances, necessarily carries with it the inseparable and subsidiary rule that it abrogates the power to annul or impair its own contract. It cannot be true that a state is bound by a contract, and yet be true that it has power to cast off its obligations and break its faith, since that would invoke the manifest contradiction that a state is bound and yet not bound by its obligation. 0 * (Carr v. State (1891), 127 Ind. 204, 26 N.E. 778, 779.)

In accord, South Carolina: 1978, Kinsey Construction Co. v. South Carolina Department of Mental Health, 272 S.C. 168, 249 S.E.2d 900; Oklahoma: State Board of Public Affairs v. Principal Funding Corp., 542 P.2d 503; North Carolina: 1976, Smith v. State, 289 N.C. 303, 222 S.E.2d 412; Iowa: 1973, Kersten Co. v. Department of Social Services, 207 N.W.2d 117; Missouri: 1972, DiCarlo Construction Co. v. State, 485 S.W.2d 52; New Jersey: 1972, P.T.& L. Construction Co. v. Commissioner, Department of Transportation, 60 N.J. 308, 288 A.2d 574; Kentucky: 1960, Humphreys v. J. B. Michael Co., 341 S.W.2d 229; Idaho: 1968, Grant Construction Co. v. Burns, 92 Idaho 408, 443 P.2d 1005; Delaware: 1964, George & Lynch, Inc. v. State, 197 A.2d 734; California: 1962, Souza & McCue Construction Co. v. Superior Court, 57 Cal. 2d 508, 370 P.2d 338, 20 Cal. Rptr. 634; Colorado: 1957, Ace Flying Service, Inc. v. Colorado Department of Agriculture, 136 Colo. 19, 314 P.2d 278; Montana: 1954, Meens v. State Board of Education, 127 Mont. 515, 267 P.2d 981; Georgia: 1934, Regents of University System of Georgia v. Blanton, 49 Ga. 602,176 S.E. 673; Michigan: 1943, Hersey Gravel Co. v. State Highway Department, 305 Mich. 333, 9 N.W.2d 567.

The Illinois cases cited by the State in support of its claim of sovereign immunity here are distinguishable because they sound in tort rather than contract. In England, so far as we are able to determine, sovereign immunity has never existed in contract—only in tort. Illinois, by statute, has adopted the common law of England. (Ill. Rev. Stat. 1979, ch. 1, par. 801.) And our 1970 Constitution has abolished sovereign immunity “except as the General Assembly may provide by law * * (Ill. Const. 1970, art. 13, §4.) Arguably in conflict with the above case and statutory authority and analysis is the statute which gives the Illinois Court of Claims exclusive jurisdiction to hear claims against the State which are founded upon contract. (Ill. Rev. Stat. 1979, ch. 37, par. 439.8.) We find such attempted allocation of contract claims to be contrary to the statute authorizing the State to enter into binding contracts. Since it cannot be doubted that the General Assembly intends that the State have authority to enter into binding contracts, this statute assigning contract claims exclusively to the Court of Claims cannot be given effect.

The Illinois Court of Claims is, in reality, not a court at all. It most nearly resembles a committee of the General Assembly. It is an administrative agency. Its recommendations are not binding. Like any bill, both the General Assembly and the Governor must approve its awards before they are final. Its decisions are not appealable. It is not limited to legally admissible evidence or judicial rules of procedure.

More significant than all of the above, however, is that the attempted allocation of jurisdiction to the Court of Claims is one-sided. That is to say, only claimants against the State must resort to the Court of Claims. The State may bring suit in the circuit court but may not be so sued. That is the real inequity. That is the initial injustice. That is why the statute is fundamentally faulty. There is a lack of equality and of mutuality. The statute is not even-handed. It attempts too much but does too little. Had the statute relegated both sides of contract actions involving the State to the Court of Claims as a mutual assignment applicable to both parties, a different argument would be presented, albeit still involving some substantial due-process-of-law questions. However, that is not the situation that we have. Accordingly, the assignment attempted cannot be given efficacy. The contracting plaintiff is not to be denied his day in court merely because the State is a party to the contract. The decision of the trial court which dismissed the complaint is therefore reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded.

STOUDER, J., concurs.

JUSTICE RARRY,

dissenting:

The majority opinion relies upon the many cases holding that a State waives its right to governmental immunity when it binds itself in the same manner as an individual upon entering into a contract. (See, e.g., Grant Construction Co. v. Burns (1968), 92 Idaho 408, 443 P.2d 1005, and the cases cited therein.) However, it is my view that such cases are not relevant to this appeal because Illinois abolished the common law doctrine of sovereign immunity and specifically limited the doctrine to immunities created by statute. The Illinois Constitution of 1970, article XIII, section 4, provides as follows:

“Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.”

The General Assembly implemented this constitutional exception by reenacting the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.1 et seq.), which provides, in part, that the Court of Claims has exclusive jurisdiction to hear and determine all claims against the State “founded upon any contract entered into with the State of Illinois.” (Ill. Rev. Stat. 1979, ch. 37, par. 439.8.) Since the terms of the Constitution and the Court of Claims Act quite clearly limit plaintiff to the statutory remedy provided by the court of claims procedure, the sole issue to be determined in this case is whether the Court of Claims Act is constitutional. I believe the circuit court properly dismissed the complaint, not because of the common law doctrine of sovereign immunity, but by proper application of the statutory provision limiting plaintiff to a single remedy in an action against the State. The common law doctrine of sovereign immunity is not involved in this case, and neither is the claim that the State waived its immunity when it entered into a contract. The legislature has provided that a party contracting with the State has recourse only to the Court of Claims, and any one contracting with the State does so subject to that limitation. Therefore, those cases from other jurisdictions which found an implied consent to be sued where the State entered into an authorized contract are not applicable to the instant cause. Implied consent to be sued cannot be found where, as here, the legislature has expressly provided to the contrary.

Plaintiff also contends that the Court of Claims Act is unconstitutional upon several different grounds, including that it denies plaintiff the right to due process, right to a jury trial, right to appeal, and the right to equal protection; that it takes property without just compensation; that it violates the separation of powers doctrine; and that it denies the right to a remedy for every injury. Most of these contentions have previously been considered by the Illinois Supreme Court in the case of Seifert v. Standard Paving Co. (1976), 64 Ill. 2d 109, 355 N.E.2d 537, where six negligence actions were filed against the State by persons claiming to have been injured by the negligence of State employees or agents. Our supreme court held that the actions were barred by the Court of Claims Act and that the Act was constitutional. In its decision the court ruled as follows: (1) that the Act did not violate the right to a trial by jury since such right does not apply to statutory proceedings unknown to the common law; (2) that neither equal protection nor due process were violated by the failure to provide a right to a jury trial, a right to appeal, or a right to subpoena or cross-examine witnesses since Court of Claims proceedings are not judicial proceedings; and (3) that the separation-of-powers provision of the Illinois Constitution was not violated. Although the majority would distinguish Seifert on the ground that it involved tort actions, not contract, I think this is a distinction without a difference as to these constitutional issues.

Plaintiff argues that it was deprived of its property without due process of law by being denied a right to sue the State in a court of law where the State breached a contract. Plaintiffs position is in part based upon its further assertion that the Court of Claims is not a meaningful remedy, and the majority agrees. However, this position presupposes a right to a judicial remedy for every wrong. Such right does not exist. The legislature has provided a nonjudicial remedy for the orderly resolution of claims against the State, and that remedy is sufficient to meet the requirements of the Illinois and Federal constitutions. As was noted in Seifert, the imposition of limitations upon statutory remedies does not infringe upon the constitutional right to a remedy. The speculation that a remedy may not do equity in every case is not grounds for invalidating the statute creating that remedy.

In a related argument, plaintiff suggests that the failure to permit a suit against the State for breach of contract amounts to a taking of private property without just compensation in violation of the fifth amendment of the United States Constitution. Again I believe that an adequate means of compensation is provided in such cases and that the Constitution does not guarantee a judicial remedy.

Since plaintiff’s contentions concerning the unconstitutionality of the Court of Claims Act were disposed of by the Illinois Supreme Court’s ruling in Seifert, I would affirm the order of the Circuit Court of Peoria County.


author: JUSTICE UNVERZAGT

text:
    JAMES S. POOR et al., Plaintiffs-Appellees, v. DI MUCCI HOME BUILDERS, INC., Defendant-Appellant.
    Second District
    No. 81-239
    Opinion filed February 3, 1982.
    Rehearing denied March 10, 1982.

      John N. Pieper, Aldo E. Botti, and Marcia N. Johnson, all of Botti, Marinaccio & Wilkinson, Ltd., of Wheaton, and Daniel Mangiamele, of Chicago, for appellant.
    Wayne B. Flanigan, of Wasneski, Kuseski, Flanigan & Dixon, of Waukegan, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

This is an appeal from the judgment of the circuit court of Lake County awarding damages against Di Mucci Home Builders, Inc., which constructed dwellings for the plaintiffs Poor and Fent on lots they purchased from the defendant.

James and Marjorie Poor purchased Lot 24 from the defendant, and Richard and Betty Lou Fent purchased Lot 25 from the defendant, in a subdivision developed by the defendant known as Rue Valley in Lake County. Each of the plaintiff-couples contracted to have a house built on their lot by the defendant. There was neither sewer nor water available in the subdivision and a well and septic system was necessary for water and sewage disposal.

The two building contracts were entered into in August and September of 1976. Construction of the dwellings then proceeded and the Poor house was completed and the transaction closed in June 1977, and the Fent house completed and the closing was in May 1977.

In the fall of 1977, Mrs. Poor noticed an apparent problem with the septic system when “ponding” occurred at the southern end of their lot. Mr. Fent also noticed a pond of water at the southwestern and western parts of their yard. Both the Poors and the Fents testified at trial that such ponding had continued in varying degrees up to the date of trial (January of 1981). Both the Fents and the Poors continued to use the septic systems during 1977 and 1978. However, Richard Fent testified that in January and March 1978 he called the attention of Robert Di Mucci to the flooding at the south end of his lot. Nothing was done about this situation. In May 1978 Fent wrote a letter to Di Mucci complaining of the leakage at the south end of the septic field and again requested Di Mucci’s assistance. He took pictures in April of 1978, showing the wet condition of the south end of his yard. He testified that in August 1978 some additional drain tiles were installed by Di Mucci on his lot, but these seemed to have little or no effect on the ponding condition. On October 4, 1978, the Lake County Health Department sent a letter to Di Mucci Home Builders, Inc., advising it that an inspection made by that department on September 16, 1978, had revealed problems with the septic systems on both Lots 24 and 25. In that letter it was indicated that a suspected old field tile (farmer’s drain tile) was contributing to the flooding of the septic systems on these lots, and it was recommended that this old field tile be relocated and routed around the septic systems. It was also noted by the health department that on the Poors’ lot (Lot 24) the well was located too close to the septic tank and the septic field. The Fents received a notice of a health violation from the Lake County Health Department for a failing septic system in October of 1978. At the same time, the Poors received a notice from the health department of a violation for a faulty septic system and also because the well was located about 35 feet from the septic field, whereas it should not be closer than 75 feet. The Poors also received at this time a report from the laboratory of the county health department stating that an analysis of their drinking water from their well showed it to be unsatisfactory for drinking purposes. Mrs. Poor testified that she boiled their drinking water for a considerable time after that.

The condition of flooding of the septic systems on the plaintiffs’ lots persisted into early 1979, and in April of that year the plaintiffs retained a civil engineer, Hugh Cahill, who was familiar with the installation of septic systems, to inspect and make recommendations to remedy the defects in the systems on Lots 24 and 25. In June of 1979, Cahill made separate reports to the Poors and the Fents outlining the conditions he had found, the reasons therefor, and his recommendations for curing the defects. As to the Fents, he recommended locating and rerouting the farm drain tile which he had discovered to run beneath a portion of the Fents’ septic field and which he believed was contributing to the flooding of the septic system. He also was of the opinion that the top soil on the Fent lot had been stripped of from .7 to 1.7 feet of black earth and the soil in which the septic laterals were embedded was mostly clay, resulting in poor drainage for the system. He recommended bringing in new soil of greater permeability. Cahill found that a curtain drain installed by Di Mucci was too close to the septic lines, and he recommended relocating the curtain drain at least 10 feet from the septic line. The recommendation for the Poors’ lot was the same and, in addition, he found that the Poors’ well was located too close to both the septic tank and the septic field, being in violation of the county health regulations in both respects.

In October 1978, the plaintiffs filed separate complaints against Di Mucci Home Builders, Inc. Both complaints were in two counts. The Fents’ complaint in count I alleged breach of contract in (1) installing the septic system over an existing farm drain tile; (2) in stripping the black soil from the lot and removing it so that the septic field was installed in impermeable clay soil; (3) in incorrectly landscaping the lot, creating a drainage problem. Count II alleged breach of an implied warranty that the dwelling would be built in a workmanlike manner and be reasonably fit for the habitation of plaintiff and his family. The Poors’ complaint was likewise in two counts, count I alleging breach of contract in building the water well within prohibited distances from the septic tank and field, in installing the septic system where it was crossed by a farmer’s drain tile, and in stripping the lot of black soil. Count II alleged a breach of an implied warranty of habitability.

At the trial, a great deal of testimony was taken up with the question of whether an excessive amount of black soil had been stripped from the lots prior to the installation of the septic systems, thus impairing the permeability of the soil and destroying the effectiveness of the drainage. Cahill, as a witness for the plaintiffs, testified that by comparing the original elevations of the two lots as shown in a U.S. Geodetic Survey Map with the elevations found by his survey of the lots after the septic system had been installed, he was able to determine that the original elevations of the two lots had been lowered by between 1 foot and 1.7 feet. This meant, he testified, that nearly all the more permeable top soil had been removed, leaving the septic laterals to drain into impermeable clay soil, thus greatly impairing the effectiveness of the septic fields. The contention that a great deal of top soil had been removed from the lots and used elsewhere was reinforced by the testimony of Mrs. Poor, who testified that she had observed Di Mucci trucks hauling black dirt away from a mound of black dirt at the lower end of her lot sometime after they moved in. Mr. Poor testified that in digging a garden on the lot he noticed that the black soil became much thinner toward the rear of the lot. Mr. Fent testified that prior to moving into the house he noticed that much of the black earth had been stripped from his lot and there was a large mound of earth toward the back of the lot, but that this earth was never spread back on his lot but simply disappeared.

A controversial point was introduced when the trial court allowed into evidence a 1975 letter from Mr. William Mellen, coordinator of the Individual Sewer (septic system) Program of the Lake County Health Department addressed to Di Mucci Home Builders, Inc., in which Mellen noted that a number of lots in Rue Valley Subdivision had been stripped “to a point where they would be unsuitable for individual disposal systems.” The letter stated that the subdivision was 80% unsuitable for septic systems and that the lots needed to be upgraded, so that the removal of even six inches of top soil would make them unsuitable for septic disposal. The letter did not refer to the lots in question here and was dated some two years before any trouble was noted in connection with the lots in question and, indeed, before those lots were purchased by the plaintiffs. Di Mucci, therefore, objected to the admission of this letter as being irrelevant and prejudicial to the defendant on the theory that evidence of other similar acts of a person are not relevant to prove his conduct on the occasion which is being tried. Mr. Mellen personally testified regarding the composition of soils and the effect of impermeable soil on septic drainage, but did not express an opinion that the lots in question had been stripped. Over objection, the letter written by Mellen in 1975 to Di Mucci, regarding other lots adjacent to the ones in question being stripped, was admitted as having probative value, indicating a pattern of conduct. It will be noted that this ruling became a point of appeal.

There was also controversy over the location and effect of the farmer’s drain tile. Di Mucci contended it was the sole source of the flooding of the septic fields and that it was not responsible for its location since it had been installed long before building on the lots. Di Mucci took no responsibility for the effect this drain tile had on the septic system. There was some controversy over whether the drain tile was intact or had been broken by Di Mucci during building operations, thus aggravating the flooding of the septic system. Di Mucci conceded that as to Lot 24 the well was incorrectly located and would have to be moved.

As to the stripping of the lots, this question also became a point of appeal due to a sanction imposed on Di Mucci. Prior to the commencement of the trial, Di Mucci had engaged a civil engineer by the name of Ciaglia to make borings on the lots in question to determine the amount of black soil in the vicinity of the septic fields. Di Mucci had obtained permission to go on the plaintiffs’ lots to make these borings as part of a discovery motion prior to trial, which gave Di Mucci 21 days from the date of the order to do so. Counsel for the plaintiffs was present when these borings were made, apparently in December 1980, and he orally admitted that he noticed black dirt in the borings. Because of this admission, the defendant later claimed that it had assumed the issue of the stripping of the black dirt from the plaintiffs’ lots would not be pursued as an issue at the trial. However, at the beginning of the trial, January 27, 1981, the plaintiffs immediately raised the issue of the stripping of the lots, and Mrs. Poor gave testimony that it had occurred according to her observation. During the trial, sometime between January 27 and February 5, 1981, the plaintiffs discovered that the defendant had, without further application to the court or notice to the plaintiffs, entered upon the plaintiffs’ lots again and made further borings. Upon discovery of this further unauthorized entry onto the plaintiffs’ lots, plaintiffs’ counsel moved to exclude any evidence of such further and additional borings. The court granted the motion as a sanction for violation of discovery rules, since the original motion was for a pretrial discovery and did not extend to the later borings. The defendant contended that the sanction excluding the later borings should not have been imposed because the plaintiffs’ counsel, by his conduct, had misled the defendant into thinking the issue would not be raised and after giving that impression had later raised the issue of stripping of the lots, thus requiring additional evidence on ‘the defendant’s part.

Following the trial and rendition of judgment in favor of the plaintiffs, the defendant, in a post-trial motion, raised an issue of what it termed “newly discovered evidence.” This evidence was in the form of two letters written in April of 1978 and May of 1978, by Fent and Poor, respectively, listing defects or remaining work to be done on their homes. Neither letter mentioned the septic system problem, although it was testified to as having been first noticed in 1977 and again early in 1978. Di Mucci claimed the letters had been in a field office and undiscovered by it prior to trial, and therefore were not produced at trial, thus constituting new evidence discovered since the trial, which might have affected the trial court’s judgment, if offered at trial. The trial court rejected the defendant’s post-trial motion. The defendant contends the court erred in not granting a new trial on the basis of such newly discovered evidence.

Lastly, the defendant contends that the award of damages was excessive. This contention was raised and argued in the post-trial motion and was rejected by the trial court. It is a further assignment of error.

We have considered the points raised by the defendant as grounds for granting a new trial and do not find any of them persuasive. While we are inclined to agree with the defendant’s contention that the 1975 letter of county employee Mellen was not probative as to the defendant’s current activities (see Vuletich v. Bolgla (1980), 85 Ill. App. 3d 810; Herget National Bank v. Johnson (1974), 21 Rehearing. App. 3d 1024), we do not consider its admittance into evidence to be reversible error in this case. Where, as here, the judge was the trier of fact he may be assumed to have weighed the probative effect of the letter in the light of general doctrine as reflected in the Illinois cases and to have accepted it as general information tending to show notice to Di Mucci of the soil conditions in the vicinity, rather than as proof of specific current conduct. The general intent of Mellen’s letter was to establish the point that the soil throughout the subdivision was critical as to septic systems, with no margin to spare for any reduction in its permeability by stripping operations. Mellen, who wrote the letter, was available to testify and did testify generally as to the soil conditions in the subdivision. He did not express an opinion as to whether the particular lots in question had been stripped. He was, of course, subject to cross-examination. In view of these facts we do not consider the admission of the 1975 letter dealing with nearby lots in the same subdivision as being prejudicial to the extent of constituting reversible error. Even if it were held to be error, we do not consider the admission of this letter, where there was no jury to be prejudiced thereby, to be so harmful as to require a new trial.

We believe the trial court ruled correctly on the defendant’s motion for a new trial based on newly discovered evidence consisting of letters from the two plaintiffs in which they listed certain defects or remaining work to be done on the houses themselves without mentioning the septic systems. Actually these letters, which were in the nature of follow-up letters written toward the end of the 12-month period of warranty, cannot be regarded as any kind of positive evidence with regard to the septic systems. Any effect favorable to the defendant from these letters would only be by implication—that is, by the assumption that the septic systems would have been mentioned when listing work still to be done or corrections to be made by the builder, if the septic systems were a problem. However, this omission is not evidence in the sense required for a new trial—it only gives rise to an implication which must be overcome by positive proof. In this case, even the implication is dubious when we consider the timing of other relevant events. The “ponding” effect at the end of the lots had been noted by the plaintiffs in the fall of 1977 but Di Mucci had explained it as being due to a broken farmer’s field tile which Di Mucci said he would reroute and thus correct the situation. When flooding of the septic system became apparent later in the year, the plaintiffs complained, first to Di Mucci, then to the county. It was not until October 4, 1978, that the plaintiffs received letters from the county health department and were actually aware that the septic systems were defective.

Moreover, the letters in question were written in April and May of 1978, whereas the trial of these cases did not begin until January of 1981. In the meantime, the defendant had numerous motions served on it seeking discovery on various aspects of the case, alerting the defendant to its problems of defense. Due diligence by the defendant should have uncovered these letters as evidence long before trial. It is reasonable to assume that due diligence to find all the evidence tending to support the defendant’s case was not exercised when the defendant failed to uncover these letters which it now contends are crucial evidence. Motions for a new trial on the basis of newly discovered evidence are not favored and are subject to certain requirements. Fundamental to the granting of a new trial on the basis of newly discovered evidence is that (a) the evidence is of such a nature that it may change the result of the case; (b) that the person offering it could not have discovered the evidence before the trial, even by the use of due diligence. (Halka v. Zupan (1979), 68 Ill. App. 3d 616; Van Dyke v. Good Samaritan Sheltered Care Home Corp. (1976), 38 Ill. App. 3d 187.) Neither of these requirements was met in this case. The defendant obviously did not exercise due diligence in failing to uncover a letter received by it some 2M years prior to trial and in its possession all of that time. Nor was the nature of the “evidence” uncovered such as to mandate a different result—the letters produced at most merely an inference of acceptance of the septic systems but utterly failed to rebut the evidence at trial that the systems were actually found to be defective, not only by the plaintiffs, but by two septic field experts and by the Lake County Health Department. We see no error in the denial of the motion for a new trial.

The defendant further contends that the court erred in refusing proffered evidence as to sample borings taken after trial began. It was claimed by the defendant that it was misled by remarks by the plaintiffs’ attorney Duval, after he saw the sample borings of the soil on the Fent lot and supposedly said that they showed black dirt present and the question of stripping would not be pursued further. Duval, in an affidavit, denied making these remarks—while admitting that he noticed black dirt in the borings, he said no commitment was made as to how this would affect the trial. We do not believe the raising of the issue of stripping at the trial justified the defendant’s unauthorized intrusion onto the plaintiffs’ lots during the course of the trial. The trial court’s limited sanction in refusing to admit evidence based on this second set of borings was, we think, within its proper discretion.

The defendant contends, lastly, that in any event the case must be remanded because of the failure of the trial court to delineate any satisfactory basis for the amounts awarded as damages. In reviewing the testimony at trial as to damages, we find it somewhat confusing. However, the totals arrived at by the trial court do not appear unreasonable based on the testimony. Hugh Cahill, a civil and sanitary engineer, testified as an expert witness as to the cost of replacing the septic systems and his estimate was not greatly at variance with that of the witness, Weidner, as to septic systems costs—that is, around $15,000. In addition, there was the cost of rerouting the farmer’s drain tile and the landscaping necessary to restore the lots to their original condition. Engineering fees for previous exploratory work should also be included since these costs were borne by the plaintiffs. There is some uncertainty as to whether the original system should be left in the ground or removed. Originally Cahill suggested removing the existing system and relocating it. In later testimony, however, he suggested that the soil on the lots having been saturated, it would be advisable to retain the old system as a back-up system and create a new system elsewhere on the lot. This had significance as to the Poors’ lot since it would involve not only the cost of a new septic system but also relocating the well, inasmuch as it was too close to the existing system, and would be a problem if the old system was used as an auxiliary. The estimated cost of removing the well of $4,500 was not disputed. A question arose as to Cahill’s estimate of $2,400 for landscaping costs for the lots after the septic fields were either relocated or improved by bringing in enough fill to make the earth surrounding the laterals sufficiently permeable, plus relocating the farmer’s drain tile. While Cahill was admittedly not in the landscaping business, he had been exposed to such costs in connection with the rerouting or replacement of existing' septic systems. Bearing in mind his familiarity with the after effects of relocating or replacing existing septic systems on half-acre lots in similar subdivisions, we think he was sufficiently qualified to give an estimate of the cost of restoring the lots in question to their original landscaped condition. The witness, Weidner, whose business was installation of septic systems, estimated the septic system cost for the Fent lot, including relocating the famer’s drain tile, to be around $19,000. This did not include restoration of the landscaping on the Fents’ lot or the bill for Cahill’s preliminary report which would add an additional $2,000 or $3,000 to the cost. We believe, therefore, that while inexact, the figures of both Cahill and Weidner were within a fair range of the amounts awarded by the trial court. We see no basis, therefore, for awarding a new trial on the issue of damages only.

The judgment of the circuit court of Lake County is affirmed.

Judgment affirmed.

HOPF and REINHARD, JJ., concur.