author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee v. ANTHONY REED, Defendant-Appellant.
    Fourth District
    No. 4-83-0789.
    Opinion filed June 29, 1984.

      Daniel D. Yuhas and Diana N. Cherry, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

After a trial by jury in the circuit court of Sangamon County, defendant, Anthony Reed, was convicted on October 13, 1983, of having committed the offenses of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2) and attempt murder (Ill. Rev. Stat. 1981, ch. 38, pars. 8 — 4, 9 — 1) on August 1, 1983. On November 18, 1983, the court sentenced him to a single sentence of 6 years’ imprisonment with credit for 93 days already served. At the time of the alleged offenses, defendant was 15 years of age. On appeal he contends that section 2 — 7(6)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 7(6)(a)) is unconstitutional. This section required that, because he was charged with armed robbery, defendant be prosecuted in a criminal proceeding rather than under the Juvenile Court Act as would ordinarily be the case with one his age. He also maintains that the trial court erred in admitting evidence of prior consistent statements by two prosecution witnesses. We affirm.

The contention that the trial court had erred in overruling defense objection to the admission of the prior consistent statements was not raised specifically in defendant’s post-trial motion. That motion did state that because of the lack of a transcript, the defendant was claiming “as error each and every error, plain or otherwise shown of record.” We have held that such a catchall statement lacks the specificity required to preserve for review any error that is not plain error. (People v. Rogers (1975), 32 Ill. App. 3d 788, 336 N.E.2d 784.) Regardless of whether these statements were admissible to rebut the defense contention that the testimony of the witnesses was of recent fabrication, the statements had other probative value. Defense counsel had cross-examined these witnesses concerning portions of their statements. Presentation of the statements in their entirety helped to provide the context for that about which they had been cross-examined. (See United States v. Weinbren (2d Cir. 1941), 121 E2d 826; Biegajski v. State (Tex. App. 1983), 653 S.W.2d 624; McCormick, Evidence sec. 56, at 130 (2d ed. 1972).) Under the circumstances, we do not find plain error to have occurred. Defendant has waived the issue.

As the only remaining issue concerns the constitutionality of legislation, we need not discuss the facts of the case. The State asserts that the constitutional question has also been waived because it was not properly raised below. (People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353.) We need not decide whether it was properly raised because we hold the statute to be constitutional.

Section 2 — 7(6)(a) of the Juvenile Court Act states:

“The definition of delinquent minor under *** this Act shall not apply to any minor who at the time of an offense was at least 15 years of age and who is charged with murder, rape, deviate sexual assault or armed robbery when the armed robbery was committed with a firearm. These charges and all the other charges arising out of the same incident shall be prosecuted pursuant to the Criminal Code of 1961, as amended.” (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 7(6)(a).)

But for the existence of the above legislation, section 2 — 7 would have prohibited the State from charging defendant in a criminal proceeding with armed robbery and attempt murder without obtaining the permission of a “Juvenile Judge, designated by the Chief Judge of the Circuit to hear and determine” such motions to prosecute a minor under the criminal laws. Absent the existence of section 2 — 7(6)(a) and absent permission by the court for the State to proceed with a criminal prosecution, the State would have been limited to a proceeding under the Juvenile Court Act. If section 2 — 7(6) is valid, the State was limited to prosecuting defendant as a criminal. Defendant maintains that section 2 — 7(6)(a) is invalid because it deprived him of procedural and substantive due process and equal protection of the laws.

Defendant’s assertion of the failure of the legislature to provide procedural due process is based on the cases of Kent v. United States (1966), 383 U.S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045, and Goldberg v. Kelly (1970), 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011.

At issue in Kent was a District of Columbia statute which provided that juveniles 16 years of age or older charged with an offense which, if committed by an adult, would subject the offender to a possible sentence of death or life imprisonment, could be tried as adults if the juvenile court judge “ '*** after full investigation ***’ ” waived the jurisdiction of the juvenile court. (Kent v. United States (1966), 383 U.S. 541, 547, 16 L. Ed. 2d 84, 90, 86 S. Ct. 1045, 1050.) The court held that in view of the statutory language pertaining to a “ ‘full investigation,’ ” and the great disparity in the range of possible sanctions which may be imposed upon one tried as a juvenile as opposed to as an adult, the constitutional principles of due process and right to assistance of counsel required that such a minor be accorded a hearing subject to certain procedural safeguards, including the right to be represented by counsel, before he could be tried as an adult. 383 U.S. 541, 558, 16 L. Ed. 2d 84, 95, 86 S. Ct. 1045, 1055.

The Goldberg court simply held that since welfare benefits are an important right and recipients of such benefits often have a “ ‘brutal need’ ” therefor, recipients of welfare benefits must be accorded a pretermination hearing before benefits may be terminated. Goldberg v. Kelly (1970), 397 U.S. 254, 261, 25 L. Ed. 2d 287, 295, 90 S. Ct. 1011, 1017.

Unlike the statute in Kent, section 2 — 7(6)(a) is absolute in its requirement that a minor 15 years of age or older charged with one of the listed offenses be prosecuted as a criminal, rather than under the provisions of the Juvenile Court Act. There is no decision for the court to make, and thus procedural process is not involved. (See People v. Bombacino (1972), 51 Ill. 2d 17, 280 N.E.2d 697.) As in all decisions regarding the charges to make against an accused, the prosecutor has discretion. To require a hearing before that decision is made would infringe upon the prosecutorial discretion which the State’s Attorney has as a prerogative of the executive branch of the government. United States v. Bland (D.C. Cir. 1972), 472 F.2d 1329.

The heart of this case concerns the related questions of whether section 2 — 7(6)(a) deprived defendant of substantive due process or equal protection. The section requires criminal prosecution for certain minors who are charged with the offenses of murder, rape, deviate sexual assault, and armed robbery committed with a firearm. All of the above are Class X felonies. The statute does not require criminal prosecution for the Class X felonies of attempt murder (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(c)), heinous battery (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4.1), aggravated kidnaping for ransom (Ill. Rev. Stat. 1981, ch. 38, par. 10 — 2), and armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 3).

In support of his substantive due process contention defendant relies on People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029. That case concerned the validity of the penalty for the possession of a controlled substance when the penalty was greater than that for the delivery of the same substance. The supreme court noted that section 100 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 561/2, par. 1100) indicated an intent to penalize more heavily those engaged in the traffic of the substances than the occasional user or petty distributor. The court concluded that the question of whether the legislation offended substantive due process depended on “ '*** whether the statute [was] reasonably designed to remedy *** evils which the legislature has determined to be a threat to the public health, safety and general welfare.’ ” People v. Bradley (1980), 79 Ill. 2d 410, 417, 403 N.E.2d 1029, 1032.

Defendant maintains that equal protection is violated because there is no rational basis to distinguish between the Class X offenses listed in section 2 — 7(6)(a) which require criminal prosecution and the other Class X offenses previously mentioned which do not require criminal prosecution for minors. Defendant cites Skinner v. Oklahoma (1942), 316 U.S. 535, 86 L. Ed. 1655, 62 S. Ct. 1110, and People v. McCabe (1971), 49 Ill. 2d 338, 275 N.E.2d 407.

The Skinner court held invalid an Oklahoma statute providing for the sterilization of recidivist felons. Violations of prohibition laws or revenue acts, embezzlement, and political offenses were not considered felonies for purposes of the statute. (Skinner v. Oklahoma (1942), 316 U.S. 535, 536-37, 86 L. Ed. 1655, 1657-58, 62 S. Ct. 1110, 1111.) In passing upon the defendant’s equal-protection challenge to the classification of various offenses for the purpose of the applicability of the sterilization law, the court focused on the great intrinsic similarity between the crimes of larceny (considered a felony for purposes of the statute) and embezzlement. For instance a clerk who misappropriated property worth more than $20 from his employer was guilty of embezzlement, an offense not within the scope of the statute, while a person who stole the same amount of money from a stranger committed the offense of larceny, which was among the offenses which could ultimately result in sterilization. Likewise, a person who simply entered a chicken coop and stole chickens could be sterilized if thrice convicted of that offense, but if the same person were a bailee of chickens who misappropriated them on three occasions, he could not be sterilized.

In McCabe the supreme court held that the inclusion of marijuana in the category of hard drugs, which also included cocaine, heroin, etc. (for which harsher penalties were prescribed), instead of in the category of less dangerous drugs, such as barbiturates, amphetamines, etc. (for which lesser penalties were prescribed), was arbitrary and violative of the defendant’s right to equal protection of the law. The basis for the court’s decision was the similarity of marijuana to drugs included in the latter category. (People v. McCabe (1971), 49 Ill. 2d 338, 347, 349-51, 275 N.E.2d 407, 409, 413-14.) Thus marijuana users and users of drugs included in the latter category were similarly situated, and unequal treatment of them was impermissible. Both parties provided the court with extensive data as to the characteristics of both marijuana and the other illegal drugs included in the two categories.

Neither any established legislative policy, nor the requirements of equal protection of the law require the same procedures be used in handling minors accused of the inchoate offense of attempt murder and those accused of the completed offenses listed in section 2 — 7(6Xa). There is clearly a rational basis for a distinction. Similarly, dealing differently, with those accused of the obscure offense of heinous battery and those accused of the frequently occurring offenses of section 2 — 7(6)(a) is also justified. Heinous battery occurs when the actor, in committing "a battery, “knowingly causes severe and permanent disability or disfigurement by means of a caustic substance.” (Ill. Rev. Stat. 1981, ch. 38,. par. 12 — 4.1.) Aggravated kidnaping for ransom is also an offense which is quite unlikely to have been committed by a 15- or 16-year-old. Armed violence is a catchall offense which involves all felonies committed while armed with a dangerous weapon. (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 2.) Many charges of armed violence would involve offenses within the purview of section 2 — 7(6)(a). Neither substantive due process, nor equal protection requires that if criminal prosecution of minors is mandated for the section 2 — 7(6)(a) offenses, all felonies committed by minors with a dangerous weapon be similarly treated.

It is fully consistent with legislative policy that those completed offenses deemed by the legislature to be Class X felonies and which are likely to be committed frequently by those 15 or 16 years old be dealt with more severely. There is a rational basis for so doing. Moreover, the opinions in Skinner, Bradley, and McCabe all emphasize that equal protection prohibits disparate treatment of offenses that are very much alike. The Skinner court stated “[w]hen the law lays an unequal hand on those who have committed intrinsically the same quality of offense,” equal protection is denied. Here, although the offenses omitted from section 2 — 7(6)(a) coverage may be as serious as those listed therein, those omitted are not “intrinsically similar” to those listed. Skinner v. Oklahoma (1942), 316 U.S. 535, 541, 86 L. Ed. 1655, 1660, 62 S. Ct. 1110, 1113.

We hold that section 2 — 7(6Xa) of the Juvenile Court Act, requiring certain minors to be prosecuted as criminals, does not deprive such minors of their rights to procedural and substantive due process or equal protection of the law.

We affirm the judgment appealed.

Affirmed.

MILLS, P.J., and WEBBER, J., concur.


source: Caselaw Access Project

author: JUSTICE TRAPP

license: Public Domain

text:
    EDDIE WAYNE TRUSLER et al., Plaintiffs-Appellees, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellant.
    Fourth District
    No. 4—83—0850
    Opinion filed June 29, 1984.

      Phebus, Tummelson, Bryan & Knox, of Urbana (Hurshal C. Tummelson and John E Bramfeld, of counsel), for appellant.
    Clapper & Clapper, EC., of Danville (Kerry R. Clapper and Kenneth H. Clapper, of counsel), for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiffs Eddie Wayne and Virginia Trusler filed suit against Sears, Roebuck & Company for personal injuries and loss of consortium allegedly resulting from a fall suffered by Mr. Trusler in the defendant’s Danville store. On July 13, 1982, the circuit court of Vermilion County entered summary judgment for the defendant. Subsequently, the plaintiffs filed a petition to vacate the judgment on grounds of newly discovered evidence. On December 2, 1983, the trial court entered judgment in favor of the plaintiffs on their section 2— 1401 petition (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401), and vacated the summary judgment formerly entered for the defendant. Defendant appeals.

In challenge to the judgment entered upon the section 2 — 1401 petition, defendant raises two issues on appeal: (1) that the plaintiffs’ section 2 — 1401 petition failed to state a cause of action, and (2) that the trial judge erred in entering judgment on the section 2 — 1401 petition prior to allowing the defendant an opportunity to file an answer to the petition.

An understanding of the procedural history of the case is crucial to the disposition of this appeal. The complaint alleged that the defendant had negligently caused Mr. Trusler’s fall by permitting the stairs in the store to become slippery or otherwise hazardous by accumulation of foreign objects. The depositions revealed the plaintiffs’ theory was that Mr. Trusler had slipped on an ink pen which was found on the stairs after the incident. Defendant filed a motion for summary judgment, alleging that no issue of material fact existed and that no evidence existed to suggest that defendant knew or should have known of the existence of the pen. The trial court agreed and entered summary judgment for the defendant on July 13, 1982.

On October 19, 1983, 15 months after the original entry of judgment, the plaintiffs filed their section 2 — 1401 petition. The petition alleged that certain newly discovered evidence would show that the defendant either knew, or must be held to have known, that the pen was on the stairway. Two affidavits were attached in support. An affidavit jointly executed by the plaintiffs indicated that the Truslers had first met a woman named Phyllis Ann McQueen on June 1, 1983, at a social gathering. The second affidavit was executed by Ms. McQueen. In this affidavit, Ms. McQueen indicated that on December 31, 1979, she saw a man wearing a shirt with a Sears insignia drop a pen on the stairs shortly before the time of Mr. Trusler’s fall. She reportedly advised the man that he had dropped the pen, and the man thanked her, but she did not see him pick the pen up.

In response to the section 2 — 1401 petition, defendant filed a motion to dismiss, alleging that the petition failed to state a cause of action. Specifically, the motion attacked the sufficiency of the plaintiffs’ petition on grounds that it failed to adequately state facts to establish the materiality of the newly discovered evidence or the plaintiffs’ diligence in discovery and reporting of the evidence. In a hearing held on November 30, 1983, the trial court considered the plaintiffs’ section 2 — 1401 petition and what it characterized as defendant’s “objection” thereto. All matters were taken under advisement. On December 2, the trial judge allowed the plaintiffs’ section 2 — 1401 petition and vacated the judgment formerly imposed. We treat the trial court’s ruling as an implicit denial of defendant’s motion to dismiss.

Defendant’s first issue on appeal, which questions the sufficiency of the section 2 — 1401 petition, essentially repeats the contentions set forth in its motion to dismiss filed in the trial court. For purposes of this appeal, only defendant’s second argument need be examined in detail. Defendant argues that it was error for the trial judge to enter judgment on the section 2 — 1401 petition without permitting the defendant to file an answer to the petition. The plaintiffs respond that defendant waived this right, because it did not request leave to file an answer, it did not object to the entry of judgment on the section 2 — 1401 petition, and it did not file a motion for reconsideration of the judgment.

It is well established that a section 2 — 1401 petition begins a new civil action, which is subject to the same rules of pleading which govern all other civil actions. (People v. Jennings (1971), 48 Ill. 2d 295, 269 N.E.2d 474; In re Estate of Grabow (1977), 52 Ill. App. 3d 722, 367 N.E.2d 1345.) The option of filing an answer in a civil cause is a matter of right and does not depend upon the prior direction or consent of the trial court. (Stony Island Church of Christ v. Stephens (1977), 54 Ill. App. 3d 662, 369 N.E.2d 1313; see 87 Ill. 2d R. 181.) A motion to dismiss is not the equivalent of an answer. Although a motion to dismiss admits all facts well pleaded, it does so only for the limited purpose of determining whether those facts state a claim upon which relief may be granted. Unless the defendant elects to stand on its motion to dismiss, it retains the right to file an answer. O’Fallon Development Co. v. Ring (1967), 37 Ill. 2d 84, 224 N.E.2d 782; Gorin v. McFarland (1967), 80 Ill. App. 2d 398, 224 N.E.2d 615.

In the present case, the record demonstrates that defendant was denied its right to file an answer. The circumstances further establish that defendant did nothing to waive the right. At the hearing which preceded the judgment under scrutiny, the court had before it two pleadings: The plaintiffs’ section 2 — 1401 petition, and a document which the trial judge characterized as defendant’s “objection.” At the time of this hearing, however, defendant had not filed an “objection,” nor an answer, but only a motion to dismiss the petition. The trial court evidently misconstrued the motion to dismiss as some form of answer, for there was no express ruling on the motion to dismiss, and judgment was entered on the section 2 — 1401 petition prior to allowing defendant an opportunity to file an answer.

As for the plaintiffs’ contention of waiver, we find that the record rebuts such a theory. Following the hearing, the trial court took all matters under advisement. The “objection” and the section 2 — 1401 petition were later disposed of in the same written order. Defendant obviously had no opportunity to seek leave to file an answer, for it had no notice of the denial of the motion to dismiss before the entry of final judgment. Moreover, although defendant did not specifically object to the entry of judgment nor file a motion for reconsideration, we know of no such requirement in a nonjury case. The plaintiffs cite no authority to support their assertion of waiver in these circumstances.

We hold that the trial court erred in entering judgment on the section 2 — 1401 petition prior to allowing defendant an opportunity to file an answer. Accordingly, we reverse and remand. We direct the trial court to grant defendant leave to file an answer to the section 2 — 1401 petition, and to proceed to consider the petition and answer on file.

Reversed and remanded with directions.

GREEN and WEBBER, JJ., concur.


text:
    MARTHA TUCKER, Plaintiff-Appellee, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellant
    Fourth District
    No. 4—83—0607
    Opinion filed June 21, 1984.
    Rehearing denied July 30, 1984.

      Dunn, Goebel, Ulbrich, Morel & Hundman, of Bloomington (John L. Morel, of counsel), for appellant.
    G. Michael Prall, of Yoder, Yoder, Zanoni, Flynn, Prall & Willard, of Bloomington, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant Country Mutual Insurance Company appeals from a declaratory judgment of the circuit court of McLean County, finding that defendant failed to offer underinsured coverage to its insured in a renewal policy of automobile insurance, as required by section 143a — 1 of the Illinois Insurance Code (1979 Ill. Laws 4771) and reading such coverage into plaintiffs policy by operation of law. We affirm.

The only count of plaintiff’s complaint before this court upon which a declaratory judgment was entered by the trial court is count V. The allegations of count V and the agreed statement of facts submitted to the trial court by the parties discloses that on October 22, 1980, plaintiff Martha Tucker was injured in an automobile accident sustaining injuries in excess of $20,000. Plaintiff’s husband, William Tucker, was the named insured on a policy of insurance issued by the defendant and plaintiff was covered under the policy as a spouse and resident of the same household. Under the policy of insurance, uninsured motorist coverage of $100,000/$300,000 was provided, but the policy did not contain coverage for underinsured protection to pay the difference between plaintiff’s total damages and the liability limits of the at-fault driver’s insurance policy. The driver of the at-fault vehicle was insured, but the limits of his liability were $15,000 per person, which amount was tendered to plaintiff by State Farm Insurance Company.

The statutory provision at issue provided that, effective March 3, 1980, no policy could be issued or renewed unless an offer of underin-sured coverage was made to the insured to provide coverage for the difference between the injured party’s damages and the liability limits of the at-fault vehicle. Section 143a — 1 provides as follows:

“No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State with respect to any motor vehicle *** unless underin-sured motorist coverage is offered in an amount equal to the insured’s uninsured motorist coverage limits.” (Emphasis added.) (1979 Ill. Laws 4771.)

Plaintiff’s complaint sought a declaratory judgment that defendant had failed to offer the underinsured motorist protection upon renewal of her insurance policy and that such failure to make the offer required that the coverage be included in the insured’s policy by operation of law.'

The method devised by defendant to offer underinsurance coverage to policyholders was to include a one-time notice to that effect with the policyholder’s notice of renewal. Plaintiff received a notice of the policy renewal in August 1980, along with a letter from defendant advising her of the additional coverage. The notice sent to plaintiff from defendant provided as follows:

“Dear Policyholder:
The Country Companies continually strive to control costs in order to avoid rate increases for our policyholders. We have been able to postpone a rate increase for several months in spite of the continuing impact of high inflation. It has, however, finally become necessary to adjust our rates upward to keep them better in line with costs. The rate increase has been kept to a minimum.
We would like you to be aware that Country Companies now offer underinsured motorist coverage. This coverage provides bodily injury protection for you if you are injured in an accident caused by another driver who does not have adequate liability insurance coverage. If you wish to add this coverage to your personal vehicle policy, please contact your Country Companies agent.”

The trial court granted plaintiff’s complaint for declaratory relief and implied underinsurance coverage in the policy in limits equal to her uninsured protection. In so doing, the trial court construed the word “offer” in the statute to require that the defendant meet a four-part test adopted in Hastings v. United Pacific Insurance Co. (Minn. 1982), 818 N.W.2d 849. The trial court concluded that since no meaningful offer of underinsurance coverage had been made by the defendant, underinsurance coverage would be included in the policy in an amount equal to the limits for uninsured coverage.

The deciding issue we consider is whether the defendant made a proper offer of underinsurance coverage to its insured as required by section 143a — 1 of the Illinois Insurance Code. This issue is one of first impression in the reviewing courts of this State.

Defendant takes the position that it was not the legislature’s intention in using the word “offer” to require insurers to make a formal contractual offer to insureds of underinsurance protection and that, “offer” was not intended to mean anything other than that the insurer should make such coverage available and offer it in a nonspecific, colloquial sense. While agreeing that the word “offer” is ambiguous, defendant argues that “offer” could not have been used in its legal sense as a requirement that the insured receive a detailed proposal to confer upon the insured a power of acceptance. Such a construction, argues defendant, would remove the underwriting function from insurers and alter dramatically the practice in the insurance industry, where it is generally understood that acceptance by the insurer is as essential as acceptance by the insured.

Plaintiff replies that when a statute uses a word having a well-known legal significance, courts will, in the absence of any expression to the contrary, assume that the legislature used the word in its legal sense. (People ex rel. Mayfield v. City of Springfield (1959), 16 Ill. 2d 609, 158 N.E.2d 582.) An offer, under plaintiff’s interpretation, must be certain and unambiguous and confer upon the offeree a power of acceptance to form a contract. (See McCarty v. Verson Allsteel Press Co. (1980), 89 Ill. App. 3d 498, 411 N.E.2d 936.) Plaintiff argues in the alternative that the term “offer,” if it was not meant to mean a legal, contractual offer, must be construed to mean a meaningful, intelligent offer to implement the legislative purpose of section 143a — 1.

We begin with the cardinal rule of statutory construction that courts should always interpret a statute with the foremost objective of arriving at the intention of the legislature. (People ex rel. Mayfield v. City of Springfield (1959), 16 Ill. 2d 609.) In deriving this intention, consideration must be given to the entire statute, its nature, object, and the consequences which would result from construing it one way or another. (Carrigan v. Illinois Liquor Control Com. (1960), 19 Ill. 2d 230, 166 N.E.2d 574.) Although the question is not entirely free from doubt, we interpret section 143a — 1 to require that insurers offer the optional coverage in definite and specific terms in renewal policies and original policies so as to make effective, what is to us, the insured’s clear power of acceptance of the additional coverage.

We do not find that the offer has to be in the nature of a legal offer, but we do conclude that specific information must be communicated to the insured to make the offer meaningful. This conclusion is supported by the generally understood meaning of the word “offer” as requiring a definite statement of terms (McCarty v. Verson Allsteel Press Co. (1980), 89 Ill. App. 3d 498, 411 N.E.2d 936), legislative debate on the nature of an offer, and by other language in the added section which provides, in identical language, that uninsured motorist coverage shall also be offered and goes on to state that “[i]n those cases where the insured has failed to elect uninsured motorist coverage in excess of the mandatory limits set forth in Section 7 — 203 of The Illinois Vehicle Code, the insurer need not offer in any renewal or supplemental policy coverage in excess of that required in Section 7 — 203 of The Illinois Vehicle Code.” (Emphasis added.) (1979 Ill. Laws 4771.) By stating that both uninsured and underinsurance coverage shall be offered and then noting that this offer creates a right of election, we think it clear that it is the insured who has the power to decide whether the additional coverages, both uninsured and underinsurance, shall be accepted. To confer upon the insured a right of election without providing sufficient information to make an intelligent decision is, we believe, contrary to the purpose of section 143a— 1.

Legislative debate upon identical language in a subsequent bill makes this purpose clear. When section 143 a — 1 was repealed by Public Act 81 — 1426 (Ill. Rev. Stat. 1981, ch. 73, par. 755a — 2), which added a more comprehensive provision for offers of uninsured and un-derinsurance coverage, Public Act 81 — 1426 retained the same language that insurance companies shall offer specified amounts of unde-rinsurance coverage. In commenting upon this same language that insurers shall offer underinsurance coverage, Senator Berman commented that “what we’re saying is that it is going to be up to the insured upon being advised as to what is available to him to decide what he wants to buy and what he wants to pay for *** and I’m sure that the department [of Insurance] will require them to in the policy forms, to spell out what they are offering, what is being paid for and what the coverage is. Without this kind of clarifying language, you’re going to find some companies charging more for coverage that the insured doesn’t want *** or on the other hand, not offering what the insured is willing to pay for.” (Emphasis added.) (Senate debates, June 27, 1980, at 73.) Giving the insured the power to accept this additional coverage was the manifest purpose of section 143a — 1, and to construe the word “offer” to mean simply making it available in a general sense, without providing specific information of the terms of this coverage would defeat the goal of the statute. Subsequent amendments to the same section make clear the legislature’s perception that this is an important coverage since section 143a — 2 of the Illinois Insurance Code now requires that underinsurance coverage be included in all policies issued or renewed after July 1, 1983. Ill. Rev. Stat. 1983, ch. 73, par. 755a — 2.

Defendant argues against any construction of the word “offer” to require that the insurer give the insured the power to accept the additional coverage. Defendant suggests that the statute should not be construed to effect a change in settled law unless its terms clearly require such a construction. (Sternberg Dredging Co. v. Estate of Sternberg (1957), 10 Ill. 2d 328, 140 N.E.2d 125.) This settled law of insurance, according to defendant, requires that an offer of insurance originate from the prospective insured to the insurer for its acceptance or rejection. Defendant cites numerous cases in which particular insurance applications were held to create offers of coverage only, allowing the insurance company to reject or accept the application. (Stramaglia v. Conservative Life Insurance Co. (1943), 319 Ill. App. 20, 48 N.E.2d 719; Reynolds v. Guarantee Reserve Life Insurance Co. (1976), 44 Ill. App. 3d 764, 358 N.E.2d 940.) We interpret section 143a — 1 to prohibit insurers from rejecting the insured’s acceptance of an offer of underinsured coverage and to clearly require this result. However, it is only when the insurer has accepted the insured for general liability coverage that the statute would prohibit insurers from rejecting underinsured protection. This does not destroy the underwriting function, since the insurance company retains the power to reject all coverage of the insured. See Ill. Rev. Stat. 1981, ch. 73, par. 755.19.

In implementing what we conclude to be the requirements of an offer under section 143a — 1, we find persuasive the construction given by the Minnesota Supreme Court to a similar provision of Minnesota law requiring insurers to offer optional coverages, including underin-surance protection. In Hastings v. United Pacific Insurance Co. (Minn. 1982), 318 N.W.2d 849, the Minnesota Supreme Court held that a statute requiring insurers to offer, inter alia, underinsured motorist protection required the insurer to meet a four-part test to comply with the statute’s requirement: (a) If the offer is made in other than face to face negotiations, the notification process must be commercially reasonable; (2) the insurer must specify the limits of its optional coverages and not merely offer them in general terms; (3) the insurer must intelligibly advise the insured of the nature of the optional coverages; and (4) the insured must be advised that optional coverages are available for a relatively modest increase in premium. A case decided under the Minnesota statute and resembling the offer made in this case is Kuchenmeister v. Illinois Farmers Insurance Co. (Minn. 1981), 310 N.W.2d 86. There, the insured was injured in an automobile accident and sustained injuries in excess of the at-fault party’s insurance. The insured brought a similar declaratory judgment action contending that no offer of underinsurance coverage had been made by the insurer. The notice of the optional coverage in that case which was sent to the insured stated: “ ‘Did you know that you may now have underinsured motorist and/or uninsured motorist coverage in amounts up to your bodily injury liability limits. If interested, contact your agent.’ ” (310 N.W.2d 86, 88.) In finding this notice insufficient, the court noted that it was contained at the bottom of a premium notice, was vague, and gave no explanation of the additional coverage.

Here, we find that although the defendant did offer the coverage in a commercially reasonable way by including the notice in a policy renewal statement (Jacobson v. Illinois Farmers Insurance Co. (Minn. 1978), 264 N.W.2d 804), absent from the offer was a description of the limits of the optional coverage, the cost of the coverage, and an intelligible description of underinsurance coverage. Defendant argues that it met the Hastings test because the offer gave the insured notice of the coverage in a commercially reasonable fashion, provided an explanation of underinsured protection by explaining that such coverage included bodily injury protection for the insured if he was injured in an accident caused by another driver who did not have adequate liability limits, told the insured to contact a Country Companies agent, and, in addition, the insured had a policy in his possession which provided a definition of underinsured vehicle and explained the manner in which underinsured coverage functions.

We disagree. As we have noted, the offer made no mention of the cost of underinsured coverage (in this case a $16.60 premium would have provided coverage of $100,000/$300,000), and made no mention of the limits of coverage. In addition, the short, one-paragraph description contained in a letter advising the insured that his premium was being increased was not designed to intelligibly advise the insured of the additional coverage available. Nor can defendant now argue that the insured had a policy in his possession which explained underinsured coverage since the policy which defendant submitted to the court on the stipulated statement of facts contained no description of underinsurance coverage. The first mention of any policy providing a description of underinsurance coverage was in defendant’s post-trial motion. Nevertheless, whether or not the insured did have such a policy, the notice provided by the defendant was deficient, obscured as it was in a letter advising plaintiff of an increase in her premium, as we have noted above. This case is thus factually distinct from the authority cited by defendant.

Lastly, defendant asserts that the question of whether an offer of underinsurance coverage was made is moot because an affidavit filed by its senior claims agent discloses that the named insured, William Tucker, who is now deceased, advised the claims agent that Tucker received a copy of the notice of underinsurance coverage but did nothing to change his policy. Defendant suggests that the question of whether a proper offer was made in compliance with the statute is moot because Tucker had actual notice of the additional coverage. Plaintiff responds that the affidavit is inadmissible and that she objected to it at trial on grounds of hearsay.

A case is moot if it presents no real or existing controversy but rests upon abstract issues or issues which no longer exist because of the happening of certain events. (Johnson v. Quern (1980), 90 Ill. App. 3d 151, 412 N.E.2d 1082; People v. Redlich (1949), 402 Ill. 270, 83 N.E.2d 736.) We find that the affidavit is admissible as a declaration against interest made by an unavailable declarant (see Jones v. DeWig (1974), 25 Ill. App. 3d 423, 323 N.E.2d 475), but the present case is not moot because this court has to determine if an offer was made as required by law. Merely because Tucker stated that he received the notice does not indicate whether the notice was sufficient to comply with the statutory requirement of an offer. As the trial court noted, the conclusion that the named insured received the notice and did not elect underinsurance coverage is not an admission that he understood what had been offered or that he had rejected the coverage. Since we find that the defendant made an insufficient offer under the requirements of the statute, the trial court’s judgment implying underinsurance coverage in plaintiff’s policy by operation of law in limits equal to her uninsured motorist coverage is affirmed.

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

Affirmed.

MILLS, P.J., and WEBBER, J., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LYONEL L. HARMAN, Defendant-Appellant.
    Second District
    No. 2—83—0769
    Opinion filed June 27, 1984.

      G. Joseph Weller and John R. Wimmer, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Lyonel L. Harman, was found guilty of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a)) and was sentenced to three years’ imprisonment. He appeals, contending the trial court erred: (1) in excluding defendant’s exculpatory statement made after his arrest; (2) in refusing to instruct the jury on the lesser offense of criminal trespass to land; and (3) in ruling that it did not have discretion to sentence defendant to probation under section 5— 5 — 3(c)(2)(F) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3(c)(2)(F)).

Robert Pushee, superintendent of parks of the Zion Park District, testified that on June 2, 1983, no one had permission to enter the clubhouse of the Zion Golf Course or take anything out of it. He inspected the clubhouse after the police had arrived and saw that nothing had been taken, but that the back window had been broken. He also described a fence which ran around the entire golf course and a sign which said “Do not climb fence” located further down from the gate which led to the clubhouse.

The arresting officers, Patrick Lowery and John Samuelian, testified they had responded to a burglary alarm at the clubhouse of the Zion Golf Course at 3 a.m. on June 2 and found defendant inside the building with a set of keys to the golf carts in his possession. They observed that a back window had been broken and a large piece of concrete was lying on the floor. Outside, they found a 55-gallon drum directly under the broken window. Defendant was placed under arrest and advised of his Miranda rights, and when the officers inquired what he was doing in the building, he responded that he had entered to make a telephone call.

On cross-examination Officer Lowery stated that he was present at another conversation with the defendant later at the police station in which the defendant gave a statement to Officer Dayton. At this point, the State objected on the grounds that the statement made would be self-serving hearsay and beyond the scope of the direct examination. The court sustained the objection, and suggested that if the defense wished to question Lowery regarding defendant’s statement at the police station, it should call him as a defense witness.

Officer Samuelian testified that he had a conversation with defendant in the squad car on the way to the police station in which the defendant told him he intended to take the golf cart for a joy ride. When asked whether he had any further conversation with defendant on the way to the station, Samuelian replied that he had no further conversations with the defendant until after they had arrived at the station, where Officer Dayton took a statement from him. On cross-examination, defense counsel asked Samuelian about the defendant’s statement to Officer Dayton. Samuelian testified he did not recall what defendant told Officer Dayton and only knew that defendant had talked to him, as he was in and out of the room in which Officer Dayton and defendant were conversing.

Defense counsel inquired further whether Samuelian saw defendant make a written statement during the times he was in the room with him and Samuelian responded he had not. Counsel then inquired whether the officer recalled if defendant had told him he was going to bring the cart back and the officer responded he did not remember defendant saying he was going to bring it back. Counsel then sought to refresh his recollection with earlier testimony by Officer Samuelian at a preliminary hearing and the officer responded that he did not recall testifying at that time. The State objected, and in a side bar discussion the court was advised that Officer Samuelian had testified at the preliminary hearing that he was present along with Dayton and Lowery when the defendant gave a written statement at the police station, and that he then recalled that the substance of the statement defendant made was that he was going to take the golf cart, ride over the park, and then bring it back. The trial court sustained the State’s objection to this line of inquiry, but directed that Samuelian stand by to be available for recall as a defense witness as he had earlier directed Officer Lowery. The State thereupon rested.

The State made a motion in limine to exclude as hearsay any testimony by Officer Dayton concerning statements made by defendant to him at the station. Defendant’s counsel advised the court that the defendant’s written statement to Dayton, which had not been offered in evidence, was to the effect that defendant planned to break into the clubhouse, find keys to the golf carts so he could take a cart to Beula Park and then return it, just to see if he could do it. The trial court granted the State’s motion in limine, and defendant rested without presenting evidence.

At the conference on instructions defense counsel also offered instructions on criminal trespass to land (Illinois Pattern Jury Instructions (IPI), Criminal, Nos. 16.05, 16.06 (2d ed. 1981)), arguing that while criminal trespass to land is not a lesser-included offense of burglary, the instruction should be given where the evidence produced at trial supports a conviction for that offense. The instructions were refused.

At the sentencing hearing, the trial judge remarked that he was precluded from sentencing defendant to probation because he had been convicted of burglary in Pennsylvania in 1982. After a sentencing hearing, the trial court found that probation should be denied and a sentence of imprisonment imposed for the reason that imprisonment was necessary for the protection of the public. The trial court thereupon imposed a three-year term of imprisonment, and this appeal followed.

Defendant contends first that the trial court erred in excluding his exculpatory statement made after his arrest at the police station as hearsay. Defendant concedes that under the hearsay rule a party is ordinarily excluded from proving his own out-of-court self-serving statements. (People v. Colletti (1968), 101 Ill. App. 2d 51, 242 N.E.2d 63, cert, denied (1969), 396 U.S. 927, 24 L. Ed. 2d 225, 90 S. Ct. 259.) He argues, however, his statement was admissible here because the State opened the door to its admission when on direct examination it brought out the fact that defendant had made statements to Officer Dayton at the police station, and because the State failed to object on cross-examination to references that defendant had made statements to Dayton. Defendant argues that by allowing the jury to hear this testimony it may have been misled into thinking defendant had made no statement to Dayton that he intended to bring the cart back and, as the State made first reference to this conversation, defendant should be permitted to clarify what he did say to Dayton.

It is true that where a portion of a conversation is related by a witness the opposing party has the right to bring out all of the conversation. (People v. Weaver (1982), 92 Ill. 2d 545, 556-57, 442 N.E.2d 255; People v. Futía (1983), 116 Ill. App. 3d 68, 71, 452 N.E.2d 109; Johnson v. Cunningham (1969), 104 Ill. App. 2d 406, 414, 244 N.E.2d 205; Dispenza v. Picha (1968), 98 Ill. App. 2d 110, 113, 240 N.E.2d 325.) It is also true, however, that this hearsay exception does not apply if the testimony to which reference was made was not a part of the conversation the opposing party is attempting to introduce on cross-examination. Here, the single reference Samuelian made on direct examination, that defendant made a statement at the police station, and Samuelian’s later reference to the conversation on cross-examination, does not open the door to its admission or waive the State’s objection to defendant’s hearsay self-serving statement.

In context, Samuelian stated on cross-examination that while in the squad car defendant told him that he had intended to use the cart for a joy ride and he did not recall if defendant stated he was going to return it. Defense counsel then posed several questions regarding defendant’s conversation with Dayton in the station, to which Sa-muelian responded that he was in and out of the interrogation room, but did not recall what defendant had told Dayton and did not see defendant make a written statement. After that, defense counsel asked him:

“Q. You said you don’t recall if he told you he was going to bring the cart back, is that right?
A. Yes. I don’t remember him saying he was going to bring it back.”

It is apparent Samuelian was referring to his earlier conversation with defendant in the squad car and not to any conversation defendant may have had with Dayton. Samuelian had just responded to an earlier question that he had no recollection of what defendant had told Dayton and did not see him make a written statement. It is also apparent that the jury could not be misled into thinking defendant’s exculpatory statements were not made as Samuelian had testified he was in and out of the room during the conversation with Dayton and any statement he intended to bring the cart back could have taken place while Samuelian was out of the room.

Nor did the State waive its objection to this testimony; it promptly objected when the defendant sought to introduce the details of the conversation between defendant and Officer Dayton.

Defendant next contends the trial court erred in refusing his tendered instruction on criminal trespass to land as an alternate offense to the burglary. He argues that as the evidence presented at trial could support a conviction for that offense, the jury should have been instructed on this lesser offense.

A defendant is entitled to an instruction on a lesser-included offense when all of the elements of that offense are included within the greater offense and if there is some foundation in the evidence which would support a conviction for the lesser offense. (People v. Dace (1983), 114 Ill. App. 3d 908, 916, 449 N.E.2d 1031, appeal allowed (1983), 96 Ill. 2d 543.) However, since burglary does not require prior notice to defendant (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 3(b)), which is a necessary element of criminal trespass to land, the latter is not a lesser-included offense of burglary and defendant would not be entitled to the instructions offered under this traditional definition.

Defendant appears to rely upon the “inherent relationship” test wherein instructions may be offered on the elements of a lesser offense when the evidence produced at trial could support a conviction for that offense and when there is an inherent relationship between the greater and lesser offenses, although the lesser offense may not be included. (People v. Dace (1983), 114 Ill. App. 3d 908, 449 N.E.2d 1031; United States v. Johnson (9th Cir. 1980), 637 F.2d 1224, 1238-39.) Although adopted by some Federal courts (United States v. Johnson (9th Cir. 1980), 637 F.2d 1224; United States v. Pino (10th Cir. 1979), 606 F.2d 908, 916; United States v. Whitaker (D.C. Cir. 1971), 447 F.2d 314, 319), and the appellate court for the third district (People v. Dace (1983), 114 Ill. App. 3d 908, 449 N.E.2d 1031), this court has expressly declined to recognize the test on the grounds that it would usurp the State’s function to choose under which statute a defendant will be prosecuted. People v. Barkenlau (1982), 105 Ill. App. 3d 785, 788-90, 434 N.E.2d 856.

While we do not depart from our opinion in People v. Barkenlau, it is apparent that dejfendant would not be entitled to the tendered instructions for the lesser offense under either test. In order to be convicted of criminal trespass of land there must be evidence that defendant knowingly entered upon land of another and that immediately prior to entry he received notice that entry was forbidden. A person has received notice within the meaning of the statute if a printed or written notice forbidding such entry has been conspicuously posted or exhibited at the main entrance to the forbidden land. (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 3(b).) In the present case the evidence was insufficient to permit a jury to find that defendant had received the requisite notice. The only evidence which arguably might tend to show that entry was forbidden was that there was a sign posted further down from the entrance leading to the clubhouse which stated “Do not climb the fence.” There is nothing in the record indicating the relationship of the sign to the main entrance or whether it was posted conspicuously so that it could be inferred defendant had observed it.

We conclude that the trial court did not err in refusing the tendered instructions.

Defendant finally contends that the trial court erred in finding it was precluded from sentencing him to probation because of his prior conviction for burglary in Pennsylvania in 1982. Section 5— 5 — 3(c)(2)(F) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3(c)(2)(F)) provides that a trial court may not sentence a defendant to probation for an offense that is:

“A Class 2 or greater felony if the offender has been convicted of a Class 2 or greater felony within ten years of the date on which he committed the offense for which he is being sentenced; ***.”

Defendant argues that this reference to the Illinois classification of Class 2 felonies indicates that the section only encompasses Illinois convictions. He notes that, in contrast, section 33B — 1 of the habitual criminal act of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1) defines a habitual criminal as one “who has been twice convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class X felony or murder.” Defendant concludes that as section 33B — 1 refers to other State and Federal convictions in that context, the absence of similar language in section 5 — 5—3(c)(2)(F) demonstrates the legislative intent that the latter applies to prior Illinois convictions only in barring a sentence of probation.

While penal statutes must be strictly construed (People v. McCarty (1983), 94 Ill. 2d 28, 445 N.E.2d 298), and any amibiguity should be resolved in the defendant’s favor, prime consideration in construing a legislative enactment is to ascertain and give effect to the legislative intent. (People v. Rogers (1980), 86 Ill. App. 3d 1092, 1093-94, 408 N.E.2d 769.) Where the statutory language is clear and unambiguous, the statute must be given effect without resort to other aids for construction. (People v. Boykin (1983), 94 Ill. 2d 138, 445 N.E.2d 1174.) Where, however, the language is susceptible of different interpretations, to ascertain a legislative intent, it may be necessary to look beyond express words and to consider the purpose to be served by the statute. (Mack v. Seaman (1983), 113 Ill. App. 3d 151, 154, 446 N.E.2d 1217; Illinois Racing Board v. Arlington Park Thoroughbred Race Track Corp. (1979), 76 Ill. App. 3d 289, 292, 395 N.E.2d 93.) Also, where the legislature has provided reasonable definitions of any terms within its enactment, such definitions for the purposes of its acts will be sustained. (Mack v. Seaman (1983), 113 Ill. App. 3d 151, 154, 446 N.E.2d 1217; Chicago-Midwest Meat Association v. City of Evanston (1981), 96 Ill. App. 3d 966, 969, 422 N.E.2d 205.) Furthermore, separate acts with separate purposes need not define similar terms in the same way. Therefore, the meaning of words within the statute is dependent upon the connection in which the word is used, the object or purpose of the statute and the consequences which probably will result from the proposed construction. Mack v. Seaman (1983), 113 Ill. App. 3d 151, 154, 446 N.E.2d 1217; People ex rel. De Boer v. Geary (1944), 323 Ill. App. 32, 39, 54 N.E.2d 840.

Section 5 — 5—3(c)(2)(F) is not part of the Criminal Code of 1961, as is section 33B — 1, but rather is part of the Unified Code of Corrections. Therefore, application of section 5 — 5—3(c)(2)(F) is limited, by the terms of that act, to the other provisions contained within the sentencing act. See Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 1—1.

Within the sentencing article, section 5 — 5—3.2(b)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5— 3.2(b)(1)), limits the trial court’s consideration as to whether to impose an extended-term sentence on a defendant to Illinois convictions only. Similarly, section 5 — 5—3(c)(6) of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3(c)(6)) directs that certain defendants who have been twice convicted of Class 2 or greater felonies in Illinois shall be sentenced as Class X offenders. The fact that the legislature authorizes a trial court to consider only Illinois convictions when deciding to enhance a sentence, while the same limitation is absent from the provision limiting a trial court’s authority to sentence a defendant to probation, indicates that the legislature intended different results. Aurora Pizza Hut, Inc. v. Hayter (1979), 79 Ill. App. 3d 1102, 1105-06, 398 N.E.2d 1150.

It is apparent that when the legislature intended in the Act to limit sentencing considerations to defendant’s conduct within this State, that it will expressly do so. While the definition of “offense” in the Act is limited to violations of Illinois State law (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 1—15), the Act also provides that “the words and phrases described in this Article have the meanings designated in this Article, except when a particular context clearly requires a different meaning” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 1—1). We conclude that section 5 — 5—1 which states that “provisions of this Article shall govern the classification of all offenses for sentencing purposes” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—1), is not limited to offenses committed in Illinois, as defendant argues, but is also to be applied to out-of-State offenses considered for purposes of sentencing.

Defendant has not suggested that his conviction for burglary in the State of Pennsylvania was for conduct which, in Elinois, would be classified less than a Class 2 felony, and we may not disregard the unambiguous language of section 5 — 5—3(c)(2)(F), which thus bars a sentence of probation.

We note, too, the trial court did not rely solely upon consideration of this section of the Code, but also found that probation should be denied and a sentence of imprisonment imposed for the protection of the public.

Accordingly, the judgment of the trial court will be affirmed.

Affirmed.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.


author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JON C. BAILEY et al., Defendants-Appellees.
    Second District
    Nos. 83—393, 83—394, 83—395, 83—396 cons.
    Opinion filed June 27, 1984.

      Dallas Ingemunson, State’s Attorney, of Yorkville (Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    J. Steven Beckett, of Reno, O’Byrne & Kepley, of Champaign, for appellees.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

The defendants in these consolidated cases were charged separately by complaint or amended complaint with the offense of obscenity in violation of section 11 — 20(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 20(a)(1)). The trial court, relying upon People v. Ridens (1974), 59 Ill. 2d 362, cert, denied (1975), 421 U.S. 993, 44 L. Ed. 2d 483, 95 S. Ct. 2000, found the complaints to be insufficient because they did not include the third definitional element of the offense of obscenity, namely that the materials were “utterly without redeeming social value.” The court dismissed the complaints and the State has appealed. The critical issue on this appeal is whether, in addition to setting forth the allegations of conduct of the defendants which would establish the elements of the offense of obscenity as set forth in section 11 — 20(a) of the Criminal Code of 1961, the charging instrument in an obscenity case must also set forth the definitional elements of the term “obscenity” or “obscene” as used in the Illinois obscenity statute.

We agree with the State and find the case of People v. Vavrys (1964), 47 Ill. App. 2d 258, to be dispositive of this issue. In Vavrys, the court addressed the same issue, to wit, the sufficiency of an obscenity information which alleged the commission of the offense solely in terms of the elements of the offense as set forth in the statute itself. The Vavrys court correctly found that it was not necessary to set forth in the charging instrument the elements of the definition of obscenity. (47 Ill. App. 2d 258, 261-62.) The addition of a statement in the charging instrument setting forth that the magazine or movie in question, taken as a whole, appeals to prurient interests in sex, that the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters, and that the material is utterly without redeeming social value would be a legal conclusion of the prosecutor and constitute mere surplusage. See 47 Ill. App. 2d 258, 262.

The defendants contend that the Illinois obscenity statute on its face fails to give fair guidance to putative defendants, and therefore Federal constitutional first amendment rights require the terms of the obscenity definition to be correctly set forth in the charging instrument in order to give defendants proper notice of the nature of the charged offense. However, the very case upon which the trial court relied in dismissing the complaints refutes this argument. In People v. Ridens (1974), 59 Ill. 2d 362, cert, denied (1975), 421 U.S. 993, 44 L. Ed. 2d 483, 95 S. Ct. 2000, the supreme court upheld the constitutionality of our obscenity statute against charges that it was vague and overbroad’ and, when measured against the due process requirement that a Criminal statute give a person of ordinary intelligence fair prior notice that his contemplated conduct is forbidden, the court further deemed our obscenity statute to be sufficiently definite. (People v. Ridens (1974), 59 Ill. 2d 362, 369-75; see also Ward v. Illinois (1977), 431 U.S. 767, 52 L. Ed. 2d 738, 97 S. Ct. 2085.) Based upon the Ridens decision, we reason that it is the obscenity statute itself, as judicially construed, and not the charging instrument, which must advise the defendant of the meaning of obscenity and thereby forewarn him, in advance of his actions, whether or not his contemplated conduct is proscribed.

The defendants also contend that the trial court was correct in dismissing their complaints because the allegations inaccurately set forth the definitional elements of obscenity. While it is correct that the definitional elements as alleged in the complaints did not conform to the requirements of the Illinois obscenity statute as authoritatively construed by the Ridens court, the language used by the State constituted surplusage and did not make the complaints insufficient. Rather than dismissing those complaints, the remedy which the trial court should have employed was to strike all language setting forth the definitional elements of obscenity as surplusage. Cf. People v. Dyer (1977), 51 Ill. App. 3d 731; People v. Young (1973), 12 Ill. App. 3d 310, 314.

The trial court’s orders dismissing the complaints or amended complaints in each of the following designated proceedings are reversed and the causes are remanded to the trial court for further proceedings.

1. People v. Jon Bailey, Appellate Court No. 83 — 393 16th Judicial Circuit, Kendall County

(a) trial court No. 82 CM 295 — amended complaint

2. People v. Randy McCaslin, Appellate Court No. 83 — 394 16th Judicial Circuit, Kendall County

(a) trial court No. 83 CM 78 — complaint

3. People v. John R. Findlay, Appellate Court No. 83 — 395 16th Judicial Circuit, Kendall County

(a) trial court No. 82 CM 293 — amended complaint

(b) trial court No. 82 CM 294 — amended complaint

(c) trial court No. 82 CM 308 — amended complaint

(d) trial court No. 82 CM 309 — amended complaint

(e) trial court No. 83 CM 83 — complaint

4. People v. Rodney Leifheit, Appellate Court No. 83 — 396 16th Judicial Circuit, Kendall County

(a) trial court No. 83 CM 59 — complaint

(b) trial court No. 83 CM 60 — complaint

(c) trial court No. 83 CM 61 — complaint

Reversed and remanded.

NASH and UNVERZAGT, JJ., concur.


author: JUSTICE LINDBERG

text:
    INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, DISTRICT LODGE NO. 140, et al., Plaintiffs-Appellants, v. CHESHIRE/A XEROX COMPANY et al., Defendants-Appellees.
    Second District
    No. 2—83—0556
    Opinion filed June 27, 1984.

      James D. Goodman, of Chicago, for appellants.
    Gerard C. Smetana and Gary L. Starkman, both of Arvey, Hodes, Costello and Burman, of Chicago, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff-union’s complaint to compel arbitration (Ill. Rev. Stat. 1981, ch. 10, par. 102) was dismissed by the circuit court of Lake County and the parties’ cross-motions for summary judgment were denied. Because the dispute giving rise to the complaint was arbitra-ble, we reverse and remand for an order granting the relief sought in the complaint.

On January 13, 1983, plaintiffs, International Association of Machinists and Aerospace Workers, District Lodge No. 140, James D. Feight, Ray Holland, David Rumpf and Charles Dalbke (hereinafter union), filed a complaint which sought to enjoin defendants, Cheshire/ A Xerox Company and Xerox Corporation (hereinafter company), from refusing to participate in arbitration pursuant to a collective bargaining agreement between the parties. The union alleged that a controversy had arisen out of that agreement, to wit:

“The company notified the union that the finished design of the Ferret Machine has been released to be manufactured in Hot Springs, ARkansas [sic], a right to work state; thereby, depriving Bargaining Unit Employees of work normally performed by them. Such work loss is greatly magnified by already loss [sic] of the machine shop and wire harness work. This methof [sic] of discriminating against the union substantially jeopardizes the status and integrity of the Bargaining unit. This is a violation of the current Collective Bargaining Agreement in particular, Article 1 and Job Descriptions. Specific Adjustment requested: The Company manufacture the finished design of the Ferrest [sic] Machine at Cheshire of Mundelein, Illinois and make the appropriate employees whole.”

It was agreed by the parties that the union requested arbitration of this controversy but that the company refused and continues to refuse to submit to arbitration.

The company filed a counterclaim and motions for dismissal of the complaint and for summary judgment on the counterclaim. The union filed motions for dismissal of the counterclaim and for summary judgment on the complaint. Oral argument was made on these motions on April 26, 1983, and the trial court ruled on May 17, 1983. The court found that the Management Rights Article of the collective bargaining agreement, which gave the company the exclusive right “to introduce new or revised production methods or facilities [and] to decide the number and location of its plant and nature and extent of work to be performed therein ***,” was a clear and unambiguous exclusion of the union’s grievance from arbitration. The court therefore granted the company’s motion to dismiss the complaint while also dismissing the company’s counterclaim and denying the cross-motions for summary judgment. In its appeal, the union seeks reversal of the denial of its petition to compel arbitration and an order compelling arbitration.

For clarification purposes, we first address the scope of this appeal. Because the union now seeks not only reinstatement of its complaint but also the granting of the relief sought by that complaint (i.e., an order compelling arbitration), it is clear that the union appeals from the denial of its motion for summary judgment as well as from the dismissal of its complaint. While the denial of a motion for summary judgment is not ordinarily appealable, such a denial is reviewable where the case is on appeal before the appellate court from a final judgment, there has been no evidentiary hearing or trial, and the party seeking such review has not in any way prevented or avoided such hearing or trial. (Novak v. Insurance Administration Unlimited, Inc. (1980), 91 Ill. App. 3d 148, 414 N.E.2d 258; Cedric Spring & Associates, Inc. v. N.E.I. Corp. (1980), 81 Ill. App. 3d 1031, 402 N.E.2d 352.) Since the dismissal of the complaint is a final judgment properly before this court, we may also properly review the denial of the union’s motion for summary judgment.

The central issue of this appeal is whether the dispute between the parties is an arbitrable one. Subsection (a) of section 2 of the Uniform Arbitration Act provides as follows:

“(a) On application of a party showing an agreement described in Section 1, and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.” (Ill. Rev. Stat. 1981, eh. 10, par. 102(a).)

Although the company’s motion to dismiss was ostensibly a section 2 — 619 motion (see Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619) for involuntary dismissal based upon certain defects or defenses, it more precisely sought the summary determination provided for in the Uniform Arbitration Act. Under that act, the trial court is authorized to determine arbitrability if one of the parties denies it has agreed to arbitrate, as the company does here. (Lehman v. Eugene Matanky & Associates, Inc. (1982), 107 Ill. App.. 3d 985, 438 N.E.2d 614.) In granting the motion to dismiss, the trial court summarily determined that there was no agreement to arbitrate the dispute alleged.

With regard to the arbitration of dispute, the terms of the collective bargaining agreement are very broad:

“Grievances are defined as any alleged violation of the terms of this Agreement or differences of opinion as to its interpretation, applications or differences of opinion arising out of conditions of employment. Should grievances, as defined above, arise, there shall be no suspension of work and all issues and disputes shall be settled promptly in the manner hereinafter outlined in this Article.
* * *
Any grievance which is not settled may be referred to arbitration in accordance with the provisions of Section 4 of this Article.” (Emphasis added.)

The complaint alleges a violation of the terms of the agreement. The union alleges that the company’s decision to manufacture the Ferret Machine in Arkansas rather than Mundelein violates “Article 1 and Job Descriptions,” so as to discriminate against the union. The union argues that it refers to that part of Article 1 which states:

“It is understood that it is necessary for non-bargaining unit personnel to perform experimental and developmental work in which the subject matter is not covered by a finished design. Nothing contained in this Agreement shall be interpreted to limit or prevent the performance of assembly, adjustment or testing of experimental or prototype machines, or the performance of final inspection or check-out of machines or equipment by supervisors, engineers or other salaried employees. However, the language of the preceding sentence is not intended to infringe on any work normally performed by members of the bargaining unit.” (Emphasis added.)

The arbitration clause makes arbitrable all alleged violations and differences of opinion of contract interpretation arising out of conditions of employment. The complaint makes out just such a grievance. Faced with this broad an arbitration clause, the court’s function is limited to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract; whether the moving party is right or wrong is a question of contract interpretation for the arbitrator and not for the courts, who have no business weighing the merits of the grievance, considering whether there is equity in the claim, or determining whether there is particular language in the agreement which will support the claims. United Steel Workers of America v. American Manufacturing Co. (1960), 363 U.S. 564, 568, 4 L. Ed. 2d 1403, 1407, 80 S. Ct. 1343, 1346; Croom v. City of De Kalb (1979), 71 Ill. App. 3d 370, 389 N.E.2d 647.

In Croom, this court found an express provision limiting the type of grievances which were subject to arbitration and held the grievance at issue to be nonarbitrable. (71 Ill. App. 3d 370, 375-76, 389 N.E.2d 647, 651-52.) The trial court here found the management rights clause to be an express provision excluding certain disputes from arbitration. We disagree. First, the arbitration clause, in defining grievances and subjecting them to arbitration, does not exempt disputes relating to the interpretation of any particular article. Second, the management rights article defines certain substantive rights of the company without exempting from arbitration differences of opinion over those definitions. Finally, the management rights are not absolute because of a clause that “such power shall not be used for the purpose of discrimination against any member of the Union or contrary to the provisions of the Agreement.” Any dispute concerning the company’s apparent exercise of a management right may involve an interpretation of this clause. The complaint here in fact does allege that the company’s action discriminates against the union and violates Article 1. Because interpretation of the clause is effectively a difference of opinion of contract interpretation it is a question meant to be resolved by the arbitrator and not the courts. We conclude that the management rights article relates to the substantive rights of the parties and does not create an exception to the scope of the arbitration clause.

The company relies on International Union United Automobile, Aerospace & Agriculture Implement Workers of America, UAW v. Lester Engineering Co. (6th Cir. 1983), 718 F.2d 818. In that case, the Federal courts were asked by a union to enjoin a company from closing one of its plants. One of the criteria examined by the Sixth Circuit Court of Appeals in determining whether the injunction may be issued was whether the underlying labor dispute, the company’s decision to close the plant, was arbitrable. Like the present case, the collective bargaining agreement contained a broad arbitration clause and a management prerogative clause that expressly gave the company the right to take the action at issue. The court concluded:

“The decision to close is, as the District Court astutely observed, delegated to Lester under the terms of the collective bargaining agreement. The company rights clause of the agreement clearly gives Lester the unilateral right to close its facilities. Therefore, even if we read the arbitration clause broadly, we could not find the underlying dispute arbitrable.” 718 F.2d 818, 824.

We believe that that conclusion involved the type of bootstrap reasoning faulted in United Steel Workers of America v. American Manufacturing Co. (1960), 363 U.S. 564, 568, 4 L. Ed.2d 1403, 1407, 80 S. Ct. 1343, 1346: the union cannot win on the merits, so therefore the dispute is not arbitrable. Since this court is not bound by decisions of the United States district and circuit courts (City of Chicago v. Groffman (1977), 68 Ill. 2d 112), we need not follow the lead of the Lester decision.

The union also raises two issues relating to extrinsic evidence. First, it challenges the submission of the affidavit of Ronald C. Fain, the company’s manager of industrial relations. This affidavit was attached to the company’s memorandum to the trial court in support of its motions for dismissal of the complaint and for summary judgment on the counterclaim. It is clear from the trial court’s order that it based its decision upon the pleadings and the collective bargaining agreement itself, without reference to the Fain affidavit. In reaching the opposite conclusion on the arbitrability issue, we also rely solely on the pleadings and the agreement. Thus, we find it unnecessary to address the propriety of considering the Fain affidavit.

Second, the union moves this court to strike that part of the company’s brief relating to a letter from the National Labor Relations Board to the union. The letter expressed the NLRB’s decision to deny the union’s appeal from the Regional Director’s refusal to issue a complaint. We fail to see the relevance of the letter to either the trial court’s determination or ours. Again, neither the trial court nor this court has used the letter in deciding this case. In light of our decision in the union’s favor on this appeal, we need not decide the union’s motion to strike.

In sum, we hold that the complaint alleges a dispute which is arbitrable pursuant to the agreement between the parties. While the company could have bargained to exempt from arbitration all questions relating to express management rights, we conclude as a matter of law that the agreement here did not do so. Under the terms agreed to by both parties to the agreement, all that is required to trigger arbitration is an “allegation” or “a difference of opinion.” Therefore, while we might have concluded, as a matter of law, that the company’s action is not a violation under the agreement, that is not the question for the court to resolve. Based upon this conclusion, the trial court erred in dismissing the complaint. Further, since section 2(a) of the Uniform Arbitration Act (Ill. Rev. Stat. 1981, ch. 10, par. 102(a)) calls for summary determination of a disputed arbitrability issue, the trial court should have granted the union’s motion for summary judgment in its favor. Accordingly, we reverse the orders of the circuit court of Lake County dismissing the complaint and denying the union’s summary judgment motion, and we remand to that court for an order compelling arbitration as requested in the complaint.

Reversed and remanded.

REINHARD and VAN DEUSEN, JJ., concur.


text:
    RAY E. STEFFEN, Ex’r of the Estate of Donald Karnes, Deceased, et al., Petitioners-Appellees, v. FRANK PAULUS et al., Respondents-Appellants.
    Fourth District
    No. 4—83—0586
    Opinion filed June 27, 1984.

      Yoder, Yoder, Zanoni, Flynn, Prall & Willard, of Bloomington (Michael J. Flynn, of counsel), for appellants.
    Dunn, Goebel, Ulbrich, Morel & Hundman, of Bloomington (William M. Goebel, of counsel), for appellee Illinois Wesleyan University.
    Hanley, Traub & Hanley, of Fairbury (Harvey S. Traub, of counsel), for appellee Ray E. Steffen.
   JUSTICE TRAPP

delivered the opinion of the court:

Respondents, Frank and Viola Paulus, appeal from an order granting summary judgment in favor of petitioners, Ray Steffen, executor of the estate of Donald Karnes, and Illinois Wesleyan University. The issue involved in this appeal is the sufficiency of a notice to terminate a lease. We affirm.

On September 30, 1971, Karnes and Frank Paulus executed a SO-SO crop share lease, which required Paulus to farm 160 acres of Karnes’ land. The lease term began March 1, 1972, and was to run for 99 years. The parties, however, contemporaneously executed a cancellation clause. It provided:

“This lease may be cancelled annually by the tenant giving to the landowner written notice by November 1st of any year covering the succeeding crop year of his intention to discontinue farming operations and yield possession to the landowner. No payment of any sum of money will be due and payable in case of Tenant’s termination of lease.
This lease may be cancelled at the end of each five (5) crop year period, counted from the first effective crop year of the lease, by Donald Karnes, DURING HIS LIFETIME, giving written notice to the tenant by the November 1st of such year preceding the 6th, 11th, 16th, etc., crop years. That is, the first termination date, under these provisions, would be November 1, 1976, and thereafter at periodic five year intervals. The Landowner shall pay the Tenant $4.00 per acre for all farmland leased at the time of such cancellation to reimburse the Tenant for costs incurred and for the privilege of such cancellation.
Following the death of the Landowner, the privilege of his cancellation is terminated and this lease is to run to its stated expiration. This nontermination provision is hereby made binding on the heirs, executors, administrators, trustees or assigns of the Landowner and such individuals and/or legal entities are hereby ordered, instructed and requested to honor all terms of this lease unless amended or revised by mutual agreement between the same and the then Tenant.”

On October 19, 1973, the parties added another 85 acres to their lease. In addition, Paulus assigned his rights to himself and his wife, Viola. Another addendum was executed on January 6, 1976. It stated that defendants were to be designated farm managers and would receive a 70% share of the crop upon Karnes’ death.

On October 16, 1978, Karnes executed a notice of cancellation “effective as of November 1, 1981.” The notice stated, in part:

“You are hereby required to surrender possession of said premises to the undersigned on November 1,1981.
This Notice of Termination is given during my lifetime and said Lease shall terminate on November 1, 1981, regardless of whether I am then living.”

Respondents signed for receipt of the notice along with a $1,000 check covering the costs of cancellation on October 17, 1978.

Respondents did not surrender possession on November 1, 1981, and Karnes filed a declaratory judgment complaint seeking to have the lease declared terminated by the October 16, 1978, notice. On April 23, 1982, Karnes died. Steffen, executor of Karnes’ estate, was substituted as petitioner. Illinois Wesleyan University, a devisee of an interest in the land under Karnes’ will, also joined in the action as a petitioner. Petitioners moved for summary judgment, and on July 29, 1983, the trial court granted their motion declaring the notice of termination canceled the lease on February 28, 1982.

Although the lease term ran for 99 years, the cancellation clause in effect established a periodic tenancy for the parties. Respondents had a year-to-year lease, which renewed each year unless they had canceled before November 1 of the previous year, until the 99 years expired or Karnes canceled. Karnes, on the other hand, was bound to a series of five-year leases. After the expiration of each five-year period, the lease was renewed for another five years unless Karnes had given notice of termination by November 1 of the fifth year. Respondents concede the notice of October 16, 1978, was timely. Instead, they maintain the notice was improper because it specified the wrong termination date. They conclude the notice was insufficient to terminate the lease.

Respondents contend the proper termination date was February 28, 1982, and not November 1, 1981, as Karnes stated in his notice. The cancellation clause itself states the first termination date was November 1, 1976. Adding five years, the second termination date would have been November 1, 1981. Defendants assert these dates are inconsistent with the remainder of the cancellation clause. The clause allowed Karnes to cancel the lease only at the end of each five-year crop period. They maintain a crop year in Illinois customarily runs from March 1 to the last day of February. They also point out that the lease began on March 1, and presumably, this was the start of the first crop year. The end of a five-year crop period, therefore, must end on the last day in February. Under respondents’ interpretation, the cancellation clause is ambiguous. They argue the term “termination date” should be read as notification date because Karnes authored the lease, and any ambiguity should be construed against him. The trial court agreed with respondents.

We are not convinced an ambiguity exists. Merely because the lease began in March does not imply that a crop year must also begin in March. Although contrary to custom, the parties could have contracted to start the crop year in November. Under the contract, the annual settlement of costs and revenues was to be made in late November of each year. Assuming the parties did not intend to settle the year’s accounts until after the end of each crop year, it is reasonable to consider November 1 as the start of each crop year. Moreover, the cancellation clause plainly states that November 1 is the termination date, and in a contract with general and specific provisions relating to the same subject, the specific provision controls. (Ohio Casualty Insurance Co. v. Tyler (1980), 85 Ill. App. 3d 410, 413, 407 N.E.2d 77, 80.) However, we need not decide if an ambiguity exists because we hold that even if the proper termination date was February 28, 1982, Karnes’ notice was sufficient to terminate the lease on that date.

Respondents argue the notice is void merely because it required termination on November 1, 1981, rather than February 28, 1982. Under the traditional common law rule, a notice to quit must terminate a periodic tenancy on the last day of the tenancy, and a notice to quit any earlier will be ineffective. (Finkelstein v. Herson (1893) 55 N.J.L. 217, 26 A. 688.) A notice that demanded possession even three days early, therefore, was void at common law. (Gill v. Gill (1911), 161 Ill. App. 221.) The rule served no purpose other than the common law’s penchant for formalism and procedural precision. Harry’s Village, Inc. v. Egg Harbor Township (1982), 89 N.J. 576, 586, 446 A.2d 862, 867.

The traditional rule, however, has been abandoned. (See, e.g., Mercer County Agriculture Society v. Barnhardt (Pa. Super. 1983), 459 A.2d 811; S.D.G. v. Inventory Control Co. (1981), 178 N.J. Super. 411, 429 A.2d 394; Kester v. Disan Engineering Corp. (Okla. App. 1979), 591 P.2d 344.) It seems unduly technical to deprive a notice to terminate a periodic tenancy of any legally operative effect solely because the notice designates as the termination date a date on which the tenancy cannot be terminated. (Restatement (Second) of Property, Landlord & Tenant, Reporters Notes sec. 1.5, at 36 (1977).) The Restatement provides the proper rule to be followed:

“In the absence of controlling provisions in the lease *** if the date stated in the notice for termination is not the end of a period or is too short a time before the end of a period, the notice will be effective to terminate the lease at the earliest possible date after the date stated.” Restatement (Second) of Property, Landlord & Tenant sec. 1.5, Comment F, at 25 (1977).

The result of this rule is both fair and reasonable. The purpose underlying a notice of requirement is to provide the parties with sufficient time to adjust their affairs before the actual termination. (Harry’s Village, Inc. v. Egg Harbor Township (1982), 89 N.J. 576, 586, 446 A.2d 862, 867.) If the notice informs the tenant that the landlord wants him to quit the premises, then the question should not be the validity of the notice, but rather, how soon the tenant must leave. T.W.I.W., Inc. v. Rhudy (1981), 96 N.M. 354, 358, 630 P.2d 753, 757.

In this case, the lease did not require the notice to state the proper termination date. The lease only required notice before November 1, 1981, which respondents concede Karnes provided. In fact, respondents knew of Karnes’ desire to end the lease more than three years before they had to surrender possession. The notice was sufficient regardless of whether November 1, 1981, or February 28, 1982, was the proper termination date.

For the foregoing reasons, the order granting summary judgment in favor of petitioners is affirmed.

Affirmed.

GREEN and MILLER, JJ., concur.